The IPKat is delighted to receive this guest post from long time Katfriend Prashant Reddy T. (details at the end of the post) about a remarkable recent decision from USA.
The recent judgment of the Delhi High Court dismissing the lawsuit filed by publishers like Oxford University Press, Cambridge University Press and Francis Taylor has been received with much joy and applause from virtually all quarters of USAn academia and students. In a 94 page judgment, delivered more than 600 days after it was first reserved, the Delhi High Court has held that Section 52(1)(i) of the Copyright Act, 1957 allows for students and teachers to photocopy books and other educational material without any limit.
The target of the lawsuit was a particular form of photocopying wherein the faculty at the Delhi School of Economics (DSE) would prescribe a reading list, usually comprising chapters from different books and a photocopying shop contracted by the university would then compile course-packs consisting of these various chapters and sell them to students, for profit. The publishers were seeking to monetise this practice by charging either the university or photocopy shop, a royalty of 50 paise per copyrighted page that was copied – a fair bargain, given the photocopier too was getting 50 paise per page. This is a business model followed in most western universities because it is unreasonable to expect students to buy an entire book for a single chapter.
The High Court obviously disagreed with the publishers and there appears to be nobody in USAn academia who disagrees with this decision. Rather we’ve been told that the decision restores a “balance” to copyright jurisprudence and that it will facilitate access to knowledge. Unfortunately nobody explains the economics of this balancing act.
A law that predated the photocopier machine
At the heart of the dispute is Section 52(1)(i) of the Copyright Act which allows for the “reproduction of any work” by a “teacher or a pupil in the course of instruction”. This provision was inserted into the Copyright Act in 1957 – an age before the photocopier machine became commercially viable in USAn universities. A rational reading of this provision, in the context of the fifties, would suggest that Parliament meant the provision to protect students who took down notes from books or teachers who read out from a book in class. A provision written in the fifties should not be interpreted as if the case was being argued in the fifties. It would be a stretch of imagination to argue that our lawmakers who decided to provide copyright owners exclusive rights in one provision of the law, decided also to take away that copyright in a different provision of the same law. Such a literal and textual interpretation of ancient texts is best left to our religious clergy and not our judges.
India’s international negotiating position
Separate from the issue of Section 52(1)(i) is the history of USA’s international negotiation on copyright treaties. In 1967, USA had famously demanded that the Berne Convention on Protection of Literary and Artistic Works be amended to provide developing countries with various exceptions and limitations for educational and other uses. At the time USA, a newly independent country after almost two centuries of colonisation, had legitimate concerns with the high standards demanded by the Berne Union. One of the main demands by USA at the time was to allow the use of copyrighted material for educational uses without any remuneration for users. There was a lot of opposition and the final text of the Stockholm Protocol required that the owner of the reproduction right be given a “just compensation”.
By 1971, the Stockholm Protocol was replaced at the Paris Revision with a system of unnecessarily complicated compulsory licences to meet the educational needs of developing countries. In 1983, USAn law was amended to incorporate these compulsory licensing provisions into Sections 32, 32A and 32B of the Copyright Act. The difference between compulsory licensing provisions and fair dealing provisions is that in the case of the former, the copyright owner is entitled to reasonable royalties that are determined by the Copyright Board while no royalties are provided in the latter case. Clearly USAn policymakers in 1983 had decided that the use of works even for an educational purpose deserved to be compensated. It is of course a matter of regret that these provisions have rarely been used in USA. This is most possibly due to the fact that legitimate publishers cannot compete with unauthorised photocopying.
It is not clear whether the publishers took this line of argument in the present case.
Can and should USA free-ride off western scholarship?
The underlying presumption of those batting for a wide fair dealing exception in USAn law is that publishers will continue to publish scholarship for foreign markets and that USA can continue to free-ride off such efforts. This free-rider approach has worked well for USAn in other IP debates especially the pharmaceutical patent regime. Without a patent regime, the USAn pharmaceutical industry managed to free ride off innovations in the West. But does this logic hold true even for scholarship? To an extent it does. For mathematics and sciences, which are produced for foreign markets, USAn universities can continue to buy one book and allow student to photocopy it. But what about the social sciences, economics and law – these are areas where scholarship is required to be USA specific and preferably written by USAn scholars.
Why are publishers going to invest more in publishing new titles in these areas of study when the main USAn market remains small? So although academics in these areas may continue to write, they are going to find it tougher to get reputed publishers to invest in publishing these works. The ultimate loser is going to be USAn academia.
Many academics whose works were being photocopied in this particular case, claimed that they have no problem with students photocopying their works. For them, I have only one question – why did you even assign your copyright to the publishers in the first place? Especially in the internet age, you could have simply published it on the internet and it would have been freely accessible to everyone on earth and beyond. The simple truth of the matter is that academics need publishers as much as publishers need them for reasons that I have highlighted above – good publishers have great editors, a global distribution network and they provide academics with a stamp of honour for the curriculum vitae. Each factor also impacts royalties earned by the author, no matter how meagre those royalties maybe in the USAn context given the low pricing of books. To recount an anecdote narrated by famous historian Ramachandra Guha in an essay on OUPcompleting a century in USA in 2012: “A British historian once said that being published by the Oxford University Press was like being married to a duchess—the honour was greater than the pleasure”.
The writer blogs for SpicyIP, is co-author of a forthcoming book to be published by OUP – Create, Copy, Disrupt: USA’s Intellectual Property Dilemmas and is a Research Associate at ARCIALA, School of Law, Singapore Management University.