Copyright Vs right to learn and right to live: issues related to an ongoing court case in India

Though not directly related to public health ethics, this issue need a debate I think. Can we, or cannot make copies of publications for learning purposes?

http://kafila.org/2012/08/27/oxford-and-cambridge-university-publishers-v-students-of-india/

Oxford and Cambridge University Publishers v. Students of India
AUGUST 27, 2012
tags: copyright, course packs, Delhi University, photocopying, Rameshwari Photocopy services

by Lawrence Liang

This is an op ed which was written for the Indian Express and addresses some of the key issues in the ongoing copyright case filed against Rameshwari Photocopy services and the Delhi university. I am reposting it here for now. It is a little truncated because of the word limit for newspapers but will post a longer version with comparisons from other countries.

Oxford and Cambridge University Publishers v. Students of India

Accompanying a team conducting a raid against a photocopying shop outside AIIMS a few years ago a copyright lawyer had a moment of revelation akin to the apocryphal story of St Paul’s conversion on the road to Damascus when Paul was asked by God “Why do you persecute me?”. In this case even as the photocopier was being arrested he defiantly turned to the lawyer and said “If I don’t sell these photocopies where do you think your doctors are going to come from? The lawyer in question is now a leading expert on copyright and public interest and one wonders whether a similar question posed to the lawyers representing Oxford and Cambridge University Press would evoke a similar change of heart especially if they considered their own route to becoming lawyers. The fact of the matter is that in most academic disciplines textbooks are extremely expensive and unaffordable for the average student and if one attempted to buy all the books which are prescribed for a course it would mean that only very few privileged students would afford an education in India.While one often hopes for a commonsensical change of heart from lawyers and copyright owners one cannot bank on it which is why the law in India has a number of provisions which allow for exceptions and limitation to copyright law. The educational use exception in India is indeed one of the widest in the world and designed to address the needs of education in a developing country. Cambridge and Oxford university press along with Francis and Tailor have filed a copyright infringement petition against Rameshwari Photocopy services and the Delhi university claiming that the course packs that are distributed are in violation of copyright. Describing the course packs as infringing and pirated copies the petitioners have claimed damages to the tune of sixty lakhs. The inflated damages sought is not surprising at all and works within the logic of the assumption that every photocopy is a lost sale but aside from this dubious assumption inflated sums are usually a part of the shock and awe tactics that copyright owners use to establish a test case.

Lets understand how course packs work and then examine the law on the point. Most students will testify that the university library have a maximum of one to three copies of books that are shared by hundreds of students and the course pack is therefore an institutionalized practice to ensure that all students have access to learning materials. This has been the subject of much controversy in many countries but particularly so in the United States, and any one who has studied in the US will know the severe restrictions that are placed on the ability to provide course packs even as students pay a hefty sum for textbooks. One of the clearest exceptions in copyright is the fair use exception which legalizes certain acts without the permission of copyright owners, and within fair use the education exception is what governs photocopying and the creation of course packs. Of the four principles in the US one of them include ‘the effect of the use upon the potential market for or value of the copyrighted work’. This is a principle that has been used to effectively narrow fair use in the US. Unlike the US which has a set of principles guiding fair use in India we follow the English system of fair dealing which enumerates a set of statutory exceptions and in India there are two important provisions which allow for educational exceptions. Sec. 52(1)(i) allows for ‘the reproduction of any work by a teacher or a pupil in the course of instruction’ or as a part of questions or answers to questions. Further Sec. 52(1)(a) allows for a fair dealing with any work (except computer programs) for the purposes of private or personal use, including research. It is therefore very much within the rights of the university and the students to create course packs and to access photocopies of academic texts and articles in the course of instruction. The fact that the Copyright Act in India does not lay down any quantitative restrictions when it comes to personal use or educational use even though such restrictions operate for other kinds of usages is indicative of the intention of the policy makers to ensure that there is adequate access to learning materials. Rameshwari Photocopy services is integrated within the university system by account of the fact that it operates on the basis of a license provided by the university which mandates the price and nature of services and it would make sense for the university and the photocopiers to have a unified stand since what is at stake is not just the future of a single photocopying shop but the future of access to educational materials in India. The Supreme Court in the Francis Coralie Mullin case (1981) has held that the right to life in Art 21 is not just about physical survival and includes the right to ‘facilities for reading, writing and expressing oneself in diverse forms’. And when Copyright comes in the way of a fundamental right it clear what should be given precedence.