Delhi High Court ruling - Right of access to education must trump copyright

“Affordability” should never be an impediment to access knowledge and information, but that is a reality in India. A lot of attention and effort is being spent on primary education, but in so far as higher education is concerned, concerted efforts are conspicuous by their absence. 

And the problem is exacerbated by the prohibitive prices of books – because publishing behemoths like Oxford University Press, Cambridge University Press, Lexis- Nexis and others are intransigently insistent upon exercising their copyright to the academic works. There is also the problem of college and university libraries reeling under a severe paucity of books that leaves many students hapless. 

However, the Delhi Court’s Justice Rajiv Sahai Endlaw by his 16 September judgement has ensured that students would not have to remain bereft of the latest information and access to knowledge. In a ruling that will have far-reaching consequences on the interpretation of copyright laws in India, Justice Endlaw has dealt a big blow to the mercenary attitude of academic publishing houses.

The petitioners in the present case had moved court about Delhi University allowing a local photocopy shop to provide copies of certain chapters of those books which have been prescribed in the university syllabus. The companies cried foul, claiming that the university’s actions amounted to allowing of copying (an offence under the Copyright Act). The university retorted that its actions were protected by the “fair use” clause in the Copyright Act, which permits the copying of certain portions of books, and sometimes even entire books altogether, so long as the copies are being used for educational, academic instructional, and non-commercial purposes.

The most significant part of the court’s ruling is in paragraphs 57 and 58, which draws a critical distinction between the terms “publication” and “reproduction”. Section 52 (1) (h) of the Copyright Act prohibits the public dissemination of published work by ways of “further editions” or “re-prints” and Section 52 (1) (i) allows “reproduction” of publications (which includes photocopying and scanning) and is a permissible exception. Hence, neither the university nor the photocopy shop personnel had broken the law. 

Opinions regarding the court’s ruling have been sharply polarised. While those who have taken on an activist role to facilitate and improve access to education have come out in fulsome praise of the ruling, the other camp- which wants India’s Intellectual Property Rights laws to be harmonised with global conventions (which are very strict on copyright and patents) have bitterly criticised Justice Endlaw’s reasoning. The latter group claims the ruling is bound to backfire because publishers would not only raise the prices of books and pass on the burden to purchasers, but also that it would discourage academics from getting their works published, because they won’t have any incentive to do so.

But it is precisely here that the opponents of the ruling are erring. First and foremost, the ruling deals with academic publishing only; it does not address the issue of literary publishing at all. Till date, no author of literary works has come out in opposition of the judgement.

As of now, the educational publishing giants have not commented upon the ruling or decided if to move the Supreme Court on appeal. Nonetheless, nothing should stop one from celebrating a glorious victory in the war against lack of access to education. 

But here’s a ‘spoiler alert'. Unwilling to lose upon a money-making exercise, the publishers’ cabal approached a Division Bench comprising Justice Pradeep Nandrajog and Justice Pratibha Rani​, and contended that Justice Endlaw’s “flawed” ruling must be reversed.

The division bench, in its wisdom, decided to not order a stay on Justice Endlaw’s ruling, and have posted the next hearing on 29 of November.
It does not take a genius to figure out that the publishers would not pull any punches in getting their way. This post in the SpicyIP blog outlines and explains how the publishing houses are facing retaliation for their relentless pursuit of extreme profiteering.

So till 29 November, students and academicians should optimally use Justice Endlaw’s ruling, and stack up their bookshelves!