The fine print on the photocopy ban
Aakar Patel, in his diatribe against the students and faculty members of Delhi University on the photocopy issue (“Pages Apart”, Op-Ed Page, Sept. 11), makes a number of erroneous assumptions. I address here some of the most important.
1. That students indulge in “copyright theft” by photocopying course material. Not true. Laws are not absolute, and there exist exceptions and limitations to virtually every law. The Indian Copyright Act has two explicit provisions that allow for educational exceptions. Copyright lawyer Lawrence Liang shows that “Sec. 52(1)(i) allows for ‘the reproduction of any work by a teacher or a pupil in the course of instruction’ or as a part of questions or answers to questions. Further, Sec. 52(1)(a) allows for a fair dealing with any work (except computer programs) for the purposes of private or personal use, including research.” Legally, students and teachers are on firm ground. In fact, by claiming huge damages, it is the publishers who are trying to subvert the educational exceptions that are available in law. This is typical of corporations — use shock and awe tactics to illegalise in public perception a perfectly legal practice. All for private profit.
2. That the photocopies being done are always and only from books. Amazingly, Mr. Patel does not mention journals even once. Journals, especially in the sciences and law, are often prohibitively expensive. Libraries are being forced to cut down on journal subscriptions. Libraries typically get single copies of journals that they do subscribe to. How is a class of even 50 expected to read from a single copy in the library? And what about books that are simply not available in the market, at whatever price?
3. That it is always entire books that are photocopied. Not true. In most cases, it is only a small part of a particular book that the student is asked to read. Take the M.A. Sociology syllabus from the Delhi School of Economics, where the shop under litigation is located. Students are recommended 544 readings. Of these, not counting journal articles, we have been able to ascertain the prices of 296 books. Mr. Patel cites the Indian prices of 13 books, which cost, cumulatively, Rs. 9,042 (on average, Rs. 695 per book). At that average, 296 books should cost Rs. 205,720.
But what do the books cost in fact? Taking the lowest prices (even when the book is not available at that price), the total comes to Rs 577,902. Even after taking out all books that cost over Rs 2,500, the student will have to spend Rs 277,956. Not exactly small change.
Note, too, that the prices of science and law books are significantly higher.
Some of the discussion of this issue (on the blogosphere etc.) has centred around whether there should be a legally permissible limit to how much of a book a student might photocopy. The Indian Copyright Act is clear on this. There is no upper limit prescribed. In other words, legally, in certain circumstances, a student can photocopy an entire book, if it is ‘in the course of instruction’.
4. That the publishers are responsible for ‘commissioning and publishing’ studies. Well, yes. But only after universities pay academics salaries and provide facilities to carry out research in the first place. And at least a part of the university budget comes from students’ fees (not to mention taxpayers’ money).
OUP and CUP, ironically, should know this better than anyone else. They would be nothing without the universities whose names they derive so much prestige from.
5. That students are selfish, violent, immature. Well, maybe some are. But then so are many corporations. And their Directors. And lawyers. And CEOs. And Heads of States.
6. That open access publishing is not a realistic option. Not true. In the sciences, there already exist a large number of open access, peer-reviewed journals of the highest standards.
And books? Readers might want to download a free pdf of a LeftWord title here. We have also published many of our titles under a Creative Commons license.
Alternatives to copyright and the rule of monopolies exist. Assuming, of course, that we see knowledge as a right of all humankind, not merely as a means for profit-making.
(Sudhanva Deshpande is Managing Editor, LeftWord Books, and an actor and director with Jana Natya Manch, Delhi. He can be reached at sudhanva@leftword.com.)
1. See http://kafila.org/2012/08/27/oxford- and-cambridge-university-publishers- v-students-of-india/
2. See, for example, http://ucblibraries.colorado.edu/dean/ peer_reviewed.htm.
Aakar Patel responds
To repeat what I had written:
— The demand that OUP and CUP subsidise Indians is flawed. They already subsidise Indians. Books here are among the cheapest in the world, often being a fraction of their cost elsewhere as I have shown.
— To refer to these publishers as criminals is indecent. They have done great service to Indian students.
— If open source material is acceptable, why not go ahead and adopt it? It resolves the issue for students unable or unwilling to pay for published material and also for the upset publishers.
I would like to respond to Mr. Patel's statement as to the cheap books provided by OUP and CUP. If you go through the imported original versions and compare it with the Indian cheap versions the first thing you will note is the quality of paper and print, in most of which you can read the letters on the other side of the page. Not that I am complaining about it, but sorry to say they are not subsidising anything. Even taking into account that Indian low cost editions are available it is not possible for a student to buy all books, it becomes necessary to photocopy the relevant pages, and to deny students such a thing is nothing less than a criminal act.
I am a student of the Delhi School of Economics where the shop under
the scanner is located and one of those directly effected. As Aakar
Patel himself has pointed out, these scholarly works definitely cannot
be replaced by other materials. However, most of us would certainly be
unable to spend such large amounts on reading materials whether or not
they are cheaper than those available in other countries. This would
mean higher education becoming even more inaccessible than it already
is. I shall not go into the legality of the issue, there are people
far more qualified to do so. But it certainly is important to look at
the larger humane aspect, as Sudhanva Deshpande puts it "knowledge as
a right of all humankind".
I may not agree with Aakar Patel's argument that books are available at low cost and students are paying for photocopies. It should be noted that wherever these texts are available at low prices, many of the students prefer originals rather than photostats. Some students may still prefer for copies but Patel should have considered that Indias PerCapita imcome is Rs.4444/month. And my own expierience is that students prefer for copies only when either the so called original text (OUP and CUP)is expensive and out of affordale limits or the books contain few important relevant topics and buying entire book is waste of money. Sudhanva Deshpande has rightly pointed out many points against Patel, But there are many more, like foreign books often are oil papers and printed in color where as indian prints are lowcost paperback editions. And I dont trust these publishers and Laws, as Laws promote Publishers to take full control of author rights and support monopolistic printing in the name of ©
This was based on the assumption that educational copying qualified as
a “fair use” under copyright law, which, legally speaking, is a use
that is exempt from permissions requirements that normally apply to
copyrighted materials. (For a full explanation of fair use principles,
see Chapter 9.)
However, in 1991, a federal court ruled that a publisher’s copyright
was infringed when a Kinko’s copy shop reprinted portions of a book in
an academic coursepack. (Basic Books Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D. N.Y. 1991).) The court said that reprinting
copyrighted materials in academic coursepacks was not a fair use and
that permission was required.
The owner of a copy shop in Ann Arbor, Michigan, began a personal
crusade to prove that the Kinko’s case was wrongly decided by
advertising that he would copy course materials for students and
professors. As a result, he was sued by several book publishers.
Dear Patel,
why dont you take per capita income of an average Indian family and
the cost of books one student has to read and then let us know if the
books are the cheapest in India. this is flawed argument
you are making!!
2) student indulge in 'copyright theft' is a decent word?? there are not more than 2% of the people go to higher studies in India and can not afford books by these 'benevolent' publishers thats why govt has exception for them.
It is clear from the reply put forth by Mr.Aakar Patel, that he has no
reply to the legal contentions raised by the author. As a law student I
can back what the author has written to be the legal position in India.
Merely side-stepping the issue and calling for emotions instead of
looking at the hard facts is inappropriate. The truth remains that
photo-copying for research(private) and in the course of instruction is
not an infringement of copyright under S.52(1)(a)(i) and S.52(1)(h)(i).
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