A Critique of Delhi High Court Judgment in DU Photocopy Case - Live Law

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A Critique Of Delhi High Court Judgment In DU

Photocopy Case
BY: MATHEWS P. GEORGE & CHITHRA P. GEORGE
OCTOBER 6, 2016 10:23 PM
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A lot has been written on the recent Delhi High Court judgment in The Chancellor, Masters
& Scholars of the University of Oxford & Ors. V. Rameshwari Photocopy Services & Anr
(“DU Photocopy case”). While many hail this judgment for promoting ‘access to education’,
we can only respectfully disagree with its legal reasoning, methods of interpretation and the
resultant legal outcomes. As to summarise, the Delhi high court held that the making of
course packs (compilations of limited excerpts from copyrighted books, put together by
faculty members in accordance
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education wasto well within the bounds
Dissent And Thelaw and did not amount
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infringement.
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SC/ST Act dated back to 2012 when leading Refusing
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Would Send Wrong Message’ Kanhaiya Kumar Is Unfortunate
http://www.livelaw.in/critique-delhi-high-court-judgment-du-photocopy-case/ 1/6
University Press (OUP) and Cambridge University Press (CUP) sued Delhi University and its
authorised photocopier for copyrights infringement of their various publications and
procured a temporary restraining order against them. Thereafter, a group of students and
academicians intervened and a vigorous battle ensued in court. Nearly four years later,
Justice RS Endlaw held in favour of the defendants and dismissed the lawsuit. The judge
opined that Section 52(1)(i) of the Copyright Act (“ (1)The following acts shall not constitute
an infringement of copyright, namely:………(i) by a teacher or a pupil in the course of
instruction”), which exempted copying for the purpose of educational instruction, was wide
enough to cover the acts of the defendants.
We argue that the judgment is jurisprudentially and legally unsound on holding Section
52(1)(i) to be a controlling norm rather than a limited exception. We are of the view that the
judgment perilously intruded into the shores of judicial legislation, enervating the
foundations of Rule of Law which forms an essential facet of Article 14 of the Constitution.
[Note: For the uninitiated, please read the following write-ups for better understanding –
here, here, here,here and here.]
By an act of judicial legislation, the Delhi High Court held Section 52(1)(i) to be a
controlling norm and not an exception
All modern copyright systems provide for circumstances in which copyright will not be
infringed by the unauthorized reproduction or presentation of a copyright work. Such
exceptions represent scenarios in which the legislature has decided to prioritise some other
interest over the interests of the copyright owner.
The first approach is to provide a non-exhaustive list of generally worded exceptions. The
effect of this approach is such that any use which a court deems to be ‘fair’ will be treated as
non-infringing. This is known as the defence of “fair use”. The United States, for example,
leans towards this approach.
The second approach, evolved in United The

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includes providing aWhen
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Against SC/ST ActIf the respective use a) falls within the defined exceptions;
Refusing Probe and On
Into ‘Attack’ b) is
fair, then “fair dealing” applies. The copyright laws of Australia, Canada, India, New
Zealand, Singapore and South Africa use “fair dealing”. Unlike the related doctrine of “fair
use”, “fair dealing” cannot apply to any act which does not fall within one of these
categories.
The third approach is to set out certain “enumerated exceptions” without any qualification
such as “fairness”. It is more of an unequivocal exception. The fourth approach is to use a
hybrid model. Singapore, for instance, uses a hybrid model encompassing “fair dealing” and
“fair use”.
Also Read : DU Photocopy Shop Judgement: A Landmark In The Access To Knowledge

Movement In India By Dr. Arul George Scaria
It is yet to be settled whether Indian Copyright Act uses the “fair dealing” model or a hybrid
form consisting of “fair dealing” and “enumerated exceptions” models. In the context of
given fact situation, while Section 52(1)(a) & (b) use the expression “fair dealing”, Section
52(1)(i) does not. Therefore, on literal interpretation, it can be argued that the model is
hybrid in nature. On the other hand, it can be argued that “fair dealing” pervades the entire
Section 52 and absence of “fair dealing” in Section 52(1)(i) is a case of ‘Casus Omissus’ (i.e
casual omission) or that “fair dealing” is implied by application of ‘Noscitur A Sociis’ (i.e to
construe words in an Act of Parliament with reference to words found in immediate
connection with them).
The Delhi High Court judgment, unfortunately, doesn’t appreciate the aforesaid
jurisprudential nuances. Practically speaking, the Delhi High Court judgment, though
technically confined to the territorial limits of Delhi, has weakened the publishers in any
future bargain. It doesn’t treat Section 52(1)(i) as a limited exception but as a determining,
controlling norm in the name of ‘access to education’. As to the extent it treats Section 52(1)
(i) as a controlling norm, it has gone beyond the existing jurisprudence on exceptions to
copyright infringement.
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is held Power Of
dealing” model, then “fairness”When
doesRule Of Law
matter and
Supreme Court to Dissent And The Becomes A ‘Dead
therefore, Introduce
extent of copying and number Silence
of copies made do matter. It may
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Horse’: SC Orderthat
Safeguards Against SC/ST Act Refusing Probe Into ‘Attack’ On
Section 52(1)(i), which is expressly not qualified by “fair dealing”, is an absolute exception
and therefore, a controlling norm. Accordingly, extent of copying and number of copies
made are irrelevant. This interpretation strikes at the root of privileges conferred by
copyright especially considering the niche market and target audience of each genre of
books. As to illustrate, consider a zoologist ‘X’. He writes a book, targeted at undergraduate
zoology students of ‘Z’ university of a particular state. The book is simple, lucid and caters to
the syllabus of ‘Z’ university. As evident from the illustration, this book is aimed only at the
academic market offered by ‘Z’ university. If Delhi High Court judgment is to apply, the
book may at best be bought by the libraries and the students can simply use the course
packs. The general public has no reason to buy it. The copyright, which X enjoys, simply
becomes redundant as the avenue to monetise the copyright is drastically limited. If the
publisher has pan-India presence, economies of scale may partly or wholly address the
shortfall in revenue. In case of grass root publishers / authors (especially of regional
languages) who have access to smaller markets, the relevance of copyright itself may get
negated. This possible scenario points at one of the unintended consequences of Delhi High
Court judgment viz., stifling creativity and scholarship at grass root levels and
disincentivising medium and small scale publishers. An absolute exception vitiates the
mischief rule of interpretation i.e the very mischief the Copyright Act intends to address and
purposive rule of interpretation i.e giving effect to the twin purposes of promotion and
protection of creativity and is therefore, legally untenable.[1]
As to break down the approach of the Court, the judgment indirectly used ‘contemporanea
expositio’ i.e giving effect to the original intention when the provision was enacted. This is a
highly criticised approach as law is considered to be organic and ever-growing. For instance,
logic and prudence demand that the expression “family” in a 1900’s enactment is to be given
a more dynamic interpretation when compared to the understanding of “family” in 1900’s.
As Prashant rightly observed, photocopying was not in vogue when Section 52(1)(i) was
enacted. Therefore, even if absolute exception was the original intention , considering the
possibility of making massive number of copies by photocopying and making copyright itself
redundant and irrelevant, it defies logic to give effect to the aforesaid intention in
21st century. We are certain that even the late Justice Antonia Scalia of US Supreme Court,
‘Any Attempt by The Power Of When Rule Of Law
who is considered to to
Supreme Court be the torch bearer of And
Dissent textualism,
The would not agree
Becomes toA ‘Dead
absolute
exception as it can negate the relevance of copyright itself (as in
Safeguards Against SC/ST Act
the above illustration). He
Refusing Probe Into ‘Attack’ On
Would Send
was not Wrongtextualist
a blind Message’ but a firm practitioner of contextualised
Kanhaiya Kumar Is Unfortunate
textualism.
Even though ‘access to education’ is a value close to our hearts, unfortunately, we are
inclined to state that the judgment flouts Rule of Law. It is not a case of (sometimes
criticised, sometimes admired) dynamic interpretation since the judgment did not even
attempt to reason out the fine distinctions and nuances concerning “fair dealing”, “fair use”
and “enumerated exceptions”. The judgment, in fact, went beyond the realms of extant
jurisprudential understanding without even discussing them especially when precedents are
binding in a common law jurisdiction like India. Of course, the judiciary in India is free to
take an altogether different path in jurisprudence and interpretation. But it should be
mandatorily based on reason. Reason pervades the Indian polity, thanks to
Constitutionalism and Rule of Law.
If Section 52(1)(i) was treated as a limited exception (as it should have been), it could have
been narrowly interpreted so as not to flout ‘access to education’. It would have probably
struck a fine balance between the interests of publishers and ‘access to education’. The
beauty of Indian economy lies in its huge geographical market with a very high demographic
dividend. Accordingly, even a minuscule amount per course pack as royalty (like say, Re 1
per course pack) can generate dignified returns to the publishers. We, however, admit that
the absence of empirical data is a major setback and some of the arguments presented here
may be criticised as mere conjectures. Even then, legal and jurisprudential arguments
presented above, are tenable enough to strengthen the case of publishers.
It is an altogether different matter whether a limited Section 52(1)(i) will result in future
exploitation and enervate ‘access to education’. Possibility of exploitation cannot alter the
position of law. In fact, the focus must have been on regulation of exercise of copyright
rather than negating the relevance of copyright altogether. Prashant rightly pointed out that
the broad (and complicated) compulsory licensing provisions are always available as
safeguards vis-a-vis threat of exploitation in future. Further, the judgment is silent on the
ambit of private use exception i.e copying of books by students in the course of instruction.
As to this extent, the judgment has a chilling effect on evaluating the realistic implications.
As to summarise, we are
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The judgment
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the horse.
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Law it
Supreme Court to
is not legally and jurisprudentially sound.Dissent And The
Therefore, the publishers haveBecomes A ‘Dead
a strong case in
appeal proceedings.
[1] On a related note, Prof. Shamnad, who agrees with the judgment, suggested a ‘reasonable
nexus’ test viz., “Is the nexus between copying and the furtherance of educational
instruction a reasonable one? Put another way, how necessary is it to copy the copyrighted
work for the purpose of educational instruction? If the full text is necessary reading for the
course in question and such text is not available at a reasonable price to students, then
making copies ought to be permissible under the exception. In this regard, it bears noting
that the defendants cited empirical research to demonstrate that the latest editions of a
number of leading text books were simply not available in India and had to be imported at
considerable cost.” Please note that the judgment hasn’t put forward any test whatsoever so
as to address the legal concerns raised in this article.
Mathews P.George, a legal consultant, is an analyst at Spicy IP. Chithra P. George is a

lawyer based in Kerala.
This article has been made possible because of financial support from Independent and
Public-Spirited Media Foundation.
Topics: Cambridge University Press | Delhi High Court | DU Photocopy Case | Oxford University Press |
the Copyright Act
‘Any Attempt by The Power Of When Rule Of Law

Supreme Court to Dissent And The Becomes A ‘Dead

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2/2/2018 A Critique Of Delhi High Court Judgment In DU Photocopy Case | Live Law

A Critique Of Delhi High Court Judgment In DU

OCTOBER 6, 2016 10:23 PM

Change Font Size  

The second approach, evolved in United The

Also Read : DU Photocopy Shop Judgement: A Landmark In The Access To Knowledge

Mathews P.George, a legal consultant, is an analyst at Spicy IP. Chithra P. George is a

‘Any Attempt by The Power Of When Rule Of Law

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