#dnaEdit: Right to photocopy

The Delhi high court judgment dismissing a suit bought by major publishing companies accusing Delhi University and a photocopy shop located on its premises of infringing upon copyrights — by photocopying and distributing copies of copyrighted publications on a large scale — has made a resounding distinction between activities that further social progress and commercial activities. The shop, Rameshwari Photocopy Services, was developing course packs, based on extracts from a host of books, at the instance of the DU administration and faculty. This would help students avoid the need to buy 30 or 40 books, most of which are prohibitively expensive or out of print, just to refer to one or a few chapters in them. However, publishing companies stood to lose revenues because of this practice. But in its judgment, the Delhi high court held that the reproduction of copyrighted material for educational purposes fell within the exceptions to the infringement of Copyright Act under Section 52(1)(i).

The judgment is significant because under the influence of some developed nations and multinational corporates like pharmaceutical and music companies, an intellectual property rights regime is sought to be imposed on poorer and developing nations, which will make patented and copyrighted material unaffordable for ordinary people. The high court judgment noted that copyright was not an “inevitable, divine or natural right that confers on authors the absolute ownership of their creations”. Rather, the court also pointed out that copyrights were designed to stimulate intellectual activity and progress in the arts and not intended to impede the dissemination of knowledge. DU was successfully able to argue that it did not seek to earn profits from the photocopying operations and was not ordering the reproduction of entire textbooks. The university said that it was forced to resort to allowing photocopying because there was a limited number of copies in its libraries while the borrowers tended to be in the hundreds, which restricted the library’s ability to lend out the book for reasonable periods.

The judge, Rajiv Sahai Endlaw, also made an interesting comparison between the manual practices of reproduction followed several decades ago and how technology has made these simpler. Earlier, students had to laboriously copy by hand from textbooks and make carbon copies while technology today allows photocopier machines to automate the process. He points out that when an action done “onerously” is not an offence, it cannot become an offence when the same task becomes simpler because of an improvement in technology. The court also noted that when Parliament inserted Section 52(1)(i) permitting the reproduction of copyrighted material in the course of instruction to be justified for the purpose of teaching, it believed that this did not hurt the legitimate interests of authors.

The publishing industry is certain to view the judgment as a setback to its efforts to end photocopying which is rampant in Indian universities. Publishers point out the expenses incurred in commissioning authors, hiring editors and peer reviewing of books. They have also proposed a model where they receive a small commission for each page photocopied so that they earn returns on their investment. Perhaps, the industry should explore an on-demand publishing model where academia’s syllabus demands can be quickly catered to by a confederation of publishers who sub-contract the “course packs” to smaller publishers. Of course, these “official” course packs should be priced reasonably for students. Ultimately, when students access copyrighted material for educational purposes at subsidised rates it also creates the platform for them to do better in life and access a larger world of reading and knowledge. It is publishers who stand to benefit when more students access higher education at post-graduate levels and beyond.