Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings as well as software. However, there are certain exceptions to the use of the copyrighted works and the same are enshrined under section 52 of the Copyright Act, 1957 (the "Act"). Recently, the exception of fair dealing has been assailed by Oxford and Cambridge University Press, one of the oldest and largest publishing houses in the world, in an infringement suit in the Delhi High Court. The aforesaid publishing giants have filed an infringement action against one Rameshwari Photocopy Service (Defendant No. 1), a photocopying shop attached to Delhi University (Defendant No.2) alleging that they are reproducing complete chapters from plaintiff's publications and selling them as a part of course packs and have asked for permanent injunction of the practice and recompense them monetarily. On the other hand, the Defendants have tried to invoke the defence of fair dealing by submitting that the copying limited pages from any work for use in research and for use in the classroom by a student or a teacher is recognised under the Section 52(1) (a) and (i) of the Act. It is pertinent to note herein that while the matter is sub-judice, the Defendants have been restrained from photocopying the Plaintiffs' publications till the final disposal of suit.
According to Section 52(1) of the Act, which talks of certain acts not to be infringement of copyright, a fair dealing with literary work for the purposes of private use, including research or criticism or review, whether of that work or of any other work shall not constitute an infringement of copyright. Further, according to Section 52(1)(i) of the Act, the reproduction of any work –
By a teacher or pupil in the course of instruction; or
As part of the questions to be answered in an examination; or
In answers to such questions;"
Shall not amount to infringement of copyright. The actions of Rameshwari Photocopy Service when analysed in the light of Section 52 of the Copyright Act, 1957, should fall within the ambit of fair dealing for this whole practice of photocopying books and using them for private study purposes is not illegal and cannot be counted as a copyright infringement.
Further, in CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada noted that:
"…The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively."
It is a fact that in India there are many students who are economically backward, and, therefore, cannot afford to buy such expensive books.
It is pertinent to note that in Cambridge University Press & Others v. Mark B.Pecker, while deciding upon an infringement matter, the United States District Court for the Northern District of Georgia, Atlanta Division, pointed out that "if a professor used an excerpt representing 10% of the copyrighted work, and this was repeated by others many times, would it cause substantial damage to the potential market for the copyrighted work? The answer is no, because the 10% excerpt would not substitute for the original, no matter how many copies were made."
Therefore, the Delhi High Court must consider the Indian education scenario along with the amount of excerpt used as a photocopy material to determine a new threshold and decide the case accordingly. As India is a big country, there is a need for bigger threshold value, because of the higher theoretical studies in the universities. The idea is that it's not for the gain of owner that the photocopy owner and the University had copied the data but it was done to provide better education to those poor students who cannot afford to buy expensive books.
The battle against copyright infringement must also be fought on the simple premise of rights, a right to access knowledge, a right for people who basically cannot afford to pay, a right to oppose another form of gate-keeping that reduces access to those who cannot afford. It isn't even a case of a 'mere defense, but a right and an entitlement to access educational material and protect public interest.
Disclaimer: The sole purpose of this article is for information only; and not to be construed for any legal advice. The article was drafted, based on the information considered upto 25th June, 2013.