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Fair Dealing: A Right Or An Exception An Analysis Of The Threshold Of Fair Dealing Through DU Photocopy Case

The exception to the protection of Copyright, Fair dealing or Fair use depending on the jurisdiction, is the most troublesome aspect of the Copyright regime. The doctrine of fair dealing or use is left open to court's discretion to interpret and adjudicate the threshold of it. Because of the vagueness in the difference fair dealing and stakes of the copyright holders, the line of threshold between bona fide and mala fide use of doctrine is undecided.

The watershed moment of Indian copyright regime took place because of the controversial legal action taken by three publishers against a photocopy shop of Delhi University. The research paper sets its goal on understanding the doctrine of fair dealing through the lens of DU photocopy case by critically analyzing the question:
  • Has court erred the meaning of Copyright Protection providing limitless use of doctrine of fair dealing under exception?
  • After this judgement, is Fair dealing a right or an exception in India?
In response to the question, we will be critically analyzing DU's photocopy case judgement in regards whether the factors upon which the decision was taken, is in the same direction as the purpose and aim of the Copyright protection.

Introduction
Since the advent of photocopying machine in 1954, photocopying has become more trouble- free making copies easily accessible to everyone at much lower expense. However, the Intellectual Property Rights are considered to be 'double-barreled' right where it provides protection to human incentiveness to create or invent work or art and at the same time makes the work or creation contribute to the progress of the society without making the protection absolute.

The need of balance between the protectional right of the author and the needs of the society at large regulations are made under Copyright Law. Thus, protection is being regulated through direct implementation of Copyright Laws and society's right to access is kept in check through limitations or exceptions provided along it.

The doctrine of Fair Dealing is then conceptualized to keep a check on both sphere of Copyright. Fair use or dealing which is regulated as an exception to protection achieve the economic aspect of copyright. It authorizes the reproduction or use the copyrighted work without infringing author's right.

The Economic Jurisprudence Of Copyright And Fair Use

The Intellectual Property deals with two distinct characteristics, the private rights of the copyright owner and the need for dissemination of knowledge. However, the social purpose of the copyright was "protection of copyright and related rights is to encourage and reward creative work."

This permits the works to be used without exhausting one's incentiveness and thus safeguarding the right of the author setting rationale behind the Copyright protection. Thus, 'market system' set-up helps the copyright owners, publishers, inventors and society to enter into commercial transaction to disseminate creative works and provide

incentives for the creation
The right holders are also the stakeholder in market who are able to internalize their incentive for the creation in result of achieving maximum social welfare as well as the interest of the right holders. Fair dealing comes to play where the market fails to provide the social welfare aimed to achieve. It has been determined by authors on various context most popular is the result of market failure.

Arising because of the imbalance caused in the market by the right holders demanding a impractical deal affecting the modern economic system and human development that hinges on cost reduction. In such cases, the doctrine of fair dealing assures the permit of using copyright material in effective way thus reducing the transactional cost of the user , serving the social welfare aim.

Fair use, as varyingly determined by different jurisdiction but on the most commonly accepted basic it is divided into two categories:
Fair dealing where the statue lays down defined permissible use compartments.

'Fair use test' which incorporates four factors.

The 'fair use test' is used in US Courts basing on four factors, which with time are being heavily relied on by courts of other jurisdictions as the determining factor:
  1. Purpose of use.
  2. Nature of work copyrighted
  3. Percentage of copyright material used.
  4. Effect on market value of copyrighted material.

In Campbell v. Acuff-rose Music, the US Supreme court held fair dealing to be an exception or a defence covered under Copyright. However, in CCH Canadian Ltd. V. Law Society of Upper Canada held it to be a right of the user than an exception to copyright protection. In regards to the interpretation of Doctrine of Fair dealing in India, the calculation is yet to be settled because of conflicting views over the years. Section 52 of Indian Copyright Act reads as, " The following acts shall not constitute an infringement of copyright", thus establishing a narrow and restrictive approach in interpreting it as an exception.

Copyright is a negative right and allowing an exception amounts to a positive right available for the public at large. The burden of proof is always upon the person whose work is a copyrighted material infringed by defendant's use. In R.G. Anand v. Deluxe Films, the court held no copyright infringement was done because the plaintiff subsequently failed to prove infringement of his works was done through defendant's play. This explains the doctrine of fair dealing granted public the right to use the copyrighted work without causing infringement of the work.

The DU Photocopy Case Study

Case Study of:
The Chancellor, Masters & Scholars of University of Oxford and Ors. V. Rameshwari Photocopy Services and Ors.

Background of the case: A case was filed in the Delhi High Court by three International publishers, Oxford University Press, Cambridge University Press, and Taylor and Francis, against the infringement done by Rameshwari, a shop licensed of photocopying within the premises of University of Delhi. The shop used to provide 'course packs', a collective bundle of small volumes of material from various authors packed into one book made in accordance to the course of Economics to meet the need of the students. In October 2012, the court issued a temporary injunction against the shop preventing it from selling any further copies until the complete settlement of the dispute.

Facts of the case:
  1. Rameshwari Photocopy Service is a shop licensed by the University of Delhi to provide and facilitate materials for student's education and research.
  2. The Economics professors authorized the shop to prepare 'course packs' containing small volumes of varies authors.
  3. Percentage of copyrighted material used : 8.81%
  4. Average price of the book: INR 2542, Highest Price: INR 15,889.
  5. The shop was instructed through Professors to sell it at 50p per page
  6. 2012, the publishers filed an infringement of copyrighted material against Rameshwari photocopy service and Delhi University.
  7. Legislations Involved: Section 52 (1) (a), Section 52 (1) (i), Section 52 (1) (h) of the Copyright Act, 1957.
Arguments Advanced:
Plaintiffs:
The Plaintiff argued that the Rameshwari photocopy service shop used to copy fragments of their copyrighted work building a 'course pack' amount to infringement of copyright.

The argued that it was the Professors of the Delhi School of Economics, issuing the books through library to Rameshwari Photocopy service shop.

They also argued that the shop made it's profit functioning commercially by selling it at 50p per page in place of 25p per page charged at other photocopy shops.

They also argued the making of a course pack devoid them, the publishers, the right to entitlement of rewards attached to their copyrighted material, as the market would drop because of the availability of course packs photocopied.

They argued that even if reproduction was done keeping in mind of the doctrine of fair dealing, Section 52 (1) (i), instructed by a teacher or pupil in the course of instruction, then this would directly cancel the purpose of Section 52 (1) (h) which stresses on bona fide intention of copyrighted material providing not more than two passages from the work to be used.

If the University really wanted to make materials easily affordable for educational purpose of the students then it can take license from IRRO ( Indian Reprographic Rights Association.)

Defendants:
The Rameshwari Photocopy service shop took defence under the Doctrine of Fair Dealing in Section 52 (1) (a) and (i) stating that the students will not be able to afford all the books listed under the syllabi of Economics School of Delhi and thus photocopied it for educational purpose only.

They pleaded that they are a licensed shop and were acting in a manner instructed by the Professors of the University and not by themselves.

The pleaded that they were charging rates as decided in the License Deed between the Delhi School of economics and The Rameshwari Photocopy Service shop.

They argued that term 'two passage only' maybe copied, doesn't limit or apply to Section 52(1) (i) used by educational institutions.

They argued that the limitation applied to the 'publication' of such works and not 'reproduction' of such works. Publication implies on making a work public ( referred in section-3) whereas the reproduction narrows the scope to only students and academic purpose.

Judgement.
Decision by Single Judge Bench.
Rajiv Sahai Endlaw J held that copyright is a statutory right granted under the Copyright Act of 1957 and photocopying fragments from books and making it available to the students enrolled in university, clearly for educational purpose, did not amount to copyright infringement. The ' course packs' photocopied by the Service shop has immunity against the statutory right as an exception stated under Section 52. The court also held that 'reproduce the work' u/section- 14(a) (i) includes photocopy as well. Thus the supply of copies enjoys immunity.

Decision of the Division Bench: The division bench comprising of Pradeep Nandrajog J and Yogesh Khanna J, sent back the matter to be decided by the single judge bench.

Endlaw J explained copyright "Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that copyright confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public."

Reason of the Judgement:
The legal deductions in the judgement which forms the real crux is in the favour of the University. The judgement upholds the doctrine of Fair dealing under Section52 of the Copyright Act, allowing the sale of photocopied course packs from Rameshwari Photocopy Service Shop.

The judgement clarified:
The photocopied course packs did not affect the market of the Copyrighted material as it was freely available in the Library of the university for the use of the students. Therefore the books did not face any competition.

The purpose of copyright infringement outweighs the infringement itself. The test of fairness is qualitative and not quantitative.

The course pack was provided only to the students with Universities ID and not to the general public.

It did not count to be a copyright infringement because the book is made available to the students through library, which make them accessible to the copyrighted material and make copies of it for academic use without infringing copyright protection.

Analysis Of The Judgement.
The judgement that circle arounds the Section 52 of the Copyright Act, 1957, permitting the reproduction of works through copying or photocopying as well for educational and academic purpose only is held legal. The doctrine of Fair dealing, gives an exhaustive approach and anything not falling under that would directly amount to copyright infringement.

The statutory interpretation of the case arises questions on how to determine the threshold of Fair dealing and if providing limitless use under this doctrine still keep the intention a bona fide one and not change to mala fide ?

Analysing this question the court completely deviated from the universal four factor test of Fair use and constructed another one for itself. The determinants used while testing the threshold of Fair Dealing are: purpose, nature, percentage of work and its effect on the market. The new interpretation of this doctrine narrowed down the protection granted under the copyright which can be easily override limitless under the veil of educational purposes. The academics including the teachers or professors to students are given the limitless power to use the copyrighted material without any limitation and to any extend until it serves the purpose. The new balance of rights and exception in this judgement sounds absurd for various reasons.

The limitless use of copyrighted material seems like a very grey area to decide where the learning use actually ends. Furthermore this interpretation makes very hard to understand the difference of bona fide and mala fide fair use of the copyrighted works. The undefined line between this right and exception makes the purpose of copyright protection ab initio. The fact that the very protection does exists but is subsequently suspended against the right of fair users. The judges proposes the absence of absolute copyright protection and that this protection is merely a statutory right. Implying there's no infringement as the right is not absolute.

The judge's interpretation can give way to individual teachers and students are puzzling. If the same has to be interpreted then any work can be photocopied or reproduce in anyway under the pretext of educational purpose and if this the scenario cannot it be deduced no protection lies against the authors who work in the educational field. He proceeds to explain photocopying and taking images on cell phones results in the same infringement if the course packs sums to infringement of copyright protection.

The judge took a broader view of the fair use interpretation giving examples of the expansion of Section 52 however such amendments are yet to be applied. Thus pointing out that there lies no difference in the fact that student photocopying copyrighted works is similar to the action taken by the University authorities to provide students with a course pack.

This interpretation was appealing but it just limits itself to the fact of balance between right holders and welfare of the student. However, there is a need of better interpretation and a clear defined threshold of Fair use. The judges as well as the legislature needs to consider the limitless interpretation of fair use doctrine will somewhere and somehow affect the incentive behind the works produce and thus set some ground minimal threshold for the protection of copyright like the four factors test and uphold the soul of the copyright protection.

This judgement also rises question on the paradigm shift of the Doctrine of Fair use exception to a right. The judge stressingly speaks of how the public welfare importance outweighs the right conferred to a copyright holder. The question of such interpretation sets how unclear is India's copyright regime in respect of this conflict. The unsettled confusion of fair use as an exception or a user's right is clearly expressed in this judgement.

The manner the court interpreted this would gravely and directly affect the market system of educational works and books to be published in Indian system. The judge focused more on the part of the affordability of the work and stressed on the point how this will be useful for the county to progress, which gravely affects the economic standard of the defendants 16.

There were no consideration to the visible loss of the plaintiff's reward and the loss caused to the plaintiff was discarded by fact of low purchasing power of the student to be completely unsustainable. This was held without any proper reasoning or calculative finding. Critically analysing the damage involved and the quantum of photocopying involved a economically evidence was necessary. The court also overlooked on the fact that such copies is even preventing the college to purchase the work rightly.

From this we can conclude that there lies no hardships for the academic institution to limitlessly reproduce the work and sell multiple copies, without repeating the purchase, protecting everyone but the publishers and authors. This leaves for the concept of buying one book and legally producing copies of it in Institutions under the shadow of educational purposes. This definitely kills the incentive of the academic works to be purchased and upholds the indirect prioritizing concept of profit making.

Conclusion
This landmark judgement shows the free flow of information and information to be easily accessible to the academic purpose. It is also important in terms how it expanded the interpretation of the fair use. The judgement sets precedent on very straight fact that the user's right if rightly justified can override the statutory protection provided by Copyright.

This judgement could tried to build a very balanced approach between the exception and the rule. A new approach balancing rights of both the right holder and user's, directions as to acceptable extent of copyright. One-sided precedent set will hence forth depower the protection under copyright. Fair use needs to be built and rechecked with growing globalization and legislative reforms needs to ensure the shift.

References:
  1. Henry P. Tseng, Ethical aspects of photocopying as they pertain to the library, the user and the owner of copyright, (1979).
  2. R. Posner, Economic Analysis Of Law
  3. Indian Copyright Act, 1957.
  4. Stanley M. Besen & Leo J. Raskind, An Introduction to the Law and Economics of Intellectual Property.
  5. Louis Kaplow & Steven Shavell, Fairness Versus Welfare.
  6. Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors
  7. Matthan, R., Narendran N., Fair Dealing of Computer Programs in India.
  8. Fair Dealing in Copyrights: Is the Indian law competent enough to meet the current challenges?, https://www.mondaq.com/india/copyright/299252/fair-dealing-in- copyrights-is-the-indian-law-competent-enough-to-meet-the-current-challenges , accessed on 20.10.2021
  9. The New Copyright Law: Photocopying for Educational Use, Jstor, https://www.jstor.org/stable/40225000?seq=1#page_scan///-tab_contents , accessed on 22.10.2021
  10. Critical Analysis Of The Fair Dealing Provision As Under India's Copyright Law, https://www.legalserviceindia.com/legal/article-4831-critical-analysis-of-the-fair- dealing-provision-as-under-india-s-copyright-law.html, accessed on 20.10.2021
  11. Comment: DU photocopying case, https://juriscentre.com/2021/04/12/comment-du- photocopying-case/, accessed on 22.10.2021
  12. Messiah of Education- The Delhi University Photocopy Case. https://www.lexorbis.com/messiah-of-education-the-delhi-university-photocopy- case/, accessed on 22.10.2021
  13. University of Oxford vs. Rameshwari Photocopy An Analysis. https://lawtimesjournal.in/university-of-oxford-vs-rameshwari-photocopy-services- an-analysis/, accessed on 25.10.2021.

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