Ranjan Narula Associates
                                                  October, 2016

Delhi High Court permits photocopying with impunity
The much awaited judgement in what had became a tug of war between the students and publishers over making copies of extracts of text books was pronounced on Friday, the 16th of September, 2016. The judgment has been widely welcomed by the students and academicians as a victory of students' interest. In the copyright domain, it is for the first time that an Indian court, while ruling on copyright infringement action, has taken into account public interest and access to a work at a reasonable cost by making use of fair use provisions.

Facts and Background

In November 2012, the court had restrained Rameshwari Photocopy Service (hereinafter RPS) located near the Delhi School of Economics in north campus on a petition moved by the publishers including Oxford University Press, Cambridge University Press and Taylor & Francis (hereinafter the publisher). The publishers had alleged that the kiosk was violating their copyright and "at the instance of Delhi University" was causing huge financial losses as students had stopped buying their text books. The publishers produced at least four course packs being so sold containing photocopies of portions of their publication varying from 6 to 65 pages. The publishers alleged that the said course packs sold by RPS are based on syllabi issued by the Delhi University for its students. The publishers further alleged that the libraries of the University are issuing books stocked in the said libraries to the RPS for photocopying to prepare the said course packs.

Thus, the issues before the court were:
  1. whether the making of course packs by RPS under authorisation of Delhi University amounted to infringement of copyright of the Publisher; and.

  2. whether the above activity of making course packs falls under one of the exceptions to infringement under Section 52 of the Copyright Act.
Copyright Infringement

In its ruling on copyright infringement, in the first issue, the court considered both the situations
  1. University making photocopies of the work.

  2. University library issuing the books of which photocopies are made.
The Court was of the view that copyright is a statutory right and as per the provisions of the Copyright Act, photocopying original literary work is an exclusive right granted to a copyright owner. Thus, making of photocopies by the University would constitute infringement under Section 51 unless such an act is listed as an exception to infringement under Section 52 of the Copyright Act.

On University library issuing books, the court was of the view that such activity is permissible as it would be a direct application of the principle of exhaustion which is the genesis of libraries and educational institutions. At the same time, the Court stated that the phrase "to issue copies of the work to the public" under Section 14 (a) (ii) cannot be interpreted as "making copies of the work". Therefore, the Court concluded that while the University library can issue the books stocked in its library however as "per Section 14(a)(i) and Section 51(a)(i) would not be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein."

Fair Use

On the second issue whether the acts of University fall within the exception to infringement, the Court came to the conclusion that making of course packs falls under exception laid out in Section 52(1)(i) of the Act. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act."

The court concluded that "Copyright, especially 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."

Our comment

The judgment appears to generalise that all students studying at the Delhi University cannot afford the books and thus access to education would be impeded by not permitting the photocopying of extract of books. It would appear that reprographic licensing provisions could have been used here to strike the balance and thereby, protecting the rights of publishers and authors at the same time.
All rights reserved ©RNA,IP Attorneys