I.

Why photocopy of books for educational purpose is fair use not copyright
infringement?

In the year 1975, Sony came up with Betamax, a home video recording system which enabled
viewers to record complete TV shows to view them later. Industry giants like Universal
Studios sued Sony arguing that such recording of their product constituted copyright
infringement.1 The US Supreme Court with a majority of 5-4 rejected the plea of the studios
holding that such recording did not amount to infringement of copyright but was fair use
because it was used for legitimate, unobjectionable purposes.2

Does it ring a bell? It must. The DU Photocopy case 3 as it is known, raises similar issues, at
least in the aspect of whether a device with copying capabilities runs afoul of copyright law
(with the important aspect being usage for educational purposes). These two cases show that
the copyright regime faces challenges as the abilities of newer technological inventions
capable of storing, copying, and reproducing, among other things make things difficult for
them. The issue of photocopying of books is no different and there is a need to have clarity on
whether it is fair use or copyright infringement.

Copyright policy, contrary to popular opinion, is not only about the provision of incentives to
authors and creators.4 It is a tool for promoting overall socio-economic growth and creativity
of nations as well. The Constitution of the United States also asserts the Progress of Science
and useful Arts as the primary purpose of providing protection to intellectual property.5

Hence, the doctrine of fair use finds its place in the intellectual property frontiers all around
the world. It is an exemption from restrictions that normally apply to usage of copyrighted
materials.6 In other words, it allows the free use of copyrighted works, which would
1 Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417 (1984).

2 Id.

3 The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy
Services & Ors. CS (OS) 2439 of 2012.

4Raj Kumar Vats, Advocating for improving copyright laws for libraries at national and international
standards, International Journal of Enhanced Research in Educational Development (IJERED), ISSN:
2320-8708 Vol. 2, Issue 4, July-August, 2014, p75, Available online at: www.erpublications.com

5 Article I, Section 8, Clause 8, United States Constitution.

6 http://fairuse.stanford.edu/overview/academic-and-educational-permissions/academic-coursepacks/
otherwise have amounted to infringement. 7 This doctrine was evolved keeping in mind the
social, economic and cultural development which can be achieved using certain works,
restrictions on which would cause stagnation of growth of creativity and knowledge in
nations.

One of the most important ways of promoting equitable access in the area of education is by
ensuring that copyright laws have strong exceptions and limitations that enable the fair use of
material for educational purposes in particular.8 Developing countries, especially, should be
encouraged to maintain or adopt broad exemptions for educational, research and library uses
in their copyright laws. The implementation of international copyright standards in the
developing world must be undertaken with a proper appreciation of the continuing high level
of need for improving the availability of these products, and their crucial importance for
social and economic development.9

We argue that the photocopying of books is not infringement but fair use as per doctrine laid
down in the US, other nations, TRIPS and consequently the photocopying is fair in the Indian
context as well:

The Fair Use Doctrine

It is enshrined in Section 107 of the Copyright Act, 1976. It provides for a four-factor test for
constituting fair use: the Purpose, Nature, Amount and Effect of the use.10 We will analyse the
photocopying of textbooks done by stores located in the universities as per these four
principles:

The Purpose and character of the use: The term utilization for educational purpose does
not preclude use in a digital form, and likely to also comprises rights to communication and
reproduction.11 Hence we state that the purpose of photocopying of works is educational and
should be covered under academic fair use. While it may appear to be obvious that the
7

8 See for example, S Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in
the Digital Environment, SCCR/9/7 (Standing Committee on Copyright and Related Rights, 5 April 2003), p.14,
reiterating that utilization for teaching is a matter to be determined by national legislation.

9 Commission on Intellectual Property Rights, Copyright, Software and the Internet in Integrating
Intellectual Property Rights and Development Policy: Report of the Commission on Intellectual Property Right
(London, 2002), ch. 5, available at: <http://www.iprcommission.org/graphic/documents/final_report.htm>.

10
purpose and character of photocopying multiple copies for classroom use is educational and
non-profit in nature, educational copying by a commercial photocopy business was held not
to be fair use because the actual photocopying of work selected by educators was performed
by for-profit vendors.

However, the Supreme Court of the United States in Campbell v Acuff-Rose Music Inc12 held
that commercial use is not the only decisive factor in the fair use scenario, but rather is "one
element of the first factor enquiry into its purpose and character.13

The nature of the copyrighted work: In applying this factor of the test, the courts consider
the originality, informative nature, intended use, and availability of the work which acts as
the source material for photocopying.14 A photocopy of a work consisting mostly of facts as
compared to a work that involves creative and intellectual input of an author, is more likely to
be classified as fair use owing to its informative nature. However, all works of authorship
involve a minimum standard of originality which makes the distinguishing of works as
informative or creative inherently difficult. Similarly, photocopying of a work which has
gone out of print may be called as fair use due to its non-availability in the market.

The amount and substantiality of the portion used in relation to the copyrighted work
as a whole: Photocopying of short extracts such as a single chapter constituting a small
percentage of a copyrighted work for educational purposes is more likely to appear fair than
photocopying large portions or the entirety of an article or book. However, in Williams &
Wilkins Co. v. United States15, an institution made photocopies of medical journals for staff
members. The court held, and the Supreme Court later affirmed that the photocopying was

11 S Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital
Environment, SCCR/9/7 (Standing Committee on Copyright and Related Rights, 5 April 2003) at p.14
[hereinafter WIPO Study]. For an argument that utilization includes digital uses, as well as the rights to
reproduction and communication, see R. Xalabarder, Copyright and Digital Distance Education: The Use of
Pre-Existing Works in Distance Education Through the Internet, 26 Columbia Journal of Law & the Arts 101
(2003), 156 arguing that the term utilization, does not only include the right to reproduce a work, but also
includes the right of communication to the public, thus easily encompassing digital distance teaching as well as
broadcast distance teaching.

12

13 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

14

15 Williams & Wilkins Co. v. United States, 487 F.2d (1345).

within fair use even though full articles were copied, the non-profit nature of medical
research outweighed any potential harm. The court stated that there is, in short, no inflexible
rule excluding an entire copyrighted work from the area of fair use.

The effect of the use upon the potential market for or value of the copyrighted work:
This factor can be seen as an offshoot of the second and third factors, as both the nature of the
work and the amount and substantiality copied will decide whether a copyright owner has
been economically injured. In the short run, copyright exceptions for educational purposes,
particularly for literacy programs, do not decrease the market for copyrighted materials
because those benefitting from such programs were never potential consumers. And in the
long run, of course, by producing more citizens with greater literacy skills and earning
potential, improved education expands the market for copyrighted materials.16

The International Scenario: TRIPS and Other Countries

TRIPS Agreement explicitly enshrines the doctrine of fair use under its Article 13.17Article 8
of TRIPS emphasises on application of intellectual property laws keeping in mind public
interest and technological and socio-economic development of nations. There is a very
significant public interest in the intersection between copyright and
access to educational materials. The Access to Knowledge agenda of the Millennium
Declaration (2000) Furthermore, the Declaration affirms a commitment to ensuring that the
benefits of new technologies, especially information and communication technologies are
available to all.18

The Declaration and related Millennium Development Goals (MDGs) point to the centrality
of education to development in setting the goal of universal primary education. 19 In
November 2004, Chile submitted a proposal for considering Exceptions and limitations for

16

17 Article 13 of The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do
not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate
interests of the right holder

18 Para 20 of Declaration.

19 Para 19 of Declaration.
education.20 This was followed up in March 2008, with Chile, Brazil and Nicaragua
proposing that the 2004 proposal be implemented. 21 It must only be to the extent justified by
the purpose, by way of illustration, and compatible with fair practice. If these three
requirements are met, Article 10(2) does not place any limitation on the amount of the work
that can be used.22

The Indian Position: Fair Dealing?

In India, as in the UK, the concept of fair dealing has been adopted in the Copyright Act,
1957, instead of fair use. It is the form of exceptions or exemptions to copyright infringement
found in numerous common law jurisdictions across the world. It differs from the fair use
doctrine primarily in the way that the fair use doctrine, through its four-factor test is quite
open-ended, thus leaving scope for interpretation by the courts who may then analyse certain
uses to be infringing or otherwise on a case-to-case basis. Whereas fair dealing is much more
closed in its approach. It enlists certain specific instances which may constitute fair dealing
of copyrighted works. Such fair dealing may fall under the broad heads of private or personal
use, including research,23 criticism or review,24 reporting of current events and current affairs,
including the reporting of a lecture delivered in public. 25 Exceptions for educational uses in
the Copyright Act of India can be found both in provisions dealing with statutory licenses 26 as
well as in the fair dealing provisions.27 Thus as long as the photocopying is for a non-
commercial purpose and does not affect the market of the copyrighted work, circulating
multiple copies among students would be legal. This is because such a step would help in
promoting the value of the copyrighted work, a primary goal of which is to increase the

20

21

22 Ibid.

23 Section 52(1)(a)(i), Copyright Act 1957.

24 Id at 52(1)(a)(ii)..

25 Id at 52(1)(a)(iii).

26 Copyright Act 1957, sec. 32 and 32A

27 Ibid., sec. 52(1)(g), (h), (i) and (p).

awareness and knowledge among the masses about the subject matter of the protected work.
This in turn could also have the effect of increasing the market for the work of the copyright
owner, fetching him better returns for his labour.

Hence, we have proven that the photocopying of books for course-packs or other educational
purposes comes within the ambit of fair use as well as fair dealing provisions across all
over the world. This however does not mean that the publishers are completely left out and
educational purpose trumps all sorts of interests of all the publishing companies putting all
their efforts into publishing. We believe that publishers are equally important for promoting
quality education in the country and a balance should be struck so they are equally rewarded
as well. Hence we suggest an alternative as our second idea,

II. A much better alternative: The profit sharing approach

Through this appeal, we had sought to clarify that Indian copyright law did indeed support
such a framework, and in so doing balance the interests of those creating learning materials
here in India, with those requiring access to them in a fair and sustainable manner.

In India there is a photocopy store in every nukkad catering to the photocopy needs of its
more than 300 million student population. A study conducted by the Ministry of Human
Resources Development (MHRD) stated that mass photocopying of books is largely
prevalent in India, especially in and around educational institutions. Students borrow books
from libraries and then get these photocopied from the photocopier kept at the institution
where from the books are borrowed.28 This study also details the extent of copyright piracy in
India:

Book piracy, in India, primarily depends on two factors, namely, the price of the book and its
popularity. These two factors positively contribute to piracy. Piracy is generally confined to
foreign and good indigenous books because these books are demanded in large quantities and
are also priced high. The types of books pirated mostly are medical, engineering and other
professional books, encyclopedia and popular fictions.29

No wonder that the publishers in the DU photocopy case want people to stop photocopying
their books. At least the basic principles of reason make us come to this conclusion. It is their

28 Government of India (Ministry of Human Resource Development), Study On Copyright Piracy In India,
available at: <http://www.education.nic.in/copyright/mainact.asp>.

29 Ibid.
work, they put money into publication, royalties, distribution, advertisements and what not.
Why should anyone be able to make cheap copies of their years of work and sell it without
any creative input? The answer to these questions although prima facie seemingly easy are
far from it. We have established in the above section that photocopy of books for academic
purpose is fair use and does not amount to copyright infringement. But that is not the
complete answer, we need a solution which while protecting the academic fair use principle
still rewards the publishers enough to keep producing the books.

The Pricing Argument

The cost of the Oxford Dictionary in India in US Dollars is $14.10. The same Dictionary
costs $21.50 in the US and a steep $47.00 in South Africa. 30 US allows, under certain
highly detailed conditions, single copying for a teacher's use and multiple
copies of copyrighted material for classroom use, but place many specific
quantitative restrictions on such uses.31 This is done to protect the
copyright holder of these books from an unregulated form of usage for
educational purpose which keeps them motivated enough to keep
producing books of high quality. Although South African copyright laws
have parallel adoption of Berne Convention provision on the aspect of
usage of material for teaching purpose and hence does not hold any
quantitative restrictions.32 But, as it can be seen the books are priced
much higher than India (nearly four times). This can be said as an
extremely high reward for publishers who choose to sell their books in the
South African market. Now if we analyse Indias position: we do not follow
any licensing system which regulates such photocopy, neither have we
remunerated the publishers for any kind of photocopy which is done at

30

31 K.D. Crews, New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act,
prepared for the American Library Association (September 30, 2002), available at:
<http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/federallegislation/distanceed/teachsummary.p
df>.

32 Copyright Act 98 of 1978 of South Africa (as amended on 2002), available

at:<http://portal.unesco.org/culture/en/files/30224/11416532713dz_copyright_2002_en.pdf/dz_copyr
ight_2002_en.pdf>
such a large level. The impact of a decision which states that It is not for
this Court to impose its own wisdom as to what is justified or what is
unreasonable, to expand or restrict what the legislators have deemed fit.
The legislature is not found to have imposed any limitation on the extent
of reproduction33 can be foreseen. Any logical business which does not
receive adequate rewards with availability of markets across the world
(like South Africa and US) would obviously choose not to invest in a
country (like India) where their interests are not considered at all. We
believe that the argument of fair use due to academic usage can only be
stretched so long, that we accept that it is fair and photocopy of books
cannot be banned; the concept of considering the economic interest of
publishers is a separate issue altogether which needs addressing as well.

Why the Licensing Argument fails and what do we suggest?

In the DU photocopy case, it was pleaded by the publishers that the primary purpose of
impleading the defendants in litigation is not to ban photocopy altogether but to regulate the
mechanism by making a mandatory licensing agreement with the Indian Reprographic Rights
Organisation (IRRO) and hence have legitimate permissions to prepare these course packs
through the photocopy shops. This licensing scheme puts quantitative restrictions on the
amount of books copied. Licensees can make copies for the number of students on a course
of study, as a course pack only, and not copy more than 15% or 1 chapter of any publication
per year whichever is the greater.34 To get the licenses the IRRO sets two blanket options for
libraries/copy shops for such a copying: a licencing fee of Rs. 3,00,000/- per annum or 40%
of the annual turnover of the shop. We believe that such a quantitative restriction on copying
of books defeats the purpose of fair use. This is because there would be times when students
would need more than the set percentage of a book to understand the concept better but the
licencing agreement restricts them and the teachers from copying more than that.
Furthermore, the amount charged is exorbitantly high as charging a sum of 3 lakh or 40% of
total annual income of a small photocopy store to copy only 15% of books seems prima facie

33

34 IRRO Website
unreasonable. And it is, which is the reason these guidelines have received major backlash
from the whole educational community and the High Court itself.35
One thing which we can agree upon is that whatever the decision of the court regarding the
photocopy of books comes out, it will have a far reaching impact and the present scenario
will be substantially altered. Keeping that in mind we suggest a bold mechanism:
First, the quantitative restrictions on copying the books as suggested by the publishers should
be lifted and any amount of content of books for course packs or otherwise, can be copied for
educational purposes only and
Secondly, for this the publishers be remunerated from the revenues of the photocopiers in a
restricted manner.
The first suggestion is fairly applicable as we have contended that even if the whole book is
photocopied for educational purpose it shall be fair use. The second suggestion however as it
seems is hard to implement but if done correctly would lead to a sort of motivating factor for
the publishers to keep continuing the publication of books in the country. One thing which we
can agree upon is that the photocopier does not have an identifiable amount of creativity
involved when he photocopies a book. Agreed that he invests a decent sum of money on
setting up the shop and buying a photocopying machine, but his investment (apart from the
cost of ink, papers etc. and the nominal maintenance expenditure of the shop) ends there. The
revenue which he is earning is because there is a high demand of a particular book which is
not his creative work but of the publishers. We believe that charging money from the
revenues of these photocopy shops is the best alternative.
Let us say that the cost of a Sociology book published by an eminent publisher A in the
market is Rs. 2500. It consists of 1500 pages and is very popular among the educators as well
as students for understanding the nuanced sociological principles. Now P, a student who
cannot afford the book goes to a photocopier X to get it copied in full. X tells him that the
photocopy would cost him 50 paise per page hence the total copy amount being Rs. 750. Now
agreed that the student had the right to get it photocopied and he did use this right in a fair
manner as per Section 52(1)(i) of the Indian Copyright Act, but what about X? Should he not
be charged for earning money solely relying on someone elses publication? We say yes. If
we charge let us say 20% of this revenue (as opposed to the IRROs 40% of total revenue)
and send this to the publisher whom he copied from, there would be a resultant benefit as the
fair use doctrine would be upheld and the publishers will not lose out on the rewards but in

35
turn receive some which motivates them to keep publishing high quality books in India
which, as stated earlier, has books costing lower than most developing countries.
We argue that there needs to be a reformation in the tariffs as provided by the IRRO as those
put a quantitative restriction on the portions of books which can be copied, moreover the
licencing fees they charge varies for private and government run as well as government aided
universities. Moreover for independent photocopy stores the charges are substantially higher
(as much as Rs. 3 lakh). There needs to be a specified percentage share of vendors set for
photocopying of books. However this needs to be regulated in a manner which restricts the
vendors to charge more than they actually should to make up for the revenue cut happening
through the above mentioned step. This is needed to be done so the interest of students is not
hampered.36

36 No Photocopy Profit is a principle given in the Student Guidelines of US, it states that: the
students may not be charged more than the actual cost incurred in making the copies.