A new occurrence in the Delhi University Copyright Case
The much spoken about verdict pronounced by Justice Endlaw on the Delhi University Copy right case has yet again grabbed everyone’s attention as the Publishers filed an appeal against the decision. The Delhi high court after a series of litigation had held that the making of course packs for the purpose of education was well within the bounds of the law and did not amount to copyright infringement. A brief of the case can be read at ” A breakthrough for Indian Copyright Law“.
The Chancellor, Masters & Scholars of The University of Oxford & ors. on October 5, 2016 filed an appeal against the single judge Endlaw’s landmark decision. submitted that Justice Endlaw’s decision was gravely erred and that it commits all academic texts and books to be easily accessible to the public at large. They claimed that the decision was a wholesale copying of all academic books and that Section 52 (1) (i) has been interpreted as a standalone section. They also submitted that the Section 52 (1) (i) merely allows reproduction and does not contemplate publication, distribution and sale of copyrighted publications. They further pointed out that the section only contemplates reproduction by a pupil or a teacher and did not bring into its scope a University or its agent. They further emphasized that such a judgement would permit the unrestricted copying of any copyrighted work by private and public institutions such as universities, colleges, schools, etc. thereby destroying the value of copyright protection.
The appellant Publishers stated that the interpretation of Judge Endlaw runs contrary to India’s International obligations, in particular the “Three Step Test” articulated in Article 9(2) of the Berne Convention and Article 13 of Trade Related Aspects of Intellectual Property Rights(TRIPS). The mentioned clauses require municipal law to restrict the unauthorized reproduction of protected works to what it describes as being ‘special cases’. The exceptions which may be carved out in ‘special cases’ are not absolute as “the reproduction must not conflict with normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author.” The appellant Publishers claimed that Justice Endlaw through his interpretation of Section 52(1)(i) completely inverted the scheme of the statute and failed to appreciate that the statute is structured in a manner that is intended to be fair to both copyright owners and to the consumers of copyright works and that as such the impugned order passed inverts the rationale of Section 52 as a whole. The submitted that Section 52(1)(i) only provides for the reproduction and does not allow publication i.e. issuing of copies to the public. They claimed that the decision of Delhi High Court would completely destroy the ability of copyright owners to have any say in reproduction, sale and publication of their copyrighted work in the academic and broader educational sector. They submitted that the exception under Section 52 is a narrow one and has to be seen as an exception and not as a standalone right.
The Publishers further moved a motion seeking for an interim injunction which was dismissed by the division bench of the Delhi High Court on October 6, 2016 after a heated round of arguments between the lawyer for the Publishers, versus lawyers for DU, Rameshwari Photocopies, ASEAK, SPEAK. The division bench accepted the appeal and stated that it shall hear the arguments on November 29, 2016. The Publishers submitted a course pack allegedly published by Rameshwari in May 2016 which violated the earlier restraining order against them. This course pack was never produced earlier or served on any of the defendant. We eagerly await the final decision of the division bench of the Delhi High Court in the coming days.