The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors: Case Analysis

The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

INTRODUCTION

Copyright law is a very important branch of intellectual property Rights. In general terms, Copyright is a legal right that grants the creator of any work exclusive right (subject to certain limitation and exception to copyright law) to use, distribute, reproduce, to have control over derivatives works and public performance etc. The people among whom such rights are shared are known as ‘Right Holders’.

Every country has different copyright law but many aspects of copyright law of different countries have been made with some similarities through international copyright agreement. Like foreigner’s work is protected in India through International Copyright Order, 1999, because India is a signatory to it and similarly many other countries.

Moreover, the Indian Courts has always been vigilant against infringement of Copyright of foreign authors/owners, including software, motion pictures, the screenplay of motion pictures and database. But such protection from infringement does not available where there has been a use of any copyrighted material through the fair use and dealing.

The Copyright Act prohibits photocopying unless the copying falls within the ambit of fair use doctrine exception. Under fair use doctrine, one can photocopy copyrighted stuff even without owner’s permission.

The present case is one of the renounced cases in the context of Intellectual property right in India. A photocopy shop known as Rameshwari Photocopy Services is within the vicinity of the Delhi School of Economics (University of Delhi) which came into limelight due to copyright litigation filed by five prominent publishers which included Oxford University Press, Cambridge University Press and Taylor & Francis, in a case formally known as The Chancellors, Masters and Scholars of the University of Oxford and Others v. Rameshwari Photocopy Services and Others).

In a landmark judgment, the Division Bench of the Delhi High Court on December 9, 2016 ruled that the preparation of ‘course packs’ i.e. compilation of photocopies of the relevant portions of different books prescribed in the syllabus, and their distribution to the students by educational institutions does not constitute infringement of copyright in those books under the Copyright Act, 1957, as long as the inclusion of the works photocopied (irrespective of the quantity) was justified by the purpose of educational instruction.[1]

It held that such photocopying qualifies as reproduction of the work by a teacher in the course of instruction and thus does not amount to copyright infringement by virtue of Section 52(1)(i) of the Act.[2] In effect, it held that the educational institutions do not require a license or permission from the publishers for making and distributing course packs to students if the copyrighted materials included in them are necessary for the purpose of instructional use by the teacher to the class.

FACTS OF THE CASE: The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

In the suit, the Plaintiffs were The Chancellor, Masters & Scholars of the University of Oxford & Ors.  namely The Oxford University Press, the Cambridge University Press and the Taylor & Francis Group.

In the present suit, the defendants were Rameshwari Photocopy Services & Ors.

The plaintiffs were the publishers of some books which were said to have photocopied by the defendants and then sold to the students in Delhi School of Economics.

The Fact was, this Act of defendants said to have violated the copyrights protected under section 51 of the Indian Copyrights Act, 1957.

The Defence taken by the defendant was that professors imparting teaching in the Delhi School of Economics had authorized preparation of course packs and Rameshwari Photocopy Services was  entrusted with the task of photocopying the pages from the books published by the plaintiffs, and after binding the same, to supply them to the students charging 50 paisa per page. This was for educational purpose.

The fact was that the Defendant mainly used to make the photocopy of the materials which was published by the plaintiff and used to supply them to their students and they also have made that as their course outcome.

The Defendant (Photocopy shop) further used to bind them in a exact way and then they used to sell them to the student as they have made that as their course outcome.

Moreover, professors of the Delhi School of Economics, through its Library, issued the books published by the plaintiffs to Rameshwari Photocopy Services for preparing course packs.

Therefore, plaintiff filed a case against the defendant for the violation of the copyright in the court of law.

PROCEDURAL BACKGROUND:  COURSE OF CASE

First, the case was instituted before a single judge bench of Delhi High Court in August 2012 and the Single judge bench announced an interim injunction in favour of plaintiffs (oxford & ors.), which restrained the Photocopy shop to reprint the oxford authored book in Oct 2012.

Subsequently, the Defendants (one of the defendant Delhi University), preferred to appeal before the division bench of high court of Delhi but, the divisional bench dismissed it and asked the defendants to present an application before single bench in Nov 2012.

Later in 2013 before the single bench two new defendant were presented an application to be added as Defendants, (ASEAK & SPEAK student Organisations). They were added as defendants (Defendant No. 3 & Defendant No. 4), in March and April 2013 respectively.

On September 16, 2016, Justice Rajiv Sahai, dismissed the entire suit of the plaintiffs (Oxford & ors). He concluded that the actions of the Defendants do not amount to copyright infringement, relying pertinently upon Section 52(1)(i) of the Act, which provides that any reproduction of a copyrighted work by a teacher or pupil in the course of instruction does not constitute copyright infringement.[3]

On October 5, 2016, the Plaintiff-Publishers (Oxford & Ors) filed an appeal against this decision before the Division Bench of the Delhi High Court. 

The court admitted the appeal on October 6 but refused to grant an interim injunction against Defendant No. 1 that the Plaintiff-Publishers prayed for. court ruled that making and distribution of course packs to students does not amount to copyright infringement as long as the inclusion of the works photocopied (irrespective of the quantity) was justified by the purpose of educational instruction.[4]

On March 9, 2017, the plaintiff-publishers surprisingly withdrew the suit. The public statement released by them on withdrawal read as follows:

“We have taken a considered decision not to pursue the Delhi University Photocopy shop case further in the courts and will today be filing an application with the Delhi High Court to withdraw as plaintiffs.   In addition, we will not be submitting an appeal to the Supreme Court of India, following the Delhi High Court Division Bench appeal decision of 09 December, 2016. 

PLAINTIFF’S CONTENTION

The plaintiffs Contended that the inclusion of specific pages of its publications by Rameshwari Photocopy Services, under the authority of the Delhi School of Economics, amounts to institutional sanction for infringement of its copyright.Plaintiffs further added that the professors of the Delhi School of Economics, through its Library, issued the books published by the plaintiffs to Rameshwari Photocopy Services for preparing course packs.

Plaintiff further present a case contending that the course packs, which contain no additional material apart from photocopies of its copyrighted publications, were being used like textbooks and therefore, the compilations prepared were competing with the publications of the plaintiffs.

According to the plaintiffs, Rameshwari Photocopy Services was operating commercially as was evident from the rate charged by it for selling the course pack is 40/50 paisa per page, as distinct from the market rate of 20/25 paisa per page being charged by other photocopiers from the students while photocopying material given by the students to be photocopied.

Anticipating that the defence would be predicated under Section 52(1)(i)[5] of the Copyright Act, 1957, the plaintiffs have pleaded that Section 52(1)(i) was not applicable since reproduction by Rameshwari Photocopy Services, with the assistance of Delhi School of Economics, could not be classified as reproduction by a teacher or a pupil in the course of instruction. 

Additional contention was that the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i) would render Section 52(1)(h) superfluous. Meaning thereby, the plaintiffs had required the two sub-Sections to be harmonized. 

The plaintiffs have further pleaded that Section 52(1)(i) only covered reproduction in the course of instruction‘ and not in the course of preparation for instruction‘ as was evident from the replacement of the expression in the course of preparation for instruction‘ in the Bill which was tabled before the Legislature with the expression in the course of instruction‘ in the Act as finally promulgated upon the Bill being adopted; with modifications by the Legislature.[6]

According to the plaintiffs, reproduction by Rameshwari Photocopy Services fell within the ambit of Section 52(1)(h) and would have to be limited to two passages from works by the same author published by the same publisher during any period of five years as provided under the sub-Section.

DEFENCE AND ARGUMENTS BY DEFENDENTS

Rameshwari Photocopy Services pleaded that the preparation of course packs by it amounts to fair use within the meaning of Sections 52(1)(a) and (h) of the Copyright Act, 1957. 

Rameshwari Photocopy Services further pleaded that its activity does not affect the market for the plaintiffs’ books since it charges a nominal rate for its services as fixed by the License Deed executed between the Delhi School of Economics and Rameshwari Photocopy Services. As per it, the students cannot afford to buy all the books, extracts of which were mentioned in the syllabi prepared by the Delhi School of Economics.[7]

The University of Delhi (Defendant No. 2) also pleaded that Section 52(1)(i) of the Copyright Act, 1957 permits students and educational institutions to copy portions from any work for research and educational purpose. 

The University submitted that Rameshwari Photocopy Services has been licensed by it to operate a photocopy shop within its premises in order to facilitate photocopying by students for educational and research purpose. 

 The University pleaded that no limitation on the quantum of reproduction under Section 52(1)(i) has been provided under the Copyright Act, 1957 and because Section 52(1)(i) covers reproduction for educational purposes, unlimited photocopying would be permitted. For which argumentative pleadings reference to the limitation of two passages provided under Section 52(1)(h) was highlighted.  

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It was argued, by way of pleading, that the term ‘reproduction‘ used in Section 52(1)(i) was distinct from the term ‘publication‘ used in Section 52(1)(h), with Section 3 of the Act 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. University of Delhi pleaded that the expression “course of instruction” must be interpreted expansively.

QUESTIONS OF THE LAW

whether copyright is purely statutory or also has an organic, natural basis?

The Single Bench judge summarizes his view on the subject in the following words:

“Sec. 13 of the Copyright Act defines the works in which copyright subsists but makes the same subject to the provisions of that Section as well as other provisions of the Act. The same leads me to form an opinion that copyright, though may subsist under the natural law in any work, has been made subject to the statute and if the statute limits the works in which copyright subsists, there can be no natural copyright therein.” So Sec 13 sets out the boundaries to copyright claims, subject to the rest of the Act.[8] 

The Judge meant that the right to reproduce a literary work or any substantial part thereof is ordinarily held by the rights-holder. However, if another clause of the Act were to “provide otherwise”, the copyright under Sec 14 will then cease to exist. Such a right would not be modified to the extent of the restricting clause; it would not merely displace the natural copyright and substitute it with the copyright permitted under the Act – instead, it would cease altogether.

He held “Copyright, especially 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.

So, it means though the Copyright protection is organic or natural but the legislation can make some exceptions to it. So, it’s more like a statutory protection.

Whether the acts of making copies of the Plaintiffs’ books purchased by the University and then distributing these copies to the students, amount to acts which only the Plaintiffs, as rights-holders, are entitled to do?

The court proceeded to the interpretation of Section 52(1)(i), which formed the core issue in the case. Relying upon Section 13(2) of the General Clauses Act, 1897,[9] it held that the word ‘reproduction’, meaning ‘making a copy of’, includes its plural as well i.e. making more than one copy of the original or photocopying. Similarly, it held that the words ‘teacher’ and ‘student’ also include ‘teachers’ and ‘students’ and thus concluded that making of multiple copies of a work by teachers or students is contemplated under this provision.

Thus, the Division Bench also in their judgment clearly held that in order to determine whether the use of a copyrighted work is permitted under Section 52(1)(i), it is only to be seen whether the  work used was necessary for achieving the purpose of educational instruction, irrespective of whether only a certain percentage of the work or the entire work is used.

So, when for educational purpose it is necessary to reproduce a book, it is not copyright infringement.

whether the Defendants’ actions constitute acts protected by §52 of the Act

Court held Section 52 is to be interpreted as a narrow exception but a full-fledged defence in favour of educational institutions and students.

COURSE OF INTERIM ORDER, JUDGEMENT AND APPEAL

Interim Injunction by Single Bench

On October 17, 2012, the Plaintiff-Publishers succeeded in obtaining an interim injunction restraining the Defendant No. 1 from making/selling these course packs. In pertinent part, the Single Judge imposed the following strictures:

“Defendant no.1 is the photocopier running its shop under licence from the defendant no. 2. The defendant no.1 has no right to compile such course packs and books/articles published by the plaintiffs and more so, when defendant no.2/University has taken a stand that that they have no intention to breach any law by making such reproductions as complained of by the plaintiff in the present suit.

The defendant no.1 is accordingly restrained from making or selling course packs and also reproducing the plaintiff’s publication or substantial portion thereof 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.”

The Delhi University preferred an appeal before the Division Bench of the court against this restraining order which, although not directed at it, recorded it to have made an alleged admission/undertaking that it would not be committing any acts that were claimed to be infringing by the Plaintiff-Publishers. However, the court dismissed the appeal on November 27, 2012, directing the University to file an application before the Single Judge to clarify the scope of the stand taken by it.[10]

Adding of ASEAK and SPEAK as Defendants

In 2013, ASEAK (Association of Students for Equitable Access to Knowledge), an association of students of the Delhi University, approached the High Court to be impleaded as a ‘necessary party’ to represent the large numbers of students directly affected by the interim injunction and having a direct interest in the outcome of the suit. It stated that the course packs are the only effective means to ensure access to knowledge and is excepted from copyright infringement under Sections 52(1)(a) and 52(1)(i) of the Copyright Act. ASEAK’s application was allowed and it was impleaded as Defendant No. 3 on March 1, 2013.

Similarly, SPEAK (Society for Promotion of Equitable Access to Knowledge), a society of scholars and academics from amongst varied disciplines in law and social sciences approached the High Court seeking to be made a ‘necessary party’. And, was also allowed and it was impleaded as Defendant No. 4 on April 12, 2013.

Single Bench’s Judgment

On September 16, 2016, Justice Rajiv Sahai Endlaw dismissed the entire suit of the plaintiffs. He concluded that the impugned actions of the Defendants do not amount to copyright infringement, relying pertinently upon Section 52(1)(i) of the Act, which provides that any reproduction of a copyrighted work by a teacher or pupil in the course of instruction does not constitute copyright infringement.[11]

Some of the key highlights of the decision are as below:

1. Copyright is not a natural or divine right, but only a statutory right.

“Copyright, especially 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.”

2. Section 52 is to be interpreted as a narrow exception but a full-fledged defence in favour of educational institutions and students.

“The rights of persons mentioned in Section 52 are to be interpreted following the same rules as the rights of a copyright owner and are not to be read narrowly or strictly or so as not to reduce the ambit of Section 51, as is the rule of interpretation of statutes in relation to provisos or exceptions. Thus, Sections 14 and 51 on the one hand and Section 52 on the other hand are to be read as any two provisions of a statute.”

3. The term ‘teacher’ in Section 52(1)(i) is not restricted to an individual teacher but extends to educational institutions as a whole.

“There is no reason to interpret Section 52(1)(i) as providing for an individual teacher and an individual pupil and which, neither at the time of inclusion thereof in the statute nor now exists in the society. Merely because imparting of education by teachers today is as part of an institution as the defendant no.2 University and it is the defendant no.2 University which on behalf of its teachers is reproducing any copyrighted work by making photocopies thereof, would not mean that Section 52(1)(i) would not be applicable.”

4. The word “ instruction” in section 52 (1) (i) is not limited to a lecture in the classroom and thus the scope of this provision is not limited to reproduction of a work by a teacher in the course of a lecture but also includes reproduction for the purpose of making and issuing course packs.

“Had the intention of the legislature while incorporating Section 52(1)(i) been to constitute reproduction of any work by a teacher or a pupil in the course of lecture, the legislature would have in Section 52(1)(i) used the word lecture which has been defined in the Act. The word instruction thus has to necessarily mean something other than lecture.….[I]n the context of the teacher, it refers to something which a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student or pupil to acquire knowledge of what the students or pupil has approached the teacher to learn.”[12]

5. The imparting of instruction does not begin and end in the classroom or tutorials only but extends beyond that and thus Section 52(1)(i) covers reproduction by an educational institution during the entire academic session.

“The words in the course of instruction within the meaning of Section 52(1)(i) supra would include reproduction of any work while the process of 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 that imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process of commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, reading and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, the pupil stands instructed in what he/she has approached the teacher to learn”.

6. Since the reproduction of pages from the books by each of the students, whether by way of photocopying, copying by hand or clicking photographs, for his/her private use does not amount to copyright infringement by virtue of Section 52(1)(a), the photocopying of the same by the university for the benefit of the students due to certain resource constraints cannot be said to be infringement when the result/effect of both is the same.

“I have wondered that if the action of each of the students of having the book issued from the library of defendant No.2 University and copying pages thereof, whether by hand or by photocopy, is not infringement, whether the action of the defendant no.2 University impugned in this suit, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of students requiring the said book, the fear of the costly precious books being damaged on being subjected to repeated photocopying, can be said to be infringement; particularly when the result/effect of both actions is the same… The answer, according to me, has to be in the negative.”[13]

7. Once it is found that the making of course packs by a university does not constitute infringement, it is of no consequence whether the university is doing so by use of a machine installed inside its library or outside, whether it owns that machine or not, whether it allows photocopies to be made by the students themselves or with the assistance of another person and whether such person is its employee or an independent contractor. Thus, the Delhi University’s engagement of Defendant No. 1 for making of course packs does not convert its action, which is otherwise held to be not infringement, to infringement. 

Appeal to the Division Bench

On October 5, 2016, the Plaintiff-Publishers filed an appeal against this decision before the Division Bench of the Delhi High Court. The court admitted the appeal on October 6 but refused to grant an interim injunction against Defendant No. 1 that the Plaintiff-Publishers prayed for. However, it directed the Defendants to maintain a record of photocopied course packs sold. The appeal is now scheduled for hearing on November 29, 2016.

Division Bench’s Judgment: The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

On December 9, 2016, the Division Bench, comprising Justices Pradeep Nandrajog and Yogesh Khanna, decided the appeal refusing to grant an interim injunction to the plaintiff-publishers and emphatically ruling that making and distribution of course packs to students does not amount to copyright infringement as long as the inclusion of the works photocopied (irrespective of the quantity) was justified by the purpose of educational instruction. Accordingly, it remanded the suit to the single bench for a fact specific determination on whether the copyrighted materials included in the course packs in this case were necessary for the purpose of instructional use by the teacher to the class. Until then, the course packs could continue to be made and supplied to the students.

The key highlights of the judgment, penned by Justice Nandrajog, are as follows:

A. Section 52(1)(i) and Fairness

The court began by noting that since Section 52(1)(i) does not have an express fair use limitation, only the general principle of fair use can be read into it. It rejected the application of the four factors used for determination of fair use in other jurisdictions, especially the US, to this clause. It laudably noted that fairness of the use under this clause is to be determined only by the purpose of the use i.e. education and not by its quantitative or quantitative extent. It also held that the fair dealing standard has been prescribed only in clause (a) of Section 52(1) and thus cannot be imported into its other clauses including clause (i). The relevant paragraphs of the judgment read as follows:

“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. Thus, we reject the arguments by learned counsel for the appellants that the four factors on which fair use is determined in jurisdictions abroad RFA(OS) No.81/2016 Page 36 of 58 would guide fair use of copyrighted material during course of instruction. The qualitative and quantitative test which is one of the four tests would not apply to clause (i)… Further, while the Court in B.D. Bhandari’s case (supra) did hold that a fair dealing standard was to be read into all clauses of Section 52 of the Copyright Act, 1957, as held hereinabove, a fair dealing standard has only been provided in clause (a) of sub-Section (1) and not in the other clauses of sub-Section (1) of Section 52, and therefore, cannot be read into the other clauses.” [paragraphs 33, 35 & 72][14]

Thus, the Division Bench’s judgment clearly held that in order to determine whether the use of a copyrighted work is permitted under Section 52(1)(i), it is only to be seen whether the  work used was necessary for achieving the purpose of educational instruction, irrespective of whether only a certain percentage of the work or the entire work is used.

B. Impact of Course Packs on Market of Publishers’ Works

The court rejected the argument of the publishers that unauthorized making and distribution of course packs has caused or is likely to cause an adverse impact on the market of their books. It observed that a student is not a potential customer of the multiple books used in the course packs and in the absence of course packs he/she would refer to these books in the library. Interestingly, it further noted that instead, the improved education could very well lead to an expansion of the market for these books.

C. Meaning of ‘Reproduction’, ‘Teacher’ and “Pupil’

The court then proceeded to the interpretation of Section 52(1)(i), which formed the core issue in the case. Relying upon Section 13(2) of the General Clauses Act, 1897, it held that the word ‘reproduction’, meaning ‘making a copy of’, includes its plural as well i.e. making more than one copy of the original or photocopying. Similarly, it held that the words ‘teacher’ and ‘student’ also include ‘teachers’ and ‘students’ and thus concluded that making of multiple copies of a work by teachers or students is contemplated under this provision.

D. Meaning of ‘In the Course of Instruction’

Next, the court dealt with the question of interpretation of the phrase ‘in the course of instruction’ that was highly contested between the parties. It accepted the argument of the respondents that irrespective of whether the word ‘course’ is read as a verb or a noun, the phrase ‘in the course of instruction’ would mean the entire process or programme of education in a semester and not the process of teaching in the classroom alone. 

The court acknowledged that teaching does not involve simple lecturing by the teacher and taking of notes by the students in the classroom but an interactive discussion based on the pre-reads etc. by the students that is regulated by the teacher. It further placed reliance on the judgment of the High Court of New Zealand in Longman Group Ltd. v. Carrington Technical Institute Board of Governors[(1991) 2 NZLR 574], wherein the words ‘in the course of instruction’ in Section 21(4) of the New Zealand Copyright Act, 1962 were interpreted to include “anything in the process of instruction with the process commencing at a time earlier 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 found this to be the only logical interpretation of this phrase and termed the judgment as an authority on this point due to the similarity in the language of Section 52(1)(i) of the Indian Copyright Act and Section 21(4) of the New Zealand Copyright Act. It thus concluded that the phrase ‘in the course of instruction’ included within its ambit preparation and distribution of course packs to students.

E. Distribution of Course Packs: Publication?

The Division Bench disagreed with the view taken by the Single Bench that distribution of course packs to ‘students’ does not amount to publication by opining that “publication need not be for the benefit of or available to or meant for reading by all the members of the community” and that “a targeted audience would also be a public”. However, it rejected the argument that the issue of course packs in this case amounted to publication on the basis that publication requires an element of profit which was absent in this case.

F. Use of an Intermediary/Agency for Making of Course Packs

The court further dealt with the argument of the publishers that reproduction of works under Section 52(1)(i) can be made only by a teacher or a pupil and not by an intermediary i.e. the photocopier. It rejected this argument by rightly observing that “common sense tells us that neither the teacher nor the pupils are expected to purchase photocopiers and photocopy the literary work to be used during course of instruction in the class room”. It further noted that the photocopier in this case was not making any profit apart from the usual profit it would be making by simply photocopying material. Accordingly, it found the argument against use of an agency to be irrelevant.

G. Making of Course Packs by Educational Institutions

The court also rejected the argument of the publishers that Section 52(1)(i) was not applicable to educational institutions but only to an individual teacher. Unlike the Single Judge who clearly held that the benefit of this provision was also available to educational institutions as well and thus to DU, the Division Bench did not even deal with this interpretive question. It simply refused to find any institutional sanction for photocopying in this case for DU’s role is limited to laying down the course curriculum and it is the individual teacher/teachers only who select the copyrighted works to be included as reading materials in the course packs. In short, it found that the course packs in this case were made and distributed by the teachers and not DU and thus clearly fell within the ambit of Section 52(1)(i).

The argument of the publishers based upon Article 13 of the TRIPS Agreement[15] and Article 9 of the Berne Convention was dismissed by the court noting that “the contents thereof are merely directory and have enough leeway for the signatory countries to enact the copyright law in their municipal jurisdiction concerning use of copyrighted works for purposes of dissemination of knowledge”. The court also found the decisions of the US, Canada and UK courts, relied upon by the parties, to be of no relevance in the Indian context because the concept of fair use and fair dealing is different in those countries.

The Division Bench therefore dismissed the appeal concluding that Section 52(1)(i) permits unauthorised preparation and distribution of course packs to students, if the works included therein are necessary for effectuating the purpose of the course packs i.e. educational instruction. It thus remanded the suit to the trial court for factual determination of whether the works included in the course packs in this case were necessary for achieving the purpose of education instruction or not. It also allowed the publishers to amend their plaint and plead the fact of cover to cover photocopying of eight books that found mention in the Local Commissioner’s report and directed the trial court to make a factual determination on permissibility of these copies as well. The court refused to grant an interim injunction in favour of the publishers and only directed the photocopier to maintain a record of the course packs photocopied and supplied to students and file the same in the suit every six months.

Withdrawal of the Suit by Plaintiff-Publishers

On March 9, 2017, the plaintiff-publishers surprisingly withdrew the case The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors. The public statement released by them on withdrawal read as follows:

“We have taken a considered decision not to pursue the Delhi University Photocopy shop case further in the courts and will today be filing an application with the Delhi High Court to withdraw as plaintiffs.   In addition, we will not be submitting an appeal to the Supreme Court of India, following the Delhi High Court Division Bench appeal decision of 09 December, 2016.  

We continue to stand by our principles stated throughout this case. We support and seek to enable equitable access to knowledge for students and we understand and endorse the important role that course packs play in the education of students. We support our authors in helping them produce materials of the highest standard and we maintain that copyright law plays an important part in balancing the interests of those creating, curating, and disseminating learning materials with those requiring access to them. [16] 

We look forward to working even more closely with academic institutions, teachers and students to understand and address their needs, while also ensuring that all those who contribute to and improve India’s education system—including authors and publishers—continue to do so for the long term.”

Appeal to the Supreme Court

In April 2017, IRRO filed a Special Leave Petition before the Supreme Court challenging the judgment passed by the Division Bench on December 9, 2016. However, the bench comprising Justices Ranjan Gogoi and Navin Sinha refused to admit the appeal, noting that the special leave petition (SLP) to appeal by IRRO was not even maintainable as the original suit filed before the Delhi High Court had been withdrawn by the plaintiff-publishers and the IRRO was merely an intervenor in the proceedings before the High Court.[17]

CONCLUSION: The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

While this judgment and the analysis herein are focused on the Indian context, it is important to note that the property-centric view of intellectual property is not an issue faced by India alone. Even in the education sector, strong moves towards the chaining of academic research in terms of ‘property’ have been facing protests across borders. This has been true even in the West, with the judgment of the US Supreme Court in Authors Guild v. Google similarly promoting a right to fair use, though in a different factual situation.[18]

Case filed by the publication houses was just to fix the downfall in their business arising out of the distribution of contents of their publication work by the photocopy shop. It was stated by the plaintiff that “publishers are not charity house and why publishers should be giving out their works for free” as a huge amount have been paid to the authors to publish and sell their written material. Delhi High Court verdict, in this case, has confined to the territorial limits of Delhi and has weakened the position of the publishers in any future bargain. In this case, Section 52(1)(i) has not interpreted as exception but as a controlling provision setting free the reproduction of copyrighted content in the name of access to education.

On 11 May of 2012 in the case of Cambridge University Press v. Becker it was decided by the United States District Court for the northern district of Georgia, that university does not require a license to photocopy below threshold value of 10%.  The fact cannot be denied that India is quite behind in the aspect of economic growth from other developed countries. There is a need for bigger threshold value because of the higher theoretical studies in the universities but even though there should be some specific limitation in % of making copies of copyrighted stuff.

Most of the people belong to middle or lower class unable to afford the books published by the reputed publication but that does not give right to an Institution to circulate their content among their student in a large scale by infringing the copyright law. In the present case, HC decision indicated that country wouldn’t follow the global trend sets for copyright law.

There is the necessity of a provision that would determine to which extent the reproduction of copyrighted material would not amount to infringement of copyright law for the educational purpose, till then everyone can claim relief against infringement of copyright work.

At the same time, the increasing severity and cost of paywalls and other restrictions on access to academic works have been criticised across the world,44 with Elsevier being the subject of much critique. Many academicians and activists have, in fact, gone so far as to oppose these restrictions by making many articles available for free or creating tools for finding free versions of articles. Further, the consistently increasing support for the Open Science and Open Access movements speaks for itself.

We live in an era where technology allows us to share information at rates that could barely be dreamt of decades ago. From massive computer with minuscule processing powers, we have come to an era where any device can tap into the power of a literal, modern supercomputer over the Cloud.[19] The evolution of technology has led us to a democratisation of the means of content creation, with every individual now being capable of tasks that required entire industries.

The recognition granted to educational exceptions, to the need for accessibility, in the Division Bench judgment counts as a momentous victory in this regard. It is particularly important to note that the judgment adopts a perspective on fair use that sees it as a right, and not as a mere defence, which is a significant step forward for the commons discourse.

 There are issues yet to be addressed, such as the test for what qualifies as the “extent justified by the purpose”, which shall hopefully be dealt with by the courts in the future in a similar view. Hopefully, this reframing of the discourse will see a wider application in the Intellectual Property Rights (IPR) jurisprudence as a whole, particularly in other areas as or more crucial than education, such as the pharmaceuticals industry.

After all – “The More You Take, the Less Fair Your Use Is Likely to Be”

[1] University of Oxford Vs Rameshwari Photocopy Services: An analysis, Law Times Journal, available at: https://lawtimesjournal.in/university-of-oxford-vs-rameshwari-photocopy-services-an-analysis/ , last seen on 19/08/2020.

[2] Certain acts not to be infringement of copyright, Section 52 of Copyright Act of 1957.

[3] Delhi High Court, The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors https://indiankanoon.org/doc/114459608/ last seen on 19/08/2020.

[4] Supra 3 The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

[5] Supra 2 The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

[6] Supra 1 The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

[7] Casemine, university of Oxford v Photocopy services, available at: https://www.casemine.com/judgement/in/57dc3003bc41683b3d081873, last seen on 20/08/2020.

[8] Supra 3 at 3.

[9] Gender and Number, Section 13 in the General Clause Act, 1897, available at: https://indiankanoon.org/doc/1277086/, last seen on 20/08/2020.

[10] The Chancellor, Masters & Scholars of the University of Oxford Vs. Rameshwari Photocopy Services [Delhi High Court, 16-09-2016], Indian Caselaw, available at: https://indiancaselaw.com/the-chancellor-masters-scholars-of-the-university-of-oxford-vs-rameshwari-photocopy-services-delhi-high-court-16-09-2016/,  last seen on 20/08/2020.

[11] The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. [DU Photocopying Case], spicyip, available at: https://spicyip.com/2016/12/du-photocopy-appeal-decision-another-landmark-victory-for-educational-access-in-india.html, last seen at 21/08/2020.

[12] Ibid The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

[13] Supra 11 The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors

[14] Delhi High Court, The Chancellor, Masters & … vs Rameshwari Photocopy Services & … on 9 December, 2016, available at: https://indiankanoon.org/doc/114459608/ last seen on 19/08/2020.

[15] Limitation and Exception, Agreement on Trade-related aspects of Intellectual Property Rights, Annex 1c, available at: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf, last seen on 21/08/2020.

[16] Delhi University Photocopy Shop Judgement, The Chancellor Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Ors: A Landmark In The Access To Knowledge Movement In India, livelaw.in, available at: http://www.livelaw.in/delhi-university-photocopy-shop-judgement-landmark-access-knowledge-movement-india/, last seen on 22/08/2020.

[17] Ibid

[18] Kartik Chawla, ‘Authors’ Guild v. Google – A Fair Use Victory, and a Chance for Introspection’ (SpicyIP, November 8, 2015), available at https://spicyip.com/2015/11/ authors-guild-v-google-a-fair-use-victory-and-a-chance-for-introspection.html, last seen on 21/08/2020.

[19] Oliver Chiang, OnLive Wants to be Your Tablet’s Supercomputer in the Cloud, Forbes (December 7, 2010), available at https://www.forbes.com/sites/oliverchiang/2010/12/07/ onlive-wants-to-be-your-tablets-supercomputer-in-the-cloud/#68f7b5573692, last seen on 22/08/2020.