Copyright and copy-making

The Delhi High Court > verdict that photocopying portions of academic publications to make course packs for students does not amount to copyright infringement has been interpreted by many as a victory for the wider public interest of ensuring affordable access to quality educational material. The only question of law that arose in the suit filed by Oxford University Press, Cambridge University Press and Taylor & Francis was whether the making of course packs by the Delhi University by authorising a photocopying store to make numerous copies of course material drawn from different books amounts to copyright infringement. The court says copyright is not a natural or common law right in India, but is subject to statute. It proceeds to hold that photocopying for academic purposes is not an infringement as Section 52(1)(i) of the Copyright Act permits the making of copies of literary works by a teacher or pupil ‘in the course of instruction’, a phrase interpreted to cover whole academic sessions, from the preparation of syllabus onwards.

Given that the > law contains provisions barring infringement of copyright and listing acts that do not constitute infringement, there is no doubt that the legislature wanted to balance copyright protection with the public interest in ensuring access. Interestingly, the judge sees the ‘no infringement’ clauses as being consistent with articles in the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, which provide for domestic legislation to permit reproductions for specific purposes, as long as they do not conflict with normal exploitation of the works or unreasonably prejudice the rights-holder. The publishers have argued, in vain, that universities should not allow unrestricted photocopying, but instead apply for licences through the Indian Reprographic Rights Organisation, a registered copyright society. The publishers may pursue this aspect in their appeal, if there is one. The verdict may justly raise the concern whether conferring unrestricted reprographic rights on academic institutions will drive reputed publishers out of the field of education. It is true that academic publications, especially international ones, are expensive, putting them beyond the reach of many students. But the question is whether the balance between the competing interests has been fully preserved in the law. If reputed publishers feel that there is insufficient copyright protection and back out of educational publishing in the country, it will be equally injurious to the public interest.

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