The litigation initiated by some of the major publishers like Oxford University Press and Cambridge University Press against University of Delhi and a small scale photocopy service operating within the premises of Delhi School of Economics (University of Delhi) has been one of the most keenly watched litigations in the area of copyright law. The Delhi High Court in landmark judgement in The Chancellor, Masters & Scholars of The University of Oxford & Ors v. Rameshwari Photocopying Services & Ors., has examined the scope of “fair use” and has held that photocopying copyrighted material during the course of educational instruction would not amount to copyright infringement.

The photocopy service in question has been selling to students, course packs based on syllabi prescribed by the University. Some of those course packs had extracts from books published by the publishers who initiated the litigation. According to the publishers, apart from providing space on campus for the photocopy service, University libraries were also issuing books to the photocopy service for preparing those course packs.

The litigation was initiated by the publishers before the Delhi High Court in the year 2012, alleging violation of rights under copyright law. The judgment delivered by Justice Rajiv Sahai Endlaw on September 16, 2016 has ruled in favour of the University and the photocopy service, clarifying that there was no copyright infringement in the activities questioned by the publishers. This judgment can undoubtedly be considered as a landmark in the access to knowledge movement, for three reasons –

first, the manner in which the Court has attempted to strike a balance within the copyright system;

second, the manner in which the Court has interpreted the specific educational use exception provided under the Copyright Act; and

finally, the reaffirmation that copyright is not a natural right.

The most refreshing aspect of this judgment is the way the Court has emphasised that copyright system is not just about copyright holders’ rights, but also users’ rights. The Court achieves this vital balance by highlighting that the rights of potential beneficiaries of the exception provisions under copyright law need to be interpreted using the same rules used for interpreting the rights of copyright owners. In other words, both the exceptions to infringement provided under copyright law and the scope of rights conferred on copyright holders need to be treated equally to strike a balance between the interests of copyright owners and the broader public interest in getting access to copyrighted works.

This assumes significance for two important reasons. First, this approach may change the way India approaches the exceptions provided under copyright law. Considering the socio-economic conditions prevalent in the country, the Indian Parliament has provided a long list of enumerated exceptions, along with the broad fair dealing exception. The judgment in this case may also prompt other courts to treat all the provided exceptions with more importance and convert their passive existence in law to more meaningful engagements.

The important aspect of the judgment is the way it clarified the scope of Sec. 52(1)(i), which is a specific educational use exception. The Judge rightly considered Sec. 52(1)(i) as the most appropriate provision for the facts of the case and if the judge had taken the fair dealing approach, the result might have been different, as the scope of the provisions are considerably different. According to Sec. 52(1)(i), the reproduction of any work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an exam; or in answers to such questions, shall not constitute an infringement of copyright.

The judgement passed by the Delhi High Court was in line with the decision of the Court of Claims which was subsequently affirmed by the US Supreme Court in Williams & Wikins Company v. United States. The case arose from an action by a leading United States publisher of scholarly periodicals against National Library of Medicine and the National Institute of Health for allegedly unauthorized photocopying of copyrighted materials in the ordinary course of the library’s reference work. The US Court of Claims held that:

The photocopying process did not even amount to printing or reprinting in the dictionary sense; 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”; the copied articles were scientific studies useful to the requestors in their work; 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; photocopy 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.

The Berne Convention allows reproduction of work and free uses of work to a considerable extent with certain restrictions.

Article 9 of the Berne Convention which speaks about right of reproduction is stated as follows:

Authors of literary and artistic works protected by this Convention shall have exclusive right of authorizing the reproduction of the works, in any manner or form.

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Article 10 of the Berne Convention with respect to certain free uses of works is stated as follows:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

The provisions of the article give to member countries, the power to cut down the exclusive right of reproduction and permit the reproduction of such works in certain special cases but the freedom allowed is not total. The reproduction must not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author.

Article 13 of the Agreement on Trade- Related Aspects of Intellectual Property Rights states that 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.

Thus India, under the international covenants aforesaid, needs to ensure that copyrighted works for teaching purpose does not unreasonably prejudice the legitimate interests of the author.

In view of all these factors and taking into account the decision of US Supreme Court and the provisions of the articles of international covenants, the judgment of the Delhi High Court can be described as one of the landmarks in the global access to knowledge movement. It is hoped that this judgment may force policy makers, judges and legislators to take more balanced IP approaches for democratising knowledge. This decision clearly spells out that the private rights will have to yield to larger social goals which have to be interpreted widely. The Judgement will carve out its own IP Jurisprudence and interpret the law in a way that suits its own societal requirements.