Fifteen Eighty Four

*The views expressed here are those of Sara Bannerman in her capacity as a guest blogger and do not represent the views of Cambridge University Press or the University of Cambridge.*

In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi.

The Rameshwari Photocopy Service produces course packs, operating on the campus of the University of Delhi.  The publishers claimed that the university infringed their copyrights by “directly encouraging and recommending the students to purchase” course packs “instead of legitimate copies of plaintiffs’ publications.”  The university library stood accused of “issuing books published by the plaintiffs” to the service (p. 2).  The Rameshwari Photocopy Service claimed, in part, that its operations constituted fair use (p. 3).  The university noted that the publishers’ books are expensive and “beyond the reach of the students” (p. 4) and that the “Copyright Act is a piece of welfare Legislation and the rights of authors and owners are to be balanced with the competing interest of the society.” (p. 6)

This case can be seen in the broader context of an historical and international struggle, stretching back 130 years, over the question of what sort of reproduction of educational works should be permitted under copyright law, and what reproductions should be considered copyright infringement. The government of India, among others, has played a prominent role in this struggle, promoting broader access to educational materials.  My book International Copyright and Access to Knowledge recounts this battle in chapter 4: “Access to education, libraries, and traditional  knowledge.”  It discusses the historically-shifting scope of provisions regarding educational access in the Berne Convention.  It also highlights the irony that, while works of Western publishers are strongly protected by the international copyright system, works of traditional knowledge still receive virtually no protection under that system. It also discusses the important role of libraries and educational institutions in both colonialism and decolonization.

At the core of the Rameshwari case is the question of whether copying works for educational purposes is permitted under fair use, fair dealing, or other copyright exceptions–a question of obvious importance to students, educational institutions, and publishers everywhere.  Related cases in Canada (here and here), mentioned in the Delhi decision [pp. 16, 22, 24]), have led many Canadian universities, for example, to rely more confidently on fair dealing in the production of course packs. The Rameshwari decision hinges on exceptions to copyright infringement for educational institutions.  The court in this case has decided that the photocopy service is permitted since its operations fit within an exception for educational institutions under the Indian copyright act.

The court, in this case, has also considered whether the Indian exception for educational institutions is permitted under international law–under the Berne Convention and the TRIPs Agreement, which permit states to make exceptions to copyright in “special cases” that do “not conflict with a normal exploitation of the work” and “do not unreasonably prejudice the legitimate interests of the author” (the three-step test).  The judge in this case notes that the Indian provisions meet the three-step-test, because the questions set out in the test would have been considered by the legislature in ways that it is not in the purview of the court to second-guess:

The international covenants aforesaid thus left it to the wisdom of the legislators of the member / privy countries to decide what is ―justified for the purpose and what would ―unreasonably prejudice the legitimate interest of the author. Our legislators, while carrying out the amendments to the Copyright Act are deemed to have kept the said international covenants in mind. […]

The legislators have found reproduction of the copyrighted work in the course of instruction to be justified for the purpose of teaching and to be not unreasonably prejudicing the legitimate interest of the author. It is not for this Court to impose its own wisdom as to what is justified or what is unreasonable, to expand or restrict what the legislators have deemed fit. The legislature is not found to have imposed any limitation on the extent of reproduction. Once the legislature which under our Constitution and under the international covenants aforesaid was entrusted to while making law in
relation to copyright take a call on what is justified for the purpose of teaching and what will unreasonably prejudice the legitimate interest of the author has not imposed any such limitation, this Court cannot impose the same. (pp. 92-93)

In this, the Delhi High Court has navigated the three-step test (a test very much criticized for potentially restricting fair dealing, fair use, and educational exceptions; see Štrba) while retaining maximum national autonomy.

Other important elements of the judgement deal with 1) the question of whether copyright is a natural or statutory right (pp. 41-45), concluding that copyright has been converted from a natural right to a statutory right; and 2) the overall purpose of copyright.  The judgement summarizes this as follows:

Copyright, specially 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 (pp. 79-80).

An appeal is scheduled to be heard on November 29.

*The views expressed here are those of Sara Bannerman in her capacity as a guest blogger and do not represent the views of Cambridge University Press or the University of Cambridge.*