DU Photocopy Case: Delhi HC Disposes The Appeal Saying No Triable Issue, Restores Suit But Refuses Interim Injunction

A division bench of the Delhi High Court in a swinging and exceptionally quick judgment in appellate proceedings of what is popularly known as the DU Photocopy case, set aside the order passed by the Single Judge Justice Rajiv Sahay Endlaw and restored the trial on 2 key factual aspects. A lot of ink has since flown in a short span of two days giving both bouquets and brickbats to the judgment. What is important here is that the bench said that there was no triable issue but gave 2 factual aspects to the appellants; Disposed of the appeal but restored the trial and refused the interim injunction.Publishers Lose Copyright Suit In DU Copy Right Case [Read Judgment]In a quick flashback, in August 2012, three publishing houses – Oxford University Press, Cambridge University Press and Taylor & Francis initiated a lawsuit against one Rameshwari Photocopy shop and Delhi University (DU), the chief grievance being that photocopying the ‘course-packs’ bound volumes, which contained excerpts from various textbooks, infringed the copyright that the publishers held in those books (textbook piracy). In October 2012, the Court had issued a temporary injunction restraining the photocopying shop from selling the (reportedly) infringing course- packs until the case was decided which led to an immediate ripple effect and a number of other photocopying shops in and around DU stopped supplying the course-packs. The matter raised interesting legal issues including if there was a ‘right to copy’ portions of textbooks for academic purposes. On the one hand, there was the right of the publishing houses to earn adequate remuneration to remain economically viable, right of authors to gain economic regard from their creations, and the scope and interpretation of the academic exception in Section 52(1)(i) of the Copyright Act 1957. On the other hand was the copyright doctrine of ‘fair use’, right of teachers to reproduce parts of textbooks for effective instructions to impart education, constitutional recognition of a right to education, duty of the state to avoid education becoming a commodity accessible only to the rich and whether publishers could treat the final product of extensive research out of public money as their sole propertyJustice Endlaw held that photocopying excerpts from books and distributing them to students for academic purposes did not infringe the copyright of the publisher/author and that the educational exception under Section 52(1)(i) of the Copyright Act, 1957 covered the acts of photocopying and the course packs by DU for its students as there was no cause of action since there was no actionable infringement in the case.Justice Endlaw held five major things – firstly, the words ‘to reproduce the work’ in Section 14(a)(i) included making photocopy of the work in contravention of the provisions of the Act. Secondly, the right to make photocopies was held to be the exclusive right of the author of the literary work and a copyright within the meaning of Section 14. Thirdly, the principle of ‘exhaustion‘ was bought in Indian intellectual property (IP) rights jurisprudence holding that neither Section 14(a)(ii) nor Section 51(a)(i) required issuance of copies to be for consideration/profit. Thus, books purchased by DU in which the plaintiffs claimed copyright were deemed to be a copy already in circulation and that the exclusive right to issue the same to the public did not vest in the plaintiffs. Fourthly, the action of DU to supply the master copy to the shop, granting licence to it to install photocopiers in the premises and distributing the course packs to students for charge, did not constitute ‘publication‘ within the meaning of Section 52(1)(h). And finally, the expression ‘instruction’ was held to be different from a ‘lecture’ and ‘publication‘; Section 52(1)(h) was held to be distinct from the word ‘reproduction‘ in Section 52(1)(i) thereby allowing copying for limited use. In Para 80, Justice Endlaw wrote that copyright in literary works was not an inevitable, divine or natural right that confers on authors the absolute ownership of their creations.A Critique Of Delhi High Court Judgment In DU Photocopy CaseAggrieved, the challenge was bought to the Division Bench comprising of Justices Pradeep Nandrajog and Yogesh Khanna. In Para 17 of the judgment authored by Justice Pradeep Nandrajog, the bench formulated a question that whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not hedged with the condition of it being a fair use. It further posed a sub question that what was the span of the phase “by a teacher or a pupil in the course of instruction” in Section 52(1)(i)(i) of the Copyright Act, 1957. The Division bench also dealt with the questions surrounding distinguishing 'reproduction' and 'publication'.In Para 33, the Division Bench held that in the context of teaching and use of copyrighted material, the fairness in the use can be...

DU Photocopy Case: Delhi HC Disposes The Appeal Saying No Triable Issue, Restores Suit But Refuses Interim Injunction

Namit Saxena

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