A blow for the right to knowledge
In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. This case, which was being closely tracked by students, teachers and the publishing industry alike, was seen as one with immense significance for questions of access to knowledge. While initially involving only the publishers, the photocopier and the university, the case also saw intervention petitions being filed by a student group (Association of Students for Equitable Access to Knowledge) as well as by teachers and academics (Society for Promoting Educational Access and Knowledge). While the publishers made the argument that the creation of course packs and the photocopying of academic material for the same amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Copyright Act.
In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. This case, which was being closely tracked by students, teachers and the publishing industry alike, was seen as one with immense significance for questions of access to knowledge. While initially involving only the publishers, the photocopier and the university, the case also saw intervention petitions being filed by a student group (Association of Students for Equitable Access to Knowledge) as well as by teachers and academics (Society for Promoting Educational Access and Knowledge). While the publishers made the argument that the creation of course packs and the photocopying of academic material for the same amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Copyright Act.
Not a moral right
In his considered and sharply reasoned judgment, Justice Rajiv Sahai Endlaw examines the gamut of arguments made by both sides and arrives at the conclusion that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law. The nature of Section 52 of the Copyright Act is such that any act falling within its scope will not constitute infringement. Section 52(1)(i) allows for the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an examination; or iii) in answers to such questions.
In his considered and sharply reasoned judgment, Justice Rajiv Sahai Endlaw examines the gamut of arguments made by both sides and arrives at the conclusion that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law. The nature of Section 52 of the Copyright Act is such that any act falling within its scope will not constitute infringement. Section 52(1)(i) allows for the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an examination; or iii) in answers to such questions.
The crux of the dispute was about whether course packs fall within this exception. The petitioners tried to provide a narrow reading of the section, claiming that at best what the section allows for is the provision of materials in the course of a lecture and spatially restricted to a classroom. The court, while rejecting this claim, argues that “instruction” cannot be narrowly understood and, through a historically informed reading of the phrase “in the course of”, concludes that instruction includes the entire ambit of pedagogy from the creation of syllabus to teaching and provision of reading materials.
It then locates the question of education within a changing technological environment, and argues that “when an action, if onerously done, is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified” (paragraph 75). To make this point, Justice Endlaw contrasts his own experiences as a law student where photocopying was very limited and studying entailed students copying by hand, scribe like, pages after pages of books. Photocopiers have just made the task simpler and faster, but if the act of copying for a particular purpose is itself not illegal, and “the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence”.
For progress
In a clear statement of the philosophical basis of copyright law, Justice Endlaw rejects the populist and unidimensional assumption that copyright is about the protection of the property rights of owners. He notes instead: “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”
In a clear statement of the philosophical basis of copyright law, Justice Endlaw rejects the populist and unidimensional assumption that copyright is about the protection of the property rights of owners. He notes instead: “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”
If copyright was always about maintaining a balance between competing ideas of private and public interest, the Delhi High Court has restored to copyright jurisprudence a clear mandate for the future, one which is cognisant that the end goal of technology is the improvement of our lives (material and intellectual) and “no law can be interpreted so as to result in any regression of the evolvement of the human being for the better” (paragraph 87).