Certificate_in_Intellectual_Property.PDF

Certificate Course in Intellectual Property- Law, Policy and Practice
Case Analysis Assignment
Topic:2
By:
Shriya Pandey
Symbiosis Law School, Pune

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Certificate in Intellectual Property - Law, Policy and Practice [CHOOSE ANY ONE]
Topic 2
A is a photocopier and he runs a shop in a student area. Under a MoU with an educational institution,
he has the tender to provide for photocopied collation of articles in a book format to the students of a
particular course. However, the photocopier provides these books to anyone who pays. Analyze the
problem with the relevant case laws and recommendations/solutions (for more effective
enforcement) that can be taken for any infringement that takes place.
Before analyzing the specific facts of the case topic, it is important to highlight the features of
copyright law which on a prima facie reading of the case forms the subject matter of the possible
infringement that might take place through the photocopy and collation of articles from various
places in a book format and then sold for a price (as detailed in the facts of the topic).
Firstly, the author here will give a brief introduction to copyright- a mere definition is sufficient
to understand what a copyright essentially means. Further, the concept of infringement of
copyright will be covered with regard to all the possible ways in which it can occur including
also the exceptions to infringement. Subsequently a step by step analysis of the facts will be
given to finally conclude with the recommendations for an enforcement mechanism in the case
such an act actually occurs. There will ofcourse be supplements in the form of national and
international case laws pertaining to photocopying of educational material and whether it really
is an infringement of the right of the publishers and/or authors of such books from which the
material has been photocopied or infact an infringement of a nation‘s students to have access to
quality education and knowledge. The author will attempt to delve into the varied aspects of the
case and in as unbiased a manner as possible and in as much detail as the word limit will permit.
Introduction
Infringement of copyright under the Indian Copyright Act, 1957
Definition of infringement under Section 151- relevant for the purpose of analysis of the
facts of the case topic-
Copyright in any work is deemed to be infringed1
When any person without a licence from the owner of the copyright, or the Registrar of
Copyright, or in contravention of the conditions of a licence granted or any condition imposed by
a competent authority under the Act:
Does anything, the exclusive right to do which is conferred upon the owner of the copyright or
Permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of the copyright in the work, unless he was not
1
Section 51

2
aware and had no reasonable ground for believing that such communication to the public would
be an infringement of copyright, or
Where a person
Makes for sale or hire or sells or lets for hire or by way of trade displays or offers for sale or hire
any infringing copies of the work, or
Distributes, either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright any infringing copies of the work, or
Exhibits to the public by way of trade any infringing copies of the work, or
For the purposes of this Act, ―copyright‖ means the exclusive right 2
subject to the provisions of
this Act, to do or authorise the doing of any of the following acts in respect of a work or any
substantial part thereof, namely:—(a) in the case of a literary, dramatic or musical work, not
being a computer programme,—(i) to reproduce the work in any material form including the
storing of it in any medium by electronic means;(ii) to issue copies of the work to the public not
being copies already in circulation;(iii) to perform the work in public, or communicate it to the
public;(iv) to make any cinematograph film or sound recording in respect of the work;(v) to
make any translation of the work;(vi) to make any adaptation of the work;(vii) to do, in relation
to a translation or an adaptation of the work, any of the acts specified in relation to the work in
sub-clauses (i) to (vi);(b) in the case of a computer programme,—(i) to do any of the acts
specified in clause (a);[(ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme:Provided that such commercial rental
does not apply in respect of computer programmes where the programme itself is not the
essential object of the rental.](c) in the case of an artistic work,—(i) to reproduce the work in any
material form including depiction in three dimensions of a two dimensional work or in two
dimensions of a three dimensional work;(ii) to communicate the work to the public;(iii) to issue
copies of the work to the public not being copies already in circulation;(iv) to include the work in
any cinematograph film;(v) to make any adaptation of the work;(vi) to do in relation to an
adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to
(iv);(d) in the case of a cinematograph film,—(i) to make a copy of the film including a
photograph of any image forming part thereof;(ii) to sell or give on hire or offer for sale or hire,
any copy of the film, regardless of whether such copy has been sold or given on hire on earlier
occasions;(iii) to communicate the film to the public;(e) in the case of a sound recording,—(i) to
make any other sound recording embodying it;(ii) to sell or give on hire, or offer for sale or hire,
any copy of the sound recording, regardless of whether such copy has been sold or given on hire
on earlier occasions;(iii) to communicate the sound recording to the public.Explanation.— For
the purposes of this section, a copy which has been sold once shall be deemed to be a copy
already in circulation.
Certain acts are not held to be infringement under section 52 of the copyright act- relevant acts
for the purpose of analysis of the facts of the case topic- 3
(a) A fair dealing with a literary,
dramatic, musical or artistic work not being a computer programme for the purposes of private
2
3
Indian Copyright Act, 1957

3
use, including research.(e) The publication in a collection, mainly composed on non copyright
matter, bona fide intended for the use of educational institutions and so described in the title and
in any advertisement issued by or on behalf of the publisher, of short passages from published
literary or dramatic works, not themselves published for the use of educational institutions, in
which copyright subsists;Provided that not more than two such passages from works by the same
author are published by the same publisher during any period of five years.Explanation – In the
case of a work of joint authorship, references in this clause to passages from works shall include
references to passages from works by any one or more of the authors of those passages or by any
one or more those authors in collaboration with any other person;(n) The making of not more
than three copies of a book (including a pamphlet, sheet of music, map, chart or plant) by or
under the direction of the person in charge of a public library for the use of the library if such
book is not available for sale in India.(o) The reproduction, for the purpose of research or private
study or with a view to publication, of an unpublished literary, dramatic or musical work kept in
a library, museum or other institution to which the public has access.Provided that where the
identity of the author of such work, or, in the case of a work of joint authorship, of any of the
authors is known to the library, museum or other institution, as the case may be, the provisions of
this clause shall apply only if such reproduction is made at a time more than fifty years from the
date of the death of the author or, in the case of a work of joint authorship, from the death of the
author whose identify is known or, if the identify of more authors than one is known from the
death of such of those authors who dies last.
If one goes by a bare and basic reading of the facts of the case it would appear that by virtue of
Section 151 of the Copyright Act, an infringement has occurred since the first clause of the
section has been violated (to be read along with the rights of copyright owner as given in another
relevant Section) However if one goes into a deeper analysis of the wordings of each clause of
the relevant sections, a different understanding would emerge.
Permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of the copyright in the work, unless he was not
aware and had no reasonable ground for believing that such communication to the public would
be an infringement of copyright, - here with the addition of unless he was not aware and had no
reasonable ground for believing that such communication to the public would be an infringement
of copyright adds an extra dimension to the question of whether a person infact has caused an
infringement of copyright to occur.
Where a person
Makes for sale or hire or sells or lets for hire or by way of trade displays or offers for sale or hire
any infringing copies of the work- the question whether the copies offered for sale constitute
infringing copies needs to be considered.
Distributes, either for the purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright any infringing copies of the work, - here whether the owner of the
copyright is prejudicially affected and to what degree needs to be considered
Exhibits to the public by way of trade any infringing copies of the work, or

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Imports into India any infringing copies of the work except one copy of any work, for the private
and domestic use of the importer- this clause is obviously not covered by way of the basic facts
of the case topic
Under the exceptions to copyright law underlined in Indian Copyright law, the fair use exception
is certainly the widest. IP regimes are infact intended to serve not only the private commercial
interests of IP owners, but public interest as well. In many ways, intellectual property rights
contain a social contract, where the creator agrees to serve the public interest in exchange for a
legally guaranteed monopoly. However, in a number of industries, IP owners often breach this
social obligation by pricing goods out of the reach of an average citizen. And then proceed to do
everything within their power to block access to cheaper affordable versions. Pharmaceutical
drugs are a very good example, educational books another.
It is within this framework that one can analyze the particular case topic wherein a photocopier is
under a valid and legal Mou from an educational institution is providing a valuable and infact
very popular service. However the question of unhindered photocopying being an infringement
of creative expression- the view often taken by publishers of books which are thus photocopied
and utilized and put in course packs for the study needs of students of various universities- needs
to be analyzed carefully to judge whether there is any merit in the claim as this could result in a
future where the exceptions will outride the genuine rights granted under copyright law. The
liability and who should bear the maximum burden of this common practice in most colleges in
the country needs to be studied as well- whether it is the publishers with their overpriced
educational books, the universities who turn a blind eye to the practice of photocopying and
course packs or the photocopy owner who ignorant of the law, peddling such books with explicit
or implicit approval from the university- read Mou as in the present case. Many persons appear
to acknowledge the "technical" illegality of photocopying, and take issue with such a practice on
a purely moral basis. However, it is important to appreciate that the law itself provides enough
wiggle room for exempting such acts of photocopying (collating in the form of course packs)
from copyright infringement.
In a recent case of Delhi university vesus Oxford and Cambridge University Press4
the law suit
filed by publishers before the Delhi high court indicated that the alleged instances of copyright
infringement constituted no more than 10 per cent of individual copyrighted books in most cases.
Even in a maximalist IP jurisdiction such as the United States, courts have held that reproducing
less than 10 per cent of a book constituted "fair use". Although the ruling in this case (Cambridge
University Press vs Becker5
) pertained to electronic copies, the logic of it could and should apply
to the physical world as well.
The fair use doctrine is recognised as a valid defence to copyright infringement in most countries
including India, where Section 52 of the Copyright Act permits one to "fairly deal" with any
copyrighted work for "private or personal use including research".
4
THE CHANCELLOR, MASTER AND SCHOLARS OF THE UNIVERSITY OF OXFORD & ORS. v. RAMESHWARI
PHOTOCOPYING SERVICES AND ANR., CS (OS) 2439/2012
5
1:2008cv01425,

5
That universities and students photocopying excerpts of articles and book chapters do so for
private or personal use. And it stands to reason that if the university can do this legitimately, it
can also outsource this function to a third party photocopier (who does it as an agent of the
university). However, the critical issue is: what amounts to "fair dealing"?
Would takings of less than 10 per cent of copyrighted books amount to fair dealing? If a free-
market capitalist economy such as the US, with a maximalist IP regime, can suffer 10 per cent,
India can do far better. We should peg our yardstick at 20 per cent or even higher. Of what use
will our constitutional guarantee of the right to education be when materials cannot be accessed
by the average student?
Our copyright act recognises a fairly wide educational exception in Section 52 by permitting any
material to be reproduced "during the course of instruction".
It is a truism that educational material is largely expensive and often unaffordable to the average
student. While foreign publishers claim that almost all titles have Indian editions and are lower
priced a vast majority of legal and social science titles have no equivalent Indian editions and
have to be purchased at rates equivalent to or higher than in the West. The lower priced Indian
editions are often older and outdated versions.6
Publishers are likely to claim that a liberal educational exception would sound the death knell of
their industry and liquidate educational titles altogether. However, one needs simply to look at
the fact that despite the many instances of alleged wholesale photocopying at universities, the
industry continues to flourish. In any case, given the exorbitant prices of most books, such
photocopying does not result in lost sales, as publishers would have us believe. Any counter
assertion in this regard must be considered only if backed by strong empirical data.
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 in the Delhi university versus Oxford and
Cambridge University Press case7
was integrated within the university system by account of the
fact that it operated on the basis of a license provided by the university which mandated the price
and nature of services. It makes sense then considering the facts of this specific case topic even
that the university and the photocopiers should have a unified stand since what could be 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)8
had 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 is pretty clear what should be given precedence.
Case laws
6
7
supra
8
1981 AIR 746, 1981 SCR (2) 516

6
In USA, such suits were targeted against Xerox and copying/ binding service providers. The
courts should attempt to provide a broad interpretation and definition of fair use in addition to
enforcement of such practices (as permissible practices). The universities and research/
educational institutions also have a significant role in ensuring that the rights of students is
protected and that publishers are not allowed free reign to exercise their powers arbitrarily.
Student and academics need to be made more and more aware of the implications of narrow fair
use provisions on their respective interests. Many scholars have opined- as excerpted from a
Kafile article- for our precious intellectual labour on scholarly books and chapters on scholarly
we receive a platry sum of money as fixed onetime payment or even more paltry sums as
royalties over the years. For one book I wrote in a scholarly limited audience type of book-
published by an international conglomerate from London- I received zero payment. In another
case I wrote a couple of chapters for a textbook which became required reading not simply in my
own university but across the country- one can safely say this book sold like hot cakes- for this
one I received a laughable one time payment- lets say a tenth of one month‘s salary of the editor
who worked on my manuscript. And my case is absolutely the standard- not the exception. And
the solution is NOT to put the books out of the hands of the students by forbidding photocopying
since whether the students read from the original or the photocopy, the only people getting rich
are the publishing giants. The only people we would be rewarding by making photocopying
illegal is those at the top of the hierarchy in publishing firms. Make no mistake, lawsuits are
about protecting the interests of the Goliahs, not the Davids. A little digging unearthed
something called the Copyright Licence Agency which in the UK seems to govern the creation
of ―course packs.‖ (That is, if a university has the licence and possess the relevant book/journal,
then material from that book/journal can be used to create a ―course pack‖ subject to certain
conditions. The CLA has a document which gives examples of ―good practice‖ and ―bad
practice‖ and people interested may want to take a look: it‘s here. The mere assertion of an
absolute claim by the copyright owners does not make public interest limitations such as those in
Sec 52 disappear
Again reiterated while a bare reading of the Indian Copyright Act indicates that the course packs
are covered under fair dealing, the final determination will be made by the Court.
The stand taken in other legal systems
The United States has had a clear line on this issue for a while, one that was established in the
1991 Basic Books Inc. v. Kinko‘s Graphics Corp case9
. The Kinko‘s copy shop in question was
sued by eight book publishers alleging copyright infringement for the shop‘s reprinting portions
of books in academic course packs. Kinko‘s argued that its practice constituted fair use, but the
court disagreed, slapping it with 2 million dollars in damages. A crusade to prove the case was
bad law by another Michigan based copy shop owner ended in failure years later. With the case
law clearly requiring copyright owner permission to be taken, a system of intermediary agencies
has flourished. The Copyright Clearance Center is a prominent example in this regard, providing
collective copyright licensing services for academic (and corporate) users of copyrighted
material. The Center acts as a unified agent for thousands of publishers and authors, in a way
reducing the administrative burden of obtaining multiple permissions. However, with the
9
758 F. Supp. 1522

7
intermediaries fees taken into account, course pack costs themselves tend to skyrocket, to the
extent of almost nullifying the cost advantage from not purchasing textbooks.
The recent Cambridge University Press v. Becker10
decision is another significant move towards
expanding the domain of fair use. The case featured a challenge against Georgia State
University‘s practice of readings being posted on course websites by instructors, made accessible
to students registered for the course. The publishers argued that online sharing of readings was
equivalent to paper photocopied course packs and required to be subjected to similar licensing
restrictions. The Court‘s decision was a shot in the arm for students and universities – a
moderate quantitative test was fashioned, where fair use threshold was set at upto 10% of the
total page count of a book. For books of ten or more chapters, the fair use threshold stood at a
single complete chapter; only in the instance of universities breaching this threshold would
licenses be required. This baseline ended up being mostly in Georgia State‘s favour: only 5 out
of the 75 cases of infringement were held to not come under fair use.
Canada has had similar intermediary licensing agencies prevailing, even in the absence of
judicial rulings mandating for the same. The fair dealing provision there is similar to the Indian
one, with the Act indicating that the copying of a work for the purpose of research, private study,
criticism, review or news reporting is justified as Fair Dealing. The Canadian Supreme Court has
interpreted this provision widely in the past. In 2004 the Court held that the exception was open
to those who could show that their dealings with a copyrighted work were for the purpose of
research or private study, and that ―research‖ had to be given a large and liberal interpretation to
ensure that user‘s rights were not unduly constrained.
Another recent Canadian court‘s decision has moved towards clarifying the position with respect
to photocopying for educational purposes. A 5-4 majority in Alberta (Education) v. Canadian
Copyright Licensing Agency11
ruled that photocopies of short excerpts from books, made by
teachers for students in elementary and secondary schools should be exempt from payment of an
additional fee. The decision holds important consequences for the scope of fair dealing in
universities and colleges too.
In the case of the UK, fair dealings laws have an otherwise more restricted scope: an exclusion
from fair dealing includes instances where a person doing copying has reason to believe it will
result in multiple copies proliferating at the same time for the same purpose, essentially
precluding university based course pack creation. The UK saw the Copyright Licensing
Agency‘s (CLA) highly disputed system being subject to adjudication by the Copyright Tribunal
in 2001. Universities had been engaged in a struggle with the CLA‘s refusal to include course
packs within its lesser priced, more administratively convenient blanket license. The Tribunal
made the CLA renege by providing for a license with no restriction on course pack copying.
It is now up to the Indian Courts to provide us with a liberal reading of the fair dealing provision.
Cambridge and Oxford university press had in 2012 along with Francis and Tailor 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
10
supra
11
2012 SCC 37

8
course packs as infringing and pirated copies the petitioners had claimed damages to the tune of
sixty lakhs. The inflated damages sought was not surprising at all and worked 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 has 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- 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 as already illustrated and mentioned above 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.
Global standard- what it means and how it pertains to fair use provisions under Copyright
law
There can‘t be a valid global standard for how much of a book a university can reproduce to
facilitate full access of necessary reading material to all its student. This should be a measure of
the university‘s capabilities to procure enough books so that each and every student in a
classroom has an accessible copy of the material. Therefore a library at a university in the heart
of Bihar and the library at Harvard University have the same number of books and therefore
should be held to the same limits of permissible reproduction is not a valid ascertainment.
No. There is room for flexibility and the law must account for country-specific economic factors
such as per capita purchasing power, cost of books etc at the global level, or more appropriately,
a case-specific determination based on the end-user.
Quantitative restrictions- whether they are infact even needed?
The second issue is whether complete reproduction of works is permissible under certain
circumstances (for example, to make course packs for students). Given that S.52(1)(h)(i) of the
Indian Copyright Act does not lay down any quantitative limit on permissible reproduction, it
could be farily and correctly assumed that quantitative restrictions can be determined on a case
by case basis without any hard and fast rule.

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It is here that I think this the philosophical ideas behind intellectual property and copyright in
particular become very important. If I were to merely reproduce parts of one book for some
higher social objective – such as education, the publishers are still in a position to exploit that
book commercially in several other ways (even inside the education sector, by the way). The
book is still there. On the other hand, if I were to steal the book, the situation would be very
different. This is why the law itself recognizes such wide exceptions to copyright law in
doctrines such as fair dealing and as seen in the provision I mentioned above.
Recommendations/ solutions
 In the circumstance that such a copyright infringement case becomes a national issue as it
did in the case of the Delhi university Rameshwari photocopy center and as it could in the
context of the case topic, the government should consider the interests of the public and
intervene. It should in a timely fashion after weighing systematically the benefits to the
publishers against the harm to the student community and education in the country
implead itself in the suit, to ensure that the educational safeguard in the Indian Copyright
Act is not diluted.
 It is essential also for the legal community (IPR) in the country to re-examine the
business of academic publishing in India itself and decide whether it could be the source
of the problem. Insights from individuals in the business itself is essential be able to
analyze the issue in greater depth and to create a more well rounded picture of the
dilemma- IP versus right to education.
 The fault or at least a part of it should lie with the university. An integral part of the
process of imparting an education is identifying the books and research material that are
relevant and essential to the completion of the educational programme. The university is
obliged, in my view, to identify books that are not just suitable in terms of content but
also easily available. Where such a book is not available, they should prescribe
alternative, affordable and accessible reading material better suited for higher education
in India. Or else, students should be made clearly aware of the financial commitment by
way of textbooks that their course of study will involve.
 In the book- courts can interpret on a case by case basis
 If we take a look at Section 32A of the Copyright Act, it appears that the statute has
already addressed the issue in some small measure. Section (1)(b) states that where, in
connection with systematic instructional activities, copies of the book are sold in India at
a price that cannot reasonably be related to that normally charged in India for comparable
works by the owner, any person may apply to the Copyright Board for a licence to
reproduce and publish such work at a lower price for the purposes of systematic
instructional activities. If that is the case, and if it could be proved that the price of the
books in question was exorbitant compared with similar books, it should be possible to
apply and obtain a compulsory licence to publish the books at a cheaper price. However,
if all academic books of comparable quality are being sold at the same or similar price
this clause is of little use to the problem at hand.
 The photocopier functions as an agent of the University and is providing material at cost
under a contract with the University (the University allowed him to deliver his services
under an MOU). If this is indeed true as it is many other cases (providing material at cost)
the case ought to squarely fall within the copyright defences.

10
 The licensing model can also be considered as a possible solution and alternative to mass
scale photocopying but the reasonableness of licensing fees is an important criterion here.
If the licensing fees (IRRO) increase the cost of education to such an extent that the
actual purchase of infringing books even for a few chapters would be a better choice for
the average student, then the purpose is not met. However these are issues that need to be
considered through an organized discussion between the publishing community,
academicians, students and university representatives
 If the students of educational institutions and universities cannot afford to pay for such
course packs, the Universities should buy a licence on their behalf and subsidize them.
After all many universities for example DU receive huge subsidies from the Government
of India.
 May be IRRO should think about proposing a low cost revenue model for cover to cover
photocopying in limited situations (for e.g. in case of students studying in Government
institutions), or for uses that move beyond fair-dealing.
 The incentive argument that one could make should be stretched to every instance of a
possibility ‗copy‘ being made, especially in the context of course packs. Just because
there is an existing or a potential market for licenses and that clearing houses can reduce
the transactional cost in procuring them, shouldn‘t defeat the existence and purpose of the
‗right‘ of a fair-dealing defence. It‘s high time we starting thinking about ‗fairness‘ in
incentive structures rather than exclusively focus on ‗fairness‘ in fair-dealing
 There are various university policies regarding photocopying. Stanford says, ‗Copying a
complete work from the library collection is prohibited unless the work is not available at
a ―fair price.‖http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-
d.html meaning course packs are quite common there as well. Clear directions as to
assemble a course pack are also given
inhttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#4.
Even a sample course pack request form is given there along with what copyright notice
should be used
In 1991, many instructors and photocopy shops assembled and sold course packs without
permission and without compensating the authors or publishers. This was based on the
assumption that educational copying qualified as a ―fair use‖ under copyright law, which,
legally speaking, is a use that is exempt from permissions requirements that normally
apply to copyrighted materials. However, in 1991, a federal court ruled that a publisher‘s
copyright was infringed when a Kinko‘s copy shop reprinted portions of a book in an
academic coursepack. (Basic Books Inc. v. Kinko‘s Graphics Corp., 758 F. Supp. 1522
(S.D. N.Y. 1991).) The court said that reprinting copyrighted materials in academic
coursepacks was not a fair use and that permission was required.
The owner of a copy shop in Ann Arbor, Michigan, began a personal crusade to prove
that the Kinko‘s case was wrongly decided by advertising that he would copy course
materials for students and professors. As a result, he was sued by several book publishers.
A federal Court of Appeals decided against the copy shop owner, ruling that the copying
did not qualify as a fair use. This ruling was based on the amount and substantiality of the
portions taken and because academic publishers were financially harmed—they lost
licensing revenues—while the copy shop was making money on the coursepacks.
(Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).)
This and similar court rulings establish the rule that you need to obtain permission before

11
reproducing copyrighted materials for an academic course pack. Many campus copy
shops still perform course pack assembly. However, these copy shops have either
affiliated with established clearance services or are prepared to obtain clearance on behalf
of instructors.http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-
a.html#1
 One possible liberal interpretation of the provision is to allow for photocopying of entire
books on the grounds that the provision does not lay down any percentages unlike
Section 52(1)(g).However it seems unlikely that a Court is going to buy that argument
because it in essence destroys the very essence of copyright law.
Conclusion
―When we talk about copyright, we need to remember that we aren‘t talking about authors versus
readers. We‘re talking about the interests of corporations versus the interests of the public‖. –
- Karen Coyle (August 7, 199612
The battle against copyright infringement must also be fought on the simple premise of rights, a
right to access knowledge, a right for people who basically cannot afford to pay, a right to
oppose another form of gate-keeping that reduces access to those cannot afford (Sudha Vasan)13
.
It isn‘t even a case of a ‗mere defence, but a right and an entitlement to access educational
material and protect public interest.‘ (Shamnad Basheer, MHRD Professor of IP Law, WB
NUJS).14
Deepak Mehta (Professor of Sociology, Delhi School of Economics) asserted how his prescribed
readings are only available as photocopies, they form the backbone of his classroom teaching,
and the legal suit reflected ‗sheer idiocy‘.
Sudhavana Deshpande, from LeftWord publishing house, argued that even in terms of a logic of
recovering costs, photocopies are essential – they are a form of publicizing that then leads to
people buying the book. ‗There are a huge number of publishers out there who don‘t support this
law suit. This law suit does not speak on behalf of all of us.
In agreement with these views professed by various academicians of the Delhi University, it is
easily concluded that there is a historical and deep rooted relationship between photocopying and
knowledge sharing especially in the unique socio economic sphere of a developing nation such
as India. The photocopier has transformed the way knowledge is accessed in society and paved
the way for democratization of learning with scholarship students on meager allowances getting
a chance to access articles and research published in international publications with ease. Open
access publishing has been suggested by Professor Nivedita Menon of Delhi School of
Economics as a solution for the current arbitrary and unfair system of publishing where even the
big giants such as Oxford University Press an Cambridge University Press paying pittance in the
form of royalties to professor spending immense time and intellectual labour. However she
12
Spicy Ip article dated October 11, 2012
13
ibid
14
ibid

12
cautions against a possible racket when the authors and universities will pay to have their work
published once reviewed by a peer review panel. There is always a danger of cementing further
the hierarchies of economies through this meth- rich universities in rich countries will be able to
pay, delinking knowledge from quality. The present knowledge economy is steeped in the
business of publishing because hierarchies of jobs and promotions depend on how much you
publish, and who you publish with. Moreover, it is these publishing houses which have the
discretion to ensure that a book goes out of print, thereby making it largely inaccessible. Another
dimension of the insidious ways in which the publishing houses bolster their monopoly is
through a legal labyrinth of property rights, that could render people defenceless, unless they
look keenly into the clauses and details of the contracts they‘re signing. Aditya Nigam (Faculty,
Senior Fellow, Centre for the Study on Developing Societies) for instance says, OUP owns all
the rights of reproduction for his book, including the rights to television. Revealed in this, is the
extent to which publishing houses are prepared to profiteer from a book. OUP has also set up an
online library, where it expects the authors to buy rights of third party citations or sections from
books that they quote, posters that they show. In protest, the books have blank sections, with the
writers refusing to concede to OUP demands.
Perhaps the best way to comprehend the real-world impact of this case is to examine the views of
students themselves. It is becoming increasingly clear that the biggest objection to this litigation
is the adverse impact it will have on the ability of students to access essential reading material
without having to purchase several different books for a few chapters from each.
In most countries in the world there are copyright exceptions made for educational uses and this
is most critical in developing countries in which costs of books are exorbitant. While illegal
sharing of books is a valid concern, targeting course packs and photocopiers who operate within
a university may be chasing the wrong target. In addition to course packs being absolutely legal
these course packs serve as advertisements for the books themselves, and it is only by allowing
the use of these extracts can students be enthused to buy the entire book at a future date. By
alienating teachers and students who are indeed the main consumers of such books, the
publishing community would be creating a great vaccum in the knowledge market of a
developing nations and the ripple effects would undoubtedly be felt in the detoriation of the
quality of education and scholars.
While it is certainly in the interest of authors and publishers to sell as many copies of the book as
possible, we have to recognize the fact that in a country like India marked by sharp economic
inequalities, it is often not possible for every student to obtain a personal copy of a book. In that
situation then next best thing would have been for multiple copies of the book to be available in
the library so that students are able to access these books without any difficulty. But given the
constraints that libraries in India work with they are often forced to keep a single copy of the
book and in many instances there may not even be a single copy of the book available in the
library. The reason that course packs are created is to ensure that students have access to the
most relevant portions of the book without which their education and degree learning is seriously
compromised. The moral considerations stem from the fact that the publishers‘ proposal for
obtaining licences from the IRRO will substantially increase the educational expenses of students
in India, making no exception for those students coming from impoverished backgrounds. As
such, there is something to be said about their chosen target – students, when there are already

13
several organised piracy rackets in existence across the country, which should ideally be their
prime focus.
Think of a law student who has benefited immensely from the prescribed reading material in a
course pack. Isn‘t it safe to assume that the same student will purchase the book in its entirety
when he/she decides to set up his/her own law practice?
One of the most important ways of promoting equitable access in the area of education is by
ensuring that copyright laws have strong exceptions and limitations that enable the fair use of
material for educational purposes. Exceptions and limitations can be in the form of statutory or
compulsory licenses, or they can be incorporated into fair dealing provisions. These exceptions
can either be compensated or uncompensated, though generally within the context of fair dealing
provisions, uses are uncompensated.
LEGAL ANALYSIS OF EXCEPTIONS AND LIMITATIONS
Exceptions for educational uses in the Copyright Act of India can be found both in provisions
dealing with statutory licenses as well as in the fair dealing provisions. Any revisions to these
exceptions must be consistent with India‘s relevant international legal obligations—specifically
the Berne Convention and TRIPS. Thus, policymakers interested in examining the relationship
between copyright reform and India‘s educational needs must consider the following questions:
• What is the scope of permissible exceptions and limitations provisions under India‘s existing
treaty obligations－the Berne Convention and the TRIPS Agreement? This will hinge on
determining whether exceptions and limitations permissible under Art. 10 (2) of the Berne
Convention must also satisfy the so-called three-step test—as laid down by either Art. 9 of Berne
or Art. 13 of TRIPS.
• What is the scope of the exceptions and limitations provisions in the Indian Copyright Act,
sections 52(1)(g), (h), (i) and (p), and how effective are they in addressing the educational needs
of India, particularly as set out in the National Mission and National Policy on Education?
In order to improve access to copyrighted works and achieve their goals for education and
knowledge transfer, developing countries should adopt should be allowed to maintain or adopt
broad exemptions for educational, research and library uses in their national copyright laws. The
implementation of international copyright standards in the developing world must be undertaken
with a proper appreciation of the continuing high level of need for improving the availability of
these products, and their crucial importance for social and economic development.

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