In 2002, in light of two progressive pronouncements by the Supreme Court of India ( Miss Mohini Jain vs State of Karnataka and Ors. and State of Himachal Pradesh vs H.P. State Recognised and Aided Schools Managing Committees and Ors. ), the right to education found a secure constitutional home in the fundamental rights chapter of the Indian Constitution. This fundamental right, set out in Article 21A, guarantees every child between the ages of 6 and 14 access to free and compulsory education. In a series of rulings ( Anuradha Bhasin vs Union of India , and Avinash Mehrotra vs Union of India ), the top court has interpreted the right in a broad and expansive way, holding that it imposes an affirmative obligation on the government and civil society to secure its enjoyment.
Consistent with this spirit, the Court held in Farzana Batool vs Union of India that, while access to professional education is not a fundamental right, the state must take affirmative measures to secure the right to education at all levels.
Against this backdrop, the cavalier dismissal of the right to education under the garb of “ensuring balance between copyright protection of the publishers and public access to affordable educational study material” by the Parliamentary Standing Committee on Commerce in a recent report (https://bit.ly/3maSZhq), is deeply worrying. The Committee suggests curtailing fair dealing provisions under Indian Copyright law — which enable access to the work without the copyright holder’s consent — since it was informed that the provisions pose “a detrimental impact on the publishing industry and authors who are mainly dependent on royalties”. To highlight this as a concern instead of the abject state failure to remedy impediments to accessing educational material, exacerbated by the novel coronavirus pandemic, betrays complete ignorance of the state’s obligation to secure the right to education.
The issue of ‘purpose’
The Committee takes note of the Delhi High Court’s landmark judgment in the DU photocopy case. In that case ( The Chancellor, Masters & Scholars of the University of Oxford & Ors vs Rameshwari Photocopy Services & Anr.), the court (both the Single Judge and the Division Bench) adopted a robust understanding of the educational exception enumerated in the list of fair dealing provisions in the Copyright Act. Section 52(1)(i) allows the reproduction of any work by a teacher or a pupil in the course of instruction. The court held that ‘course of instruction’ therein is not confined to the time and place of instruction, and would include anything that could be justified for the purpose of instruction. This includes steps commencing at a time prior to lecturing and continuing till after it. It also noted that apart from Section 52(1)(a), which provides for the right to a “fair dealing” of any copyrightable work, other rights/purposes enumerated under Section 52 would not have to meet the express requirement of fair dealing.
Thus, Section 52(1)(i) was recognised as enumerating an affirmative purpose exempt from infringement. The fairness of use under these Sections can be deemed to be presumed by the legislature as long as it is justified by the purpose specified. Consistent with this, the court also noted that there are no quantitative restrictions on the extent of the reproduction permitted as long as it is justified by a specific purpose under Section 52.
In its report, the Standing Committee notes that it is distressed that the conflict between educational institutions and copyright owners does not bode well for the “overall literary culture and image of the country”. In a bid to make the system fair and equitable, it calls on the government to amend Section 52 to allow for such copying only in government-owned institutions. It further states that there should be a quantitative limit on how much copying is permissible and regulation of the storage of copied works in digital formats.
A flawed view
The Committee’s views are flawed for multiple reasons. First, they betray a profound misunderstanding of the raison d’etre for granting copyright in educational content. As the single judge eloquently noted in the DU photocopy case, the purpose of copyright is to increase the: “harvest of knowledge, motivate the creative activity of authors and inventors in order to benefit the public”. Therefore, the rights of publishers are only a means to an end.
Relatedly, the Committee misunderstands the role of fair dealing provisions within this framework. Fair dealing provisions are user rights which are no less important than the rights of publishers. Given the fundamental character of the right to education, the importance of these rights can be traced to the Constitution. Therefore, their interpretation should reflect their salutary nature.
Second, the Committee errs in assuming that the rights of publishers were not duly accounted for in the DU photocopy judgments. Addressing arguments regarding any adverse impact of adopting a broad interpretation of the educational purpose exemption on the market of the concerned copyrighted works, the Division Bench noted with an example that access to copyrighted material for literacy and education does not curtail the market for these works. It held that students are anyway not potential customers of 30-40 reference books in the library, and that citizens with improved literacy, education and earning potential expand the market for copyrighted materials in the long run.
Third, having quantitative restrictions on the extent of permissible copying would be inapposite, because any limit would be arbitrarily arrived at. Instead, what is needed is a test suited to Indian realities and its development needs of making access to education more equitable and fairer in a context of deepening socio-economic inequalities.
The novel coronavirus pandemic has revealed the inadequacy of our fair dealing provisions to promote educational access. Specifically, these provisions were not designed to promote the free dissemination of educational content in digital form and to facilitate the sharing of resources required to effectively offer virtual education.
The Committee should have focused on suggesting amendments to Section 52 that would have made our copyright law fit for today’s challenges. That it has decided to look backward instead of forward is deeply troubling. Given the Supreme Court’s richly articulated constitutional obligation of the state to secure access to education, copyright law should facilitate, as opposed to attenuating its enjoyment.
Rahul Bajaj, a Rhodes Scholar, is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. Anupriya Dhonchak, also a Rhodes Scholar, is a law graduate from the National Law University Delhi