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Updated: April 26, 2013 04:28 IST

Why students need the right to copy

Shamnad Basheer
Comment (35)   ·   print   ·   T  T  

The lawsuit by publishers seeking to stop Delhi University from distributing photocopied course packs goes against the spirit of education for all

BREAKING FREE: The case also shows why it is necessary for academics to explore alternative open access models. A meeting in October 2012 at Delhi University to examine the implications of the case.
The Hindu BREAKING FREE: The case also shows why it is necessary for academics to explore alternative open access models. A meeting in October 2012 at Delhi University to examine the implications of the case.

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.

‘Fair use’

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.”

Public interest

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.)

More In: Comment | Opinion

@All who thought this related to copying in exams. It is your mindset
that matters.

from:  Arjun
Posted on: Apr 28, 2013 at 21:21 IST

Copyright has been abused by companies world wide stifling innovation. With all due respect,
there is a limit for anything. When it comes to educating our kids in building the future, these
companies should find alternatives to make it affordable and easily accessible without burdening
the very society they depend on. Core educational materials should be free and be provided by
the universities over the web. There are a number of ways to make money, and hope these
companies put their thoughts, minds and efforts into that.

from:  Senthil Natarajan
Posted on: Apr 28, 2013 at 01:05 IST

I am sad to note that The Hindu is going the way other english dailies have gone in our country i.e. by putting sensationalizing heading of the article. The heading of this article at first instances leads one to think that it would talk about copying in examinations or something very similar. Similarly it must be noted that in case of Novartis the SC of India did not ruled against it in order to make the medicine affordable to the poor but because of the fact there was lack of substance on which which is required in case of patents rights. I hope the learned team of The Hindu will take a note and continue to maintain their high standards in terms of quality of opinion, information and news.

from:  Siddharth
Posted on: Apr 27, 2013 at 21:34 IST

IITs have come together and uploaded many courses online for free. Law and science stream also do the same.

from:  rega
Posted on: Apr 27, 2013 at 21:06 IST

I my opinion reproducing 30% of the copyrighted book should be allowed
for course packs because syllabus now a days has become so diverse that
one needs to buy two or three textbooks, which cant be afforded by every
student.

from:  Younus
Posted on: Apr 27, 2013 at 20:45 IST

I partially agree with the comments made by Mr.Rahul Garg.
Intellectual rights must be protected, but then most of these
publishing houses charge enormous rates with sole aim of making
profits. Such books with no Indian edition will be beyond the reach of
most of the students. Learning and education must not be restricted to
privileged few. There must be some regulation in the prices of the
books.
@Rahul Garg, you told you are a Asst. Professor. This means that you
must reasonably well off. I agree with your concerns about
intellectual property, as a prof. don't you have any responsibility to
society? I believe at least some of your research has been
helped/funded/subsidized by GoI which includes taxpayer's money. Don't
you feel that knowledge will not progress without sharing? There are
many Professors in Western Univ. who upload a soft copy of their book
/lecture notes on their websites to make it accessible across the
world. You should not be so narrow minded!

from:  Arjun
Posted on: Apr 27, 2013 at 20:09 IST

This is the same case that the pharmaceutical industry makes. And, as a person who has worked in a university bookstore in Canada and seen the blatant ripoff textbook selling is, I can sympathize with the publishers. Who can be expected give up such a source of profit, where you can change a few chapter titles each year and ensure that the captive - no, slave market - continues to purchase the newest version each year? Include a key for online resources, ensure that the teachers switch books every year (no comments here), you have a growing market for new books and can cut out the nefarious student trade in second-hand books. I would have loved it if the publishers had come out with a more subtle line - that they had no objection to students copying for their own use, but would like all institutional photocopying to cease. Which student would have the time and the availability of the originals to get study material? Such a pious attitude, and effective at the same time.

from:  Jayadevan
Posted on: Apr 27, 2013 at 19:51 IST

There can be a three pronged approach to solve this problem (a) a legally enforceable contract executed by the students to pay (to a Publishers Combine) 10% of their first three years’ earnings in the future – which of course can be variable, to cover the cost of books (b) a National Student Book Loan Project sponsored by major banks, allowing student to take loans at competitive interest rates with no collateral, similar to housing loans (c) a targeted fund-raising drive to get the billionaires and multi-millionaires / Corporate Sponsors of India to start a Charitable Assistance Initiative to Buy Books project that would help all students to purchase books for their personal study at a subsidized price, while paying book sellers fair, whole-sale prices. This three pronged action would put the responsibility for books on the student-consumer, ensure fair compensation for authors, sellers and publishers, and involve no dishonest, shameful copying.

from:  Mukundagiri Sadagopan
Posted on: Apr 27, 2013 at 18:41 IST

I agree with the comment saying the title is very misleading. It
certainly does not behove of a paper like The Hindu to resort to such
strategies. Having said that, there is merit in the article. Yes, text
books across all specialties(including medical textbooks) are beyond
the reach of most students. But the debate cannot be simplistic
because authors and publishers also have a case here. Universities and
Publishing houses must sit together and arrive at a consensus. One
solution is for the university/college to sponsor access to some of
the work and for publishing houses to allow universities access at
lower costs. A middle path is the way forward.

from:  Dr.Bharath Kumar TV
Posted on: Apr 27, 2013 at 18:29 IST

Off late, I have noticed an increase in misleading article titles in The Hindu e.g. when you read the title "Why students need the right to copy", the first thought is about copying in exams/ assignments. This shocks you and raises the interest level and likelihood that the reader would read the detailed article. However, this also is mostly a stratagem used by tabloid journals and doesn't really go well with Hindu's image.

from:  Anirudh
Posted on: Apr 27, 2013 at 12:58 IST

we talk about development but this issue has once again pointed towards
our collective failure, even after 65 years of independence we have not
been able to nurture enough academic authors of global standard,who can
write books,that are affordable & meet the syllabus requirement.

from:  HIMANSHU SINGH
Posted on: Apr 27, 2013 at 10:00 IST

The cost of downloading articles, especially from foreign journals, is very high. Without institutional support, individual scholars cannot afford to do that. So much is being published these days that it is difficult to become acquainted with what has already been said and say something new, without a lot of money. At this rate, we will be left further behind.

from:  Jaspal Singh
Posted on: Apr 27, 2013 at 09:23 IST

This is beyond funny. I am an asst-professor collecting my ideas for
the past 18 years. I go to a western publishing house to publish my
book because they compensate well. Then I have my fellow Indians who
photocopy my book for Rs.500 because they cannot afford to pay Rs.2500
to buy my book. I have a family to support and my 20 years of hard
work goes down the drain because somehow it is all right to steal my
work. Why don't you write your own book and distribute it for free
when you are a head honcho at HSBC or another big company. You won't
because you know how to take and not give.

from:  Rahul Garg
Posted on: Apr 27, 2013 at 09:21 IST

Students resort to photocopying on account of two reasons: (a) cost factor of foreign
books(b)only a limited part of the book is often needed,making an investment on a complete
book redundant and wasteful.The present lawsuit is an obvious consequence of a conflict of
various interests: loss of real revenue to the authors and publishers,rights of the academic
community(students,teachers and researchers)to published material and the copyright laws
which are both strict in a general context but generous to academics in differing degrees.For
e,g.,under US law,every quote,be it a line or a long passage,needs to be acknowledged in
full while the EU requires prior permission.The vital question that is missing in the Article is if
the copying shop of the DU is making a recognizable profit in rendering this service,thus
making it a commercial offshoot of the DU,or charging the beneficiaries barely the cost of its
operation.As also,the quantum of photocopying as a percentage of the books(s).

from:  Narayanaswamy Venkataraman
Posted on: Apr 27, 2013 at 05:20 IST

The court decision is welcome. I remember my own college days when studying from photocopied materials as well as the books from library were at the rescue. Buying all the books,from where one would study was out of question. Though we appreciate the court's verdict, we should also think about solving the problem the publishing houses face. They also SHOULD make money so that we keep getting those pools of knowledge published. A midway should be thought of so that the needy get the knowledge at low/no cost on the same hand, publishing shouldn't become a loss making business.

from:  Rohang Adhikari
Posted on: Apr 27, 2013 at 01:31 IST

Unfair to copy,what about the author's and the publishers existence,who is going to foot it ?

from:  John zacharias
Posted on: Apr 27, 2013 at 01:04 IST

There's at least one sphere where India leads China and that's the
ability to Indians to rationalize even illegal activities when it's
convenient for the "masses".
So copyright infringement becomes ok,downloading pirated music/movies
too is ok especially considering how "altruistic" our society is!
As one reader rightly commented it's so easy for people to become
free-loaders when the situation is right.
Middle class India is the most vocal while criticizing corruption and
what happens when highly educated young people from the best of
universities enter the bureaucracy?
The level of hypocrisy is devastating and that is THE reason why
India's a corrupt and corrupting society.

from:  Kunal
Posted on: Apr 26, 2013 at 23:30 IST

The solution to this is to have a text book library and encourage students to learn to use this library. IITs have been using this model for a long time, since technical reference books are also very expensive.

from:  Abheek Saha
Posted on: Apr 26, 2013 at 22:36 IST

A good analysis to read, from "developing Nations" point of view. Publishing is a "Business" activity and naturally "making profit".
Cost of books depends on many factors like quality & size of paper used, single or multi color, has photos or not, transportation costs, and quantity of prints etc plus other [hidden ?] policies.So it would be interesting iF publishers give a sample of cost analysis say for book of 200 pages and say 5000 copies. As students and parents must also realize that now a days education is a costly affair and one must include buying of books cost part of that total cost.Every student must be encourage to start/have a personal library of his choice which will be with him/her life long. So instead of just photocopying take a "holistic view" of what all constitute as part of education! How,where you put your money is your choice and life is full of averaging/compromises, but BOOKS are BEST FRIENDS.

from:  Dr B S Sudhindra
Posted on: Apr 26, 2013 at 21:30 IST

The terrible situation re text books has arisen out of the mis-
conception in the Western world that the University degree is a
passport to a cushy job. Thus University fees have become
exhorbitant and the cost of text books has sky-rocketed. Clearly
they have shot themselves in the foot; but the effect will not be
felt immediately. History is a slow process.

Yes, publishers of text books do run a business and they need to
make a decent profit. When I was a student we used to get Asian
editions by Mc Graw Hill and Koga Kusha and English Language Book
Society which provided copies of text books at affordable prices.
Sure, the quality of the print was not the same as that of the
international editions; but as a student you are not buying a book
to be stored as a show piece in your living room.

The big publishers have a financial interst in keeping their
business going in India. The Government can force their hands to
publish a certain percentage of their books at subsidised prices.

from:  DR.R.VENKATARAMAN
Posted on: Apr 26, 2013 at 21:03 IST

If everyone were to copy textbooks, newspapers, magazines, and journals, why should publishers exist? The authors, writers and artists can directly email their work in pdf (DVD?) form to universities and libraries around the world and everyone will be happy. Or will they? There is no limit to human greed – I mean the greed of lazy people who want to abrogate other people’s hard work or products for themselves without payment. The cleverness of these avaricious takers is they want everyone (but themselves) to sacrifice their wages and profits. Such people live as much as possible on the charity and goodwill of those who produce something worthwhile, at the same time demanding it as if it was their right.

from:  Mukundgiri Sadagopan
Posted on: Apr 26, 2013 at 20:57 IST

I see similarities to the Open access fight which has begun, where
prominent scientists and mathematicians started to Boycott the
publishers who charge access for the the scientific journals and hide
everything behind and paywall(subscription model). People like Aaron
Swatrz, Timothy Gowers have been instrumental in spreading awareness
about Open access. Probably people in India should start debating about
"Open access".

from:  sheetal
Posted on: Apr 26, 2013 at 20:25 IST

Where are our JNU intellectuals? They should write plenty of textbooks
for our own consumption.

from:  kvjayan
Posted on: Apr 26, 2013 at 19:23 IST

"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."

-This guarantee is provided by the constitution and hence the TAX payers. We cant expect publishers to bear this burden. Universities can procure these books in their libraries & encourage students to access knowledge from there instead of handing them down photocopied materials.

"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"
-This as stated is only for private use. It does not mean institutions can make photocopies in wholesale.

I find the following point made by author as valid.
"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"

from:  Mukesh K
Posted on: Apr 26, 2013 at 17:54 IST

Most of the books written by foreign authors are extremely costly
(somewhere between 3000 Rs to 8000 Rs). Most of the students can not
afford that. There are some Indian edition prints in the market but
still the syllabus for higher degree is so diverse that one has to refer
many reference books; which again brings the high cost issue. There can
be some innovative solutions to address this problem. Opencourseware can
be a very good alternative solution. MIT OCW is a good example which we
can follow. Knowledge should be readily available!!!

from:  Ashutosh Pandey
Posted on: Apr 26, 2013 at 16:56 IST

Good article. Explains the details of the case. I thought all this while the case was about photocopying the entire book.

from:  Yogesh
Posted on: Apr 26, 2013 at 16:16 IST

Where knowledge has been treated as material - this is bound to happen. Where education becomes business - we only produce materialistic society. We are already in-process of same. Do not know where it will end and who will decide the difference between moral and legal.

from:  Hari
Posted on: Apr 26, 2013 at 15:37 IST

The problem is not restricted to textbooks although it is most obvious there.
Consider technical journals where authors and editors work on an honorary basis
to produce the content even delivering the necessary formatting (TeX usually)
which is then converted to the final product by publishers that sell the same
journal subscriptions to university libraries for ruinously high rates.
I think it is high time that university professors and technical organizations started publishing all their work and books online for free. As it it, most of them do not really make much money from the books excepting a few star authors. However,
this is easier said than done considering how most professors see these books as
prestige objects. Consider the incredibly large number of mediocre and sometimes
factually inconsistent and incorrect books on any given subject matter.
Institutions such as MIT OCW and the Salman Khan academy are showing us the
way.

from:  Vivek
Posted on: Apr 26, 2013 at 14:34 IST

The entire argument boils down to "We, a nation of more than 1 billion people, are incapable of writing our own textbooks for our students, and so we need a right to copy what the West has produced". So what else is new about India? Isn't that true in ALL spheres of Indian life?

from:  K. Raghunathan
Posted on: Apr 26, 2013 at 14:27 IST

This case has many parallels with the Novartis case. There also attempts were made to price basic needs beyond the reach of the common man. The author has made a good counter-point that such course packs, instead of hampering the business of large publications, give the reader a chance to read the publications which might act as a catalyst in improving their sale.
The author has also given an important suggestion here. An impetus must be provided to bring out Indian editions of frequently used books. Until the domestic industry grows, we will always have to rely upon greedy foreign publications.

from:  Mukut Ray
Posted on: Apr 26, 2013 at 12:55 IST

During my college days too, a foreign author book costs 1000 and goes
upto 8000. My monthly expenses was not more than 500 rupees. There is
no way that students can avoid photocopying unless these are made
Indian version or an investment is made by government for student's
books.

from:  Naresh Kumar
Posted on: Apr 26, 2013 at 11:55 IST

I don't understand why Delhi University and others can't produce their own books and other materials. If they are indeed incapable of doing so, they must be booked for fraud.

from:  Nithya
Posted on: Apr 26, 2013 at 08:45 IST

If universities copy the books so blatantly then what is the incentive
for writing and publishing the book? we had enough socialism in this
country, copyrighted material is copyrighted material.

Govt should focus on bringing the price down by cutting the taxes on
books and encourage publishing industry not copier machines.

from:  sreenivasa reddy b
Posted on: Apr 26, 2013 at 06:27 IST

Enlightening article on IP Law. I always copied western copyrighted books that are part of the course material with a guilty conscious that I was breaking the law. Didn't realize I was within my rights as long as I'm keeping it under 10%(for US law), 30%(for Indian law).
I agree in principle that knowledge should be available freely for basic understanding. People's perspective about free access changes when they become producers of knowledge/IP from primarily being a consumers of it. If original ideas/innovations are not encouraged by fair compensation, then the society becomes stagnant as evident in most socialistic minded countries where people feel entitled to everything other people worked for.
I believe there should be a balance between free access and fair compensation. If you become fixated on 'free', then you allow companies like Google to flourish by masquerading as champion of free access but benefits immensely by prostituting user's private data for commercial interest

from:  Mohan
Posted on: Apr 26, 2013 at 05:12 IST

Thanks to the author for enlightening the readers of The Hindu with this
issue. Valid points raised. Good article. Hope this will be read by
judges who are to deliver their decision in this law suit.

from:  Kiran
Posted on: Apr 26, 2013 at 02:35 IST
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