Saturday, Mar 25, 2023

Copy This

Copy This

Students have been photocopying expensive text-books all these years, and the publishing industry has thrived and prospered. Should not the Copyright Act have a liberal exception for educational books?

“They came one Saturday afternoon, quite without warning… as though it was a raid. They searched the shop and confiscated the course packs…”

We are standing in the grounds of the Delhi School of Economics campus, in the oppressive heat of a summer evening. The scene is a familiar one: the library building on one side, the canteen—with students playing carom—on the other, and the college photocopying shop in front of us: all integral parts of an Indian university campus. But Usman Javed, who has just spoken, casts a rueful glance at the shop. It is the focus of our conversation. In Delhi University, for the last two years, it has been a fraught subject.

At first glance, Rameshwari Photocopying Services looks like your basic photocopying shop. It might be any among the generic, small, two-roomed shops that dot the landscape of every university campus in India. For more than two years now, however, this nondescript building has been the site of a steadily-brewing, worldwide conflict that has pitted university publishing houses against universities and—more poignantly—against students. In August 2012, three publishing houses—Oxford University Press, Cambridge University Press and Taylor and Francis—initiated a lawsuit against the photocopying shop, and against Delhi University, within whose premises it is situated, and whose students it serves. They argued that “course-packs”—bound volumes that contain excerpts from various textbooks — infringed the copyright that the publishers held in those books.

The case has been slowly proceeding at the High Court of Delhi. Last year, the Court issued a temporary injunction restraining the photocopying shop from selling the (allegedly) infringing course-packs until the case was decided. This, Usman tells me, caused an immediate ripple effect, where a number of other photocopying shops in and around Delhi University stopped supplying the course-packs. Inside Rameshwari, I see a tangible example of how the formal, technical pronouncements in a courtroom impact peoples’ lives: “have you suffered financial loss because of the stay?”, I ask the proprietor. He shrugs his shoulders, and replies, “What do you think? The course-packs were one of our main sources of business.” Two years have passed since the case was filed, and more than a year has gone by since the stay order was issued. Nothing has been decided. The way the law works, however, the photocopying shop cannot do a thing with the course-packs—and students cannot have access to them—until the Court decides whether or not the law has been broken. When that will happen is anybody’s guess. In the quicksand of India’s legal system, which gradually and inexorably sucks the heart and life out of even the most hardened—and desperate—litigants, a “temporary” injunction remains in place for years. It is a veritable death sentence for the alleged infringer, and a victory for the copyright holder without the bother of having to succeed in a trial. And so it is proving in the Delhi High Court, as postponement follows postponement, and the photocopying shop remains trapped in a never-ending hall of mirrors.

In the meantime, the backlash has been intense. Three hundred academics, many of them published by the plaintiffs, wrote an open letter disagreeing with the lawsuit (this was initiated by an academic association called SPEAK, which has also appeared in defence of the photocopying shop before the High Court). Amartya Sen, a Nobel laureate and one of India’s most famous economists, wrote separately to express his “anguish” at the incident. There is even a “copyright jingle” about the lawsuit, up on Youtube. And in November 2012, the Association of Students for Equitable Access to Knowledge was formed on the Delhi University Campus. That is how Usman comes into the picture.

“We began life as a reaction campaign, called ‘Campaign to Save D School Photocopy Shop’”, he tells me. “But after the stay order, we realised that we needed to do something more. So we became an Association, and persuaded the Court to let us intervene in the case, on behalf of the students.” They had to do it. The Students’ Union, he says, took no stand, and the university administration itself was hostile. In fact, the library—from where books are photocopied for the coursepacks—refused to engage with the shop. The Association is now at the forefront of the social movement against the lawsuit. Initially, its mandate was public awareness. It held a number of public meetings, many of them aimed at educating people about the vagaries of copyright law. Now, it is seeking to expand its scope to a broader issue, of which the copyright controversy is just one part: access to knowledge.

I ask Usman if they are considering campaigning for open access models, systems of academic publishing that consciously disavow copyright and licensing. “We are talking about it”, he says. “One thing we want to look at is how traditional publishers have so much hold in academia.” Apoorva, who has also been involved in the movement since its inception, explains: “young professional academics are subject to a grading system that requires publications, and awards points on the basis of which publishing company brings your book out.” This is why—despite the group letter opposing the lawsuit—it is extremely difficult to initiate an accelerated shift to open-source models that are not dependent on traditional publishers. Success in academia depends entirely upon academic reputation, and academic reputation is bound hand and foot to publishing houses. The inertia of the system, therefore, is nearly unbreakable. Usman is optimistic, however. “We have been talking about alternatives with younger scholars… there is a worldwide movement towards open source, and we can be part of it.”

Yet why would three publishing houses, two of them affiliated with universities, with the stated aim of disseminating knowledge as widely as possible, find themselves on the opposite side in a courtroom from a university and university students?

The publishing houses argue that they must earn adequate remuneration from book sales, to remain economically viable, and continue to serve the academic and student community. Every book photocopied, they say, is a potential sale lost. If photocopying—or textbook piracy, as it is sometimes called—becomes widespread, the economic loss could be severe enough to jeopardize the existence of the academic publishing industry. Then, the argument goes, everyone would lose.

“In the beginning,” Usman says, “they called us—the students—thieves. When we went to distribute leaflets in front of the CUP stall at a book fair, they even called the cops. But when the parents took our side, they changed their tune. Even in Court now, they just argue this is how the international system works. They say that the publishing industry will die unless research is incentivised.”

The argument echoes the traditional justification for all copyright law. Copyright is an engine of creation. If we want authors and artists to create, we must allow them to gain economic value from their creation (otherwise, they will have no incentive to create). They secure the opportunity to gain that value through the control over what they create that copyright confers.

Yet we also recognize that too much control, or monopoly power, might end up stifling the creation that copyright is designed to foster. Creation does not take place in vacuum. It needs a base of accessible existing materials, a background culture and background knowledge, to draw upon. For this reason, copyright laws worldwide contain limitations. For example, copyright does not protect ideas, until and unless those ideas have been reduced to a recognizable form of expression. J.R.R. Tolkien would not have copyright over the idea of a magic ring that could destroy the world, but he could have copyright over the epic novel The Lord of the Rings. The limits of the laws are intended to ensure that there is enough material in the public domain for future creators to use and build upon.

In addition, sometimes, meaningful communication requires us to use even copyrighted work. A famous, recent controversy involved Alice Randall’s novel The Wind Done Gone, a retelling of Gone With the Wind from the perspective of a plantation slave. Officially labelled as a “parody”, the book’s objective was, among other things, to question the uncritical descriptions of happy plantation life in Margaret Mitchell’s original work. Mitchell’s estate sued, and after considerable public debate, the case was settled out of court. While The Wind Done Gone was a difficult case, because it borrowed characters, setting and events wholesale from Mitchell’s books, it nonetheless illustrates an important point: parody, criticism and even instruction will often be difficult without recourse to copyrighted text. Copyright laws the world over recognize this, categorizing such uses under the legal heading of “fair use”, or “fair dealing”.

A standard instance of fair dealing is limited use of copyrighted work by universities and schools, for teaching purposes. Teaching is of great social value, and often, teachers need to reproduce parts of assigned textbooks for effective instruction. Asking academics to seek out individual publishers for permission, which are not always easy to deal with, illustrates the necessity of a general fair use exception for teaching purposes. Yet that leaves the crucial question unanswered: how much use is fair? In a recent case, an American Court arrived at a ballpark figure of 10% of a textbook as the threshold for fair use. It reasoned that anything more would create economic competition between the original work and the photocopied work. Presumably, instead of buying the original text, users could simply rely upon the photocopy. The underlying idea, again, is that copyright is a system of monetary incentives for authors, in order to induce creativity.

This reliance upon the market has also led American courts to accept the practice of licensing. Collective copyright agencies, acting on behalf of authors and publishers, now license the “right” to copy limited portions of textbooks to universities. The very existence of a licensing agency implies the existence of a market. And if a market exists, then the philosophy of copyright justifies its exploitation. Or so say the American courts.

Emboldened by this American judicial approach to copyright, fair use and course-packs, the publishing houses in the Indian lawsuit are making similar arguments in Delhi. They contend that photocopying should only be carried out under the auspices of the Indian Reprographic Rights Association (IRRO), which carries out the licensing systems (interestingly, the IRRO has been refused registration by the government). But copyright scholar Shamnad Basheer says that the IRRO permits only 10% copying under its license. This would seem to suggest that even the threshold figure of 10% and everything under it requires a license. When the American Courts themselves have held that 10% does not require a license, this practice of the IRRO seems truly astonishing.

It is said that there can never be too great a divergence between the laws of a society, and its cultural norms. If that is true, then the Delhi University Photocopying case presents a huge disconnect between law and culture. If someone said the word “education”, you would probably think of school buildings, classrooms, teachers and educational materials. In India, you would also think of the neighbourhood photocopying shop. In a country famed for its diversity, with its bewildering variety of cultures and experiences, the ubiquitous neighbourhood photocopying shop is one of the few threads that unite virtually every Indian’s educational journey.

From the first day of high school to the last day of college, students are faced with the following situation: many prescribed textbooks, almost all frightfully expensive. Lawrence Liang, who works on copyright issues with the Alternative Law Forum in Bangalore, and has been heavily involved with the case, points out: “if you look at just one course namely SOC 102: Sociological Theory: Some Conceptual Issues, there are 20 books which are prescribed, all of which are foreign publications… excluding one absurd one priced at 50,000… the rest total up to 25,140 averaging around 1,400 per book. And this is just one subject. If you add to this comparative purchasing power it becomes even more dire.” Now, compare this with average family earnings in our country. With a per-capita income of $1499, India ranks 140th in the world. The need for a quick-fix solution in the form of photocopying almost limitless amounts at an almost negligible price is clear and pressing.

The sheer economics of the situation make only one course of action viable. To have a meaningful education, students photocopy. They photocopy parts of books, and they photocopy entire books. There is thus a thriving photocopying industry, in the shape of small, neighbourhood shops, in the vicinity of educational institutions, all over India.

In a country of grinding poverty and inequality, education is the holy grail that can help children, parents and entire families break out of a vicious circle. Even the parliament took heed of this, recently amending the Constitution to enshrine a “right to education”, as a sub-category of the right to life. To add to this, Basheer tells me that “a parliamentary committee made express note of high prices when recommending that parallel imports of books be legalized in India.”

Over the last five years, legislation has been passed to bring down economic barriers to access. Yet, highly priced textbooks remain one of the most potent barriers to entry. The neighbourhood photocopying shop serves not just a purely economic need. It has a deeply cultural significance. It is one of the keys to the magical tower of education. This is why students have flocked to its rescue with such deep conviction and passion. Understandably, they see their own futures bound up with the future of the photocopying shop. The day the shutters come down upon the shop, education itself will become a barred and gated commodity, accessible only to the rich.

Perhaps realizing the absurdity of trying to enforce laws against photocopying shops in a country where photocopying entire books is seen as a cultural norm, and is an economic necessity, the publishing houses have honed in upon the university as their target. On the face of it, they seem to be making a reasonable claim: let us give you a license to copy, in exchange for fair remuneration. That’s all we ask. The students will not have to pay us for buying original textbooks, but you must pay us for allowing them to photocopy selected portions.

Apoorva, however, argues that there is a deeper principle at stake. When you think of Delhi University and other state-funded institutions of higher education, she observes, academic writing is already being funded by the taxpayer. “It is publicly produced and funded knowledge, and yet the publishers claim that the final product is their sole property. Why?”

Usman adds, giving short shrift to the license argument: “even the license only allows either 10% to be copied, or one chapter, or whichever is less.” And, once you go in for the license, he points out that the terms are with the IRRO. “Earlier, it was the University that would set a price upon photocopying… now, it will be the IRRO that will decide, and any revision will also happen on the terms of the IRRO. Nor can it be reviewed. Essentially, the University will lose all control over the dissemination of knowledge.”

There are other questions. Where will universities get the money to pay the license fees? Unlike their American counterparts, Indian universities are neither handsomely supported by the government nor well-endowed thanks to private donations. Any fee universities owe for a license to copy will be passed on to students. Instead of the price of textbooks acting as a barrier to education, it will be university fees that will become the new barrier. Either way, the students will suffer. Little surprise, then, that the Delhi University student movement has rejected the license-fee offer outright, and vowed to contest the matter in court, until the bitter end. In Court, the publishing houses have compared the rise in price to a “meal out”; but, as Liang asks, while that argument might hold for an upper-middle class student, “is that the profile of the average DU student—or, for that matter, the average college student across the country?” If, for instance, a license fee requires a payment of 50p/page (as one of the sample licenses, Usman tells me, does), then that automatically raises the price of photocopying by 100%. Where does that leave the average student, whose board and lodging expenses are already unsubsidised?

Even in Canada, a country immensely richer than India, the problem has been noticed. Canadian universities initially agreed to a licensing arrangement that was pegged at a reasonable price. Once they opted in, however, the price steadily increased, until it became unsustainable. Canadian courts have been far more sympathetic to the predicament of universities and students than their American counterparts. In two important cases, they eschewed the economic approach, identified fair use as a “user’s right”, and imposed the burden of proving direct financial damage upon the publishing houses. The publishing houses were unable to meet this challenge.

On reflection, that is hardly surprising. If students are not allowed to copy, it is not the case that they will spend ten times the money upon the original textbook. In most instances, they will simply be unable to do so. They will not buy the book at all. And if that is true in a country as rich as Canada, it is certainly true—in a much stronger sense—for one as poor as India.

Ultimately, Basheer, Liang and Usman argue, the main constituency that a license-fee agreement would benefit is the publishers. An arrangement that protects the interests of publishers at the cost of authors, universities and students, in breach of India’s constitutionally guaranteed commitment to education, has its priorities reversed. But what of the counter-argument that if the publishers are forced to shut down because of the effect of photocopying on their sales, there will be an even worse impact on education? Basheer strongly challenges the premise of the argument. “Photocopying has been rampant in India all these years”, he says. “So one would have expected the publishing industry to have crumbled in the light of all of this copying. Yet this is far from being the case. The industry has always posted healthy growth figures in India, leading one to infer that student photocopying does not really drive a wedge into their main market. Rather, a liberal copying regime for students ensures that there is wider readership and more familiarity created for authors.” He points out that, in any event, Section 52 of the Indian Copyright Act contains an inbuilt exception for reproducing copyrighted works by either teachers or pupils in the course of instruction. It is this provision that the students will ultimately rely upon to make their case for course-packs, and for photocopying.

The Delhi High Court case can be described as requiring only a clarification of a technical point in Indian law: what is the scope of the educational exception in the Copyright Act, and what is its relationship with fair dealing? From another perspective, however, the case is about so much more. It is about our laws’ commitment to equity and to education. Is education something that we treat as a public good, accessible to all regardless of financial ability? Or is it something that we are willing to see placed behind high walls, barred and gated, where the only key granting access is money?

In a very significant way, this case will answer that question.

As I leave the premises of the Delhi School of Economics, I cast a look back upon Rameshwari Photocopying Services, now shuttered and forlorn. And I am taken back to my own college days, when the neighbourhood photocopying shop was a lifeline for access to books that were priced far beyond the reach of my student budget, a gateway into research and writing, and a saviour just before exams.

I cannot help feeling that it would be a great pity if the shutters were to come down for good.

Gautam Bhatia — @gautambhatia88 on Twitter — is a 2011 graduate of the National Law School of India University, and presently works at the Delhi High Court. He blogs about the Indian Constitution at http://indconlawphil.