17 Sep 2016

Photocopying books for 'Education' not violation of Copyright law: Delhi High Court

This judgment pronounced yesterday has garnered significant media highlights and is said to be a pioneer in Intellectual Property Rights (IPR) laws. Deciding the suit filed by reputed international publishers, a Single Judge of the Delhi High Court in The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services [CS(OS) 2439/2012][decision dated 16.09.2016] has returned significant findings on the nature and extant of copyright protection against photocopying.

The factual background leading to this dispute is recorded by the High Court in the following terms;
1. The five plaintiffs, namely i) Oxford University Press, ii) Cambridge University Press, United Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd., iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books India Pvt. Ltd., being the publishers, including of textbooks, instituted this suit for the relief of permanent injunction restraining the two defendants namely Rameshwari Photocopy Service (carrying on business from Delhi School of Economic (DSE), University of Delhi) and the University of Delhi from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs‘ publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from the plaintiffs‘ publications by compiling them into course packs / anthologies for sale.
2. The plaintiffs, in the plaint, have given particulars of at least four course packs being so sold containing photocopies of portions of plaintiffs‘ publication varying from 6 to 65 pages. It is further the case of the plaintiffs that the said course packs sold by the defendant No.1 are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs‘ publications. It is yet further the case of the plaintiffs that the libraries of the defendant No.2 University are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.

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4. The defendant No.1 has filed a written statement defending the suit inter alia (a) disputing the copyright of the plaintiffs and contending that the plaintiffs have not produced any document to establish their copyright; (b) denying any act of infringement of copyright and alternatively pleading that the activities carried on by it amount to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957, and pleading (c) that it has been granted licence with respect to a small shop within the campus of DSE to provide photocopy services to students and faculty at nominal rate and as per the terms of licence, the defendant No.1 is required to provide 3000 photocopies per month to DSE, an institute of the University of Delhi, free of cost and to charge only the prescribed rate for the photocopy service meted out to others; (d) that the defendant No.2 University recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students; (e) that the syllabi of the defendant No.2 University does not recommend the entire publication but only certain extracts from the same; (f) that the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading; (g) that to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 University which provides such expensive books for reference of students; (h) however owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study; (i) that the services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only; (j) that in view of the limited number of original books stored in the library, the faculty of DSE has compiled various master copies of books, articles and journals, which are then used for photocopying by the defendant No.1 in order to save the original work from being damaged; (k) that such course packs are used by teachers and students in the course of academic instructions and for research purposes; (l) that in fact the Licence Deed executed between the defendant No.2 University and the defendant No.1 expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for xeroxing, saving the original document; (m) that the defendant No.1 is xeroxing the master copy at the instructions of and on the terms imposed by the defendant No.2 University; (n) that the defendant No.1 is not commercially exploiting the author‘s copyright but is giving copies to students at nominal rates of 40 paise per page to aid their education; (o) that even if the students were to bring the original work to get the same photocopied, the defendant No.1 would charge the same rate; (p) that the defendant No.1 has acted in good faith within the meaning of Section 76 of the Copyright Act."
In the aforesaid background, the High Court dismissed the suit. The judgment is a detailed one running into almost 100 pages. For the benefit of our readers, we have reproduced the key findings of the High Court which are as under;
25. The Copyright Act was enacted ―to amend and consolidate‖ the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. Vs. State of Karnataka (2011) 9 SCC 1 where a Constitution Bench of the Supreme Court held that Article 300A of the Constitution proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without any support of law made by a competent legislature and that the expression 'property' in Article 300A is not confined to land alone but also includes intangibles like copyright and other intellectual property and embraces every possible interest recognised by law.
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31. Copyright as a natural or common law right has thus been taken away by the Copyright Act. 
32. I conclude, there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Axiomatically if follows, unless the action of defendants No 1 and 2 amounts to infringement of copyright within the meaning of the Copyright Act, the plaintiffs or any other person in whom copyright vests cannot sue for infringement or damages or accounts, as have been claimed in the plaint.
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34. It is not in dispute that the works in question fall in the category of original literary work. Section 14(a)(i) and (ii), in respect of such works, vests the exclusive right ―to reproduce the work in any material form including the storing of it in any medium by electronic means‖ and the right ―to issue copies of the work to the public not being copies already in circulation‖ in the owner of the copyright. I have wondered, whether ―to reproduce the work‖ would include making photocopies thereof as the defendant No.2 University is doing. The word ―reproduce‖ has not been defined in Section 2 of the Act though i) Section 2 (hh) defines ―duplicating equipment‖ as any mechanical contrivance or device used or intended to be used for making copies of any work; ii) Section 2(s) defines ―photograph‖ as including photo-lithograph and any work produced by any process analogous to photography; and, iii) Section 2(x) defines ―reprography‖ as making copies of a work by photo-copying or similar means. On the basis thereof, I conclude that the words in Section 14(a)(i) ―to reproduce the work‖ would include making photocopy of the work in contravention of the provisions of the Act. I have in Continental Telepower Industries Ltd. Vs. Union of India MANU/DE/1691/2009 held that a photocopy is certainly a copy. Long back, in British Oxygen Company Ltd. Vs. Liquid Air Ltd. 1925 Ch. 383 also it was held that making photographic copy of literary work is reproduction thereof. I thus conclude that the right to make photocopies is the exclusive right of the author or composer of the literary work and a copyright within the meaning of Section 14. Axiomatically, the making of photocopies by the defendant No.2 University will constitute infringement of copyright within the meaning of Section 51 and the photocopies so made constitute infringing copy within the meaning of Section 2(m) unless such act is listed under Section 52 as an act not constituting infringement.
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37. The defendant No.2 University thus, though entitled to issue the books, published by the plaintiffs and purchased by it and kept by the defendant No.2 University in its library, to whosoever is entitled to issuance of the said books from the library, 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.
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55. On consideration, I am of the view that the scope and ambit of Section 52(1)(i) cannot be so restricted. The settled principle of interpretation of statutes is that the legislature is to be deemed to have used the language in the context of the prevailing laws and societal situations to which the legislation is intended. Education in the country though at one time pursued in Guru-Shishya parampara (Teacher – disciple tradition) has for long now been institutionalised, both at school and post - school level, with imparting of education by a teacher individually having no recognition. There is no reason to interpret Section 52(1)(i) as providing for an individual teacher and an individual pupil and which, neither at the time of inclusion thereof in the statute nor now exists in the society. Supreme Court, in S.P. Gupta Vs. President of India 1981 Supp (1) SCC 87 held that interpretation of every statutory provision must keep pace with the changing concepts and it must, to the extent to which its language permits, or rather does not prohibit, suffer adjustments so as to accord with the requirements of fast growing society.
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 73. The matter can be looked at from another angle as well. Though I have held Section 52(1)(a) to be not applicable to the action of the defendant no.2 University of making photocopies of copyrighted works but the issuance by the defendant no.2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. The counsel for the plaintiffs also on enquiry did not argue so. I have wondered that if the action of each of the students of having the book issued from the library of defendant No.2 University and copying pages thereof, whether by hand or by photocopy, is not infringement, whether the action of the defendant no.2 University impugned in this suit, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of students requiring the said book, the fear of the costly precious books being damaged on being subjected to repeated photocopying, can be said to be infringement; particularly when the result/effect of both actions is the same. 
74. The answer, according to me, has to be in the negative. 
75. It cannot be lost sight of that Section 63 of the Copyright Act constitutes infringement of copyright an offence punishable with imprisonment for a term not less than six months and extendable to three years ―and‖ with fine. When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. That is what has happened in the present case. In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied. The photocopying machines then in vogue did not permit photocopying of voluminous books without dismembering the same.
76. However with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus the students are now not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.
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78. I may also mention another advancement. Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped.
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80. 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. For this reason only, Section 14(a)(ii) as aforesaid, applies the principle of 'exhaustion‘ to literary works and which, this court in Warner Bros. Entertainment Inc. Vs. Mr. Santosh V.G. MANU/DE/0406/2009 has held, to be not applicable to copyright in an artistic work or in a sound recording or in a cinematographic film. Once it is found that the doctrine of exhaustion applies to literary work as the works with which we are concerned are, it has but to be held that it is permissible for the defendant No.2 University to on purchasing book(s) and stocking the same in its library, issue the same to different students each day or even several times in a day. It is not the case of the plaintiffs that the said students once have so got the books issued would not be entitled to, instead of laboriously copying the contents of the book or taking notes therefrom, photocopy the relevant pages thereof, so that they do not need the book again.
81. I thus conclude that the action of the defendant no.2 University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the defendant no.2 University and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act.

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86. In my view, there is no difference in the two situations i.e. whether the photocopying machine is installed within the library or is installed outside the library. In my view it also does not make any difference whether the respondent no.2 University itself purchases the photocopy machine and / or allows the students to photocopy themselves or employs a person for doing photocopy. In this respect, I may again note that in our country, with abundance of labour force, the acts such as of photocopying which are done by those desirous thereof themselves in other countries are done by a person employed therefor. In countries with not so much labour force, photocopiers are found to have been installed in libraries for the benefit of the patrons of the library to themselves photocopy whatsoever passages of the publications in the library they are desirous of photocopying for their personal use. Once such a action is held to be not offending any provisions of the Copyright Act, merely because the photocopying is done not by the person desirous thereof himself but with the assistance of another human being, would not make the act offending. It matters not whether such person is an employee of the defendant no.2 University or the defendant no.2 University avails the services of a contractor. The position of the defendant no.1 in the present case is found to be that of a contractor to whom the defendant no.2 University has outsourced its work of providing photocopying service for its students. For this reason, it matters not whether the photocopying machine is allowed by the defendant no.2 University to be kept within the library or at some other place outside the library.
87. It is not the case of the plaintiffs that the defendant no.2 University has permitted the defendant no.1 to or that the defendant no.1 is photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. The case of the plaintiffs before us is only of preparation of course packs i.e. compilations of photocopied portions of different books prescribed by the defendant no.2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs. Imparting of education by the defendant no.2 University is heavily subsidized with the students still being charged tuition fee only of Rs.400 to 1,200/- per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying were to be not available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better. 
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89. All that is happening in the present case is that instead of the defendant No.2 University issuing the book which may be sought after by a large number of students, to each one of them individually for limited period or limited hours and enabling each student to photocopy the passages or the contents thereof required by him ―in the course of instruction‖ and thereby exposing the book to damage, the defendant No.2 University itself is supplying the said photocopies. It cannot be lost sight of that we are a country with a bulging population and where the pressure on all public resources and facilities is far beyond that in any other country or jurisdiction. While it may be possible for a student in a class of say 10 or 20 students to have the book issued from the library for a month and to laboriously take notes therefrom, the same is unworkable where the number of students run into hundreds if not thousands. According to me, what is permissible for a small number of students cannot be viewed differently, merely because the number of students is larger. Merely because instead of say 10 or 20 copies being made by students individually or by the librarian employed by the University, 100 or 1000 copies are being made, the same would not convert, what was not an infringement into an infringement.

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99. In accordance with the aforesaid international covenants, the legislators of some other member / privy countries in the context of their respective countries have worded the exceptions differently and on an interpretation of which legislation, the Courts of those countries have adjudicated and which judgments have been cited by the counsels. I am however of the opinion that the said judgments in the context of different legislations on the basis of perception by the legislators thereof of the purpose of teaching and unreasonable prejudice to the legitimate interest of the author cannot form the bedrock for this Court to interpret the Copyright Act of this country.
This may not, however, be the last word on the subject. The parties will surely take up the matter in appeal and it will take a while before the law on the subject attains finality. Nonetheless this is an interesting development in IPR laws.

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