The Delhi University Photocopy Case

In the High Court of Delhi

Name of the Case The Chancellor, Masters & Scholars of the University of oxford & Ors v. Rameshwari Photocopy Services & Anr
Citation CS(OS) 2439/2012
Year of the Case2016
PlaintiffsOxford University Press, Cambridge University Press, United Kingdom (UK), Cambridge University Press India Pvt. Ltd.,Taylor & Francis Group, U.K., and Taylor & Francis Books India Pvt. Ltd.
DefendantsDefendant No. 1- Rameshwari Photocopy ServiceDefendant No. 2- Delhi University Defendant No. 3-  Association of Students for Equitable Access to Knowledge (ASEAK)Defendant No. 4-  Society for Promoting Educational Access and Knowledge (SPEAK)
Bench/ JudgesHon’ble Mr. Justice Rajiv Sahai Endlaw 
Acts InvolvedCopyright Act, 1957
Important SectionsSection 2 (m), Section 13, Section 14, Section 51, Section 52. 

Abstract

The Chancellor, Masters & Scholars of the University of Oxford & Ors v. Rameshwari Photocopy Services & Anr, popularly known as the DU photocopy case, is one of the landmark judgments in the field of copyright law. The instant case was the result of a suit filed by the leading publishers against a small photocopy shop in the premises of one of the colleges of Delhi University and the University for infringing their copyright in books which were being photocopied by the defendants and compiled into course packs for students. 

This article discusses the case in detail, and includes the arguments as well as the decision that was delivered by a single judge of the Delhi High Court. 

Introduction

Copyright refers to the exclusive rights that are granted to the creator of any original works, like literary, artistic, or musical works. So, the copyright law grants certain rights exclusively in the favour of the owner of such right, and any other person cannot exercise those rights without the prior permission of the owner. 

However, there are certain exceptions to this rule, i.e., in certain cases, even if a person exercises those rights without the permission of the owner, he cannot be held guilty of copyright infringement. This is known as the doctrine of fair use. Under the Indian Copyright law, this doctrine finds mention in Section 52 of the Act. This section mentions the cases in which the acts would not amount to  infringement even if done by a person without permission of the owner. These acts include use of copyrighted material for research, criticism or review, the reporting of current events and current affairs, etc. 

Related Sections of Copyright Act

  • Section 2(m) defines “infringing copy” as meaning in relation to literary works, a reproduction thereof otherwise than in the form of a cinematographic film.
  •  Section 13 of the Act defines the works in which copyright subsists but makes the same subject to the provisions of that Section as well as other provisions of the Act. Clause (a) of sub-section (1) provides, inter alia, that copyright subsists in original literary works. 
  • Section 14 of the Act gives the meaning of copyright as the exclusive right, to do or authorize the doing of the acts listed therein in respect of the work in which the copyright subsists. The rights granted under this section in relation to literary works include: (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); 
  • Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright. It follows, if there is no exclusive right, there is no infringement. 
  • Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in this section, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy within the meaning of Section 2(m). The relevant parts of the section for consideration in this matter are: 
  1. Sub-clause (i) of Clause (a) of sub-section (1) provides that a fair dealing with any work for private or personal use, including research would not amount to infringement. 
  2. Clause (h) of sub-section (1) provides that the publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use, of short passages from published literary or dramatic works, not themselves published for such use in which copyright subsists, will not be copyright infringement provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.
  3. Clause (i) of sub section (1) provides that the reproduction of any work— (i) by a teacher or a pupil in the course of instruction; or (ii) as part of the question to be answered in an examination; or (iii) in answers to such questions; shall not amount to copyright infringement. 
  4. Clause (j) of sub-section (1) provides that the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording; will also not amount to infringement of copyright. 

Background

  • The present suit was filed by the Oxford University Press, the Cambridge University Press, and the Taylor & Francis Group (hereinafter “plaintiffs”) for the relief of permanent injunction restraining the two defendants, i.e., a photocopy shop named Rameshwari Photocopy Service (hereinafter “defendant no. 1”), and the University of Delhi (hereinafter “defendant No. 2”) 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 the sale of unauthorised compilations of substantial extracts from the plaintiffs’ publications by compiling them into course packs/anthologies for sale.
  • The plaintiffs contended that the said course packs sold by the defendant No.1 were based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University directly encouraged and recommended the students to purchase these course packs instead of legitimate copies of plaintiffs’ publications. Further, it was alleged by the plaintiffs that the libraries of the defendant No.2 University were issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying in order to prepare the said course packs.
  • A Commissioner was appointed by the court to visit the premises of defendant No.1 without prior notice and to make an inventory of all the infringing and pirated copies of the plaintiffs’ publication found and to seize and seal the same.
  • While the suit was pending, the Association of Students for Equitable Access to Knowledge (ASEAK), and the Society for Promoting Educational Access and Knowledge (SPEAK) approached the High Court to be impleaded as a ‘necessary party’. Their applications were allowed and they were impleaded as defendant no. 3 and defendant no. 4 respectively.  

Issue

Whether the making of course-packs as the defendant No.2 University is making, amounts to infringement of copyright?

Arguments 

  • On behalf of the defendants it was argued that-  
  1. The activities carried on by them amounts to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957, and 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.
  2. Defendant no. 1 has been granted licence with respect to a small shop within the campus of Delhi School of Economics (DSE) to provide photocopy services to students and faculty members. Further, it was submitted that defendant no. 2 recommends the syllabi for each academic year along with suggested reading materials which consists of excerpts from different books of different authors and publishers, which are generally sold at a high price, because of which the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein. Therefore, 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 for reference of students. 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. 
  3. In view of the limited number of original books stored in the library, the faculty of DSE compiles 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.
  4. The ratio of the material which is picked for use in the course pack vis-a-vis the entire book is miniscule. 
  5. It was further submitted that in its ordinary meaning the words “course of instruction” would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student and that so long as the copying forms part of and arises out of the course of instruction, it would normally be in the course of instruction, therefore, the preparation of material to be used in the course of instruction would be protected under fair use.
  • The submissions of the plaintiffs were as under- 
  1. That the defence pleaded of Sections 52(1)(i) is not applicable as the reproduction of the works of the plaintiffs is not by a teacher or pupil and not in the course of instruction, on the contrary, the defendants, by selling photocopies of chapters from the books of the plaintiffs in the form of compilation, are competing with them.  
  2. It was further argued that if such copying is allowed, there would be no market left for the books.
  3. That the defendant No.2 University also has a commercial interest inasmuch as in lieu of permitting the defendant No.1 to so photocopy the books, it is entitled to free photocopy of 3000 pages every month.
  4. That the Commissioner appointed by this Court found that the books borrowed from the University Library were being photocopied in the shop of the defendant No.1.

Decision

The single bench of the High Court, while dismissing the suit and holding that there was no copyright infringement by the defendants, observed as follows:

  • The question of issuing a direction to the defendant No.2 University to approach IRRO, a Copyright Society within the meaning of Section 33 of the Copyright Act would arise only upon finding that what the defendant No.2 University is doing is not covered by Section 52. Since in the present case it is not so, therefore such direction is not needed. 
  • Copyright as a natural or common law right has been taken away by the Copyright Act. Therefore, there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Hence, it can be concluded that copyright is not a natural right, but only a statutory right. 
  •  Section 14(a)(ii)  vests the exclusive right to issue copies of the work to the public not being copies already in circulation, in the owner of the copyright and constitutes the same as copyright. Thus the action of issuing copies of the work to public would also constitute infringement of copyright under Section 51. Explanation to Section 14 however provides that for the purpose of that Section, a copy which has been sold once shall be deemed to be a copy already in circulation. Thus, the books in which the plaintiffs claim copyright, purchased by the defendant no.2 University, as per the said Explanation, are deemed to be a copy already in circulation within the meaning of Section 14(a)(ii) and the exclusive right to issue the same to the public does not vest in the owner of the copyright and does not constitute copyright and the defendant no.2 University would be entitled to issue the said books to the public. 
  • The rules of interpretation of Statutes as applicable to Proviso and Exception cannot be applied to Section 52 of the Copyright Act. Since, once the acts listed in Section 52 are declared as not constituting infringement of copyright and the reproduction of work resulting from such acts as not constituting infringing copy, it follows that the exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14 of copyright, therefore, the doing of such act cannot be infringement under Section 51 and the question of taking the same out by way of proviso or exception does not arise
  • The action of defendant no.2 University of issuing the books 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. In the same way, the act of University of copying pages thereof, whether by hand or by photocopy, is not infringement, particularly because the result/effect of both actions is the same. 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.
  • There is no reason to interpret Section 52(1)(i) as providing for an individual teacher and an individual pupil which, neither at the time of inclusion thereof in the statute nor now exists in the society. Thus, merely because imparting of education by teachers today is as part of an institution as the defendant no.2 University and it is the defendant no.2 University which on behalf of its teachers is reproducing any copyrighted work by making photocopies thereof, would not mean that Section 52(1)(i) would not be applicable. 
  • The words “in the course of instruction” used in Section 52(1)(i) would include the reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues i.e. during the entire academic session for which the pupil is under the tutelage of the teacher and that imparting and receiving of instruction is not limited to personal interface between teacher and pupil. Therefore, the imparting of instruction does not begin and end in the classroom or tutorials only but extends beyond that. Thus, the scope of this provision is not limited to reproduction of a work by a teacher in the course of a lecture but also includes reproduction for the purpose of making and issuing course packs.
  • The act of defendant no. 1 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, can,  by no stretch of imagination, make the defendant no.1 as competitor of the plaintiffs. Imparting of education by the defendant no.2 University is heavily subsidized, and 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.

In light of the above observations, it was held that:

“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.”

References

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