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CASE COMMENT: THE CHANCELLOR, MASTERS & SCHOLARS OF UNIVERSITY OF OXFORD & ORS v/s RAMESHWARI PHOTOCOPY SERVICES & ORS (2016) 160 DRJ (SN) 678
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CASE COMMENT: THE CHANCELLOR, MASTERS & SCHOLARS OF UNIVERSITY OF OXFORD & ORS v/s RAMESHWARI PHOTOCOPY SERVICES & ORS (2016) 160 DRJ (SN) 678
AUTHORED BY - SOUMI LAHIRIBA. LLB, 3rd YearUniversity of Petroleum and Energy Studies
INTRODUCTION
Briefly, this case is about a
judgement which has permitted photocopying of copyrighted material for the
purpose of the proliferation of education by photocopying of books and selling
them as ‘Course pack’, for the benefit of the Delhi University students. In
this Delhi High Court case, Rameshwari Photocopy and Services has been alleged
to have infringed copyright by the plaintiff and was asked for a compensation
of Rs.60,01200 and Rs.65000 for
court fees by the big international publishing houses such as Oxford University
Press, Cambridge University Press United Kingdom, Cambridge University Press
India Pvt. Ltd., Taylor & Francis Group, United Kingdom and Taylor &
Francis Books India Pvt. Ltd. IRRO[1]
acted as proper parties in this case as this act of selling copyrighted
material was made without their sanctions. During the trial, a search and
seizure were attempted at Rameshwari’s photocopy shop at the premises of the
University and it was found that 8.8% copyrighted material was sold in the
course pack and he was also selling whole copies of copyrighted books. The
contention raised from the side defendant by the APEAK and SPEAK[2]
was that the photocopies made were solely for the purpose of education, made
with the permission of the faculty. Therefore, they pleaded protection under
Section 52(1)(a) which allows fair use and dealing of copyrighted materials
like literary, dramatic, musical or artistic work. A comparison with the USA
has also been drawn in the arguments and the case of Google Search Book[3]
has been cited where digitalisation was taken under the ambit of fair use as it
was contended that no search function will be possible without a digitalised
copy.
The
case was further taken to the Delhi High Court where the decision of the trial
court was upheld. Afterwards, a group of students and ex-students of Oxford
University requested the authority to take back the case from their end as the
judgement was for a good cause, so, after five years the case was taken back
and a special leave petition (SLP) was rejected which was raised by other
proper parties to the case.
Prima
facie, looks like an ideal judgement but when it comes to protocols and
guidelines, the judgement has remained nothing but silent. Proper
implementation without exploitation does not seem like an option in the
paradigm created by the judgement. The exception has been used as a controlling
norm, and it deprives certain groups of authors from benefitting from their own
right holder ships. In the place of providing a structure of subsidy for those
who primarily make content for academicians, the judgement put the onus on the
publishing houses for the proliferation of education without even looking at
the bigger picture and realising the amount of damage it will cause in the near
future. This gives rise to the necessity of a standardised meaning and
objective of fair use.
BACKGROUND
The
term fair use has been given a very liberal interpretation in this case which
has resulted in a rise of different complicated questions such as the economic
drawback of the publishing houses and authors who create content solely for the
purpose of academic use, and the anonymity regarding the regulations. The court
has absolutely neglected the outlook of international treaties and
organisations such as TRIPS[4],
Bernes Convention[5],
WIPO[6]
etc. According to TRIPS Article 13 – “members shall confine limitations or
exceptions to exclusive rights to certain special cases which do not conflict
with a normal exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.” Here it has been made extremely
clear that limitations or exceptions must be confined only for certain special
cases without exploiting their works and unreasonably prejudice their ownership
over their intellectual property. In this case, we will be able to see a group
of publishers and authors getting highly exploited which is in conflict with
the international aspect. To put it in perspective we could take up an
illustration of ‘A’ as a famous economist who authors books which are solely
written for the purpose of academic use, now the passing of the judgement will
not really encourage the university library to buy in more copies to make it
more accessible to the students but it will be exploited via photocopying. This
will demotivate such authors and will affect the right holder heavily,
therefore, disrupting the equilibrium of the stakeholders namely the author and
students. Considering the huge youth base and the chances of corruption in the
absence of regulations, the publishing houses will be facing huge losses. In
this case, the court attempted to take a stance in proliferating education but
ended up hampering the rights of the right holders and publishing houses which
absolutely contradicts the whole point of copyrighted works.
Article
9[7]
of the Bernes Convention talks about the exclusive right of authorization by
the owner or by the legislation in special cases to reproduce works in any
manner or form. In this case, the court has imposed the burden of the
proliferation of education without seeking any permission or even considering
the distress of certain right holders and unilaterally propagated the idea of a
social agenda without considering the best interests of the right holders.
There
was a similar case on the same forefront of Cambridge University Press v.
Becker[8]
decided on 11th May 2012, which decided that Universities
do not require a license to photocopy
below the threshold value of 10% in the District Court of United States for the
northern district of Georgia. The difference in between these cases is the lack
of mechanisation in the prior instance. The Delhi Court failed to recognise the
detriments led via the allowance of unlimited photocopied works summed with the
economic backlash on the publishing houses and the authors.
In the case of CCH Canadian Ltd. vs. Law
Society of Upper Canada[9],
the Law Society of Upper Canada (LSUC) is a research library offering custom
and self-photocopying services. CCH Canadians sued them for 11 specific works
as they were infringing copyrights. So, here one of the issues raised was
whether the dealings made by the law society with the works of the publishers
covered under fair dealings under Sec 29 of Canada’s Copyright Act of 1985[10].
In its advance, the court prescribed a two-step test to help understand what
falls under the ambit of fair dealings and what does not. In order
to show that a dealing was fair under s.29 of
the Copyright Act the
defendant must prove a) that the dealing was for purpose of either research or
private study and b) the dealing was fair. A series of factors were also to be
considered including a) the purpose of dealing (research, private study,
criticism, review, news reporting), b) characteristics of dealing, c) mount of
dealing, d) alternatives, e) nature of the work and f) effect of dealing on the
work on the market of the copyright owner. Here the Supreme Court of Canada had
provided tests to determine the fair use doctrine keeping in mind the balance
between the right holders as well as the other stakeholders such as researchers
in this case.
ANALYSIS
The decision of the court had taken up a
utilitarian approach propounded by John Stuart Mill which talks about greater
happiness for the greater number of people; neglecting the incentive system on
which it actually runs. The utilitarian approach of IPR believes in the
protection of innovations or any new creation to encourage people to disclose
their innovations openly without any fear of appropriation. The court failed to
reiterate on the incentive system while passing the judgement, and blatantly
focussed on the upheaval of the social agenda of spreading and making education
more accessible.
In regards to the present case, we can identify
that the other two pertinent theories of IPR have been highly neglected. The
labour and the personality theory which play a big role in giving shape and
establishing the concepts in today’s copyright laws. Labour theory by John
Locke talks about providing the author or the inventor with the fruits of his
or her labour. This theory reasons why the right holder must get exclusive
rights over the intellectual property by establishing simple concepts like
fairness and justice. Next, coming to Hegel’s personality theory, it talks about any work or
invention born out of their personality would belong solely to them. This again
glorifies the exclusive rights of the right holder; it expresses how a piece of
art or invention is a manifestation of the creator’s personality. It identifies
the connection between the creator and the creation and justifies why it is
required to recognise the right of the right holder.
However,
this case defies both the labour as well as the personality theory as the
author is deprived of his fruits of labour as well as is barely getting
recognition and absolute right holder ship as most of the rights have been
stripped off in the name of fair use. Fair use in its true sense is equating
both sides and not just stripping off the rights of the beholder. Even after
considering exceptions as stated in this case, certain regulations or omissions
must have been made while deciding such a crucial case. These kinds of
judgements can affect the stand of the authors who have generated any form of
intellectual work with their own hard labour and will even discourage them from
producing such works further as they are not getting the recognition they
deserve and also might feel less protected even after implementation of the
copyright laws. This judgement weakens the whole standpoint of copyright laws
in the name of fair use. Alternatively, the court could have at least provided
a proper guideline considering both the stakeholder that is the students as
well as the authors or could have limited the ambit of photocopying the
artefacts. A more analysed judgement with relation to the international laws in
place as well as looking into the other civil law country advancements, a
better, sustainable and more equitable stand could have made a revolutionising
judgement. The whole concept of propagating education looks highly superficial
and flawed as this judgement has firstly, deprived the actual owners from
benefitting of their works and secondly has restricted the benefit of the
judgement to Delhi. As a student, the relaxation might seem highly beneficial
as it curbs the high rates of course books but at the same time deprive the
actual owner from benefitting of it. We must understand the prime and the most
primary concern is to protect the rights of the copyright holder before
propagating any socialist agendas. We cannot overlook the rights of the creator
because it will demotivate as well as make them feel insecure and lessen the
number of productions of works in our paradigm.
CONCLUSION
This case
concluded with a withdrawal of the case by the plaintiffs in honour of the requests
made to the plaintiffs by Oxford students and alumni, but this case could
barely make a difference in the status quo as the judgement remained restricted
to Delhi. Due to lack of proper scheming for the authors who solely write books
for academic purposes, guidelines and limitations, this couldn’t become a
revolutionary judgement. But this was definitely a positive step towards the
creation of affordable and easier access to education and it has been
appreciated by several countries such as Nigeria, South Africa[11],
etc. Though this case lacked proper mechanisation, it sure had the potential of
making a difference and it definitely did make a jurisprudential shift in the
field of IPR.
OTHER REFERENCES:
[1] Indian Reprographic Rights Organisation
[2] Association of Students for
Equitable Access to Knowledge (ASEAK) and Society for Promoting Educational
Access and Knowledge (SPEAK)
[3] Authors
Guild, Inc. v. Google, Inc. 721 F.3d 132
[4] Trade-Related
Aspects of Intellectual Property Rights
[5] Berne Convention for the
Protection of Literary and Artistic Works (Paris Text 1971)
[6] World
Intellectual Property Organization
[7] Article 9:
(1) Authors of literary and artistic works protected by this
Convention shall have the exclusive right of authorizing the reproduction of
these works, in any manner or form. (2) It shall be a
matter for legislation in the countries of the Union to permit the reproduction
of such works in certain special cases, provided that such reproduction does
not conflict with a normal exploitation of the work and does not unreasonably
prejudice the legitimate interests of the author. (3) Any
sound or visual recording shall be considered as a reproduction for the
purposes of this Convention.
[8] Cambridge University Press v. Becker, 863 F.Supp.2d
1190 (N.D.Ga., 2012)
[9] CCH Canadian Ltd. v Law
Society of Upper Canada, [2004] 1 SCR 339
[10] Sec 29 of Copyright Act (R.S.C., 1985,
c. C-42) Fair dealing for the purpose of
research, private study, education, parody or satire does not infringe
copyright.
[11] Case Comment: Delhi University Photocopy Case from
Nigerian and South African Contexts Desmond Oriakhogba Journal of Intellectual
Property Laws (2018) Issue III, 21 -30.
Article Information
CASE COMMENT: THE CHANCELLOR, MASTERS & SCHOLARS OF UNIVERSITY OF OXFORD & ORS v/s RAMESHWARI PHOTOCOPY SERVICES & ORS (2016) 160 DRJ (SN) 678
Authors: SOUMI LAHIRI
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/02/08
- Volume 2
- Issue 5
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International Journal for Legal Research and Analysis
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