On March 9th, 2017, the publishers who had sued Rameshwari Photocopy Shop and the Delhi University withdrew their suit. This withdrawal marks the end of one of the most hotly contested and closely followed cases of copyright infringement in recent years.
The five year long saga began with multinational publishers OUP, CUP and T&F filing a suit against Delhi University and its licensed photocopy store, Rameshwari, for creating course packs containing extracts from textbooks published by the three publishing giants. In September 2016, Justice Endlaw of the Delhi High Court delivered the judgement in favour of the University, permitting educational photocopying and declaring that it falls under the exception of Section 52(1)(i) of the Indian Copyright Act. Justice Endlaw compared photocopying to writing notes in a library and ruled that in a country like India, most people don’t have the means to purchase books that are expensive yet necessary for a holistic education. On appeal, the Division Bench upheld the decision of the single Judge, but clarified that each instance of photocopying had to be tested independently against the Fair Use exception in Section 52(1)(i), to ensure that the photocopying is “in the course of educational instruction”.
From the copyright perspective, the issue seems to be resolved for the moment. However, there is a Constitutional aspect to this as well, which has not been touched upon in the extensive debate surrounding this case, both within and outside of the actual litigation.
The DU judgement reinforces the importance of the right to education. In allowing the photocopy of limited published material to be included in course packs, the Court has taken a decisive stand in the direction of dissemination of education, as opposed to protecting the rights of deep pocketed copyright holders. The Court’s insightful opinion that allowing such actions to continue would lead to an increase in resources, both physical and digital, is a clear step towards a socialist approach, promoting access to education among people.
This approach of the Court seems to be a clear indication to copyright holders that the interests of the student community shall be placed before theirs. Such an emphasis given to the students over the authors is bound to act as a disincentive to the authors in coming up with better works of scholarship. Such an increase in scholarship not only provides better avenues of debate in the selected field but also as a means to build a stronger base. The Court’s interpretation of fair use in this case points to the direction that access to education means dissemination of information to the maximum number of students possible. However, this need not necessarily be the case.
Right to education does not merely mean right to information, but it should be right to quality education. Merely making existing information available, by allowing photocopying for educational purposes does not make up for the quality of research and insight that a well written scholarly article or book can provide. By dis-incentivising the authors by showing a clear preference to students over their rights, the courts run the risk of putting off authors and publishers from creating and publishing more quality scholarly articles and books. Such a disincentive to the authors would severely impede research. This, at the end of the day, affects the students, as they are now deprived of a pervasive body of knowledge, just as they were earlier deprived of information due to its cost.
It is therefore important that the Courts strike a balance between the rights of students to a meaningful education, and the rights of authors and publishers to profit from their work. In light of the Delhi High Court ruling, it seems as though the legal position is clear. However, this is far from true. The ruling makes a compelling argument and is of immense persuasive value in all jurisdictions, but is binding only in Delhi. In jurisdictions other than Delhi, this issue may still be debated and a different opinion may emerge. The issue may have had a conclusive resolution had it been heard and decided by the Honourable Supreme Court. However, the decision of the publishers to withdraw the case while a smart move for the parties considering the current outlook of the Court has put this issue to rest temporarily.
The law as of now holds good keeping in mind a broad interpretation of fair use, within the copyright. However the larger constitutional aspect of right to education, from both the perspectives of the quality and access should be understood and settled.