The lawsuit by publishers seeking to stop Delhi University from distributing photocopied course packs goes against the spirit of education for all
Late last year, leading publishing houses including Oxford University Press and Cambridge University Press brought a copyright action against Delhi University and a tiny photocopy shop licensed by it, seeking to restrain them from supplying educational course packs to students. This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers. Tellingly, 33 of the authors of various books mentioned specifically in the lawsuit (as having been copied in the course packs) signed this protest letter making it clear that they were dissociating themselves from this unfortunate lawsuit.
For those not familiar with the term, course packs are compilations of limited excerpts from copyrighted books, put together painstakingly by faculty members in accordance with a carefully designed syllabus and teaching plan.
What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book. Under U.S. law, reproducing up to 10 per cent of the copyrighted books is “fair use” of a copyrighted work, and therefore legal. Given that India is a developing country, with poorer students and more severe educational access constraints, it stands to reason that Indian courts ought to peg this number at 30 per cent or even higher.
Further, the Indian education exception is far wider than its U.S. counterpart. Section 52(1) (a) embodies the “fair use” exception and permits any fair dealing of a copyrighted work for the purpose of research and private study. In addition, unlike the U.S., Section 52(1)(i) embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.
In fact, copyright scholars have begun labelling these exceptions as “rights” accruing in favour of beneficiaries such as students. In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada endorsed this sentiment noting that:
“…The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
Recently, an association of students and academics applied to be impleaded as parties to the lawsuit, so that they could help the court arrive at a robust interpretation of the copyright exceptions. While allowing these impleadments, the judge noted the critical importance of “public interest” in deciding intellectual property cases. These developments come close on the heels of the famed Novartis decision where the Supreme Court foregrounded the interests of the public in accessing affordable medication.
Danger of this licence
Meanwhile, publishers have offered the tantalising option of acquiring a licence from the Indian Reprographic Rights Organisation (IRRO), an organisation set up by publishers to collect royalties on their behalf. This is a dangerous route to tread for three reasons.
First, taking a licence for course packs amounts to paying for a right that does not exist. It bears reiteration that photocopying for the purpose of educational instruction is a legal exception under copyright law and one is not required to seek the permission of the copyright owner and/or pay any licence fees.
Second, the IRRO and publishers are likely to offer a paltry licensing fee at the start. Once their foot is in the door, there is no stopping them from rapidly escalating licensing fees year after year. Canadian universities bore the brunt of this copyright greed around a year or so ago and refused to renew their licenses.
Third, the IRRO does not hold the rights to all published works. If Universities are to track down and enter into licensing deals with every copyright owner, this would lead to excessive delays in the preparation of course packs.
Academic institutions should therefore refrain from entering into any deal with the IRRO or publishers till such time as the case is disposed of. In fact, given the rather wide language of Section 52(1)(i), institutions are well within their right to presume that the creation of course packs and related educational material is legal, until a court holds otherwise.
No Indian editions
Notwithstanding the egregiousness of this lawsuit, a key advantage is that it forces us to re-examine the current publishing and pricing model that places profit above the interest of students. Academics need to come together and explore alternative open access models in order to break through this private profit monopoly thicket that has come to plague academic publishing.
That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West.
Therefore, the claim by publishers that course packs would destroy their market for books and put them out of business is highly questionable. Given that this is the first copyright law suit to be brought against course packs, one can only assume that the healthy growth figures boasted by the academic publishing industry means that course packs have not done them much damage. If at all anything, the inclusion of extracts of copyrighted works in the course packs is likely to encourage readers to buy the books when they can afford them.
In the end, this lawsuit must be seen for what it is: a highly pernicious attempt to fill the coffers of publishers at the expense of students! It must be resisted with all the moral and legal force we have.
(Shamnad Basheer teaches IP Law at NUJS, Kolkata. He wishes to thank Amita Baviskar for her inputs in this piece.)