Held
When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. That is what has happened in the present case. In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied. The photocopying machines then in vogue did not permit photocopying of voluminous books without dismembering the same.
However with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus the students are now not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.
HIGH COURT OF DELHI
The Chancellor, Masters & Scholars of the University of Oxford
v.
Rameshwari Photocopy Services
RAJIV SAHAI ENDLAW, J.
CS(OS) NO. 2439
IAS. NO. 14632 OF 2012
SEPTEMBER 16, 2016
Saikrishna Rajagopal and Sahil Sethi Advs. for the Plaintiff. Gopal Subramaniam, N.K. Kaul, Sr. Advs., Rajesh Yadav, Saurabh Seth, Saurabh Banerjee, Rajat Kumar, Ms. Swathi Sukumar and Ms. Anu Paarcha, Advs. for the Respondent.
ORDER
Mr. Justice Rajiv Sahai Endlaw – The five plaintiffs, namely (i) Oxford University Press, (ii) Cambridge University Press, United Kingdom (UK), (iii) Cambridge University Press India Pvt. Ltd., (iv) Taylor & Francis Group, U.K. and, (v) Taylor & Francis Books India Pvt. Ltd., being the publishers, including of textbooks, instituted this suit for the relief of permanent injunction restraining the two defendants namely Rameshwari Photocopy Service (carrying on business from Delhi School of Economic (DSE), University of Delhi) and the University of Delhi from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs’ publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from the plaintiffs’ publications by compiling them into course packs/anthologies for sale.
2. The plaintiffs, in the plaint, have given particulars of at least four course packs being so sold containing photocopies of portions of plaintiffs’ publication varying from 6 to 65 pages. It is further the case of the plaintiffs that the said course packs sold by the defendant No.1 are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs’ publications. It is yet further the case of the plaintiffs that the libraries of the defendant No.2 University are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.
3. The suit along with IA No.14632/2012 under Order XXXIX Rules 1 & 2 of Code of Civil Procedure, 1908 (CPC) for interim relief restraining photocopying/reproducing copies of plaintiffs’ publication and sale of course packs came up before this Court first on 14th August, 2012 when summons of the suit and notice of the application for interim relief were issued and though no ex-parte ad-interim relief granted but a Commissioner appointed to visit the premises of the defendant No.1 without prior notice and to make an inventory of all the infringing and pirated copies of the plaintiffs’ publication found and to seize and seal the same.
4. The defendant No.1 has filed a written statement defending the suit inter alia (a) disputing the copyright of the plaintiffs and contending that the plaintiffs have not produced any document to establish their copyright; (b) denying any act of infringement of copyright and alternatively pleading that the activities carried on by it amount to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957, and pleading (c) that it has been granted licence with respect to a small shop within the campus of DSE to provide photocopy services to students and faculty at nominal rate and as per the terms of licence, the defendant No.1 is required to provide 3000 photocopies per month to DSE, an institute of the University of Delhi, free of cost and to charge only the prescribed rate for the photocopy service meted out to others; (d) that the defendant No.2 University recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students; (e) that the syllabi of the defendant No.2 University does not recommend the entire publication but only certain extracts from the same; (f) that the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading; (g) that to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 University which provides such expensive books for reference of students; (h) however owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study; (i) that the services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only; (j) that in view of the limited number of original books stored in the library, the faculty of DSE has compiled various master copies of books, articles and journals, which are then used for photocopying by the defendant No.1 in order to save the original work from being damaged; (k) that such course packs are used by teachers and students in the course of academic instructions and for research purposes; (l) that in fact the Licence Deed executed between the defendant No.2 University and the defendant No.1 expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for xeroxing, saving the original document; (m) that the defendant No.1 is xeroxing the master copy at the instructions of and on the terms imposed by the defendant No.2 University; (n) that the defendant No.1 is not commercially exploiting the author’s copyright but is giving copies to students at nominal rates of 40 paise per page to aid their education; (o) that even if the students were to bring the original work to get the same photocopied, the defendant No.1 would charge the same rate; (p) that the defendant No.1 has acted in good faith within the meaning of Section 76 of the Copyright Act.
5. The defendant No.2 University has also contested the suit by filing a written statement in which, besides the pleas in the written statement of the defendant No.1, it is further pleaded (i) that world over Universities permit students to copy limited pages from any work for use in research and for use in the classroom by a student or teacher and this is recognised by Sections 52(1)(a) & (i) of the Copyright Act also; (ii) that individual teacher and student may either read books prescribed in the syllabus and curriculum offered by the defendant No.2 University in the library or borrow the books and make photocopy of the relevant chapter and pages; this service of copying certain pages for educational purpose is necessary because purchasing individual books is expensive and several of the books are also out of print or not available in India; (iii) that the facility of photocopying limited portions of books for educational and research purposes could have been provided within the library if the University had adequate space, resources and manpower at its disposal; (iv) instead the defendant No.2 University has granted the facility of photocopying to defendant No.1 keeping the interest of the students in mind; (v) that Copyright Act is a piece of welfare Legislation and the rights of authors and owners are to be balanced with the competing interest of the society; (vi) that the defendant No.2 University is an instrumentality and / or agency of the state imparting education to achieve the constitutional goals; (vii) that the plaintiffs have not shown assignments made by authors and owners of copyright in favour of the plaintiffs; (viii) that the suit is also barred by Section 52(1)(zb) excluding from the purview of infringement any reproduction, adaptation, issuance of copies to facilitate persons with disabilities to access such works for educational purposes; (ix) that the only nexus of the defendant No.2 University with the defendant No.1 is of the University having permitted the defendant No.1 to carry on photocopy operations from its premises; else, the defendant No.2 University is nowhere photocopying for its own purpose nor does anyone to whom books are issued by the library of the defendant No.2 University discloses the purpose of taking the said books; (x) that the defendant No.2 University has never issued books to the defendant No.1 for reproduction; (xi) that the defendant No.2 is not gaining anything out of such reproduction; (xii) that the defendant No.2 University is in the process of forming a Committee of Heads of all the constituent departments of DSE with the mandate to explore the ways and means to ensure access to educational material keeping in mind the interest of the students, including of providing E-Books, online digital holdings, supporting open service editions and such other measures as may be available to ensure wider access of educational material for providing knowledge and information.
6. The Commissioner appointed by this Court reported (I) that the shop of the defendant No.1 was having five photocopying machines and one spiral binding machine; (II) photocopy of one of the books published by the plaintiff Cambridge University Press in the form of loose sheets was found besides the photocopy machine; (III) as many as 45 course packs containing photocopied articles comprising of 1 to 22 copies of varying number of pages of the books of the plaintiffs were found; (IV) 8 books were found being photocopied cover to cover.
7. Vide order dated 26th September, 2012, the defendant No.2 University was directed to examine the proposal of the counsel for the plaintiffs that the defendant No.2 University obtains a licence from Reprographic Rights Organisation for preparing course packs and to also inform this Court whether any proposal for obtaining such licence was pending consideration. Vide the same order, the defendant No.1 was also directed to maintain proper accounts of sales and to file a fortnightly statement before this Court.
8. Vide order dated 17th October, 2012, taking into consideration plea in the written statement of the defendant No.2 University of having not sanctioned photocopying by the defendant No.1 of the books and recording the statement of the counsel for the defendant No.2 University that whatever had happened was under a bona fide impression, the defendant No.1 was restrained from making, selling course packs / re-producing the plaintiffs’ publications or substantial portions thereof by compiling the same either in a book form or in a course pack, till the final disposal of the application for interim relief.
9. The defendant No.2 University preferred FAO(OS) No.567/2012 against the aforesaid ad-interim order dated 17th October, 2012 but which was on 27th November, 2012 dismissed as withdrawn with liberty to the defendant No.2 University to file an application clarifying its stand.
10. IA No.430/2013 has been filed by the defendant No.2 University under Order XXXIX Rule 4 of the CPC.
11. Association of Students for Equitable Access to Knowledge (ASEAK) filed IA No.3454/2013 for impleadment in the present suit and which was allowed vide order dated 1st March, 2013 and ASEAK impleaded as defendant No.3. Though FAO(OS) No.192/2013 was preferred by the plaintiffs there against but dismissed vide order dated 12th April, 2013 with some clarification. The defendant No.3 has also filed IA No.3455/2013 under Order XXXIX Rule 4 of the CPC.
12. Society for Promoting Educational Access and Knowledge (SPEAK) filed IA No.5960/2013 for impleadment and which was also allowed on 12th April, 2013 and SPEAK impleaded as defendant No.4.
13. The hearing of the applications under Order XXXIX Rules 1 & 2 of the CPC and Order XXXIX Rule 4 CPC commenced on 25th April, 2013 and concluded on 21st November, 2014, when judgment was reserved. However, need to re-list the matter for hearing is not felt as copious notes were taken at the time of hearing and written arguments have also been filed and perused and the same keep the matter fresh.
14. It is the contention of the counsel for the plaintiffs (a) that the defendant No.2 University has institutionalised infringement by prescribing chapters from the publications of the plaintiffs as part of its curriculum / syllabus and permitting photocopy of the said chapters and sale thereof as course packs; (b) however the defendant No.2 University in its written statement has dis-associated itself from the said activity; (c) that inspite thereof, the licence of the defendant No.1 had been renewed; (d) that the objective of the plaintiffs is not to stop the students from photocopying but to stop the systematic photocopying of their publications; (e) that the course packs being so sold by the defendant No.1 with the permission of the defendant No.2 University contain no additional material except photocopies from the publications of the plaintiffs; (f) that the profit motive is evident from the rate of 40 / 50 paise per page, instead of the prevalent market rate of 20 / 25 paise per page being charged; (g) that the defence pleaded of Sections 52(1)(i) is not applicable as the reproduction of the works of the plaintiffs is not by a teacher or pupil and not in the course of instruction; (h) that on the contrary, the defendants, by selling photocopies of chapters from the books of the plaintiffs in the form of compilation, are competing with the plaintiffs; (i) attention was invited to the meaning of the word ‘publication’ in Section 3 of the Act; (j) attention was invited to Section 52(1)(i) as it stood prior to the amendment with effect from 21st June, 2012 and it was argued that if such reproduction of copyrighted works as is being carried out by the defendants are to be covered by Section 52(1)(i) as it stands post amendment, there would have been no need for Section 52(1)(h); (k) that the amendment with effect from 21st June, 2012 of Section 52 was in accordance with the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS Agreement) and copies of which were handed over and attention invited to Articles 9 & 10 of Berne Convention and Article 13 of TRIPS Agreement; (l) reference was made to the legislative debates in the United Kingdom (U.K.) and it was argued that Sections 52(1)(h) & (i) have to be interpreted in the light thereof; (m) that list of members of the Indian Reprographic Rights Organization (IRRO), list of Reprographic Organizations with whom IRRO has signed treaties and the licening modes of IRRO and its Tariff scheme were handed over and it was informed that if the defendant No.2 University were to take an IRRO licence, the cost to the students would not be much more than is being already paid to the defendant No.1; (n) that the publishers invest in publishing the books and if the copyright of the publishers is not protected, it will sound a death knell for the publication business; (o) that on further enquiry it was informed that the cost per college would be Rs.12,000/- per year, if an IRRO licence were to be taken; (p) that what the plaintiffs are wanting is only a paltry licence fee and on obtaining such licence, the course packs can be made in terms of the said licence; (q) that the IRRO licences would be subject to scrutiny of the Copyright Board under Section 33A of the Act; (r) that unless the rights of the plaintiffs are protected, educational publications would become an unfeasible business; on further enquiry as to the licence fee that would be required to be paid if an IRRO licence were to be taken, attention was drawn to Rule 57(5) of the Copyright Rules, 2013; (s) that the actions of the defendants are clearly in the teeth of Section 14(a)(i) & (ii) of the Copyright Act and constitute infringement; (t) that Section 52 is akin to the law in U.K. and unlike Section 107 of the United States (US) Laws defining fair use only briefly; (u) that India is bound by the Berne Convention for the Protection of Literary and Artistic Works and TRIPS Agreement, unless Section 52 is found to be providing to the contrary; (v) reliance was placed on Entertainment Network (India) Ltd. v.Super Cassette Industries Ltd. [2008] 13 SCC 30 holding that to construe Section 31(1)(b) of the Act, regard to the International Covenants and the laws operating in other countries is necessary; (w) reference was made to Gramophone Company of India Ltd. v. Birendra Bahadur Pandey [1984] 2 SCC 534 holding that municipal law must respect rules of international law and that the comity of nations requires that rules of international law may be accommodated in the municipal law, even without express legislative sanction provided that they do not run into conflict with other Acts of Parliament; (x) reliance was placed on “Collective Management of Copyright and Related Rights” edited by Professor Daniel Gervais referring to the “three steps test” to judge the copyright status of private copying, adopted for the first time by the 1967 Stockholm Diplomatic Conference to revise the Berne Convention and included in Article 9(2) of the Convention; (y) that the defendants on the one hand are infringing copyright of the plaintiffs and on the other hand also depriving the plaintiffs of the IRRO licence fee; (z) that once an efficient mechanism is in place to deal with the situation as has arisen, the same should be adopted; (za) that the only market of textbooks is in the field of education and if it were to be held that textbooks can be copied in the field of education, the publishers would not be able to sell the books and be ultimately compelled to shut down the business of publication and sale of text books; (zb) that Section 52(1)(g) prior to the amendment, and equivalent to Section 52(1)(h) post amendment, used the words “intended for the use of educational institutions” and which words were dropped and substituted by the words “intended for instructional use”; (zc) that to matters of copying as is being done, Section 52(1)(i) is not applicable and only Section 52(1)(h) is applicable and the copying has to be within the confines thereof; (zd) though in the draft Amendment Act, the words used were “copyright in a literary, dramatic, musical or artistic work is not infringed by its copying in the course of preparation for instruction….” but the words “in the course of preparation for instruction” were dropped in the final amendment act and which is again indicative that the applicability of Section 52(1)(i) is confined to reproduction “in the course of instruction” and not “in the course of preparation for instruction”; (ze) that it matters not whether the author or the publisher intended the book to be for instructional use—Section 52(1)(h) uses the words “published literary or dramatic works” irrespective of whether they were published for instructional use or not; (zf) that there is a difference in the meaning of the words “in the course of instruction” used in Section 52(1)(i) and “for the purpose of instruction”; (zg) that the copying and reproduction being done by the defendants is not “in the course of instruction” but “for the purpose of instruction”; (zh) that if Section 52(1)(i) were to be read as allowing the teacher to make copies for the purposes of instruction, there would have been no need for Section 52(1)(h); (zi) reliance was placed on Princeton University Press v. Michigan Document Services Inc. 99 F.3d 1381 (6th Cir. 1996) also concerned with an action for restraining the defendant from reproducing substantial segments of copyrighted works of scholarship, binding the copies into course packs and selling the course packs to the students for use in fulfillment of reading assignments given by professors at University of Michigan and negativing the defence of fair use doctrine; it was held that the fair use of copyright work does not provide blanket immunity for multiple copies for classroom use; (zj) that if such copying is allowed, there would be no market left for the book(s); (zk) that the situation here is different from the judgment of the Supreme Court of Canada in Province of Alberta v. Canadian Copyright Licensing Agency 2012 SCC 37 where the teacher was making short passages from the books; here pages after pages have been photocopied; (zl) attention was also invited to Basic Books Inc. v. Kinko’s Graphics Corporation 758 F. Supp. 1522 also holding that copying of excerpts without permission, compiling them into course pack and selling them to college students amounted to infringement; (zm) that the defendant No.2 University also has a commercial interest inasmuch as in lieu of permitting the defendant No.1 to so photocopy the books, it is entitled to free photocopy of 3000 pages every month; (zn) it was demonstrated that the extent of copying of the textbooks in a course pack ranges from 5% of the contents of the book to as much as 33.25% of the contents of the book and it was argued that the copying would thus qualify as substantial; (zo) attention was invited to Hyde Park Residence Ltd. v. Yelland [2001] Chancery 143 laying down that relief cannot be denied to the plaintiffs on the basis of ‘public interest’ where infringement of copyright has taken place because copyright has been statutorily made a property right and which statute also provides for exceptions in public interest and if the action does not fall with in the exception, it is not open to otherwise deny relief in public interest; (zp) that the judgment of this Court in The Chancellor, Masters & Scholars of the University of Oxford v. Narendera Publishing House 185 [2011] DLT 346 relating to ‘guide books’ would have no application as the same was concerned with transliteration and not copying as is being done in the present case; (zq) that even otherwise, the matter cannot be left to public interest in view of statutory provisions and if the same is permitted, every judge would have his own view of public interest; (zr) that the matter has to be looked at not with a short sight but with a long term impact as allowing the photocopying as is going on to continue would adversely impact the publishing industry resulting in stoppage of publication of textbooks, at the cost of education and research; (zs) attention was invited to Syndicate of The Press of The University of Cambridge v. B.D. Bhandari 185 [2011] DLT 346, holding that the defence of ‘fair use’ as provided in Section 52(1)(h) is only available to the teacher and pupil to reproduce the literary work in the course of instructions or examination paper setter to reproduce any literary work as part of the questions or to the pupil to reproduce the literary work as answers to such questions and further holding that the publishers of commercial books were neither teachers nor students nor a person giving or receiving instruction and that if the defence of fair use is allowed to a publisher, then it would result in a situation where every publisher, without permission from the owner of copyright, would reproduce the ad verbatim literary text from the educational textbooks prescribed by the University and for commercial gains and benefits and that too without giving any royalty or payment to the right owners towards such a reproduction and thereby discourage creativity of authors who put their skill, labour, years of knowledge, expertise etc. into the educational books; (zt) ‘Nimmer on Copyright’, Vol. 4 opining that if in every school room or library, by purchasing a single book demand of numerous are fulfilled through photocopy or similar device, the market for educational material would be almost completely obliterated was cited and the passage therein titled “The Analogy to Hand Copies” where the learned author has opined that in evaluating the argument of library photocopy several factors must be considered, was also cited; (zu) a copy of ‘Study of Copyright Piracy in India’ sponsored by Ministry of Human Development, Government of India was handed over, also finding mass photocopying of books to be largely prevalent in India and the Institutions turning a blind eye thereto and recommending control thereof through a Copyright Clearance Centre and it was stated that in pursuance thereto, the IRRO has now been established; (zv) that the Commissioner appointed by this Court found that the books borrowed from the University Library were being photocopied in the shop of the defendant No.1; and (zw) lastly it was contended that grant of injunction will encourage IRRO as well.
15. The senior counsel for defendant No.4, SPEAK argued (i) that the course packs are a collection of material from the textbooks and carry an independent user right and do not affect the need for books; (ii) that out of 52 authors whose books are cited by the plaintiffs, 33 have given their no objection; (iii) that India is a developing country and very few are able to afford the cost of education; (iv) that the ratio of the material which is picked for use in the course pack vis-a-vis the entire book is miniscule; (v) that the course packs are not designed by the teachers; (vi) attention was drawn to the Lok Sabha Debates of 22nd May, 2012 relating to the Amendment w.e.f. 25th June, 2012 to the Copyright Act, where it was stated that if a student wants to do research in copyrighted material he cannot be charged; if somebody wants to do research in copyrighted material, he cannot be charged; if somebody wants to teach copyrighted works, he cannot be charged; (vii) reliance was placed on Academy of General Education, Manipal v. B. Malini Mallya [2009] 4 SCC 256, laying down that when a fair dealing is made inter alia of a literary or dramatic work for the private use including research and criticism or review, no infringement can be claimed and that no injunction will be granted with respect to this as mentioned in Section 52 of the Act; (viii) reliance was placed on Longman Group Ltd. v. Carrington Technical Institute Board of Governor [1991] 2 NZLR 574 holding that in its ordinary meaning the words “course of instruction” would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student and that so long as the copying forms part of and arises out of the course of instruction, it would normally be in the course of instruction; it encompasses preparation of material to be used in the course of instruction; (ix) that once reproduction i.e. photocopy is expressly permitted under Section 52, no limitation should be placed thereon; (x) that even in the judgment of the Supreme Court of Canada in Province of Alberta supra in the compilation of judgments of the plaintiffs, it was held that buying books for each student is not a realistic alternative to teachers copying short excerpts for distribution to the students as teachers merely facilitate wider access to the limited number of text books by making copies available to all students who need them; purchasing a greater number of original text book to distribute to students is unreasonable; such copying does not compete with the market for text books because if such copying did not take place, it was more likely that student would simply go without the supplementary information as buying is not a feasible option for them; (xi) that an extensive interpretation of the words “in the course of instruction” in Section 52 (1) (i) has to be given; (xii) that none of the students can be expected to purchase all the expensive text books, different chapters whereof are prescribed as a reading material in the curriculum/syllabus of the University; (xiii) that the larger public interest is in denying the injunction claimed; (xiv) attention was invited to para 34 of Syndicate of The Press of The University of Cambridge supra with respect to ‘fair use’; (xv) that reference books as are subject matter of this suit are used by many people other than students though text books have a narrower audience; even as per the plaintiffs, the percentage of the contents of a book photocopied in any of the course packs varied from 8% to 10% and dominant relationship of the entire content of the copyright work exists and the same has a negligible impact on market value; that even in the judgment of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada 2004 SCC 13, it was held that the defendant did not authorise copyright infringement by maintaining a photocopier available in the Library and posting a warning notice that it would not be responsible for any copies made in infringement of copyright and on this basis it was argued that course packs containing prescribed reading material cannot amount to commercial exploitation; (xvi) that there can be no general principle in this regard and it has to be judged on a case to case basis as to whether there is any commercial impact from the action impugned; (xvii) that the test to be applied is, whether by the impugned action the book gets substituted; that if it does not, then there cannot be any violation – reliance in this regard was placed on the judgment dated 11th May, 2012 of United States District Court for the Northern District of Georgia (Atlanta Division) in Cambridge University Press v. Mark P. Becker holding that small parts averaging around 10% of the whole copyrighted work did not substitute for the book and the court is required to consider whether the conduct engaged in by the defendant would result in a substantially adverse impact on the potential market for the original and if a professor used an excerpt of 10% of the copyrighted work and this was repeated by others many times, it would not cause substantial damage to the market for the copyrighted work because 10% excerpt would not substitute for the original, no matter how many copies were made; (xviii) that in Section 52(1)(i) restriction of 10% also does not exist and the only criteria is of effect on marketability; (xix) that no excerpt can be enough to replace a book; (xx) that the question has to be judged qualitatively and not quantitatively; (xxi) that all these are matters of trial and without which it will not be determined as to how much portion of the book has been copied and what damage has been caused thereby and hence no interim relief can be granted; (xxii) that the plaintiffs, to be entitled to an interim relief, have to establish loss and which has not been done till now; (xxiii) that this Court has to balance the competing interests of copyright owners and students; (xxiv) that though Princeton University Presssupra has held that making of course packs as infringement in the American context but what is applicable in Indian context is the dissenting opinion in the judgment where it was held that the identity of the person operating the photocopy machine is irrelevant as it makes no difference whether a student makes his or her own copies or students were to resort to commercial photocopying which is faster and more cost effective and that the censuring incidental private sector profit reflects little of the essence of copyright law; an example was given of a Professor’s teaching assistant, who at times must, on the Professor’s behest, make copies of the copyrighted text for supplying in the class and it was contended merely taking such assistance by the Professor would not make what is permissible, impermissible; (xxv) attention was invited to Para 22 of Province of Alberta supra to contend that Section 52 recognises the rights of others and that the Section 52 is not to be viewed/seen as a proviso or as an exception but as codifying rights of users to copyrighted material and there is no need to restrict the said rights; (xxvi) that the Supreme Court in M/s. Entertainment Network (India) Ltd. supra held that the Copyright Act seeks to maintain a balance between the interest of the owner of the copyright in protecting his works on the one hand and the interest of the public to have access to the works on the other and the two are competing rights between which a balance has to be stuck; (xxvii) that the Division Bench of this Court also in para 105 of Syndicate of The Press of The University of Cambridge supra held that copyright law is premised on promotion of creativity through sufficient protection on the one hand and the various exemptions and doctrines therein, whether statutorily embedded or judicially innovated, recognising the equally compelling need to promote creative activity and to ensure that the privileges granted by the copyright do not stifle dissemination of information on the other hand; (xxviii) that thus the rights under Section 52 have to be widely interpreted; (xxix) that the course packs contains a collection of wide ranging works; (xxx) that the Division Bench in Syndicate of The Press of The University of Cambridge supra had prescribed a ‘four factor test’ to be followed to determine fair use under Section 52(1)(a); (xxxi) that the effect on the market cannot be the sole criteria under Section 52(1)(i); (xxxii) that serious users of the books will not rely on course packs and therefore no serious commercial interest is hit and the miniscule commercial interest which is hit is within the permitted rights; (xxxiii) that the proportion of the copyrighted work included in the course packs is irrelevant as far as India is concerned; (xxxiv) that public interest has been accepted as the fourth ingredient in the grant of interim relief; (xxxv) that the defendant No.2 University is not required to go to IRRO as it is exercising the rights recognised in Section 52 and only those who are exploiting the copyright are required to go to IRRO; (xxxvi) that the Indian law is different from the laws of other jurisdictions; (xxxvii) that the majority of the Judges in Princeton University Press supra disagreed with the dissenting judgment for the reason that the dissenting judgment would have been correct if the statute was correct and that is how the statute is in India; (xxxvii) that the actions of the defendants impugned would have been within the ambit of Section 52(1)(a) but the Legislature deemed it relevant to add Section 52(1)(i), though the ingredients thereof are within the ambit of Section 52(1)(a); (xxxix) that a benevolent provision cannot be given a restrictive interpretation; reference is made to Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331 to contend that the mere fact that the result of a statute may be unjust does not entitle a court to refuse to give effect thereto; (xl) that the purchasing power of students in India is much lower than students from other jurisdictions; (xli) that the price of the foreign books varies with the exchange rate; (xlii) reliance was placed onKartar Singh Giani v. Ladha Singh AIR 1934 Lahore 777 followed in Romesh Chowdhry v. Kh. Ali Mohamad NowsheriAIR 1965 J&K 101 holding that under the guise of the copyright, a plaintiff cannot ask the Court to close all the avenues of research and scholarship and all frontiers of human knowledge; (xliii) attention was drawn to the article “Exceptions and Limitations in Indian Copyright Law for Education: An Assessment” by Lawrence Liang published in 2010 in Volume 3, Issue 2 of The Law and Development Review dispelling the common assumption that the cost of books in India was low and reporting that the cost of books in proportion to the average income in India was high; (xliv) that course packs have been available in the University since the year 2001 and the plaintiffs, who as per their claim are 200 years old Publishing Houses present in India for more than 50 years have acquiesced in the same; (xlv) reliance was placed on M/s Power Control Appliances v. Sumeet Machines Pvt. Ltd. [1994] 2 SCC 448 in support of the plea of acquiescence; (xlvi) that the plea in para 19 of the plaint of the plaintiffs having learnt of the course packs, just prior to the institution of the suit, is unbelievable; (xlvii) that the plaintiffs have been vigilant about their rights and have otherwise been filing cases to prevent infringement of their copyright and it is unbelievable they would not have known of the course packs; (xlviii) that the course packs have become a vital part for access to knowledge and the injury if any ultimately found to the plaintiffs can be compensated with money; (xlix) reliance in this regard is placed on Dalpat Kumar v. Prahlad Singh [1992] 1 SCC 719 holding that the burden of proving that there exists a prima facie case and infraction thereof and that the damage would be irreparable and the balance of convenience is in favour of injunction is on the plaintiffs; (l) reliance is placed on Helen C. Rebello v. Maharashtra State Road Transport Corporation [1999] 1 SCC 90 laying down that whenever there are two possible interpretations of a beneficial legislation then the one which subserves the object of the legislation with benefit to the subject should be accepted; (li) reliance was placed on ESPN Star Sports v. Global Broadcast News Ltd. 2008 (38) PTC 477 (Del) to contend that in the absence of any imminent threat or danger of legal injury of the kind that damages or a claim which money cannot compensate, no injunction can be granted; (lii) that once it is found that the injury if any would be compensable, it matters not whether the compensation would be recoverable or not; (liii) that Section 52(1)(h) is in the context of guide books which are published not by the teachers but by others and it is for this reason only that a restriction on the number of passages have been placed therein; on the contrary, Section 52(1)(i) is for teachers and pupil and in the context whereof no restriction whatsoever has been deemed appropriate by the Legislature; reliance was placed on Bombay Gas Co. Ltd v. Gopal Bhiva [1964] 3 SCR 709 to contend that failure of the legislature to limit the scope of Section 52(1)(i) cannot be deemed to be accidental omission; (liv) that the course packs are not covered by Section 52(1)(h); (lv) reliance is placed on Ramniklal N. Bhutta v. Maharashtra [1997] 1 SCC 134 laying down that even in a civil suit, in granting of injunction or other similar order more particularly of an interlocutory nature, the Courts have to weigh the public interest vis-à-vis the private interest; (lvi) reliance in this regard is also placed on State of Uttar Pradesh v. Ram Sukhi Devi AIR 2005 SC 284; (lvii) that in the present case, the four factor test of the purpose being education, being non- benefit oriented, not-amounting to plagiarism and copying being only of the prescribed part, are satisfied; (lviii) that without examining the nature and character of each of the course packs, no relief can be granted.
16. The counsel for the defendant No.1 argued (a) that the actions of the defendant No.1 impugned in this suit are licensed by the defendant No.2 University and the defendant No.1 has been acting strictly in accordance therewith; (b) that the rate charged by the defendant No.1 of 40 paise per page for photocopying is an inclusive charge / binding charge and there is no commercial angle thereto; (c) that the plaint does not comply with the provisions of Order IV Rule 1 of CPC; (d) that no resolution of the Board of Directors of any of the plaintiffs companies authorising the institution of the suit have been filed; (e) that the damages if any have to be awarded against the defendant No.2 University only as the defendant No.1 has merely been acting as the agent / licensee of the defendant No.2 University; (f) drew attention to Articles 39(f) and 41 of the Constitution of India constituting giving of opportunities and facilities to children to develop in a healthy manner, protected from exploitation and right to education as Directive Principles of State Policy; otherwise the counsel for the defendant No.1 adopted the arguments of the senior counsel for the defendant No.2 University.
17. The counsel for the defendant No.3 ASEAK adopted the arguments of the other counsels.
18. The senior counsel for the defendant No.2 University argued (i) that the question as has arisen has not arisen in the country till now; (ii) that the question, though relating to copyright law, has to be judged in the light of the right to access to knowledge; (iii) that the right to education finds mention in the Constitution not only as a Fundamental Right but also as a Directive Principle of State Policy; (iv) that access to education is a cherished constitutional value and includes within it access for students to books in library and right to research and to use all materials available; (v) that there is no dispute that a copyright would certainly subsist in the works published by the plaintiffs but it is to be examined whether the said copyright vests in the plaintiffs or not; (vi) that abstraction of work is not the same as reproduction of work mentioned in Section 14(a)(i) defining copyright, though reproduction would include reproduction by photocopy; (vii) that a teacher cannot have a photocopying machine with him / her; (viii) that education has always been a time honoured exemption to copyright law; (ix) that the copyright law has always exempted reproduction for the purpose of education, research and teaching assuming it to be an intrinsic right of academicians; (x) that similarly copyrighted material can be used by Judges and policy makers without infringing the copyright; (xi) that what has statutorily been made to be not infringement of copyright cannot be infringement of copyright; (xii) that for the interpretation of Section 52 it is immaterial whether it is taken as an exception to infringement or creating independent rights; (xiii) that photocopying in entirety of school books is permitted but the need therefor does not arise because they are subsidised; (xiv) that it matters not whether the full book is photocopied or only a part of the book is photocopied as long as the purpose remains educational; (xv) that Section 52(1)(i) takes within its ambit reproduction of the entire work because it is for non-commercial purposes; (xvi) that limitation of two passages to the extent of reproduction permitted under Section 52(1)(h) is for the reason that it is for commercial exploitation; (xvii) that there is a difference between publication and reproduction; (xviii) that ‘publication’ has been defined in Section 3 of the Act as making a work available to the public by issue of copies or by communicating the work to the public; (xix) that on the contrary, Section 2(x) defines ‘reprography’ as making of copies of a work, by photocopying or similar means; (xx) that for publication within the meaning of Section 3 of the Act, the act has to be of making the work available or communicating the work “to the public”; students are not public; that the test to be applied under Section 52 is to be of intention; (xxi) attention in this regard was invited to Articles 9 & 11(2) of the Berne Convention relating to right of reproduction and leaving it to the legislation in the countries to the Convention to determine the conditions under which the rights mentioned in the preceding paragraphs may be exercised subject to the same being not prejudicial to the moral right of the author to equitable remuneration; the entire scheme of the Copyright Act was gone into in Entertainment Network(India) Ltd. supra and it was held that all provisions have to be read together and that profit is irrelevant to test infringement; (xxii) however Sections 51 & 52 make profit an indice and the Division Bench of this Court in paras 63 and 105 of Syndicate of The Press of The University of Cambridge supra also mentioned commercial exploitation; (xxiii) that the defendant No.2 University is not shying from full responsibility for the actions; (xxiv) that students are integral part of the University; (xxv) that thus anything done by the University, even if students mak use thereof is one and the same act; (xxvi) that Section 52(1)(g), as it stood prior to 2012 Amendment and which is equivalent of the present Section 52(1)(h), used the words ‘publication’ and ‘educational institution’ and which included selling to public and not necessarily to students only; (xxvii) that by the amendment, the word ‘educational institution’ has been deleted, lifting the limitation and now there is no limitation for educational institutions as under old Section 52(1)(g); (xxviii) that thus whatever is for education is not infringement; (xxix) that the plaintiffs also do not call the defendant No.1 a publisher; (xxx) that a chart of the quantum of reproduction in the various course packs was handed over to demonstrate that the percentage of the work copied from any textbook varies from 1.62% to 30.09% with the average quantum of reproduction in the four course packs of which details are given in the plaint varying from 7.3% to 19.5%; (xxxi) that the course packs are given as advance reading material; (xxxii) that the plaintiffs want Section 52(1)(i) to be read as Section 52(1)(a) when the language of the two is materially different; (xxxxiii) that while in Section 52(1)(a) there is a test of fair dealing, there is no such test in Section 52(1)(i); (xxxiv) that repeated photocopying of the book by students damages the books; (xxxv) that the books which are photocopied are not textbooks but disseminate knowledge; (xxxvi) that grant of an injunction would be against dissemination of knowledge; (xxxvii) that there is no pleading by the plaintiffs of violation of Section 52(1)(i); (xxxviii) that the defendant No.2 University is willing to give an undertaking to not indulge in photocopying for commercial motive; (xxix) that publication is never limited to a view; (xl) reliance is placed on Estate of Martin Luther King JR. Inc. v. CBS Inc.194 F.3d 1211 (11th Cir. 1999) where the United States Court of Appeals Eleventh Circuit held publication occurs if tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work and that in copyright law, performance of a speech does not constitute publication; (xli) that the students cannot be burdened with societal / class right; (xlii) attention was invited to Lawrence Liang’s article supra; (xliii) attention was invited to the article “Exhausting Copyrights and Promoting Access to Education: An Empirical Take” published in Volume 17 of July 2012 Edition of the Journal of Intellectual Property Rights, opining that the purpose of copyright is greater access; (xliv) attention was invited to Longman Group Ltd. supra where the High Court of Auckland held that the words “course of instruction” encompasses preparation of the material to be used in the course of instruction and copying of the material to be used in the course of instruction by a teacher before the delivery of the instruction and that copying prior to a class is in the course of instruction provided it is for the purpose of instruction; (xlv) that Section 107 of the United States Copyright Act, 1976 is different and thus the judgment of the US Court of Appeal, Sixth Circuit inPrinceton University Press supra relied upon by the plaintiffs is not applicable; (xlvi) that even otherwise applying the four factor test, there is no infringement; (xlvii) that though Universities were part of reprographic society in Canada but have broken off their ties therefrom; (xlviii) that the TRIPS Agreement also accepts exemptions to copyright; (xlix) that no premium can be put on knowledge; (l) that the tuition fee in the defendant No.2 University is subsidised and at interim stage there should be no injunction; (li) that education was never meant to be exploitative; (lii) that in all jurisdictions education is treated separately and has a special status; that Article 26 of the Declaration of Human Rights also provides for a right to education; (liii) that no legitimate rights of any of the publishers have been infringed; (liv) that though the defendant No.2 University had nothing to do with the impugned acts but is taking up the matter in the interest of the students; (lv) that the test of fairness is not quantitative but qualitative; (lvi) that the defendant No.2 University is willing to give or distribute the course packs only to students with Identity Card, not to allow profit of more than 2 paise per page to defendant No.1; (lvii) that if the University were to employ its own staff for photocopying, the cost would be much more; (lviii) that the knowledge seeker has to be on a different pedestal; (lix) that there are no textbooks in post-graduation and the students have to study from different suggested reading materials; (lx) that the prayers in the suit are vague; (lxi) that though IRRO provides a via- media but its prescribed agreement is very narrow; (lxii) that IRRO has filed a writ petition challenging the constitutionality of Section 33A requiring it to publish a tariff scheme.
19. Though the counsel for the defendant No.3 had earlier adopted the arguments of the other counsels but subsequently contended (A) that instruction begins when the academic session commences; dictionary meaning of the word ‘instruction’ and different provisions of the Copyright Act where the said word has been used were cited; (B) that once any part of any copyrighted work is included in the syllabus of the University, Section 52(1)(i) applies; (C) that Section 2(n) defines ‘lecture’ as including addresses, speeches and sermons; (D) that had the intention of the Legislature been to confine Section 52(1)(i) to lectures as is the case of the plaintiffs, the word ‘lecture’ would have been used and not the word ‘instruction’; (E) that Section 52(1)(i) is not limited to classroom education; (F) reliance was placed on para 26 of Nasiruddin supra to contend that plain meaning of the word ‘instruction’ is to be adopted and which is wide; (F) reliance in this regard was also placed onBombay Gas Co. Ltd. supra; (G) that Princeton University Press supra was a case of a commercial photocopy shop outside the University; (H) that the defendant No.1 is reproducing and not publishing; (I) that if University itself is entitled to make the course packs, the fact that it is doing through an agent should not make a difference; (J) that there is no fear of publishing industry collapsing as is canvassed by the counsel for the plaintiffs; (K) that a short note on the growth of Indian Publishing Industry is included in the compilation handed over.
20. The counsel for the plaintiffs in rejoinder argued (I) that the course packs are sold like text books; (II) that the objective of this litigation is not to compel the buying of books but to compel the defendant No.2 University to enter into a licencing agreement with IRRO which is now fully functional; (III) that IRRO is the only Society registered under Section 33 of the Act; (IV) that earlier IRRO permitted only 20 copies to be made but now permits 15% of the copyrighted work to be copied; (V) that if the defendant No.2 University feels that 15% is less, it can challenge the same before the Copyright Board and the Copyright Board is now empowered to give interim orders also; (VI) that the argument of public interest is a myopic argument; (VII) that if injunction would be refused there would be no incentive for new literary work; (VIII) that even if the academicians continue to write for themselves, the publishers would not be willing to publish; (IX) that Section 52 sets out the public interest policy and the policy having been statutorily laid down, there could be no public interest outside Section 52; (X) that copyright would become useless if the entire work were allowed to be copied under Section 52(1)(i); (XI) that the judgment in Cambridge University Press v. Mark P. Becker supra relied upon by the defendants was reversed in appeal and in any case concerned digital copy and not paper course packs; (XII) that if Section 52(1)(i) were to be as wide as contended by the defendants, there would have been no need for Section 52(1)(zb).
21. I have considered the aforesaid contentions, judgments and other material cited and gone through the written arguments.
22. Though the defendants in their written statements have disputed the copyright claimed by the plaintiffs but I am of the view that now that the senior counsel for the defendant No.2 University has given up the stand taken in the written statement and has stated that the defendant No.2 University takes full responsibility for the making of the course packs, the question, whether the copyright therein vests in the plaintiffs or in some other person, is of no relevance as the defendant No.2 University, as State within the meaning of Article 12 of the Constitution of India, cannot be seen as violating the law by infringing the copyright, whether it vests in the plaintiffs or in some other person. The only question to be adjudicated thus is, whether the making of course-packs as the defendant No.2 University is making, amounts to infringement of copyright. The said question, according to me, is a question of law and requires no trial. As would be evident from above, we have before us the range of percentage of the contents from each book being photocopied and included in the course pack. No evidence to that effect is required. If the actions of the defendant No.2 University, on an interpretation of law, are held to be infringement, a decree for permanent injunction has to follow. Conversely if the actions of defendant No.2 University are not found to be amounting to infringement of copyright, the suit fails. Of course if it is held that what the defendant no.2 University is doing is infringement of copyright and the author or publisher of a particular work has granted permission to the defendant no.2 University to make copies thereof, as the defendant no.2 University claims, the defendant no.2 University would be entitled to do so.
23. Though at one point of time during the hearing it appeared that a direction to the defendant No.2 University to approach IRRO, a Copyright Society within the meaning of Section 33 of the Copyright Act, offered a solution to the issue as has arisen but on further consideration I tend to agree with the senior counsels for the defendant No.2 University and defendant No.4 SPEAK that the question of issuing any such direction would arise only upon finding that what the defendant No.2 University is doing is not covered by Section 52 of the Act and which would make it an infringement of the copyright and to avoid which it can go before IRRO.
24. To be able to gauge the full import of Section 52 of the Copyright Act, I have examined the provisions of the said law from the beginning of the statute.
25. The Copyright Act was enacted “to amend and consolidate” the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. v. State of Karnataka [2011] 9 SCC 1 where a Constitution Bench of the Supreme Court held that Article 300A of the Constitution proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without any support of law made by a competent legislature and that the expression ‘property’ in Article 300A is not confined to land alone but also includes intangibles like copyright and other intellectual property and embraces every possible interest recognised by law.
26. Section 13 of the Act defines the works in which copyright subsists but makes the same subject to the provisions of that Section as well as other provisions of the Act. The same leads me to form an opinion that copyright, though may subsist under the natural law in any work, has been made subject to the statute and if the statute limits the works in which copyright subsists, there can be no natural copyright therein.
27. Section 14 of the Act gives the meaning of copyright as the exclusive right, again “subject to the provisions” of the Act, to do or authorize the doing of the acts listed therein in respect of the work in which the copyright subsists. The same is again indicative of the author, composer or producer having only such rights which are prescribed thereunder and that too subject to the other provisions of the Act. In relation to literary works, with which we are concerned, one such right is the right to reproduce the work or any substantial part thereof. However if any other provision of the Act is to provide otherwise, the same will cease to be the copyright. Similarly, Section 2(m) defines “infringing copy” as meaning in relation to literary works, a reproduction thereof, if made in contravention of the Act, meaning, if any provision of the Act permits any person to reproduce any work or substantial part thereof, such reproduction will not be infringing copy.
28. The position becomes unequivocally clear from Section 16 which provides that no person shall be entitled to copyright or any similar right in any work otherwise than under and in accordance with the provisions of the Copyright Act. The same unequivocally prescribes that there is no copyright except as prescribed in the Act, converting copyright from a natural or common law right to a statutory right.
29. Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright. It follows, if there is no exclusive right, there is no infringement. Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy within the meaning of Section 2(m). Section 55 also, entitles the owner of copyright to remedies by way of injunction, damages, accounts or otherwise as are conferred by law for infringement of a right, only when copyright is infringed and except as otherwise provided by the Copyright Act. Thus unless there is infringement of copyright within the meaning of the Act, owner of copyright is not entitled to sue.
30. A Division Bench of this Court in Time Warner Entertainment Company, L.P. v. RPG Netcom [2007] 140 DLT 758 held that copyright cannot be claimed and suit for infringement of copyright cannot be maintained de-hors the Copyright Act and that the Common law rights to copyright were abrogated, earlier by Section 31 of the Copyright Act, 1911. It was held that a person is entitled to copyright only under the provisions of the Copyright Act and any other statutory enactment in force. Supreme Court also, in Entertainment Network (India) Ltd. supra held that copyright unlike trademark is a right created under the Act and that when a author claims a copyright, the right has to be determined with reference to the provisions of the Act. Recently, in Krishika Lulla v. Shyam Vithalrao Devkatta [2016] 2 SCC 521, copyright was held to be a statutory right requiring statutory conditions to be satisfied.
31. Copyright as a natural or common law right has thus been taken away by the Copyright Act.
32. I conclude, there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Axiomatically if follows, unless the action of defendants No 1 and 2 amounts to infringement of copyright within the meaning of the Copyright Act, the plaintiffs or any other person in whom copyright vests cannot sue for infringement or damages or accounts, as have been claimed in the plaint.
33. I have next wondered, whether making of copies by the defendant no.2 University (for the time being I am not entering into the controversy whether making of copies by the defendant no.1 under the arrangement as pleaded with the defendant no.2 University makes any difference) of the books purchased by the defendant no.2 University and kept in its library and distributing the said copies to its students (I am again at this moment not entering into the controversy whether the charging by the defendant no.2 University makes any difference) amounts to defendant no.2 University doing any of the acts which vests exclusively in the owner of the copyright in the said books and to infringement of copyri