Copyright as exception

Free competition and access to knowledge have been the default legal norm for many a nation.

In a thought-provoking piece, Krishna Kumar, a former NCERT chairman, argues that the Delhi University (DU) copyright decision encourages students to merely photocopy and skirt the more laudable aim of reading full books.

Speaking from personal experience, I was educated at the National Law School, Bangalore on course packs, where readings from different authors were excerpted and presented to us. When I yearned for more, I simply went to the library and picked up the full book. That is what a course pack does, or at least is meant to do. It is not meant to extinguish one’s fire for learning, but to kindle it. If in practice, it does no such thing but simply inspires students to regurgitate, that is not the fault of course packs but of the instructional methodology and uninspiring teachers. Kumar is right to the extent that our educational ecosystem suffers from some of the worst pedagogical woes.

However, his implicit suggestion that reversing the recent copyright verdict in favour of publishers will remedy this malady suffers from a striking logical fallacy. Restricting the right to photocopy will not automatically swing students towards savouring full texts. In fact, publishers themselves are hoping for this photocopy culture to continue — the only difference is that in their commoditised world, these copies — each and every page — have to be paid for.

Publishers know all too well that students are not their market. Had it been otherwise, they would have priced the books much more affordably. In an empirical study conducted some years ago, we demonstrated that a number of legal and social science texts were prohibitively expensive. The latest editions were not often available in India. Rather publishers were content with dumping old outdated editions at lower prices in India. As for the latest editions, they had to be imported at considerable cost, often exceeding those charged in the western markets, home to many of these profiteering publishers.

Kumar bemoans the fact that publisher profits have taken a big hit and they deserved to have their coffers filled. But where is the data for this?

From a layman’s perspective, photocopying has been rampant for well over 30 years in India. This is the first such copyright suit to be brought against an Indian educational institution. Had photocopying really eaten into publisher revenues, would this industry have survived in India?

Couldn’t one argue that course packs pump up publisher revenues in the long run by popularising authors to students who may otherwise have never heard of them? Little wonder then that a great number of authors signed a joint petition — which was submitted to the court — supporting the stand of students in carving up this clear legal zone for copying without being assaulted by an overarching copyright norm. A wisdom echoed by the sensible Amartya Sen!

This law suit is not about any serious economic damage suffered by publishers. Rather, it’s an avaricious attempt to cash in on an additional revenue stream that publishers have been salivating over for years. In the meanwhile, the Indian Reprographic Rights Organisation went around warning universities of dire copyright consequences if they didn’t pay up. All of this while the law suit was being fought and DU was legitimately arguing that the copyright exception permits such copying.

But what’s the harm in permitting them this privilege, you might ask? After all, aren’t these just a few extra pennies for the photocopied pages? Wrong! These pennies will soon convert to pounds as the Canadian experience amply reveals, where licensing fees were jacked up over the years to unaffordable levels, forcing universities to walk out of their licensing arrangements.

Contrary to popular belief, this path-breaking ruling by the Delhi High Court does not provide a carte blanche for full text copying. Rather the only issue before the judge was whether the copying of excerpts from books for the purpose of creating and disseminating course packs is legal. The judge ruled that the law was clear on this point and it exempted course pack copying. If the language of the law needs change in the near future to accommodate the concerns of the publishers (that without this additional copyright tax, they will go down under), then that policy case will have to be empirically made out by publishers. Till then, as the judge rightly alludes to, educational access is the controlling norm and copyright the mere exception.

Tis’ as it should be: For free competition and access to knowledge has always been the default legal norm for many a nation, with a former US president going so far as to label intellectual property (IP) as an “embarrassment” to be suffered only for the larger “public benefit”.

Unfortunately, powerful IP lobbies have successfully reversed the burden of proof and framed a narrative to trump up IP as the controlling default norm, and any carve out (such as educational access) as an “exception”, to be be grudgingly granted only upon strict empirical validation.

Reversing the copyright verdict will not sway our students towards highly priced academic books; rather it will restrict learning even further by imposing an additional educational cess.

The writer is Honorary Research Chair Professor of IP Law at Nirma University and the founder of SpicyIP

Source: Indian Express, 19-10-2016