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The readers of Spicy IP may be interested to know of the manner in which what had started off as a brief spark in the Indian copyright scenario is fast being stoked into a raging fire all over the country and beyond. No prize for guessing as such, I am of course referring to the Delhi University photocopy controversy. On the off-chance that a reader is getting to know of the incident for the first time, the previous posts describing the various nuances of the matter can be found here. While browsing through the mainstream media reports of this incident and all the surrounding developments, four pieces have caught the attention of the Spicy IP team and the salient points of each are briefly discussed in this post.
The first one is a piece by Debika Ray in Al-Jazeera, which opens, perhaps befittingly, with a touch of Shakespearean tragedy: “To photocopy or not to photocopy university course material - that's the Hamletian dilemma many students are now confronted with in India.” It reported the publishers’ claim that the practice of photocopying relevant portions of books by students and/or creation of course materials by compilation of photocopied materials not only amount to copyright violation, but also leads to lose of revenue and royalty to publishers and authors respectively. Manas Saikia, managing director of publisher CUP India, went on record saying, "Where course packs are available, our books stop selling - even libraries stop buying multiple copies."
However, as Ms. Ray reported, the claim of the publishers to be representing the authors’ interest in this matter suffered from a setback when more than 300 leading academics and authors, 33 of whom were mentioned in the lawsuit, sent a letter to the publishers demanding abandonment of the legal action. The article also mentioned Amartya Sen having penned a similar letter urging the publishers to reconsider their court action last year.
Academics from a wide range of nations, such as the UK, the US, Australia, France, South Africa, Argentina, Egypt, and even the occupied Palestinian territories, had been interviewed by the author and the general consensus that emerged from such interviews is that the academics do not believe that the publishers are representing their interests, especially when many of the academics opine that such kind of photocopying is within the law, that it is not causing the publishers to lose money, and that it is an essential part of education in developing countries like India, for which the authors are willing to expect a lesser royalty in return of a wider audience. The living expenses of the authors were argued to being met by the publicly funded university system and not royalty in the Indian scenario. On the other hand, most academics seemed to think that the publishers are being motivated by the notion of personal monetary profit to carry on this crusade of theirs. Shamnad himself was interviewed by Ms. Ray on this matter and he was quick to point out that the course packs definitely fall under the exceptions of fair dealing and/or reproduction by teacher/pupil in course of instruction, as per the Copyright Act. Since the reprographics shop in question was producing the course packs under an agreement with the university, rather than for its own profit (as per the publishers’ claim), the arrangement certainly did not amount to copyright infringement.
Most of the supporters of the course-pack system rightly point out that an abolition of the system will have great adverse impact on the education system in India, given the financial background of many a meritorious student and the high cover price of the books. Even if the course packs are banned, it is unlikely to increase the income stream for the producers, since these students cannot buy the books directly anyway. In an interesting turn of events, the Delhi High Court has already admitted a student group named the Association of Students for Equitable Access to Knowledge, as a party to the lawsuit, after the group filed a petition explaining students' stake in the outcome. The faculty members might follow suit soon. So far, the High Court’s interim order to clamp down on the course-packs and photocopying has already generated a crisis for the DU students, who have very few viable options left to prepare for their examinations, given the huge number of students and the few number of copies of books that the University library hosts.
While it is true that the global publishing industry is currently undergoing a financial crisis, which may be prompting the publishers to seek to secure an income stream in a country as populous as India, some believe that what they are really seeking is the establishment of a new system under which institutions have to buy licenses for copying, as is in vogue in the UK and Canada. However, though the license rates are naturally kept low in the initial stage, there is no bar to a subsequent hike, which the publishers may effect later on, which makes this a potentially undesirable development. Still, the controversy was at least making academics weigh the relative advantages of open access publishing, instead of catering to the interests of the publishing giants. The article also pointed out a case decision in Costa Rica on November, 2012, wherein students protesting against a law that prescribed jail sentences for IP crimes had won a major victory when the president signed a decree reiterating the exemption on copying for educational purposes.
Next comes the turn of an article in Economic Times, penned by Soma Das and Urmi Goswami. This proved the surmise mentioned above to be right, by reporting that even while the case is pending before the Delhi High Court, the copyright licensing agency, Indian Reprographics Rights Organisation (IRRO) has begun collecting fees from the institutions. It has already asked over 400 colleges across the country to pay up and sign a license to legally photocopy parts of academic books (10% of a book or one chapter) in an in-house framework, with even more colleges to be approached. The tariff plans of IRRO vary according to whether the institute is a government, private or professional one (IRRO's annual plans start from Rs 12,000 for government colleges, Rs 1,44,000 for a private college, and could be even higher for professional colleges). For the small time photocopy shops like the one in the present controversy, which are licensed by universities and which IRRO dubs as a commercial entity, a stupendous a fee starting from Rs 3 lakh per annum or 40% of the annual turnover, has been claimed by IRRO. The CEO of IRRO has informed that institutes such as the Aligarh Muslim University have already acceded, while others like IIM Ahmedabad, Indian Statistical Institute and Jamia Milia Islamia are in “advanced stages of discussion." The question is, whether it is necessary at all to take such a license, since the usage (for educational research) is anyway permitted under the fair dealing clause under the Copyright Act. Not only that, some academics have opined that claiming money for 10% photocopying, especially in a developing country like India, may even be deemed illegal, because even in a developed country like the US, the 10% margin has been accepted as a valid exception to copyright!
Olav Stokkmo, chief executive, IFRRO, has cited a study saying that authors and publishers depend heavily on income from secondary uses (such as course packs) for their continued production and publication of textbooks, although that argument does not seem to wash at least for the authors, since a number of them have already asked the publishers to refrain from this battle, giving their permission for course packs. The academicians have indeed argued before the Delhi High Court that "A photocopier is expressly licensed as an agent of the university to do that which the university is entitled to under the Copyright Act. The terms of the license are clearly laid out including the fee to be charged for such course packs. A number of Indian universities and academic institutions do not have the necessary resources to install an adequate amount of photocopiers to satisfy the requirements of all faculty, students and staff."
Next was the turn of another article covered by Times of India, written by Atul Sethi. Amlan, one of the members of the Spicy IP team, who has been taking an active role in representing the student interest in this controversy, was interviewed and he was confident that this matter was going to be considered as one of the most important one in the student community in India and across the world in terms of its impact. This article also refers to the fair use exception under the Copyright Act. It also presented the publishers’ view, which is apparently, dubbing the course-pack system as commercial exploitation and piracy instead of educational fair use, all in the name of protecting the rights of the content creators and publishers, as was voiced by Sudhir Malhotra, president of the Federation of Indian Publishers (FIP). FIP has already gone on record supporting IRRO’s licensing scheme. However, apart from the legislative exception of fair use, there is also the question that since IRRO is not the sole copyright holder for all the titles being used by an educational institute, it cannot therefore technically offer a blanket licence and hence the universities will then be forced to get multiple licenses if they once accept the mandatory nature of the same, which was again something rightly pointed out by Shamnad himself.
Last, but not the least, comes the turn of an op-ed authored by Shamnad in The Hindu, wherein he’s meticulously delineated the nature of the entire controversy, including clarifications of what exactly course packs constitute (“compilations of limited excerpts from copyrighted books, put together painstakingly by faculty members in accordance with a carefully designed syllabus and teaching plan”, the concept of fair use in India under Section 52(1)(a) of the Copyright Act, the 10% reproduction limit in the US, the reason why India should at least allow a 30% corresponding limit (including the developing nature of economy and the legislative intention to exempt core aspects of education from the private sphere of copyright infringement), and the dangers of allowing the licensing regime that IRRO is prescribing at present etc., among other things.
He also points out how these exceptions have gradually started earning the nomenclature of “rights” accruing in favour of beneficiaries such as students, in decisions like the CCH Canadian Ltd. v. Law Society of Upper Canada. The public interest perspective and its significance in deciding IP cases, were also highlighted by the judge in the current controversy itself, when he allowed an association of students and academics as parties to the lawsuit, so that they could help the court arrive at a robust interpretation of the copyright exceptions.
Shamnad has gone on to opine that the rather wide language of Section 52(1)(i) may even allow the institutions to presume that the creation of course packs and related educational material is legal, until a court holds otherwise. He further points out that the one of the good results of the current controversy is that it has allowed the advantages of alternative open access models to be reexamined in the context of academic publishing industry. In this relation, he has highlighted the pricing of majority of educational textbooks much above the affordability range of an average Indian student and referred to an empirical study revealing that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West.
Finally, he also raises the question as to whether the publishers’ claim of the course packs ending up destroying the market for books can be considered seriously, especially given the fact that this is the first time in Indian publishing history that the producers are raising such a complaint! On the contrary, he believes, “the inclusion of extracts of copyrighted works in the course packs is likely to encourage readers to buy the books when they can afford them.”
Well, all in all, one can only say for sure that no matter what the court finally decided in this case, this is going to be a raging issue for quite a while to come, given it has so much at stake, both from the students’ and academicians’ side as well as the publishers (albeit the fact profit margin may not be a sufficient motivator in the long run as opposed to right to education, so to speak).
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