By Paramjeet Singh
The developed economies have always criticized India for its ‘poor’ Intellectual Property (IP) regime. The reasons, of course, are dominated by economic considerations. On September 16, 2016, the Delhi High Court gave a 94 pages judgment¹ dismissing a copyright infringement suit filed against the Delhi University and a photocopy service shop in its premise. Five Publishers including Oxford University Press and Cambridge University Press sought to restrain the University from infringing their copyright in publications.
They alleged that the University was recommending in its syllabi the readings from the publications. It was making available substantial portions from the said publications to the photocopy shop so that the study material could be compiled and sold to the students at the price of 40 paise per page. Not only this, the faculty of the University was accused of encouraging the students to use the said material. However, the University denied any infringement.
A Multitude of Interests
In order to understand the true character of the dispute, one should realise that at its helm were the economic interests of different parties. The interests of the publishers against those of the students, the photocopy service provider as well as the Delhi University. These interests were being contested through ‘copyrights’, ‘access to education’, ‘actions not amounting to infringements’, ‘convenience’ and ‘fair use’ as instrumentalities.
The job of the court was to look into the legal provisions and accordingly deal with every aspect of the case. It is not the mandate of the court to look deeper into the underlying principles guiding the interests of the parties to the case. But, the duty of the court is to objectively and systematically apply the word of the law onto the facts of the case. The decision should follow the logic and its arguments, not the otherwise.
Is ‘Access to Education’ the only Winner?
Though the judgement, in my sincere opinion, may be subjected to an academic critique, serious reconsideration and strict judicial scrutiny on various legal grounds, its outcome is projected as a victory for the students and an important development in the field of access to education. This has always been the case. Students often cannot afford to buy costly books and therefore, resort to cost-effective methods. These include photocopying of the protected work permitted under certain conditions or downloading the pirated versions of books and journals that usually are behind paywalls. Websites like LibGen and sci-hub.io have come to the rescue of the students who refuse to be bound by any financial constraints in their pursuit of knowledge and education. There are various organisations working towards securing the access to knowledge and education for all.
Authors, usually, write articles not for getting a copyright over it but for the joy of writing and getting citations in subsequent writings of others. Protection of moral rights matter more for them than that of monetary rights.
Regardless, the other side of the argument relates to the protection of interest of the copyright owners that normally are publishers. Authors, usually, write articles not for getting a copyright over it but for the joy of writing and getting citations in subsequent writings of others. Protection of moral rights matter more for them than that of monetary rights. Also, there are some entities that exploit the access to education as a plank to earn out of the copyright infringement.
Per the facts of the case in the judgment, the provider of photocopy service, though working through a shop in the premise of and under the license from the University, was engaged in the activity of photocopy for certain consideration. That consideration is enough to infer that the in practicality, the ‘access to education’ plank is giving a ride to the convenience of the university and the livelihood of the contractors of the photocopy service shop.
Nevertheless, when it comes to the balancing of interest of copyright holders and those of the public at large it becomes important to take into account the holistic picture. In the present case, the conclusion of the legal proceedings before the Delhi High Court have brought a good news for the students. But, still, the line of arguments followed in the judgment could have been far more clear, affording certainty to the application of IP laws in India thus avoiding the wrath of the investing countries.
Selective Reasoning and Subjectivity
If one peruses the 94 pages long judgment, it becomes difficult to understand the reasoning for the legal stances taken therein by the court. For example, the court tries to locate the meaning of a term referred to in the statute in the defining clause wherefrom the term is absent. Another instance is where the court discards application of a section (Section 52(1)(h)) to a case related disputed situation based on the reading of the section and then fails the contention of a party because of the said non-applicability.
Also, the court has, at some places in the judgment, taken into account the cases of foreign jurisdiction dealing with certain issues. At other places, it has denied the applicability of interpretation of legislations by the courts of foreign jurisdictions on the ground that Indian legislators had their specific intentions at the relevant time and the mandate of the Indian courts is to interpret the law the basis of the same and the social conditions of the country. The complicated judgment could have been simple and devoid of very subjective references to the existing social practices that might seem, to some, unconnected to the judicial exercise of adjudication.
IP Law: In Need of Revision
In the wake of the judgment, the current IP policy needs to be revisited and the law needs to be modified to give space to the aspirations of the larger public. The public interests groups should also realise that in the contemporary scenario the underlying principles governing social conducts are changing to the effect that allocation of resources is increasing towards the non-productive transactions.
For example, it is possible that the present-day majority of the students would be happy to spend their limited money on branded clothes than on quality education because they know that the course packs will be available to them at cheaper or subsidized rates which they can just refer to only during the exam period. Moreover, the notion of authoring has also undergone a change as some of the academic and other journals are being published after charging fees from the authors. The said scenario is dangerous for every genuine stakeholder. The quality of education is suffering, the incentive function of copyright is merely becoming a mechanical tool.
As it happens in the discipline of economics, there should be efficiency in the judicial system not only in regard to the disposal of cases but also in the context of strict application of rule of law. It should, thereby, be discarding any exercise of ‘arbitrariness’ under the garb of ‘discretion of the court’ being exercised to serve equity and justice. Also, the policy makers should have a vision so that such problems could be addressed at the stage of legislation making.
In view of the aforementioned, it can be said that the decision of Delhi High Court indeed is a reason to celebrate for the students but a matter of grave concern for the publishers, the universities and even for those advocating open and free access to the education and knowledge resources. More transparency is needed to usher in efficiency in the education market. The judicial audit should be put in place to ensure that the judicial decisions are in line with the rule of law and no arbitrariness can get in even by any chance. Unless this is done, the scholars and the practitioners hailing from different disciplines will continue criticising the Indian law making and the judicial system.
Paramjeet Singh is a lawyer practising before the Supreme Court of India.
¹ The Chancellor, Masters & Scholars of the University of Oxford & Ors. v Rameshwari Photocopy Services & Anr. (CS(OS) 2439 of 2012) Delhi High Court, 16 September, 2016
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