In Prashant's last post, he argued that the most appropriate legal position for Delhi University to take, would be to settle with the publishers and procure licences from the IRRO (a copyright society set up by the publishing industry) for photocopying portions of books that are compiled into course-packs for students. At the outset, I would like to respectfully declare my wholehearted objection to such an idea.
I. THE QUESTION OF HOW MUCH
First comes the question of how much Delhi University/the photocopy shop has copied and whether that is permissible under current law. In my previous post, I made the necessary calculations and arrived at a figure indicating that a majority of books were under the 'global standard' of 10%.
In his post, Prashant mentioned that there was an objection to my calculations. Unfortunately, in the table posted in the comments section and referenced in his post as a contrary opinion, the figures used make no sense. In several cases, the number of pages copied from the chapter exceed the total number of pages in the chapter itself. You can see this for yourself based on these extracts from the plaint:
(1st column represents the name of the book,
2nd column: Chapter title and total pages; 3rd column: Pages copied from the chapter)
The error is obvious. I am assuming there have been no misrepresentations in the plaint and will re-calculate the percentages using the figures in print itself (for a copy of the original plaint, please click here). If someone can issue a calcification on the mismatch in the figures, please do so in the comments section.
While in my previous post I used figures referencing suit documents, I have revised my figures assuming the entire chapter has been copied. Where the plaint itself mentions a lower figure (I am guessing this refers to situations where the entire chapter was not copied) I have used the lower figure. Here is a summary of my findings:
Again, you will notice that under current law more than half of the books involved in this case do not infringe - copying is less than the already accepted fair dealing threshold of 10%. And this is not even accounting for the fact that this fair dealing percentage-threshold might be increased by the courts in view of India's unique socio-economic factors. If it is raised to 20%, then 14 out of 19 books do not infringe. Therefore, I think it is incredibly naive and premature for anyone to state that D.U. will definitely lose this case.
II. EXCUSE ME, WHAT'S A GLOBAL STANDARD?
Which brings me to the issue of a 'global standard' itself. How can there be a global standard for how much of a book a university can reproduce to facilitate full access of necessary reading material to all its students? Should this not be a measure of the university's capabilities to procure enough books so that each and every student in a classroom has an accessible copy of the material? Are you telling me that a library at a university in the heart of Bihar and the library at Harvard University have the same number of books and therefore should be held to the same limits of permissible reproduction?
No. There is room for flexibility and the law must account for country-specific economic factors such as per capita purchasing power, cost of books etc at the global level, or more appropriately, a case-specific determination based on the end-user. And I am certain our judges in Delhi are sensible enough to appreciate this important point - which is why settling is not a tenable suggestion.
III. WHY PLACE QUANTITATIVE RESTRICTIONS AT ALL?
The second issue is whether complete reproduction of works is permissible under certain circumstances (for example, to make course packs for students). Given that S.52(1)(h)(i) of the Indian Copyright Act does not lay down any quantitative limit on permissible reproduction, it is again, I think, incorrect to state that Delhi University will certainly lose on this ground.
It is here that I think this the philosophical ideas behind intellectual property and copyright in particular become very important. If I were to merely reproduce parts of your book for some higher social objective - such as education, you are still in a position to exploit that book commercially in several other ways (even inside the education sector, by the way). The book is still there. On the other hand, If I were to steal the book from you, you will not be able to do so. This is why the law itself recognises such wide exceptions to copyright law in doctrines such as fair dealing and as seen in the provision I mentioned above. This to me seems like an apt situation to invoke such a provision.
I fully understand the concern about creating necessary incentives for the publishing industry to continue investing in India (see Prashant's piece in the Business Standard for example). I will be the first person to accept that these publishers put in a lot of effort to bring to the market some phenomenal books (I can only speak for books in the legal education section) and frankly, they deserve to profit from it. But the more appropriate solution here would to my mind be a deliberative and not a legal one. Publishers and educators in India need to come together to determine how best to ensure access to material whilst making it a profitable venture for publishers. This is primarily, I think, the prerogative of the universities and the publishers, since the target market of the publishers for such books appears to be the universities and not the students (their attempt to suggest university-procured licences from IRRO is another strong indication of this fact). Which is why I think it is time for politicians such as Kapil Sibal and other members of the Ministry of Human Resources Development to engage with this issue.
And all of this is to not even begin to probe the quantum of damages sought, which I find the most misplaced. Rs. 60,00,000 in damages sought for less than 2.5% infringing use of the entire catalogue of books in question in this case? Seems a little absurd to me. The publishers will certainly try to advance evidence of lost sales and prospective losses, but the figure itself is shocking to me.
So to conclude, Delhi University & Rajeshwari Photocopy Services might appear to be underdogs against the might of Big Publishing in this case, but defend they can and defend they must. Unfortunately however, the unnecessary social and economic costs as a consequence of this litigation, will hardly be acknowledged.