Legal proceedings initiated by a consortium of publishers—Oxford University Press, Cambridge University Press, and Taylor & Francis—in the Delhi High Court against a photocopy service provider operating within the precincts of Delhi University have raised concerns about equitable access to learning material. In their petition against Rameshwari Photocopy Services and Delhi University, the publishers have alleged that the course packs that they have distributed among students are in violation of their copyright and claimed damages of Rs.60 lakh.
The publishers assume that every photocopy is a lost sale. But many countries, including India, have in-built safeguards in their copyright laws against this flawed assumption.
Observers say that university libraries have only up to three copies of a book, which are shared by hundreds of students, and the course pack is an institutionalised practice to ensure that all students have access to learning material. They also point out that fair use exception legalises certain acts without the permission of copyright owners.
Within fair use, the education exception is what governs photocopying and the creation of course packs. For instance, in India, Section 52(1)(h)(i) of the Copyright Act allows for the “reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction”. Section 52(1)(a)(i) allows a fair dealing with a literary, dramatic, musical or artistic work (not being a computer program) for the purposes of private use, including research.
According to the results of a study revealed by Amlan Mohanty on the blog SPICY IP, the university might have reproduced on an average less than 10 per cent of the total page count of the books in their course packs. Again, out of the 23 books whose copyright has allegedly been infringed, only five extracts exceed the 10 per cent limit recently set in a case in the United States in a similar case. In India, experts say there is a need to raise this limit, as the educational scenes in the U.S. and India are not comparable.
According to Lawrence Liang, legal expert with Alternative Law Forum, Bangalore, the educational use exception in India in the Copyright Act is designed to address the needs of education in a developing country. The Supreme Court in the Francis Coralie Mullin case (1981) has held that the right to life in Article 21 is not just about physical survival but includes the right to facilities for reading, writing and expressing oneself in diverse forms. In a paper, Liang says that the mere assertion of an absolute claim by the copyright owners does not make public interest limitations such as those in Section 52 disappear.
The Supreme Court of Canada, in Alberta (Education) vs Canadian Copyright Licensing Agency (Access Copyright), held on July 11 that photocopies of short textbook excerpts made by teachers to distribute to students in kindergarten to grade 12 as part of classroom instruction can qualify as fair dealing (that is, permissible copying) under the Copyright Act. Observers expect the court to follow international and Indian legal precedents while deciding the Rameshwari case.
V. VenkatesanCOMMents
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