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Of Gandhi and a Godfatherly Copyright Offer: Shamnad Basheer and Lawrence Liang

May 27, 2013

In an op-ed in the Hindu, we highlighted an egregious copyright law-suit slapped against Delhi University and its photocopier by leading foreign publishers. The IFFRO (International Federation of Reproduction Rights Organisation) and its partner organisations which collect moneys on behalf of publishers issued a response to this piece, expectantly touting the virtues of acquiring a copyright license from them.

Unfortunately, owing to space constraints, we could only offer a pithy rebuttal to their response in the Hindu.

Below is a more elaborate version of our rebuttal.

(For those who came in late, here is a short jingly version of what this law suit is really about)

For those interested in tracking the case, see updates on SpicyIP

An Irrefusable Offer:

In their response, the IFRRO and its counterparts once again offer the option of a tantalizingly cheap copyright license, repeatedly stressing the “reasonableness” of their offer.

Having been nurtured on a healthy dose of mafia movies, the Godfather springs to mind, where the inimitable Don Corleone persuades thus: “I hoped that we would come here and reason together. And as a “reasonable” man, I’m willing to do whatever is necessary to find a peaceful solution to these problems”. Corleone then proceeds to make his famous “offer that cannot be refused”, with the underlying threat rendering the reasonableness of the offer immediately suspect.

The analogy to the case filed by the leading publishers against Delhi University is striking. First the publishers file a high profile case demanding over sixty lakhs in damages for copyright infringement as a result of the creation of course packs, a practice that goes back to more than two decades. For a copy of their copyright law suit as filed, see here The IRRO, an Indian reprographic rights organization authorized to collect royalties on behalf of a select number of publishers, then steps in to literally coerce universities  into taking licenses by claiming that no photocopying can be done without their permission!

Fortunately for them, and unfortunately, for us (a group of academics, scholars, lawyers, activists and others interested in furthering equitable access to education), institutions such as Aligarh Muslim University (AMU) sign up for a yearly license almost immediately.   The ludicrousness of this licensing scheme is evident when one realizes that the license provides for only 10% copying i.e. AMU cannot photocopy more than 10% of a book.

Even an excessively capitalist nation such as the US provides that a 10% copying is exempt from copyright infringement and covered within the notion of “fair use”. In other words, for copying upto 10% (in most cases), one need not take any permission from the copyright owner or pay any money! And yet, in India, a country plagued with a severe educational access issues, the IRRO demands almost 15,000 a year for a paltry 10%! (The US case outlining this ten percent rule Cambridge vs Becker was conveniently ignored by the IFFRO in its response.)

The egregiousness of the IRRO scheme is even more telling when one considers that the Indian copyright exceptions in favour of education are far wider than those in the US or any other developed nation.

Even as the IRRO pulls off this legal heist forcing Universities such as AMU to pay for nothing, students preparing for exams this summer bear the brunt, as many small photocopiers are understandably nervous about the prospect of having to defend themselves in an infringement suit.

Given this pernicious shadow effect and the state of legal (il)literacy in this country, it is high time we called the bluff of the publishers and the IRRO and explain again as to why educational photocopying requires no permission from either publishers or their agents.

The Educational Exception

Sec. 52 of the Copyright Act is titled as “Certain Acts not be infringement of copyright” and we have repeatedly pointed out that there are at least two provisions which exempt ‘personal use including research’ and ‘reproduction of any work by a teacher or student in the course of instruction’. Collectively these could be thought of as the research and education exceptions that exist in Indian copyright law. If the law permits me to make copies of a work without requiring the permission of the copyright owner, how does the question of acquiring a license from IRRO even arise?

If the publishers disagree with the scope of the exception or feel that it is too wide, then the appropriate forum for them to air their grievance is the Parliament. Unless the law is amended, there is a “right” to photocopy and create course packs. We deliberately label this as a users’ right  in view of the fact that leading IP scholars such as Professor David Vaver  have conceptualized it thus; and their view has received favourable endorsement from courts, most notably a landmark Supreme Court decision that held thus:

The fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.

Arjun Jayadev, a noted economist argues that from a public policy perspective, decision makers ought to prefer wider access to education and learning materials over securing maximal monopoly returns to copyright owners. Indian law embodies such a preference in its rather liberally worded education exception, which in turn effectuates our constitutional guarantee of a fundamental right to education for all. Little wonder then that on the occasion of India’s sixtieth independence day celebrations, Prime Minister Manmohan Singh remarked “Education alone is the foundation on which a progressive, prosperous society can be built…….education that is affordable, accessible, equitable”.

In the Name of Authors?

The FRRO asserts a long standing assumption that we’ve seen repeatedly recycled ad nauseam in this debate: that without aggressive copyright protection, there would be no incentive for authors to write academic books and this would result in a decline in future scholarship. To that end they cite a PWC study which claims that 25 % of authors derive more than 60 % of their income from secondary uses of their work. The numbers touted are certainly dramatic, and one can almost hear Mark Twain from the grave screaming: “There are lies, there are damned lies and there are statistics!”

As Amita Baviskar rightly asks in an email to us: “How can this possibly be true for academic authors?  Almost all of them depend on salaries from academic jobs as their primary source of income.  And it certainly does not apply to Indian authors, even those whose books become best-sellers, like Ashis Nandy.  Can someone explain?”

One explanation might perhaps be that the PWC study was funded by the CLA (copyright licensing agency), a cosy agent of the publishers….a fact that the IFFRO conveniently omits to mention in its response.

Another worthy omission is that more than 300 academic writers wrote to the publishers strongly protesting the highhandedness in bringing this law suit: Read here

Tellingly, they were joined by 33 authors who’d been named by the publishers in their law suit as authors of books which had been allegedly “ripped off” by evil course packs. Read here  

The protest letter stated:

While it is certainly in the interest of authors and publishers to sell as many copies of the book as possible, we have to recognize the fact that in a country like India marked by sharp economic inequalities, it is often not possible for every student to obtain a personal copy of a book….The reason that we make course packs is to ensure that students have access to the most relevant portions of the book without which we would be seriously compromising their education. 

Scholars such as Nobel laureate Amartya Sen have expressed their distress at the law suit. Read here

2012-10-10 13.42.19

Kaushik Sundar Rajan, a leading academic and author notes: “The ‘only’ way in which my book has been read has been through photocopying, and I have given copies of my book to individuals in India explicitly requesting that they photocopy and distribute as widely as possible. Without this, my work would only have been read by primarily Euro-American audiences, which would have defeated the very purpose of my being an academic.”

And Raju Ramachandran, a leading senior counsel and one of the authors whose work was mentioned in the publishers’ plaint as having been copied by Delhi University opines thus: “I am of the clear view that photocopying of the essay for educational use would be ‘fair use’ and would also fall under the educational exception in our copyright law. I would also like to make my position as an author very clear that nothing can be more fulfilling for me than the fact that the student community would be reading and discussing my views.”

A number of academic authors even participated in protest at Delhi University autographing and giving photocopied versions of their book to the library.

2012-10-10 14.17.09

How does this square up with the claims of FRRO? The reason given by most academics for not supporting the lawsuit is the fact that most of them are paid a salary by the university to teach and it is public money and public infrastructure that allows them to conduct their research and to write books.

In a protest in Delhi University, a leading academic scoffed at the idea that academics make their living through royalty payments from books and said that he had not even been paid enough royalty to enable him to buy a copy of his own book.

2012-10-10 13.52.36

But if the spectral figure of the angry academic protesting students photocopying their work in a bid to make more royalties is one of the sustaining fictions of the publishing industry, the other favourite is that of the wallet bulging, café lounging, promiscuous consumer of a student.

And it is to this wallet bulging cafe lounging figure and Gandhi that we’ll return in our next post

7 Comments leave one →
  1. Sajan permalink
    May 28, 2013 10:11 AM

    The authors try to blur the crucial difference between photocopying by teachers and pupils ‘in the course of instruction’ – a perfectly valid exercise under the Indian Copyright Act – and the production of ‘bound collections of photocopied text’ (course packs), which is not.

    As OUP & Co have pointed out, “this is not a case of a teacher or student making photocopies of a work in the course of instruction or a fair dealing in the course of private study.” DU students, at least until they impleaded themselves, were not defendants in this case: Rameshwari was, as was DU (hence, I suppose, the terms “illegal profit”, “profiteering”, “unauthorized reproduction” etc fluttering from OUP’s submission like bats at twilight).

    Rameshwari’s counsel argued that his client was “merely doing the work of photocopying the material brought to their shop by the students or by the faculty members” which was patently not the case. As Lawrence and Shamnad have pointed out, students and faculty members can photocopy texts for their personal use till their eyes bubble. However, Rameshwari is accused of stocking “large quantities of these ‘course packs’ for immediate sale to its customers”, which is a different ball game altogether. (The right to publish “in a collection, bona fide intended for the use of educational institutions, […] short passages from published literary or dramatic works” is probably covered under 52 (1)(g) of the Act – which is a very, very limited right – not (1)(h)).

    Apart from mind-numbingly banal technicalities, DU’s written statement is a masterpiece of obfuscation. Their arguments range from “Rameshwari? Who’s Rameshwari?”, to the laudable theory that preparing course packs is a sacred duty which operates on a “higher pedestal than that of any legislation”. Amen.

    The Indian Copyright Act 1957, with its Amendments, is a singularly liberal piece of legislation. Its conception of ‘fair dealing’ is so broad and so generous that I don’t think the Act even bothers to define it. All the same, a photocopy shop making bound copies of swathes of published material and selling them at a profit doesn’t seem very fair a deal.

    IPR is a rum business. I particularly enjoyed the authors’ allusions to hafta and the Godfatherly copyright offer; I wonder if it would be too much to expect the Masters of Oxford to wake up one day next to a bleeding horse’s ass.

  2. Sohail Hashmi permalink
    May 28, 2013 1:56 PM

    @Sajan You seem to be arguing that a photocopy shop owner should not be allowed to make any money by making course packs, while a student can come to the same photocopy shop with 15 books more or less, with pages marked and s/he can get as many pages photocopied as s/he wants.S/he can also then proceed to instruct the photocopy shop owner to spiral bind them, or give them a hard cover binding, simply staple them or just put them in folder or even a paper envelope.

    Do you think the photocopy shop owner has the right to ask for some payment for these services and if S/he does them what is the harm and what is the harm if S/he keeps the packs ready and saves her/his time and the students’ as well while earning a livelihood on the side?

    you seem to overlook the fact that most college libraries do not stock more than four or five copies of any book, At least a couple are in use by the faculty and that leaves just a handful for all the students. The classes are large and most students can not afford to buy these books and so instead of individual students making countless trips to the photocopy shop the course pack multiplied by the photocopy shop owner seems to be the best solution.

    You see the issue is not who is making copies

    the issue is should this be allowed

    those who stand for the publishers say no

    those who stand with students and for making education a little more affordable say yes

    As Bertolt Brechet would have said you have to take sides

    the question finally is whose side are you on

  3. May 28, 2013 2:31 PM

    Dear Sajan: Thanks for your insightful comments. As you’ll appreciate, this is not an independent commercial photocopier, but an agent of the University expressly licensed by the University to create course packs for its students. Needless to state, to the extent that any photocopying has been done outside the scope of this license, we don’t intend to defend it. But in so far as course packs for DU students are concerned, it is all set out within the terms of the license granted, including the rate to be charged by them. The photocopier angle was expressly addressed in our impleadment/intervention application (filed by a group of academics called SPEAK (Society for Promoting Educational Access and Knowledge)). Here is a link to the copy of this application as filed in court.

    http://spicyip.com/docs/DU%20Photocopying%20case/Application-for-Intervention-SPEAK.pdf

    I reproduce the key portions:
    “The alleged copying has been done by a photocopier who is expressly licensed as an agent of the University to do that which the University is entitled to under the Copyright Act. The terms of the licence are clearly laid out including the fee to be charged for such course packs. A number of Indian Universities and academic institutions do not have the necessary resources to install an adequate amount of photocopiers to satisfy the requirements of all faculty, students and staff. Further, faculty and students may not have the time to engage with photocopying course packs. Therefore, it is only reasonable to outsource this function to a third party through a specific arrangement that sets out the terms and conditions for creating course packs.”

    Hope this addresses your concern.

    • Sajan permalink
      May 28, 2013 5:12 PM

      Thanks, Shamnad, for your clarification.

      Your observation (somewhat amplified by SPEAK), that “this is not an independent commercial photocopier, but an agent of the University expressly licensed by the University to create course packs for its students” is, to my mild surprise, stoutly rebutted by Delhi University in their written statement. Not only do they claim, repeatedly, that they have no connection or business with Rameshwari “except to the extent of permitting the operation of a photocopy shop in the premises”, DU says it is factually incorrect to say they have issued books to Rameshwari for reproduction. (They also add, with a degree of injured innocence, that books are issued from the library for reasons unknown and that photocopying is, in any case, such a ‘vast activity’ that it may include the photocopying of anything…).

      SPEAK says “it is important that the educational exception and the fair dealing exception under Indian copyright law be interpreted as a right accruing in favour of students”. This, in my layman’s understanding of the Copyright Act, seems perfectly valid. But I am not sure if this ‘user’s right’ of students (and teachers) extends to universities and other institutions to the degree the present case is pushing it.

      Even if DU admitted to entering into a licence with Rameshwari for creating course packs, fixing rates etc, the question remains: did they have the right to do so? By admitting that have “no aim or objective of infringing” the Copyright Law and that “whatsoever has been done if at all it so were all done [by DU] only under the impression that they are permissible acts”, DU laid itself wide open for an unfavourable judgment from the HC.

      (Which they received on 17 Oct 2012: “Defendant no.1 is the photocopier running its shop under licence from the defendant no. 2. The defendant no.1 has no right to compile such course packs and books/articles published by the plaintiffs and more so, when defendant no.2/University has taken a stand that that they have no intention to breach any law by making such reproductions as complained of by the plaintiff in the present suit.”)

      The right of DU students to photocopy textbooks was never, ever in question. By impleading themselves in this fight between publishers and photocopiers, I wonder if they haven’t, as we say back home, grabbed a sleeping snake off the fence and stuck it in their underpants.

      • May 28, 2013 6:14 PM

        Dear Sajan: You seem to have an awful lot of knowledge on the case, particularly the alleged chinks in DU’s case. Extremely impressive, if you’re actually not on the legal team that filed this unfortunate suit. I’m not going to say much without giving away too much of our legal strategy. Except to suggest that our case is not necessarily hitched to DU’s bandwagon. When the norms are finally set, we’re hoping they are set to account for all educational institutions and not just DU and this one photocopier. And if you read this post carefully, its really about that. Why institutions have the right to photocopy and should not be signing up to the IRRO which has capitalised on the copyright illiteracy prevalent at most institutions. And if we can stop this signing spree a bit and have the case decided with the clear proposition that the educational exceptions favour institutional copying, we’d be happy, snakes in our pants notwithstanding…and there is enough case law to suggest that exceptions in favour of education don’t make sense unless they’re availed of by institutions …but then i’m sure you and your colleagues are proficient enough to dig out these gems and look them up yourself….so long my friend.

  4. uds permalink
    May 28, 2013 5:56 PM

    I was wondering WHY DON”T UNIVERSITIES PUBLISH ?!… The argument against the publishers who are suing the photocopiers is that they haven’t put in enough investment to expect the kind of profits they are hoping for. Put another way … it is the university that provides the resources for academics to be able to conduct research and hence write essays and books. The university provides them a stable job, sabbaticals when they need to do intensive work without distraction, it provides access to academic resources like a library and access to jstor, etc. In the case of say a fiction writer it would be the publisher who provides similar resources, for example they would give an advance to the writer so that he can work on his novel without starving and so that he can buy whatever else he needs, and therefore in this case the publisher would have the right to make all the money they can through the sales of the novel once it is complete. But since in the case of academia it is the university which is doing all the heavy investment the publishers here have no right to prevent students from accessing these works.

    So my question is why don’t universities do the publishing themselves or hire publishers on contract basis this effectively eliminating the annoying middleman?

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