Fair Use and Course Packs: A Comparative Perspective : Danish Sheikh
Guest post by Danish Sheikh
The first day of law school, we were handed 5 sets of non-aesthetically pleasing spiral bound sheets of paper. They contained a jumble of articles from eclectic sources; varied in size from a 150 pages to this-is-going-to-sprain-my-arm; and when relied on by the instructor, were absolutely indispensable. The course packs were provided by the university at a reasonable fee, and soon became an integral part of our legal education. True, there were occasional classes where a textbook was imposed on you by the professor, but again, it was often possible to track down a helpful senior’s tattered copy. Only if you got truly unlucky did you have to deplete your dwindling student resources to fork out money for a 500 page hardbound tome.
With the publisher vendetta on photocopying in Delhi University, the future of course packs might be imperiled. While a bare reading of the Indian Copyright Act indicates that the course packs are covered under fair dealing, the final determination will be made by the Court. How have other legal systems dealt with these essential components of university education?
The United States has had a clear line on this issue for a while, one that was established in the 1991 Basic Books Inc. v. Kinko’s Graphics Corp case. The Kinko’s copy shop in question was sued by eight book publishers alleging copyright infringement for the shop’s reprinting portions of books in academic course packs. Kinko’s argued that its practice constituted fair use, but the court disagreed, slapping it with 2 million dollars in damages. A crusade to prove the case was bad law by another Michigan based copy shop owner ended in failure years later. With the case law clearly requiring copyright owner permission to be taken, a system of intermediary agencies has flourished. The Copyright Clearance Center is a prominent example in this regard, providing collective copyright licensing services for academic (and corporate) users of copyrighted material. The Center acts as a unified agent for thousands of publishers and authors, in a way reducing the administrative burden of obtaining multiple permissions. However, with the intermediaries fees taken into account, course pack costs themselves tend to skyrocket, to the extent of almost nullifying the cost advantage from not purchasing textbooks.
The recent Cambridge University Press v. Becker decision is a significant move towards expanding the domain of fair use. The case featured a challenge against Georgia State University’s practice of readings being posted on course websites by instructors, made accessible to students registered for the course. The publishers argued that online sharing of readings was equivalent to paper photocopied course packs and required to be subjected to similar licensing restrictions. The Court’s decision was a shot in the arm for students and universities – a moderate quantitative test was fashioned, where fair use threshold was set at upto 10% of the total page count of a book. For books of ten or more chapters, the fair use threshold stood at a single complete chapter; only in the instance of universities breaching this threshold would licenses be required. This baseline ended up being mostly in Georgia State’s favour: only 5 out of the 75 cases of infringement were held to not come under fair use.
Canada has had similar intermediary licensing agencies prevailing, even in the absence of judicial rulings mandating for the same. The fair dealing provision there is similar to the Indian one, with the Act indicating that the copying of a work for the purpose of research, private study, criticism, review or news reporting is justified as Fair Dealing. The Canadian Supreme Court has interpreted this provision widely in the past. In 2004 the Court held that the exception was open to those who could show that their dealings with a copyrighted work were for the purpose of research or private study, and that “research” had to be given a large and liberal interpretation to ensure that user’s rights were not unduly constrained.
A decision of the court as recent as last month has moved towards clarifying the position with respect to photocopying for educational purposes. A 5-4 majority in Alberta (Education) v. Canadian Copyright Licensing Agency ruled that photocopies of short excerpts from books, made by teachers for students in elementary and secondary schools should be exempt from payment of an additional fee. The decision holds important consequences for the scope of fair dealing in universities and colleges too.
In the case of the UK, fair dealings laws have an otherwise more restricted scope: a exclusion from fair dealing includes instances
where a person doing copying has reason to believe it will result in multiple copies proliferating at the same time for the same purpose, essentially precluding university based course pack creation.The UK saw the Copyright Licensing Agency’s (CLA) highly disputed system being subject to adjudication by the Copyright Tribunal in 2001. Universities had been engaged in a struggle with the CLA’s refusal to include course packs within its lesser priced, more administratively convenient blanket license. The Tribunal made the CLA renege by providing for a license with no restriction on course pack copying.
It is now up to the Delhi Court to provide us with a liberal reading of the fair dealing provision.