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Ranjan Narula Associates


Purpose over Quantitative or Qualitative Copying is the new fair use exception
Background:

The Delhi High Court had earlier dismissed a suit filed by publishers by its judgment dated September 16th, 2016. The publishers had filed the said suit in 2012 seeking an injunction against the Delhi University and Rameshwari Photocopy service from infringing their copyright. The learned judge held that that acts of the defendants fell within the ambit of Section 52(1)(i) of the Copyright Act, 1957. This section is in the form of exception to copyright infringement or fair use provisions that permits the reproduction of copyright protected work by a teacher or student in the course of instruction. Aggrieved by this order of the learned Single Judge, the publishers further filed an appeal before the two judges bench (Division bench) on 5th October 2016 which refused to grant an interim injunction in favour of the publishers.

The Division Bench rendered their judgment based on their interpretation of Section 52(1)(i) of the Copyright Act as permitting the photocopying of copyrighted works and such reproduction would not amount to infringement as long as it was done for the purpose of education.

Analysis of the Judgment rendered:

In order to determine that whether course packs fell within the purview of section 52(1)(i) of the Act, the court interpreted the terms, 'fair use', 'in the course of instruction', 'reproduction and 'publication'.
  • Fair use and Sec 52(1)(i)
Whilst interpreting Section 52(1)(i), the court held that unless a statute expressly excludes fair use, fair use must be read into every statute. With respect to section 52(1)(i), the legislature had not expressly excluded fair use and thus, the general principle of fair use must be read into the clause.

Furthermore, the court held that in order to understand what constitutes fair use it can be determined only by the purpose of the use and not by its quantitative and qualitative extent. Thus, it does not matter whether only a certain amount of the copyrighted material was reproduced or the entire copyrighted material was reproduced, or its significant part.
  • In the course of instruction
The Division Bench was in consensus with the view of the High Court of New Zealand (in the matter of Longman Group Ltd. v. Carrington Technical Institute Board of Governors) that 'in its ordinary meaning, the course of instruction would include anything in the process of instruction with the process commencing at a time early than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction". Thus, the words 'course of instruction' were not limited to merely classroom, but throughout the duration of course which would include preparation and distribution of the material to be used in course of instruction.
  • The meaning of 'publication' and 'reproduction'
The court further clarified the difference between 'reproduction' and 'publication'. A publication would have the element of profit, which would be missing in the case of reproduction of a work by a teacher to be used in the course of instruction while imparting education to the pupils. The division bench differed from the reasoning of the learned Single Judge who held that the distribution of course material to the students did not amount to publication. The division bench opined that "publication need not be for the benefit of or available to or meant for reading by all the members of the community" and that "a targeted audience would also be considered as public".

Remanded suit to the single bench for determining a couple of points:

Though the injunction has been granted against the publishers, however, Division Bench has remanded the suit to the single bench;
  1. For a fact specific determination on whether the copyrighted materials included in the course packs in this case were necessary for the purpose of instructional use by the teacher to the class; and

  2. That whether the photocopying of an entire book was a permissible activity.
The, first issue, in our view, becomes redundant for two reasons i.e., what is relevant material to one teacher may not be relevant to another and the issue itself is 'to decide whether such copyrightable material can be used as an exception' - meaning there would be no such issue if such a content would be already in public domain.

The second issue again being already touched upon above that 'purpose' supersedes 'quantitative' or 'qualitative' copying. Thus, quantitative copying i.e., the entire book takes a back seat as an exception for such a purpose.

Our comment:

The judgment has taken 'purpose' as the decisive parameter over the qualitative or quantitative extent. As mentioned earlier, this will be definitely open up doors to education for weaker section of the society, but at the same time, in the absence of strong reprographic licensing provisions, the growth of new educational material may be stifled.
 
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