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