The much awaited decision of the Delhi High Court in The Chancellor, Masters & Scholars Of The University Of Oxford & Ors.versus Rameshwari Photocopy Services & Anr has been delivered yesterday.
The Chancellor, Masters & Scholars Of The University Of Oxford & Ors. v. Rameshwari Photocopy Services & Anr. CS(OS) No.2439/2012
Date of decision: 16th September, 2016.
Some quick deductions from a first reading of the decision are provided hereunder for the reader’s reference.
In this case, the Delhi High Court dealt with Section 52(1)(i) which constitutes:
The reproduction of any work –
- i) by a teacher or a pupil in the course of instruction;
- ii) in answers to such questions; not to be infringement of copyright .
In relevant part, the Court stated that the following acts do not amount to copyright infringement:
- Photocopying portions of books by teachers, students or educational institutions;
- Making course packs of such photocopied portions of text books for a course;
- Selling the said course packs at a reasonable price – 75 paisa per page, or any reasonable price;
- Permitting photocopying in an educational institution either in the library or through a photocopy centre, and charging for the same;
- Appointing a person to photocopy portions of books or appointing a third party under a license to set up a shop, centre or any set up for photocopying portions of books;
- Creating master course packs from different books well in advance of the course and making course packs available for purchase in the library or another place;
- permitting students and teachers to photocopy materials in the library by themselves or through an appointed person; and
- making copies of books in cell phones by taking photos and printing the same.
The following is not permitted:
- Photocopying the full book and making copies of it; and
- Publishing and selling course packs outside the institutional framework.
Some relevant paras are extracted hereunder :
- Applying the tests as aforesaid laid down by the Courts of (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, it has to be held that CS(OS) No.2439/2012 Page 73 of 94 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 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. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as CS(OS) No.2439/2012 Page 74 of 94 prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.
- The matter can be looked at from another angle as well. Though I have held Section 52(1)(a) to be not applicable to the action of the defendant no.2 University of making photocopies of copyrighted works but the issuance by the defendant no.2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. The counsel for the plaintiffs also on enquiry did not argue so. 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 CS(OS) No.2439/2012 Page 75 of 94 be infringement; particularly when the result/effect of both actions is the same.
- The answer, according to me, has to be in the negative.
- However with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus the students are now CS(OS) No.2439/2012 Page 76 of 94 not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.
- The Court of Claims of United States as far back as in The Williams & Wilkins Company Vs. The United States 487 F.2d 1345 (Ct.Cl. 1973) was concerned with an action for infringement of copyright by a medical publisher against the Department of Health, Education and Welfare through the National Institutes of Health and the National Library of Medicine. The National Library of Medicine was alleged to have infringed the copyright by making photocopies of the articles published in the medical journals and distributing the same amongst students, physicians and scientists engaged in medical research. It was held (i) that the photocopying process did not even amount to printing or reprinting in the dictionary sense; (ii) if the requester himself made a photocopy of the article for his own use on a machine made available by the library, he might conceivably be “copying” but he would not be “printing” or “reprinting” ; (iii) the library is in the same position when responding to the demands of individual researchers acting separately; (iv) there is no “publication” by the library, a concept which invokes general CS(OS) No.2439/2012 Page 77 of 94 distribution, or at least a supplying of the material to a fairly large group; (v) it is common for courts to be given photocopies of recent decisions with the publishing company’s headnotes and arrangement and sometimes its annotations; (vi) it cannot be believed that a Judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both Judges are then considering in a case before them, is infringing the copyright; (vii) library was not attempting to profit or gain financially by the photocopying; (viii) the medical researchers who had asked the library for the photocopies and the scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to re-duplicate them for sale or other general distribution; (ix) the copied articles were scientific studies useful to the requesters in their work; (x) on both sides – library and requester – scientific progress untainted by any commercial gain from the reproduction was the hallmark of the whole enterprise of duplication ; (xi) the act was to gain easier access to the material for study and research; (xii) care had been taken not to have excessive copying from one issue or one volume of the periodical; (xiii) the recipients were not using the library‘s photocopying process to sell the copies or distribute them broadly; (xiv) the CS(OS) No.2439/2012 Page 78 of 94 library was responding only to requests from its own personnel and the entire photo-duplication system is strictly “in-house” – in the same way that a court’s library may supply a Judge of that court with a copy of a law journal article or a reported decision; (xv) medical science would be seriously hurt if such library photocopying were stopped; (xvi) without such photocopying constituting infringement, the libraries could not be compelled to take licence from the publisher; and, (xvii) photocopying falls within fair use. It was accordingly concluded that there was no infringement of copyright. It was further held that ?use is not the same as infringement and use short of infringement is to be encouraged?. This decision of the Court of Claims was subsequently affirmed by the US Supreme Court in Williams & Wilkins Company Vs. US 420 U.S. 376.
- I may also mention another advancement. Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger CS(OS) No.2439/2012 Page 79 of 94 screen. The same would again qualify as fair use and which cannot be stopped.
- Copyright, specially 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 CS(OS) No.2439/2012 Page 80 of 94 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. For this reason only, Section 14(a)(ii) as aforesaid, applies the principle of =exhaustion‘ to literary works and which, this court in Warner Bros. Entertainment Inc. Vs. Mr. Santosh V.G. MANU/DE/0406/2009 has held, to be not applicable to copyright in an artistic work or in a sound recording or in a cinematographic film. Once it is found that the doctrine of exhaustion applies to literary work as the works with which we are concerned are, it has but to be held that it is permissible for the defendant No.2 University to on purchasing book(s) and stocking the same in its library, issue the same to different students each day or even several times in a day. It is not the case of the plaintiffs that the said 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.
- I thus conclude that the action of the defendant no.2 University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the defendant no.2 University and kept in its library and making further photocopies out of the said master CS(OS) No.2439/2012 Page 81 of 94 copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act.
- The next question is, whether the action of the defendant no.2 University of supplying the master copy to the defendant no.1, granting licence to the defendant no.1 to install photocopiers in the premises of the defendant no.2 University, allowing the defendant no.1 to supply photocopies made of the said master copy to the students, permitting the defendant no.1 to charge therefor and also requiring the defendant no.1 to photocopy up to 3000 pages per month free of cost for the defendant no.2 University and whether the action of the defendant no.1 of preparation of such course packs and supplying the same to the students for charge, constitutes =publication‘ within the meaning of Section 52(1)(h) or would tantamount to infringement by the defendant no.1 or the defendant no.2 University of the copyright of in the said books.
- In my opinion, it would not.
- What the defendant no.2 University is doing is not different from what is being done in the Bar Association library in the premises of this Court. With the advent of photocopying, the advocates of this Court, CS(OS) No.2439/2012 Page 82 of 94 instead of carrying books from their residences / offices to this Court for citing judgments therefrom during the course of arguments and instead of giving in advance the list of such books to the Restorer of this Court and the Restorer of this Court also taking out the court‘s copies of the same books for the Judges to read, and all of which was cumbersome and time consuming, started having the photocopies of the relevant judgments made from the books in the Bar Association Library of this Court. Initially the said photocopying was got done by having the book issued from the library and carrying the same to the photocopier who had, for the convenience of the advocates, been granted a licence to operate from the premises of this Court. Subsequently, for expediency and to avoid the books being taken out of the library, the Bar Association library itself allowed the photocopier to install his machine within the library premises and any advocate could get the photocopy done by having the relevant judgment photocopied within the Bar Association library by paying the cost of photocopy as is fixed by the Bar Association.
- The defendant no.2 University also could have possibly devised the same arrangement as has been followed in the Bar Association library of this Court and allowed the defendant no.1 to install its photocopying CS(OS) No.2439/2012 Page 83 of 94 machine within the defendant no.2 University‘s library for the facility of the students. However for whatsoever reason the respondent no.2 University has deemed fit, it is continuing with the practice as was earlier prevalent in this Court.
- In my view, there is no difference in the two situations i.e. whether the photocopying machine is installed within the library or is installed outside the library. In my view it also does not make any difference whether the respondent no.2 University itself purchases the photocopy machine and / or allows the students to photocopy themselves or employs a person for doing photocopy. In this respect, I may again note that in our country, with abundance of labour force, the acts such as of photocopying which are done by those desirous thereof themselves in other countries are done by a person employed therefor. In countries with not so much labour force, photocopiers are found to have been installed in libraries for the benefit of the patrons of the library to themselves photocopy whatsoever passages of the publications in the library they are desirous of photocopying for their personal use. Once such a action is held to be not offending any provisions of the Copyright Act, merely because the photocopying is done not by the person desirous thereof himself but with the assistance of another human CS(OS) No.2439/2012 Page 84 of 94 being, would not make the act offending. It matters not whether such person is an employee of the defendant no.2 University or the defendant no.2 University avails the services of a contractor. The position of the defendant no.1 in the present case is found to be that of a contractor to whom the defendant no.2 University has outsourced its work of providing photocopying service for its students. For this reason, it matters not whether the photocopying machine is allowed by the defendant no.2 University to be kept within the library or at some other place outside the library.
- It is not the case of the plaintiffs that the defendant no.2 University has permitted the defendant no.1 to or that the defendant no.1 is photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. The case of the plaintiffs before us is only of preparation of course packs i.e. compilations of photocopied portions of different books prescribed by the defendant no.2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs. Imparting of education by the defendant no.2 University is heavily subsidized with the students still being charged tuition CS(OS) No.2439/2012 Page 85 of 94 fee only of Rs.400 to 1,200/- per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying were to be not available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better.
- Just like the cost to the respondent no.2 University of employing a photocopier or a contractor for photocopying would have to be necessarily built in the cost of photocopy, so also the cost incurred by the defendant no.1 in employing manpower and towards electricity would be built in cost of photocopying. My enquiries reveal that the photocopier granted licence in this Court premises is also presently charging 75 paise per page. Comparing the same with the rate which the respondent no.2 University has permitted the defendant no.1 to charge, does not show that the defendant no.2 University has permitted the defendant no.1 to function or that the defendant CS(OS) No.2439/2012 Page 86 of 94 no.1 is functioning as a competitor to the plaintiffs. It was only if the defendants no.1&2 were said to be charging for a reproduction of the book of the plaintiffs at a price competing with the price fixed by the plaintiffs for the books, could it have been said that the defendant no.1 is functioning commercially.
- All that is happening in the present case is that instead of the defendant No.2 University issuing the book which may be sought after by a large number of students, to each one of them individually for limited period or limited hours and enabling each student to photocopy the passages or the contents thereof required by him ?in the course of instruction? and thereby exposing the book to damage, the defendant No.2 University itself is supplying the said photocopies. It cannot be lost sight of that we are a country with a bulging population and where the pressure on all public resources and facilities is far beyond that in any other country or jurisdiction. While it may be possible for a student in a class of say 10 or 20 students to have the book issued from the library for a month and to laboriously take notes therefrom, the same is unworkable where the number of students run into hundreds if not thousands. According to me, what is permissible for a small number of students cannot be viewed differently, CS(OS) No.2439/2012 Page 87 of 94 merely because the number of students is larger. Merely because instead of say 10 or 20 copies being made by students individually or by the librarian employed by the University, 100 or 1000 copies are being made, the same would not convert, what was not an infringement into an infringement.
- I thus conclude that the engagement as aforesaid by the defendant No.2 University of defendant No.1 does not convert the action of defendant No.2 University as held hereinabove to be not amounting to infringement of copyright in books. …”
Authored by- Dr. Kalyan C. Kankanala
Image Source/ Attribution here, Image is in Public Domain.