As many of you may have heard, the Delhi High Court just handed down a major IP verdict in the DU photocopy case. In a 94 page decision, the court (Justice Rajiv Sahai Endlaw) dismissed the suit of the plaintiffs (CUP, OUP and other leading academic publishers) and held that the educational exception under section 52(1)(i) of the copyright act is broad enough to cover the acts of photocopying and the creation of course packs by Delhi University (DU) for their students.
For background to this case, see our postshere and here. Other posts with the tag DU can be foundhere.
As some of you know, a group of us academics (drawn from the law and social sciences) intervened in this DU copyright matter and presented arguments to the court. We formed an association calledSPEAK(Society for the Promotion of Educational Access and Knowledge) for this purpose. Our counsel was Swathi Sukumar, a terrific lawyer at the Delhi high court, who was led by the wonderful Neeraj Kishen Kaul, a leading senior counsel. Similarly a number of students had formed an association calledASEAKand their counsel was Jawahar Raja, an exceptional lawyer (I had the great privilege of going to law school with him).
DU’s counsel was the truly gifted Gopal Subramanium (one of India’s leading senior counsels or silks) who ran a rather maverick argument stating that the earlier framework where one qualified an act as an infringement and only then went into the “defences” was wrong and in cases such as this, there is no infringement at all in the first place. From my limited understanding of the order at this point, I believe the judge did incorporate this insight into his decision.
On a broader note, it seems like the court was pleased to accept many of the arguments that we had advanced. Here are the key highlights based on a quick understanding of the order (this is my version and only I am to be held responsible if there are any errors).
The judge (Justice Endlaw: god bless his soul!) dismissed the publishers’ law suit as a whole. Noting that there was no cause of action at all. Since there was no actionable infringement in this case. All the alleged copying is covered under the broad educational exception under section 52(1)(i) of the copyright act. In short, the judge noted that there was no need for trial at all in this matter, since there was no actionable infringement.
The decision stands at a whooping 94 pages!
The judge explicitly stated that the educational exception under section 52(1) (i) should be construed widely and clearly covers the present set of acts engaged in by DU (photocopying excerpts of books etc and creating course packs). Plaintiffs’ argument that it should cover only photocopying in the classroom is incorrect. The exception should cover all kinds of educational copying including copying for the purpose of preparatory work towards a class etc.
Copyright is not a “divine” right! The judge actually said this! I repeat: God bless his soul!
IRRO doesn’t even come into play since educational exception covers the alleged acts. And no need to pay IRRO. So out goes the IRRO business model strategy, which I believe is why this suit was brought in the first place at all.
If DU can photocopy, so can its agents (Rameshwari photocopiers) or any photocopier for that matter, whether inside or outside the University.
This decision will prove one of the biggest landmarks in IP jurisprudence the world over. And clearly spells out that private rights will have to yield to larger social goals which have to be interpreted widely. Much like the Supreme Court decision in the Novartis case, this decision too makes it amply clear that while India will be guided by foreign precedent, it will carve out its own IP jurisprudence and interpret the law in a way that suits its own societal requirements.
On a related note, I’m really happy to see such a progressive decision come out of the Delhi High Court (which, when compared to the Mumbai high court) has, of late, been churning out atrociously one sided and skewed IP decisions.
A great number of players came together in a wonderful collaboration to make this victory happen. Students, lawyers, academic, activists and many other well wishers. Well done to all of them! And heartfelt thanks for preserving this much needed academic space when all other spaces have been shrinking thanks to an ever expansive notion of private IP rights. (the latest being a hugely problematic ruling from the EU making evenhyperlinkingillegal!)
Prof. Basheer is a well-known lawyer and commentator on IP law and policy in India. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of Spicy IP – India’s leading IP law and policy website, and an Advisor to The Dialogue.