Course Packs, Books and other Fair Dealings

Course Packs, Injunctions and other Fair Dealings Introduction Copyright and Fundamental Rights may not be two sides of the same coin but they do make for strange bedfellows. Until recently, Copyright and Fundamental Rights have not often been used in the same vein; they have been used to describe different aspects of public and private law. It therefore becomes imperative now to allow for balancing of Copyright with other interests protected by Fundamental Rights. Recent developments in both constitutional law and intellectual property law have, however, brought forth newer and more interesting ways of approaching the aspects shared by these two fields, for example, the right to read has also been recognised as a Fundamental Right forming a part of the indispensible Right to life.1 This is of great importance, particularly in relation to copyright where majority of Copyright law deals with literary works. Two important stakeholders are involved; the publishers who are the copyright owners and citizens in different roles, as students, teachers, researchers or even anthropologists. Thus a simple example of a clash between Copyright and Fundamental Rights is if a publisher has a copyright over a book and decides to stop sales, and on the other hand, citizens have a Right to Read that particular book, to which side will the balance scale tip towards? This is a situation, which has exited mere imagination and entered into the realm of reality vis-à-vis the recent case against Penguin Publishers.2 Right to Education- an inalienable right The Right to Education was first envisioned in the Directive Principles of State Policy. 3 Subsequently, the Supreme Court recognized,4 and a constitutional amendment codified, a constitutional Right to Education.5 Later, The Right of Children to Free and Compulsory Education (RTE) Act, 2009 was enacted by the Parliament. Thus, the aspirations inherent in India’s educational policies—affordability, accessibility and equity—are nothing less than the constitutionally mandated responsibility of the State.6 The Right to Education should not be construed as dealing only with the Right to Education within the meaning ofArt.21-A of the 1 Francis Coralie Mullin v. The Administrator, Union. AIR 1981 SC 746 Legal notice to Penguin Books India for violation of rights of readers, Nivedita Menon available at http://kafila.org/2014/02/17/legal-notice-to-penguin-books-india-for-violation-of-rights-of-readers/ 3 A-41, Constitution of India 4 AIR 1992 SC 1858 5 A-21A, Constitution of India 6 Exceptions and Limitations in Indian Copyright Law for Education: An Assessment, Lawrence Liang, page-4, The law and Development review 2010 2 Constitution, but Right to Education in the generic sense of the term. This includes any and all activities that contribute to the intellectual growth of a student through the medium of education. Copyright- the right shielding creativity India had its first copyright law enacted on 18th Dec 1847, with a captivating title7which was limited in its scope to books only.8 The new Copyright Act, 1957 enacted by the Parliament of independent India was brought into force,9 and further and most recently amended by the Copyright Amendment Bill, 2012 which has particular significance to parallel importation of educational material that will be dealt with in greater detail, later on. Copyright protection in India is granted to original literary, dramatic, musical and artistic works; cinematograph films and sound recording10 which provides exclusive rights to the author to reproduce or adapt, communicate, to the public his work.11 After examining both Fundamental Rights and Copyright independently, it becomes important to analyse them in relation to one another. The underlying issue here is whether these existing exceptions to Copyright law are sufficient to (i) achieve the objects of the RTE Act and (ii) to maintain high standards of education in India, by improving accessibility and availability of educational copyrighted material. This shall be addressed by using a comprehensive analysis made in the light of existing legislations, precedents and jurisprudence drawn from other countries. Right to Education and Copyright- Reconciling the differences Educational institutions are one of the major users of copyrighted works, and needless to say, books are of their prime sources. Copyrighted works are required for purposes of private study, research, instruction, making guide books, question paper sets etc. Educational institutions also design course packs containing a compilation of extracts from various copyrighted works. Generally use of copyrighted works requires the permission of the copyright holder. However, for the purposes of education certain exceptions have been 7 An Act for the encouragement of learning in the Territories subject to the Government of the East India Company, by defining and providing for the enforcement of the right called Copyright therein; Act No. XX. of 1847, Calcutta, 1848 8 Copyright Law of India and the Academic Community, TC James, Journal of Intellectual property right, 2004, first page-207 pinpoint-207 9 Ibid, page-208 10 Sec- 13 copyright act 1957 11 Sec- 14 copyright act carved out.12 This is commonly referred to as the doctrine of fair dealing or fair use. Fair dealing limits can certainly have rebounding impacts on students and educational institutions, as can be seen in the recent uproar created in the dispute between a group of publishers and Delhi University. Rameshwari photocopy services, a small photocopy shop attached to the Delhi University copied extracts from copyrighted books, in the form of ‘course packs’,that were recommended as part of the syllabus of Delhi University and made it available to students of the University at affordable prices. To this, renowned publishing houses like Oxford and Cambridge University, Francis and Taylor demanded recompense for use of their creative and intellectual product. Vehement objections were raised by both authors and students outraged by the publishers move. Students took to social media, and online petitions, demanding that the publishers withdraw their suit. Eminent jurists joined hands including Nobel Laureate Amartya Sen who expressed his distress over the issue and urged the need to make academic arrangements for the education of students less difficult and more sensible. The access to knowledge at affordable prices pitched against the right of publishers to claim damages for copyright infringement was the main issue. For amicably deciding this, it becomes important to arrive at an optimum level of threshold for fair dealing. Hence, while analysing the right to education vis a vis copyright protection, a detailed review of the doctrine of fair dealing is necessary. Fair useAs seen earlier, the holder of a copyright is generally given certain exclusive rights such as reproduction, performance, translation, adaptation of the copyrighted work.13 Exercise of these rights without permission from the copyright holder amounts to infringement.14 However, these rights of the copyright holders are not unfettered and are limited by the doctrine of fair dealing as has been embodied in section 52 of the Copyright Act, 1957. Therefore, any use of copyrighted material qualifying as fair dealing, will be exempted from liability for infringement. For instance, photocopying extracts for the purpose of private study will not amount to infringement.15 The basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) (a) of the Constitution of India,16 as well as the Right to Education as enshrined in Article 21-A; so that research, private study, teaching materials 12 Sec- 52, Copyrights Act S-5 Copyright Act 14 S-13 Copyright Act 15 S- 52(1)(a), Blackwood & Sons Ltd. v. A.N Parasuraman ,AIR 1959 Mad 410 at 84 16 Wiley Eastern Ltd. and Ors V.Indian Institute of Management, (1996) PTR 46 (Del) para-19 13 used in a classroom, criticism or review or reporting of current events could be protected. It is generally assumed that fair dealing is equivalent to its American counterpart of fair use. Therefore, there seems to be no doubt that Copyright and the Right to Education and the Right to access knowledge are in fact two related fields. Further, the drafters of the Copyright Act, 1957 have included exceptions and limitations to the right of the copyright owner, on purely educational grounds, in section 52 which deals with fair dealing.17 This clearly shows the legislative intent of the drafters, which is to make the right of the copyright owner, subservient to the Right to access knowledge. Public v. Publishers - What is fair? The term ‘fair’ in fair dealing involves only those actions which have no intentions to compete with the original and which do not have any improper or oblique motives.18 So actions which have been designed solely for the purpose of competing with the original work or such other unfair motives will be liable for infringement. When the right to education is looked at in relation to Copyright protection, the focus largely is on literary works which includes adaptations and translations of such works. Even the recent case against Delhi University, as seen earlier, revolves around the issue of whether photocopying extracts from various books for the benefit of students(many of them belonging to impoverished sections of the society) constitutes fair dealing. Jurists like Prof. Shamnad Basheer have exemplified the need for a fairer view of fair dealing keeping in mind the public interest at issue in this particular case. Where the interests of the public and that of the copyright owners do not coincide, then the interests of the public should override the interests of the copyright owners.19 However, it is interesting to note that the Delhi High court in the case of Rupendra Kashyap v. Jiwan Publishing House has held that the Copyright law in India does not provide for an exception in the name of public interest. An infringement of copyright cannot be permitted merely because it is claimed to be in the interest of the public.20 This shows a clear contrast in the existing precedents and the normative views of eminent jurists. Measuring fair use- How much is too much? 17 18 52 (1) (a), 52 (1) (h), 52 (1) (o), 52 (1) (p) of the Copyright Act, 1957 Blackwood & Sons Ltd. v. A.N Parasuraman, para 74 See Robert A. Kreiss, Copyright Fair Use of Standardized Tests, 48 Rutgers L. Rev. 1043, 1045 (1996) 20 Rupendra Kashyap v. Jiwan Publishing House 1996 (38) DRJ 81, para-24 19 The daunting task is to determine the threshold for fair use. Courts in order to arrive at a reliable evaluation of fair use have often relied upon the four-factor test as laid down in section 107 of the United States Copyright Act, 1976. These tests are merely illustrative and not exhaustive. Also, this is not an absolute test. Where most of the factors favour fair use the activity is allowed. The judges have a great deal of discretion in determining fair use and are free to adapt to particular situations on a case to case basis.21 The four-factors arethe purpose and character of use the amount and substantiality of the portion taken, and the effect of the use upon the potential market. This test has been used in a plethora of cases. However, the case of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright)22 decided by the Canadian Supreme Court in the light of these four factors seems to be of particular relevance, because the Canadian fair dealing provision mirrors the Indian one; more so, because it deals with fair dealing in the light of educational materials. In this particular case, teachers in elementary and secondary schools across Canada frequently make photocopies of excerpts from textbooks and other published works that form Access Copyright's collection. The Canadian Supreme Court reversing the decision of the Copyright Board held that the copies made at the teachers’ initiative for student instruction fell under the allowable purpose of “research or private study”, and thereby constituted fair dealing.23 The four-factor test can be analysed in the following manner Purpose of the dealing While deciding whether the purpose of the dealing is fair the predominant purpose of the dealing is assessed.24 Where the real or predominant purpose of the dealing is instruction or private study for e.g. where the material needs are tailored to suit the 21 Measuring Fair Use: The Four Factors, Copyright and Fair use, Stanford University Press.(blog) where the content was taken from the book Getting Permission by Richard Stim. 22 2012 SCC 37 23 Ibid, page-4 24 ibid, para-45 learning needs or interests of a particular student or students, then the dealing is fair.25 Section 52 of the Indian Copyright Act enumerates a list of purposes that qualify as fair dealing. These purposes include private study including research, criticism and review.26 It has also been held that every commercial purpose is presumptively unfair.27 In Williams & Wilkins Co. v. United States, held that libraries’ photocopying for medical research which was non-profit in nature constituted fair dealing.28 However, the contrary view was expressed by Sixth Circuit court in the case of Princeton University Press v. Michigan Document Services where distribution of photocopied packets of course materials to professors and students which was noncommercial in nature did not amount to fair use.29 This shows that the end-use being non-commercial and purely educational is no bar for preclusion from infringement.  Nature or character of the dealing The number of copies and the extent of the dissemination are properly considered under the "character of the dealing" factor.30 If the copies made are limited to the students in class, it is justified as against thousands of copies made in a school district or across a province.31 A distinction also needs to be drawn between creative and informational work.32 In the case of informational work the scope of permissible fair use is greater as compared to creative work, since the risk of restraining the free flow of information is more significant.33  Amount and substantiality of the dealing The "amount of the dealing" factor is concerned with "the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated".34 In the case of Blackwood v. Parasuraman it was held that while determining fair use, the decisive factor was whether the work in question was copied 25 ibid S-52(1) (a) copyright act 27 Sony Corp v. Universal City Studios 464 US417 (1984) 28 Williams & Wilkins Co. v. United States, 487 F.2d (1345) 29 Princeton University Press v. Michigan Document Services, 99 F.3d at 1389 30 Alberta para-50 31 Alberta, para-49 26 32 consumers union of united states, inc.v.general signal corp. 724 F.2d 1044, 1048 (2d Cir. 1983) para- 35,36 33 ibid Alberta case, para-50(case cited earlier footnote 23) 34 so substantially that the copying would amount to negative fairness.35 In May 2012, the United States District Court decided on the substantiality of the dealing in the decision of Cambridge v. Becker where the University copied portions of copyrighted books to be posted electronically. In this case, the Court held that using excerpts of less than 10% of the copyrighted work was permissible and the permission of the publishers was not required, because this 10% excerpt would not substitute for the original no matter how many copies are made.36 In light of this decision, Prof. Shamnad Basheer in has argued that if an IP-maximalist regime such as the U.S. can establish the threshold at 10% of the total page count, India, being a developing country where serious implementation of its educational goals is required, should take the lead and peg the threshold at 20%. Hence, it is argued that even in the Oxford Publishers case against Delhi University, where the threshold of 10% exceeded only in the case of 5 extracts, the same constitutes fair dealing.37  The effect on marketability In the Alberta case it was held that where the effect of the dealing is such as to compete with the market of the original work, then the dealing is not fair.38 This is an accepted view even in Indian jurisprudence, where the Delhi High Court in the case of ESPN Stars Sports v. Global Broadcast News Ltd. and Ors. held that if the work is being used to convey the same information, as the author, for a rival purpose, it may be unfair.39 Thus, if the dealing creates a likelihood of competition, affecting the marketability of the copyrighted works, then it qualifies as unfair dealing and is not allowed. Like stated earlier these factors are mere guidelines and their use is solely dependent upon the discretion of the Judges, who may also decide new criteria on a case to case basis. For instance, in the Alberta case, the Judges additionally relied upon the alternatives to the dealing test. According to this test dealing maybe found to be less 35 Blackwood case, para-86(case cited earlier footnote 19) Cambridge v. Becker, 863 F.Supp.2d 1190 (N.D.Ga., 2012), pg 74 37 Analysing the Delhi University v. Publishers Photocopying Case by Amlan Mohanty, Spicy IP 38 Alberta case, para-57 39 2008 (36) PTC (Del) Para 17 36 fair if there is a non-copyrighted equivalent of the work that could have been used or if the dealing was not reasonably necessary to achieve the ultimate purpose.40 In our view, in a country like India, buying books for each student is not a realistic alternative to photocopying short excerpts from books prescribed in the curriculum for students and is necessary to achieve the ultimate purpose of students’ ability to research, learn and grow. A parallel alternative With Publishers refusing to reduce the prices of books, which are key cogs in the syllabi of multiple universities, and with photocopiers and ‘course packs’ being subject to a witch hunt, another alternative to the problem, is Parallel Importation of books. It can be said, that allowing parallel import of educational materials, might break the deadlock that exists between Publishers, Consumers, and ultimately the government What is Parallel Importation? A parallel import is the import of genuine copyrighted works without the permission of the owner of copyright i.e. through a trade channel not authorized by the copyright owner. Therefore, this trade channel runs parallel to and competes with the authorized trade channel of the producer.41 For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 300 copies of the book from India and imports them to New Zealand without the permission of the copyright owner of the book in New Zealand. This act of the trader bringing the books into New Zealand is called parallel import, the legality of which depends on the copyright law of the importing country (namely New Zealand in this example). Another concept, that must be studied close to Parallel Import is the doctrine of first sale or the doctrine of exhaustion which imposes certain limits on the re-sale and re-distribution rights of the owner of a copyright after it has already been sold by or with his/her consent.42 Parallel importation therefore, is nothing but the application of ‘International’ exhaustion. 40 Alberta case, para- 31 Pranesh Prakash, Why Parallel Imports of Books Should be Allowed, January 25, 2011, available at http://cis-india.org/a2k/blog/parallel-importation-of-books (Last visited on June 22, 2014) 41 42 Shamnad Basheer, Debanshu Khettry, Shambo Nandy and Sree Mitra, Exhausting Copyright and Promoting Access to Education: An Emprical Take, Journal of Intellectual Property Rights, Vol.17, July 2012, pp 335-347 The need for Parallel Imports The need for Parallel imports has been felt, across various fields and professions. In fact When the Copyright Amendment bill was referred to a Parliamentary Standing Committee for review, the said Committee strongly supported the introduction of section 2(m) and stated as below:43 “that availability of low priced books under the present regime is invariably confined to old editions. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed i.e to protect the interest of the students is not lost sight of.” The need for parallel imports is also backed up by empirical research. In March 2011, P-PIL conducted a study of educational books, mainly centered on law and social sciences. They analysed the books in 3 libraries, namely National Law School, Bangalore ( NLS), National University of Judicial Studies, Kolkatta ( NUJS) and finally Center for studies in Social Sciences ( CISS), Kolkatta. The study refuted the two claims of availability and accesibility made by the publishers44 There is no doubt, therefore that parallel importation is the need of the hour. How will Parallel Imports help? The two major benefits of Parallel Importation is that it makes the entry of latest editions of copyrighted material into the Indian Market quicker, and it also reduces the cost of these editions, by increasing competition. Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an 43 44 Parliamentary Standing Committee,Discussion on Copyright Amendment Bill, 2010. Shamnad Basheer, Debanshu Khettry, Shambo Nandy and Sree Mitra, Exhausting Copyright and Promoting Access to Education: An Emprical Take, Journal of Intellectual Property Rights, Vol.17, July 2012, pp 335-347 authorization to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit.45 Parallel imports will also help the other stakeholder involved, namely the Publisher. Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India does not prevent us from buying books first hand. Legislative History and Case laws with regards Parallel Imports A close reading of section 14 along with section 51 is important while determining infringement. S. 14(a)(ii) practically codifies the First Sale Doctrine in India, and at no point does it grant an owner the right to Import. So this would prima facie mean that books, which have been legally acquired in another country may be imported and sold in India. Unfortunately, this interpretation has not obtained any traction from Indian Courts which have completely misunderstood parallel importation and the impact of the first sale doctrine in India. We therefore turn to the legislature for some solace. The legislative history in India, regarding Parallel Imports is not encouraging. Proposed amendment to S. 2(m) of the Copyright Act, which would have explicitly legalised parallel imports was dropped. Section 2(m) was part of the initial copyright amendment bill introduced in Parliament in 2010. It read as below: “[P]rovided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy”. This provision would have helped Indian students gain access to the latest affordable versions of text books from around the world. 45 Pranesh Prakash, Why Parallel Imports of Books Should be Allowed, January 25, 2011, available at http://cis-india.org/a2k/blog/parallel-importation-of-books (Last visited on June 22, 2014) The exclusion of the provision was first met with wide befuddlement In an attempt to reconcile the prevailing uproar due to its exclusion, Mr. Kapil Sibal commissioned the National Council of Applied Economic Research to report on the legalisation of parallel imports and adopting principles of International Exhaustion. This Committee, headed by Prof. Chaddha in its report recommends that both the sides come to an amicable solution, and if that fails the proviso to S. 2(m) of the Copyright Act, 1957 be added, with suitable safety valves.46 This serves as a shot in the arm for consumers, and we hope that the Copyright Act is fast-tracked for amendment. Views of Publishers However, publishers do not see parallel importation as a beacon of hope, like the rest of us. Publishers and indeed many commentators have raised certain issues with Parallel Importation, namely:  Parallel imports would dilute the ‘commercial potential of exploitation of a work’.  The copyrighted material is already easily available in India, and at highly affordable prices, therefore there is no need to import.  Parallel import would lead to imbalance of trade. Counterfeiting activities would increase across borders. There would be total disruption of authorised distribution channels. It would be impossible for customs and border police to apprehend the import of illegal copies. Addressing each of these issues, first; Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores. For parallel importation to take place, the books have to be purchased legally, and that first sale itself ensures that authors are paid royalties. Second, this view has already been dispelled in the above paragraphs, where we have relied on the survey that was conducted by P-PIL. Not only that, but studies conducted by CIS, Consumers International , and even the NCAER recently clearly show that Indian 46 The Impact of Parallel Imports of Books, Films / Music and Software on the Indian Economy with Special Reference to Students ,Ministry of Human Resource Development,Copyright Division, January 2014 p 97 Students and libraries, do not have access to cheap books, and that these books are usually of earlier editions. Finally, we concede that counterfeiting is an issue of grave concern; But however, stricter custom rules would solve the issue to a large extent. It is true that existing libraries cannot be positively certain as to whether a book they acquire is an infringing copy or not. But a blanket ban on all imported books would not be a viable solution, and by doing that libraries would only take a devastating hit; a situation already recognised in the form of briefs in Costco v. Omega.47 Therefore, it is our belief that the views of the Publishers, albeit genuine, are not strong enough to prevent the introduction of the proviso of Sec. 2(m) to the Copyright Act, and that parallel importation will serve as an important bridge between the Right to Education and Copyright. Conclusion In a developing country like India, everybody is entitled to quality education, which ought to transcend geographical limitations and reach out to the neglected masses. As seen, even the legislation provides for subordination of the rights of the copyright holders as against the right to education. However, the burden now is now on the judiciary to interpret the scope of these exceptions bearing in mind the constitutionally mandated goal of the state to provide education. The fair dealing limit in the US was set at 10% in the infamous case of Cambridge v. Becker which in India can be easily decided at 20% as has been advocated by jurists. In addition to this, the Legislature while giving in to the demands of the public and the strong recommendations made by the NCAER should include the proviso to section 2(m) as part of the Copyright Act, 1957. This will ensure quality education at affordable prices and do a world of good to the public, as the needs of the many should always outweigh the needs of the few. 47 Brief for the the American Library Association, the Association of College and Research Libaries, and the Association of Research Libraries in Support of Petitioner in Costco v.Omega