In the year 2012 first started the saga of the Delhi University Copyright case and since then this case has successfully managed to hold the attention of a large audience and be in the media glare for a long time. Five prominent publishing houses including Oxford University Press, Cambridge University Press and Taylor & Francis filed a copyright litigation case against Rameshwari Photocopy Services a licensed shop running in the Delhi School of Economics, University of Delhi. The case was filed against both the University and the Photocopier and this was followed by an outrage on part of the academic and student committees which was followed by Petitions, protests to shame the publishers forcing them to withdraw their case but all attempts were in vain as the Publishers remained firm with their demand from the Court.
There was an initial denial on part of the University of Delhi but there emerged a picture that the Professors of the University had given an authorization to the Photocopy service shop in the campus to prepare course packs by printing photocopy from books that were published by the Plaintiff Publishers, preparing a bound structure and supply it to the students at the rate of 50 paisa per page in addition to the binding cost. The Counsel on behalf of the Plaintiffs pleaded that such publication of specific pages of their publication by the Rameshwari Photocopy Services by authority of the School of Economics, Delhi University amounted to the institutional sanction for Copyright Infringement and that the Course packs prepared contained no other material apart from the photocopies of publications and that this material was being used like textbooks which was competing with the Plaintiffs publications. Further the Plaintiffs alleged that the Photocopy services were operating commercially because the rate charged for the course packs was 50 paisa as compared to the much lower market rate of 20-25 paisa per page as charged by other photocopiers.
It was anticipated by the Plaintiffs that the defence would be taken under Section 52(1)(i), Copyright Act 1957 therefore they pleaded that this section would not be applicable since the reproduction of the Published material by the Photocopy services under authorization of the delhi School of economics could not be classified under this section and if would be held otherwise it would put Section 52(1)(h) as pleonastic, contending thereby that the Plaintiffs required the two sub-sections to be harmonized. The Plaintiffs contended that the Rameshwari Photocopy services fell under the ambit of Section 52(1)(h) and would thereby limit the production of these published works.
In its Defence the Rameshwari Photocopy Services pleaded that preparation of course packs by the Photocopy Services amounts to a fair use under the meaning of Sections 52(1)(a) and 52(1)(h) of the Copyright Act. The Photocopy services further contended that its activity does not in any way affect the market demand of the the publishers books and that the rate charged by the services is nominal and prefixed between the Photocopy services and Delhi School of economics and that the books of the publishers cannot be afforded by all students and only parts of such books were a part of the students syllabi.
The University of Delhi also contended that Section 52(1)(i) Copyright Act gives permission to students and educational institutions to copy parts of the work published for purposes of research and education and that the photocopy services operating within the campus premises was licensed in order to facilitate students for photocopying material for research and educational purposes. The University further denied issuance of books to the Photocopy Services for production of course packs and further contended that the Section 52(1)(i) does not put any specific limit on the quantum of reproduction.
On 9 December, 2016 the Delhi High Court passed a Judgment and laid down certain points.
“…unless the legislative intent expressly excludes fair use, and especially when a person’s result of labour is being utilized by somebody else, fair use must be read into the statute…”
“..In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’….”
“…that the four factors on which fair use is determined in jurisdictions abroad would guide fair use of copyrighted material during course of instruction. The qualitative and quantitative test which is one of the four tests would not apply to clause (i)..”
It further clarifies difference between reproduction‘ and ‘publication‘ according to this ruling, “…Publication need not be for the benefit of or available to or meant for reading by all the members of the community. A targeted audience would also be a public as rightly urged by learned counsel for the appellants. But, 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. That apart, if reproduction includes the plural, it cannot be held that making of multiple copies would be impermissible. It happens in law that footprints of one concept fall in the territory of other but that does not mean that the former should be restricted..”
Several newspapers including Hindustan Times on 9 March 2017 reported that three publishers had made an announcement that they were withdrawing the suit against the Photocopy services and the University of Delhi and would not pursue the suit further in the Courts. According to an article report published in the Hindu the publishers withdrew the suit after informing the division bench that they did not want to pursue the case any longer as it was affecting their goodwill since they were in a legal battle against the educational institutions who also are their stakeholders. Even though the Plaintiffs withdrew the case, an attempt was made by the Indian Reprographic Rights Organization, to file a petition in the Supreme Court of India against the Judgment passed by the High Court of Delhi but the Supreme Court did not maintain this petition giving the reasoning that the Original suit was withdrawn by the Plaintiffs and it was not fair for the Supreme Court to interfere in the matter now.
Authored by Vishwaraj Panwar | Edited by Rini Mathew.