Photocopies of copyrighted books to make course packs for students’ curriculum is an exception to copyright under Section 52(1)(i)

Delhi High Court: Observing that “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. 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 dismissed the suit instituted by Oxford University Press, Cambridge University Press, United Kingdom (UK),  Cambridge University Press India Pvt. Ltd., Taylor & Francis Group, U.K. and,  Taylor & Francis Books India Pvt. Ltd., being the publishers, including of textbooks,  for the relief of permanent injunction restraining the two defendants, namely, Rameshwari Photocopy Service (carrying on business from Delhi School of Economic (DSE), University of Delhi) and the University of Delhi from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs‘ publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from the plaintiffs‘ publications by compiling them into course packs/anthologies for sale.

The facts are that students of Delhi University have been prescribed course material containing plaintiffs’ publications among other materials. The University in turn issues the books to the defendants for photocopying for wide and easy access of the prescribed course materials. The substantial issue, which arises for consideration, is whether the actions of the defendants qualify the exception of Section 52(1)(i) of the Copyrights Act. Section 52 prescribes certain acts not to be infringement of copyright and clause (i) reads as – “by a teacher or a pupil in the course of instruction”.

Interpreting “By a teacher or a pupil” The Court noted that the scope of Section 52(1)(i) is not restricted to the actions of an individual teacher and a pupil because education today is institutionalized and it would be restrictive to read “by a teacher or a pupil” as individuals and not as a wider group in an institution.

Interpreting “in the course of” – the Court found the words ‘in course of’ in different legislative contexts like (i) trade and commerce – in course of trade and commerce (ii) employment legislations – in the course of employment (iii) taxation legislations – in course of the year. It was found that all such legislations gave wide interpretation the words ‘in course of’. The Court collaborated the way “in the course of” has been treated by the decisions of the Supreme Court to hold that it could be (a) integral part of continuous flow (b) connected relation (c) incidental (d) casual relationship (e) during in the course of time and as time goes by (f) while doing (g) continuous progress from one point to the next in time and space (h) in the path in which anything moves [State of Travancore v. Shanmugha Vilas, 1954 SCR 53 : AIR 1953 SC 333; Md. Serajuddin v. State of Orissa, (1975) 2 SCC 47; Mackinnon Machenzie v. Ibrahim Mahmmed, (1969) 2 SCC 607; Regional Director v. Francis Costa ,(1996) 6 SCC 1; Commissioner of Income Tax v. East West Import and Export, (1989) 1 SCC 760].

Therefore, “in the course of” would mean imparting instruction by the teacher and receiving instruction by the pupil continues i.e. during the entire academic session for which the pupil is under the tutelage of the teacher and imparting and receiving of instruction is not limited to personal interface between teacher and pupil.

Interpreting “instruction” the Court found that instruction must be given a different meaning from lecture as instruction had not been defined under the Act whereas, lecture had a specific definition in the Act. More so, the dictionary meaning given to the ‘instruction’ is wide – something which a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student to acquire knowledge. The statutory meaning of ‘instructon’ under the Bombay Municipal Corporation Act, 1888 was relied on to ascertain the width ascribed to the word instruction by courts “to furnish knowledge or information to train in knowledge or learning, to teach, to educate”(Bombay Municipal Corporation v. Ramachandra Laxman, 1959 SCC OnLine Bom 26 : AIR 1960 Bom 58).

After consideration of the above the Court concluded that ‘instruction’ would include the prescription of syllabus the preparation of which both the teacher and the pupil are required to do before the lecture and the studies which the pupils are to do post lecture and so that teachers can reproduce the work as part of the question and the pupils can answer the questions by reproducing the work in examination. The Court draws an analogy that if students were to copy from the publishers book by hand, the act would not constitute an infringement but merely because in this case the process of copying is electronic and less cumbersome (i.e. photocopying) the same cannot become an infringement. Therefore, the Court held that the practice of the defendants falls within the exception of Section 52(1)(i) of the copyright Act.  [The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 5128, decided on 16th September, 2016]

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