Copyright is Not Inevitable, Divine, or Natural Right

Last month an important copyright lawsuit was settled in India that helps students and allows academia to continue to provide education for the majority of people. In 2012, a few large textbook publishers had brought a photocopying service and Delhi University to court over the practice of creating unlicensed coursepacks and allowing students to photocopy portions of textbooks used in their classes. The Delhi High Court dismissed the case and held that coursepacks and photocopies of chapters from textbooks are not infringing copyright, whether created by the university or a third-party contractor, and do not require a license or permission. Beyond the immense benefits to students and academics, the ruling had some interesting wording that gained attention online.

The case was brought to the courts by Oxford University Press, Cambridge University Press, and Taylor & Francis against the Rameshwari Photocopying Service — a business that provides booklets based on course syllabi — and Delhi University. It started in 2012 when the courts restrained the photocopier from creating copies of academic resources.

But Delhi University supported the photocopiers, saying the use of reproduced copyrighted books by [students were] ‘reasonable educational needs’ and should not be treated as infringement. Students also rallied behind the kiosk, saying most of the books were too expensive,” according to the Hindustan Times.

The university pointed to the existing copyright exceptions and the fact that the materials were clearly being used for educational purposes, not meant for commercial exploitation.

After four long years, the ruling favored the defendants. The ruling included this great quote, a reminder of what copyright really is:

Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.

The court also discussed how technology has evolved without copyright laws changing to reflect this. That is a worldwide issue of copyright laws.

Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped.

Of course, this isn’t suggesting anything that can be photographed or copied is fair game, but that the use of textbook excerpts is wholeheartedly fair use. Stopping a university or third-party from providing coursepacks or textbook excerpts merely prevents the students from getting the most convenient source for information that they are free to use.

I think it is interesting to note that the Justice of the High Court brought personal experiences into the ruling, according to The Times of India.

The HC held that when texts are used by DU for imparting education and not commercial sale, it can’t infringe on copyright of the publishers. The Justice recalled his own experience and noted, “In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied.”

This reminds me of the landmark Canadian case of CCH Canadian Ltd v Law Society of Upper Canada, in which a group of publishers sued the Law Society for providing photocopying services for researchers. Similar to the case in India, the Supreme Court reinforced the power of fair dealing and educational exceptions. The judges here were also intimately aware of the importance of photocopying services for research and educational purposes, and likely had a wealth of personal experiences.

In the United States the defense for fair use coursepacks failed. Writing for Techdirt, Nancy Sims said,

Lawsuits in the 1990s established that it’s not fair use when commercial copy shops sell paper coursepacks for profit. Suddenly the copy shops (which had been providing the coursepacks for just over reproduction costs) had to clear licensing for each article or chapter included. (Fun party trick: to identify which individuals in a room full of academics were students later than 1996; simply ask them whether their coursepacks were affordable, or expensive. Additional fun: watch the expressions on the faces of pre-1996 students when you tell them how much coursepacks currently cost students – as much as $500 per pack!)

With the ubiquity of the internet, the loss of cheap coursepacks can be skirted with open access online articles. But, online alternatives are an imperfect solution with their own pros and cons. Other ways to avoid costly textbook fees includes library copies, sharing textbooks, independent photocopying, and illegally distributed scans. But even with all these alternatives, coursebooks and textbook excerpts persist. They are relatively cheap and simple to create, and convenient for students. It’s just a shame that in many parts of the world they don’t count as an educational exception to copyright laws.

The full court proceeding can be found here.

Stanford University Libraries created an informative resource on academic coursepacks, which can be found here.

This article is republished with the permission of the author. The link to the original publication is via the ALA Intellectual Freedom blog. Posts on the Intellectual Freedom blog are Creative Commons licensed under the Attribution, Non-commercial, No Derivatives license for the United States. Any content that is re-published elsewhere must be attributed to the ALA Office for Intellectual Freedom and include the name of the Intellectual Freedom blog and a link back to the blog.

Posted in: Copyright, Intellectual Property, Libraries & Librarians