The Radical Significance of the DU Photocopy case for Global Copyright
While the immediate beneficiaries of the Delhi high court’s judgment in the Delhi University photocopy case are obviously the university, the photocopy shop and the students and academics who filed intervention petitions supporting the right to photocopy, the import of Justice Endlaw’s finely reasoned judgment goes well beyond this specific case as well as its impact on access to knowledge in India. The judgment and its treatment of educational exceptions in copyright law is unprecedented and could well become a model of how national IP laws should be interpreted. To understand its global significance we should turn to a short history of norm creation in copyright and its relation to specific national and local needs.
The Berne convention in 1886 for the first time laid out uniform global norms for copyright protection and established minimum standards that would apply to all signatory states. This was concretised further through the TRIPS agreement in 1994. In addition to laying out the common minimum standard that would define the global intellectual property regime, these treaties also allowed countries some amount of flexibility in customizing their national legislation to respond to their access to knowledge needs. These were by way of exceptions and limitations that a country could impose on the exercise of intellectual property rights, and it in this tricky terrain that many global IP battles have been fought. Both the Berne convention and the TRIPS agreement allow for fair dealing exceptions in national legislations, and in the case of the Berne convention there is also a special exception allowed for educational uses.
Since copyright is a system of balances, the judicial interpretation of copyright disputes have also sought to create a balance between competing claims and the ideological inclination of the courts reside in the emphasis they give, either to the private interest or the public interest dimension of copyright disputes. Thus in the United States which is a copyright maximalist country, the courts have also similarly displayed (with a few exceptions) a protectionist inclination.
Thus when confronted with issues such as the legal status of photocopying, courts following the American model, have tend to presume the prima facie legitimacy of the claim of copyright owners and then go into questions of what the exceptions may allow. Legally this translates into a discussion of what percentage of a book may be copied for the purposes of a course. The underlying logic is that the photocopy economy competes with that of the original work and students will stop buying books, and the accepted compromise is a licensing regime where collecting societies charge a royalty fee for the use of academic material. This was also more or less the argument that the petitioners ought to make in the DU photocopy case and it would appear that the choice before the high court in the present matter was to navigate its way through these competing claims and arrive at a formula that would set either a quantitative restriction on the amount that could be copied or institute a licensing fee regime for the Indian context. Instead it chose to entirely dismiss the petitioner’s suit, so what reasoning does it follow and how does it create a new jurisprudence of access in copyright law.
In the present case the defendants tried to show that the quantum reproduction of materials in the course pack was significantly low ranging between 8 to 10% and the court could well have gone down the safe route and agreed with their contention and found that there indeed was no copyright infringement just based on quantity of use. This would have been a matter of evidence, proof and counter proof submitted by both parties. Instead the court in Para 22 frames the issues as being one not of fact but of law and argues that the only question to be adjudicated is whether the making of course-packs amounts to infringement of copyright. “If the actions of the defendant on an interpretation of law, are held to be infringement, a decree for permanent injunction has to follow. Conversely if the actions of defendant No.2 University are not found to be amounting to infringement of copyright, the suit fail”.
Justice Rajiv Sahai Endlaw develops the reasoning behind his decision in the following manner. He begins by noting that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law. Sec. 14 defines a set of exclusive rights, and any person exercising these rights without the permission of the copyright holder would be in violation of copyright, and on that count any person making a photocopy of a book is violating copyright.
However, Justice Endlaw adds if there is a specific exception that is carved out and he notes that Sec. 52 is very clearly titled “Certain acts not to be infringement of copyright”, then these have to be interpreted in a manner sees it as being a part of the same system that grants the rights in the first place. There many be many reasons for wanting to carve out exceptions (balancing incentives with freedom of information, rights of creators with the general public etc) and if there is a specific exception for education, then one has to respect that exception as well as the underlying logic and motives that govern it.
The significance of this reframing is that the court moves beyond the rhetoric of balance of interest alone, and instead articulates a design philosophy of copyright law which understands that as a mode of organizing knowledge production, copyright consists simultaneously of a property rights granting mechanism even as it provides for specific use exceptions. And that these exceptions will not lead to an anarchic world where there will be no creation anymore. The educational exception in India for instance does not exist in other domains even within the law in India.
In the present case Sec. 52(1)(i) allows for the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an exam; or ii) in answers to such questions. Justice Endlaw notes that while creating exceptions national laws are obliged to ensure that these are justified purposes and that they do not unreasonably prejudice the legitimate rights of the author. And on this issue the court holds that the current exception has been incorporated by law makers and hence presumably have a justified purpose (ensuring equitable access) and do not prejudice the authors rights (photocopies do not compete with the primary market of a book) and he holds that it is not for a court to impose artificial restrictions as to what is a reasonable amount etc.
This is bound to provoke the response that interpreting the law in this manner is wrong and that the court should have been more proactive, but lets not forget that in all other cases, it has indeed been the case of the copyright industry -when faced with criticism of the maximalist tendency of copyright – that the law is the law and if people are disgruntled, they should approach parliament to change the law. What the judgment conclusively shows us is that the demand has to be a consistent one. If you want to assert a right that is granted to you by law, you have to accept the limitation that is also a creature of law, and if you want to bring about a policy change then lobby for a change in law.
In foregrounding the dual nature of copyright system (rights and exceptions), Justice Endlaw is not deviating from copyright jurisprudence but actually returning copyright back to its historic and philosophic roots as a welfare legislation. The very first copyright law, the Statue of Anne in 1710 was a law that described itself as an “Act for the Encouragement of Learning”, and this moral return of Copyright to its roots in education is one that needs to be transplanted to other countries as well.
First published by Kafila