Of Gandhi and a Godfatherly Copyright Offer- Part 2: Shamnad Basheer and Lawrence Liang
This is the second part of an earlier post in which we refuted the claims made by the International Federation of Reproduction Rights Organisation about the ongoing copyright case filed against Delhi University and Rameshwari Photocopy Services. A group of students (ASEAK) and academics (SPEAK) have separately impleded themselves in the suit.
Gandhi, Karan Johar and Cafes?
The FRRO recycles the insidious idea that the cost to students of paying the license fee for course packs would be the equivalent of an ‘evening in a student café’. This naïve assumption could be the result of watching too many Karan Johar films in which all Indian campuses look like Riverdale and all students wear Gucci and Nike. Click here for a contrary perspective
For sure, there are a number of rich Indian students who probably spend way more on cafes than they do on books (forgive them father for they know not what they do). But when we think of articulating copyright norms, what kind of student should serve up as our policy addressee? The urban upper middle class creamy layer student who constitutes but a miniscule proportion of the totality or ones from lower economic strata that constitute the vast majority?
A good counter to the KJo test applied by FRRO and publishers might be one articulated powerfully by the Mahatma several decades ago: “Recall the face of the poorest and weakest man you have seen, and ask yourself if this step you contemplate is going to be any use to him.” Aggressive copyright enforcement to fill the coffers of publishers at the cost of all else affects not the richest, but the poorest of students.
Further, as stated earlier , the licensing route is a dangerous one to tread for other reasons. Firstly, the IRRO and publishers are likely to offer a paltry licensing fee at the start. Once their foot is in the door, there is no stopping them from rapidly escalating licensing fees year after year. Canadian universities bore the brunt of this copyright greed around a year or so ago and refused to renew their licenses (Read here). Apparently, there were only so many café meals that their students could afford!
Lastly, the IRRO does not hold the rights to all published works, but only some of them. If Universities are to track down and enter into licensing deals with every copyright owner, this would lead to excessive delays in the preparation of course packs. Not too surprisingly, our letter to the IRRO asking it to disclose its repertoire of works has gone unanswered. (Read here)
The Death Knell of Publishing?
Predictably, publishers paint the macabre spectre of death looming large over their industrial head, should copyright law not be twisted to suit their machinations.
However, this claim by publishers that course packs would necessarily destroy their market for books and put them out of business is highly questionable. Given that this is the first copyright law suit to be brought against University photocopying, one can only assume that the healthy growth figures boasted by the academic publishing industry means that course packs have not done them much damage. If at all anything, the inclusion of extracts of copyrighted works in the course packs is likely to encourage readers to buy the books when they can afford them. Publishers need to start recognizing that present students are the future buyer of books and the greatest threat to academic publishing is the danger of books disappearing into obscurity. Course packs are the best ways of ensuring that a diversity of academic materials are kept in circulation and incentivizing publishers to continue publishing these books. As Professor Amartya Sen rightly notes while expressing his distress at the law suit, “The introduction the students get through these course packs must tend to be favourable to the sale of the books in the future when the existence and the quality of arguments presented in particular books become more familiar to the next generation of earning adults, through their training during their own education.”
Trick or Treat(y)?
The IFFRO then moves on to petrify us with the notion of international sanctions. That if our copyright exception is read literally, it would contravene international treaties such as TRIPS and the Berne Convention. Firstly our case law makes it clear that domestic courts cannot adjudicate the scope of international obligations and breach thereof. That simply is not their job.
If the FRRO takes issue with our law, they must convince their home foreign governments to bring a dispute before the appropriate WTO body. This was made amply clear in the famous Novartis case involving section 3(d) of India’s patent act. Our guess is that even if they somehow convince their home governments to do so, they stand to lose. After all international treaty obligations are often broadly worded and offer sufficient scope to member states to fashion their laws in a manner commensurate with their own national interest. The flexibilities inherent in this process is best summed up in a wonderful quote of the dear departed ex minister of commerce, Murasoli Maran who reputedly quipped:
“We are all aware that the text of the TRIPS is a masterpiece of ambiguity, couched in the language of diplomatic compromise, resulting in a verbal tight-rope walk, with a prose remarkably elastic and capable of being stretched all the way to Geneva.”
For every authority that the FFRO adduces to demonstrate that the Indian exception contravenes international treaty norms, there is an equal amount of compelling authority pointing the other way. Notable amongst them are reputed jurists such as Sam Ricketson who’ve argued in favour of the compatibility of even full text reproductions within the Berne Convention. In any case, it is not the job of Indian courts to resolve the dispute of whether or not Indian law as currently articulated violates international treaty norms.
A number of studies have suggested that developing countries should refrain from adopting developed country standards. The report of the Commission of Intellectual Property Rights titled ‘Integrating Intellectual Property Rights and Development Policy’, a report commissioned by a UK governmental body emphasizes the need to reduce the ‘knowledge gap’ between the richest and the poorest countries and warns against adopting a strong copyright regime as would “reduce the ability of developing countries and poor people to close this gap by getting the textbooks, scientific information and computer software they need at affordable cost.”
They suggest that ‘developing countries should be allowed to maintain or adopt broad exemptions for educational, research and library uses in their national copyright laws’ and express their concern that even when there is differential pricing, the ‘budget editions’ that are generally sold in developing countries are not ‘optimally priced’.
Finally, the FRRO argues that publishers are the best actors to ensure equitable access. Sadly this is a case of wishful thinking induced by self-conceit. Thus far, publishers have failed miserably at ensuring equitable access. In a study done by us pertaining to accessibility and affordability of law and social science books, we found that Indian students had to pay exorbitant rates for text-books, equaling or greater than those charged in the West.
The only cheaper “Indian” equivalents of these text-books were old outdated editions that were no longer in vogue in the West.
Further, the example cited by the FRRO remains the exception rather than the rule and for every instance that can be provided of price discrimination there is a counter example. In the legal field for instance Chitty on Contracts costs approximately Rs. 41,000 for two volumes in the UK whereas the same book costs around Rs. 29,000 for a single volume in India.
In order to get an appropriate sense of these figures, consider an earlier study where we looked at the cost of books in relation to the comparative purchasing power in a country. We discovered that the absolute prices of books are significantly higher in the global South than in the global North. Second, consumers in the South have to commit higher proportions of their income to buy these books. Third, if consumers in the United States had to pay the same proportion of their income towards these books as their counterparts in South Africa and India, the results would be ludicrous: $1027.50 (Rs.57,000) for Mandela’s Long Walk to Freedom and $941.20 (Rs.52,764) for the Oxford English Dictionary. It is instructive then, to note that the prospect of paying $440.50 (Rs.24,646) for Roy’s God of Small Things in the United States is manifestly alarming, whereas, paying $6.60 for the book in India (which in Indian terms is exactly the same value as $440.50 in the United States, by this logic) is not treated with similar outrage.
When books are priced at an affordable rate, the question of photocopying hardly arises, given that the cost of photocopying itself comes close to the sale price. Publishers ought to take a leaf out of the crafty business model pioneered by Moser Baer for audio visual content, where DVDs that were priced so low, that it simply did not make economic sense to pirate them. Given India’s numerical strength in her billion plus population, a low priced strategy ought to work, and work well…if only publishers were ready to let go of a dinosaurian model aimed at the top of the pyramid.
From Outlier to Pioneer: Canada and India
Finally, the IFFRO reiterates a sentiment all too common when it comes to India and intellectual property. That India is an outlier in the IP debates and poses an immense threat to the global trade paradigm, shaped largely by Western industrial interests. When 80 other countries have signed up to their wonderful licensing scheme, why should India play truant? Firstly, it is worth noting that a growing number of universities are critical of RRO licensing schemes and are asking whether they ought to pay anything at all, when their “fair use” norms permit free reproduction. Prof Michael Geist provocatively suggests that the outdated business model of collecting agencies have all but come to end with the Canadian Supreme Court decision in Alberta.
For a wonderful account of the revolution unleashed by the Canadians in terms of rationalizing copyright norms in favour of education and the general public, see this splendid open access compilation.
Secondly and more importantly, it bears noting that despite being lampooned by Western powers for many years, India refused to toe their line and ensured that private patent monopolies remained subservient to the larger public health imperatives. In no time, her bold act saw many takers in the developing and even the developed world. The Novartis Supreme Court decision upholding India’s rigorous patent threshold for pharmaceutical inventions (more here) and the IPAB decision upholding India’s first compulsory license against an excessively priced cancer drug (more here) are now celebrated by many. A country that was once considered an outlier is now being heralded as a pioneer. Hopefully we’d see the same in the copyright and access to education space as well, where our courts refuse to shy away from striking a different chord, when national imperatives so demand.
Our apologies for ranting, but the upshot of the above discussion is this. Thank you IFFRO for your enticing offer to help us fill your coffer. Fortunately, owing to a well-crafted educational exception in Sec. 52 of our Copyright Act, we are in a position to say no!