Media may have misjudged copyright verdict

BY Sampad Patnaik| IN Law and Policy | 28/09/2016
By writing about a court ruling allowing the photocopying of textbooks in David vs Goliath terms, the media may have missed the logic of copyright and the damage caused by its infringement.
SAMPAD PATNAIK explains
This was the line most of the media took, but the pros and cons of copyright are more complex.

 

The Delhi High Court has recently pronounced a verdict on copyright infringement, in a case that pitted Delhi University (DU), Delhi School of Economics (DSE), and a photocopying shop against three international publishers. The verdict has been praised in many news articles as a landmark judgment.

The three international publishers were Oxford University Press, Cambridge University Press, Taylor & Francis Group UK, and their Indian arms.  They pleaded for a permanent injunction against Rameshwari Photocopy Service, operating from the Delhi School of Economics, and Delhi University, under which the prestigious economics school operates.

The lawsuit alleged that the photocopy service was selling students of the DSE course-packs, which comprised photocopies of extracts of the publishers’ copyrighted books. The suit also alleged that DSE and DU, which have mentioned these books as part of their syllabi, provided legitimate copies to the photocopy service for copying and distribution among their students.

 

The rationale of the judgment

After listening to the pleadings, the Delhi High Court identified Section 52(1)(i) of the Indian Copyright Act, as the chief point of contention. Section 52 has listed acts which do not amount to an “infringement” of copyright. For example, copy and distribution of extracts of a copyrighted book amounts to an infringement. Section 52(1) (i) also states that reproduction of a book made by “a teacher or pupil in the course of instruction”, would not amount to an infringement of the author’s copyright.

The judgment said that this exemption, in matters of teaching, can also be applied to educational institutions, which have substituted the guru-shishya relationship of bygone eras.  Asserting that laws have to be reinterpreted with contemporary realities, the court felt it could substitute “institutions” in place of teachers. Therefore the copying, done in the course of instruction, does not constitute infringement of copyright.

 

Three rebuttals of the judgment  

1.      Inserting students as phantom stakeholders

One of the main arguments of the defendants reads “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”.  It is this argument which has made the judgment appear favourable to the interests of students. However, the inclusion of students into this argument is actually the insertion of a phantom party. The term “phantom party”, in the context of this trial, means a party that is not actually a stakeholder in the outcome.

At no point in the trial were the plaintiffs expecting students to pay for these books. It is expected that the institutions, like DU and DSE, charging fees for education and having themselves included these texts in their own syllabi, are expected to purchase and store multiple copies of such texts. The most well-stocked university libraries worldwide, such as Oxford and Cambridge, follow this convention. Many Indian universities do, or are expected to do the same. It is common sense that if a university prescribes a text, they are expected to stock it in their libraries in adequate numbers.

No university library is expected to keep a copy per student, for a prescribed text, but a sufficient number that can be shared by the students. Certainly, this may mean that students have to manage their study hours and strategies to access books, but management within limited resources is an essential part of higher learning.

 

2. Protecting profit siphoning and capping profit making

The Delhi High Court has protected the profits of the photocopier, DSE, and DU, while capping the profits of the publishers. Both parties are part of the same education business.  DU and DSE, which are obligated to buy more copies of the books they have themselves included in syllabi, are making profits by reducing the expenses involved in buying books for their students. Rameshwari photocopier service is making profits copying the books on a regular basis; it gets large orders precisely because the extracts are included in coursework and students have no option but to buy copies.  So while profit siphoning on the part of the defendants is protected, profit making of the publishers is not.

 

3.     The risky path towards unregulated corporate personhood

Last but not least, the court has stretched the interpretation of the exemption in the Indian Copyright Act, by substituting “institutions” in place of teachers. As per the terms of the act, a teacher allowing the student to make a copy of a book, for specific queries or research requirement, is not infringement of copyright. This situation is starkly different from institutions such as DU and DSE encouraging photocopying on a regular basis because they do not wish to invest in learning resources. “Teachers” cannot be the same as “institutions”.

By drawing this equivalence, between the individual and the collective, the Delhi High Court has opened a Pandora’s Box of “corporate personhood”. This legal concept, widely controversial in the United States, has allowed corporations to have a right to free speech just like citizens. This has led to unlimited corporate money in electoral politics in the United States, thereby undermining democracy.

 

Faulty media discourse on intellectual property

The media frame the argument as David vs Goliath and this is incorrect, for the following reasons:

 

1.      Big guy versus average Joe

This particular copyright case is one of the debates under the umbrella of Intellectual Property Rights (IPR). Most media articles that advocate restrictions on IPR willfully frame the argument as a contest between a big bullying party protecting private interests versus a smaller party protecting social interests. 

For example, one article in the media has framed the copyright trial as a bramhastra on a sparrow, right in the beginning of his article. But in doing so, the writer is prejudicing the readers by stressing the relative strengths of the affected parties and not the quality-of-grievance versus the quality-of-rebuttal.

 

2.     Distinguishing one IPR case from another

This particular article has also disingenuously lumped all IPR matters in one basket. It has described the copyright judgment as consumer friendly, in the same manner as the judgment against Novartis, a pharmaceuticals giant. The two cases cannot be compared. In the Novartis case, had it been allowed its patent monopoly, generic drug companies would have found it unviable to produce a cancer drug as most Indians could not have afforded it.

However, the copyright case was between DU and DSE, their materials supplier, and the three international publishers. As discussed earlier, the consumers [the students] are actually not stakeholders in the trial. The publishers did not seek a monopoly, as Novartis did, on their IPR.  They wanted a license agreement that would cost roughly Rs 12,000 per college per year to photocopy their texts. This minimal cost can be absorbed by the colleges and if passed to students would not be such a burden, when calculated per student.

 

3.     Copyrighted research threatens further research

The copyright judgment also represents one aspect of a wider debate on the links between strong IPR and subsequent research and innovation. The argument is that monopolies on IPR reduce the sharing of knowledge and therefore also reduce the chances of further research-innovation based on the existing research.

The author of the article referred to earlier, has cited a study which asserts that a strong IPR regime depresses further innovation. Unfortunately, this comparison is again not fair. The cited study was on genetic research - a very different area with different dynamics.

Even if we accept the comparison, the cited study concluded that only within the ambit of genetic research, strong IPR may be a deterrent to further innovation, though “there exists no direct evidence”. The study clearly states “relatively little is known about how IPR on existing technologies affects subsequent innovation”. By hyperbolizing the measured findings of academic papers, to reinforce a point in an argument, this article has probably committed a disservice to lay readers.

 

Wider impact of the judgment on ‘public interest’

Interest groups favouring the judgment have implied that even if the profits of the publishing industry take a hit, a dent in private profits is of less importance than the social advantages of disseminating knowledge without cost barriers.

What these interest groups overlook is the reality that the disadvantage, from this verdict, is not restricted to the private profit of the publishing industry. For example, if publishers fail to make money on quality research on Indian economics, they will no longer be eager to commission or fund such studies.

In addition, high quality research on Indian economics and society is not just used by students to pass an exam. High quality research is known to have an almost imperceptible but real, long-term, trickle-down effect. Research in the social sciences, especially when compelling, trickles out of texts into academic seminars, into news coverage, wider public attention, civic activism, and policy correction. If publications of quality research are dis-incentivized, then not just publishers and students, but the wider society suffers too.

The Delhi High Court’s judgment may or may not be appealed by the publishers. However, the outcome of the trial and its discussion in the news has allowed an emotional need for righteous fervour to swamp the sense of nuance and application of logic that must guide the delivery of justice.

 

 

Sampad Patnaik has completed a postgraduate degree in interdisciplinary area studies from Oxford University. He was a former journalist with Thomson Reuters and a former Legislative Assistant to a Member of Parliament (LAMP). 

 

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