DU Photocopy matter – Fairness in use of copyright material to be determined on the touch stone of “extent justified by purpose”

Delhi High Court:  Observing that “In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’ and that “the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education”, the Division Bench of the Delhi High Court set aside the impugned judgement and decree of the Single Judge in University of Oxford v. Rameshwari Photocopy Services2016 SCC OnLine Del 5128.

The Single Judge had opined that unless it could be proved that the Delhi University and Rameshwari Photocopy Services had infringed the copyright of the plaintiffs within the meaning of infringement under the Copyright Act 1957, no action for infringement would lie. The Judge had opined that the right to “reproduce the work” which has been vested exclusively in the owner of the copyright under Section 14(a)(i) would include within its ambit the right to make photocopies of the copyrighted work and that clause (h) would not be applicable to the preparation of these course packs since Section 52(1)(h) would be applicable only where there was (i) publication of a collection, and (ii) comprising mostly of non-copyrighted material.

Deciding the issue whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not hedged with the condition of it being a fair use and what is the span of the phrase ‘by a teacher or a pupil in the course of instruction’ in Section 52(1)(i)(i), the Division Bench comprising Pradeep Nandrajog and Yogesh Khanna, JJ. observed that “It is true that there has to be fairness in every action, and irrespective of a statute expressly incorporating fair use, unless the legislative intent expressly excludes fair use, and especially when a person’s result of labour is being utilized by somebody else, fair use must be read into the statute”. The Court held that “a plain reading of clause (i) would show that the legislature has not expressly made fair use a limiting factor while permitting reproduction by a teacher or a pupil during course of instruction.”

The appellants contended that Section 52(1)(i) only covered reproduction “in the course of instruction” and not “in the course of preparation for instruction” and  that relief cannot be denied on the ground of “public interest”, when exceptions to public interest had been delineated in the statute itself. The University on the other hand contended that term ‘reproduction‘ used in Section 52(1)(i) was distinct from the term ‘publication‘ used in Section 52(1)(h), with Section 3 defining “publication” as making a work available to the “public”, with the term “public” having a wider connotation than the term “students” and therefore, Section 52(1)(h) would not be applicable to preparation of course packs to be used by students for an educational purpose.

The Court observed that “In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education.  It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, “to utilize” means to make or render useful.  To put it differently, so much of  the copyrighted work  can be fairly  used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be  understood.

Rejecting the appellants’ contention the Court observed that the general principle  of fair use would be required to be read into the clause and not the four principles on which fair use is determined in jurisdictions abroad.

The Court referred to Sections 21(4)(a) [analogous to Section 52(1)(i) of Copyright Act, 1957 in India] and 19(6) [analogous to Section 52(1)(h) of the Indian Act] of the Copyright Act, 1962 of New Zealand, and  to Longman Group Ltd. v. Carringtoin Technical Institute Board of Governors, (19191) 2 NZLR 574 wherein it was observed,  “In its ordinary meaning, the course of instruction would include anything in the process of instruction with the process commencing  at a time early than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction  it would normally be in the course of instruction.” The Court held that a course pack if used as a textbook would obviously amount to publication and since use of copyrighted material with reference to  the publication fell within the domain of Section 19(6) of the Copyright Act in New Zealand, the course pack fouled Section 19(6) (being held to be a textbook)  and did not fall within the protective umbrella of Section 21(4).

Holding that the law in India would not warrant an approach by looking at whether the course pack has become a text book but by considering whether the inclusion of the copyrighted work was justified by the purpose of course pack i.e. for instructional use by the teacher to the class and this would warrant an analysis of the course pack. This issue required expert evidence. The other triable issue on fact was held to be whether photocopying of entire books would be a permissible activity.

Declining to grant any interim injunction in favour of the appellants, the Court restored the suit for trial on the issues of fact and directed Respondent 1 to maintain a record of course packs photocopied by it. [University of Oxford v. Rameshwari Photocopy Services, 22016 SCC OnLine Del 629, decided on December 9, 2016]

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