No 'absolute ownership' to authors: Delhi HC rejects publishers' plea against photocopying of books

In a decision which would help students, Delhi High Court on Friday rejected a plea of some foreign publishing houses against the sale of photocopies of their textbooks, saying copyright in literary works does not confer "absolute ownership" to the authors.

Justice Rajiv Sahai Endlaw also lifted a ban on a photocopy shop located at the Delhi University campus from selling photocopies of chapters from textbooks of some international publishers to the students. "Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.

"Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public," the court said. The court said the action of making a master photocopy of relevant portions of the books of these publishers "does not constitute infringement of copyright under the Copyright Act". "If the facility of photocopying were not to be available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof.

"When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of evolvement of the human being for the better," it observed. In 2012, a group of publishers, including Oxford University Press, Cambridge University Press (UK), Cambridge University Press India Pvt Ltd, Taylor and Francis Group (UK) and Taylor and Francis Books India Pvt Ltd, had moved court alleging that Rameshwari Photocopy Service in DU was infringing their copyright over the text books.

Reacting to the judgement, the publishers in a joint statement said, "it is unfortunate that the court's decision today could undermine the availability of original content for the benefit of students and teachers."
"We brought this case to protect authors, publishers and students from the potential effects on the Indian academic and educational book market caused by the widespread creation and distribution of unlicensed course packs by a copy shop operating from within the premises of the University, where a legitimate and affordable licensing scheme is already in place," the statement said.

In its interim order in October 2012, the court had restrained Rameshwari Photocopy from "making or selling course packs and also reproducing the plaintiff's publication or substantial portion by compiling the same either in a book form or in the form of a course pack till the final disposal of the said application" till the final disposal of the plea. Thereafter, the students had moved the court against the interim order seeking lifting of the ban to ensure their welfare and preparation for the upcoming examinations. Their plea was rejected by the court.

The global publishing giants had claimed that the photocopy kiosk violated their copyright and, "at the instance of DU", was causing huge financial losses as students had stopped buying their text books. The court, however, in its 94-page judgement, also said that nearly all students of the university carry cell phones and most of them have inbuilt cameras which enable them to click photographs of each page of a book and take printouts after connecting the phone to a printer. "The same would again qualify as fair use and which cannot be stopped," it said.

It junked the petitioners' claim observing that "once such an action is held to be not offending any provisions of the Copyright Act, merely because the photocopies are done not by the person desirous thereof himself but with the assistance of another human being, would not make the act offending". "It matters not whether such person is an employee of the Delhi University or the university avails the services of a contractor. The position of the defendant no.1 (Rameshwari) in the present case is found to be that of a contractor to whom university has outsourced its work of providing photocopying service for its students...," it added.

The judge further observed that the case had cropped up as DU was itself supplying the photocopies instead of issuing the book, which may be sought by a large number of students for a limited period or limited hours. "It cannot be lost sight of that we are a country with a bulging population and where the pressure on all public resources and facilities is far beyond that in any other country or jurisdiction. While it may be possible for a student in a class of say 10 or 20 students to have the book issued from the library for a month and to laboriously take notes therefrom, the same is unworkable where the number of students run into hundreds if not thousands," the court said.

"According to me, what is permissible for a small number of students cannot be viewed differently, merely because the number of students is larger. Merely because instead of say 10 or 20 copies being made by students individually or by the librarian employed by the university, 100 or 1000 copies are being made, the same would not convert, what was not an infringement into an infringement," the judge said.