Distributing photocopies of books to students no copyright infringement-Delhi University merely imparting instruction with technology advancement-Delhi HC
ABCAUS Case Law Citation:
1018 (2016) (09) HC
Brief Facts of the Case:
The present suit was filed by five publishers (plaintiffs) i.e. 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. seeking injunction restraining University of Delhi (DU) and a photocopy shop from 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.
It was alleged that said course packs sold by the photocopy shop were based on syllabi issued by the DU for its students and that the faculty teaching at Delhi University was directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of the publications. It was also alleged that the libraries of DU were issuing books published by the plaintiffs to the photocopy shop for photocopying and to prepare the said course packs for sale to students.
The DU defended the suit and contended that:
(a) The plaintiffs had not produced any document to establish their copyright;
(b) There was no infringement of copyright and pleaded that the activities carried on by it amounted to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957,
(c) Photocopy shop licensed by it was charging only the prescribed rate for the photocopy service.
(d) DU recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students;
(e) The syllabi of the University does not recommend the entire publication but only certain extracts from the same; (f) The students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading;
(g) To ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the University which provides such expensive books for reference of students;
(h) Owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study;
(i) The services of photocopy shop are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only
(j) In view of the limited number of original books stored in the library, the faculty of DU has compiled various master copies of books, articles and journals, which are then used for photocopying in order to save the original work from being damaged;
(k) Such course packs are used by teachers and students in the course of academic instructions and for research purposes
(l) In fact the Licence Deed executed between the DU and the photocopy shop expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for xeroxing, saving the original document;
(m) Photocopy shop was xeroxing the master copy at the instructions of and on the terms imposed by the University;
(n) The photocopy shop was not commercially exploiting the author‘s copyright but was giving copies to students at nominal rates to aid their education;
(o) Even if the students were to bring the original work to get the same photocopied, the photocopy shop would charge the same rate;
(p) Photocopy shop had acted in good faith within the meaning of Section 76 of the Copyright Act.
The Observations made by the High Court:
Copyright as a natural or common law right has thus been taken away by the Copyright Act.
The Court observed that Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright and if there is no exclusive right, there is no infringement. Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy within the meaning of Section 2(m).
Whether “to reproduce the work” would include making photocopies thereof?
The words in Section 14(a)(i) -‘to reproduce the work’ would include making photocopy of the work in contravention of the provisions of the Copyright Act. The right to make photocopies is the exclusive right of the author or composer of the literary work and a copyright within the meaning of Section 14. The making of photocopies by the Delhi University will constitute infringement of copyright unless such act is listed under Section 52 as an act not constituting infringement.
To constitute infringement, it is not necessary that reproduced work is put it to any use, distributed or sold
The Court opined that to constitute an infringement, it is not necessary that the person who has so reproduced the work, should put it to any use or should distribute or sell the same to others and thus the action of issuing copies of the work to public would also constitute infringement of copyright under Section 51.
A copy which has been sold once shall be deemed to be a copy already in circulation
The words ‘to issue copies of the work’ as occurring in the explanation to Section 14 cannot be read/interpreted as ―’to make copies of the work’ and thus the DU, though entitled to issue the books, published by the plaintiffs and purchased by it and kept in its library, would not be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein.
Infringement of Copy right and commercial element
The High Court observed that while doing of something exclusive right to do which vests in the owner of the copyright constitutes infringement of copyright irrespective of whether there is any commercial element therein or not. However the act of facilitating infringement and dealing in infringing copies constitutes infringement only if done with commercial element.
The rules of interpretation of Statutes as applicable to Proviso and Exception cannot be applied to Section 52
The exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14; of copyright, once that is so, the doing of such act cannot be infringement under Section 51 and the question of taking the same out by way of proviso or exception does not arise.
Whether act of DU in making photocopies and supplying it to students amounts to-publication within the meaning of Section 52(1)(h)
AS per section 52(1)(h) does not constitute as infringement the publication in a collection, mainly composed of non-copyrighted matter, bona fide intended for instructional use, of short passages from copyrighted work provided that not more than two such passages from the copyrighted work are so included. Also the word ―’publication’ in Section 3 refers to an act of preparation and issuing of a book, journal or piece of music for public sale. Since the alleged circulation was composed entirely of the copyrighted matter and was not publication but act of making photocopies of a already published work, the Court opined that section 52(1)(h) was not applicable and so does the alleged infringement on this count.
Infringement in reproduction of a work ‘by a teacher or a pupil in the course of instruction‘
Thus, according to the Court the litmus test for adjudication was applicability of Section 52(1)(i) according to which the reproduction of any work
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an exam; or
(ii) in answers to such questions,
Does not amount to infringement of copyright .
The Court opined that though the act of making of photocopies was reproduction of copyrighted work by the DU. However under Section 52(1)(i), it would not not constitute infringement if it was by a teacher or a pupil in the course of instruction. Interestingly, this issue was not addressed by either the plaintiff or the defendants.
The Court observed that the word ‘publication’ used in Section 52(1)(h) connotes making available to the public ‘for the first time’ or by way of ‘further editions’ or ‘re-print’, the word ‘reproduction‘ used in Section 52(1)(i) entails ‘copying’ for limited use i.e. for an individual or for a class of students being taught together by a teacher.
However, the act of reproduction of copyrighted work permitted under Section 52(1)(i) has to be ‘in the course of instruction’. The Court however noted that the word ―’instruction’ has not been defined in the Copyright Act but it can not amount to the word ‘lecture’ which has been defined in the Act.
Thus the word ‘instruction’ in the context of a teacher would mean 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 student or pupil has approached the teacher to learn.
Education vs Instruction
The Court observed that education has been equated with instruction. Education was held as meaning ―totality of information and qualities acquired through instruction and training which further the development of an individual physically, mentally and bodily’. The word ‘instruction’ was held to mean, to furnish knowledge or information, to train in knowledge or learning, to teach, to educate.
When does the imparting of instruction begin and when does it end
The Court observed that the crucial question for adjudication was, when the imparting of instruction begin and when it end, whether in the classroom or tutorials only or it begins prior to the classroom and ends much after the classroom interface between the teacher and pupil has ended.
Since, the use of the word ‘instruction’ is preceded with the words ‘in the course of’, the Court deliberated through the interpretations of the term as made by Supreme Court/various High Courts over the years as under:
(i) integral part of continuous flow;
(ii) connected relation;
(iii) incidental;
(iv) causal relationship;
(v) during (in the course of time, as time goes by);
(vi) while doing;
(vii) continuous progress from one point to the next in time and space; and,
(viii) in the path in which anything moves,
Applying the above tests, the Court held that the words – ‘in the course of instruction’ within the meaning of Section 52(1)(i) 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 commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, that the pupil stands instructed in what he/she has approached the teacher to learn. Similarly the words ―’in the course of instruction’, even if the word ―’instruction’ have to be given the same meaning as ‘lecture’, have to include within their ambit 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 the teachers can reproduce the work as part of the question and the pupils can answer the questions by reproducing the work, in an examination.
As a result, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.
An action, when if onerously done is not offence, cannot become so owing to advancement in technology
Regarding photocopying, the Court observed that in olden days the facility of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied. The photocopying machines then in vogue did not permit photocopying of voluminous books without dismembering the same. Thus when an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified.
Photocopying of articles published Medical journals and distribution to students was held not infringement by US Supreme Court
The Court quoted the case of the Williams & Wilkins Company Vs. The United States (1973) wherein making photocopies of the articles published in the medical journals and distributing the same amongst students, physicians and scientists engaged in medical research was not considered as infringement of copy right and the decision was subsequently affirmed by the US Supreme Court.
Taking of Photographs by Cell phones and taking a print thereof
The High Court even mentioned an another advancement of technology and where students, instead of taking notes from the books in the library, using their cell phone camera click photographs of each page of the portions of the book and thereafter by connecting the phone to the printer take print of the said photographs or read directly from the cell phone or by connecting the same to a larger. The Court opined that such use of technology would qualify as fair use and which cannot be stopped.
The Court observed that It was not the case of the plaintiffs that the students once have so got the books issued would not be entitled to, instead of laboriously copying the contents of the book or taking notes therefrom, photocopy the relevant pages thereof, so that they do not need the book again.
Held:
The action of the Delhi University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the University and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act.
Neither the action of University of supplying the master copy to the photocopy shop, granting licence to the install photocopiers in the premise to supply photocopies made of the said master copy to the students was held infringement of copyright.
Download Full Judgment