Shamnad
Basheer
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.
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.)
