Copyright consists of a whole bundle of rights: The right to reproduce a work, to publish it in a certain territory, or in a certain language. The Copyright Act does not say that someone may copy as much as he likes and as long as it is not meant for commercial purposes. The standard copyright law includes the "first sale doctrine." It says that after the first sale, the buyer may sell or otherwise dispose of the book.
A buyer may safely sell or give away any book published in the same country without fear of violating the copyright law. The copyright law prevents from copying a book, but not from reselling the copy bought from the publisher.
The regulations to the standard law offer certain concessions for educational institutions and for non-profit libraries. These include a defined number of multiple copies strictly for classroom use or discussion, but exclude compilations.
A similar situation was raised in the Court. The University of Delhi purchases books and stock those in its library, issue the same to different students each day or even several times in a day. The students few decades ago laboriously copied the contents or took notes. But now with the advancement of technology, students can photocopy the relevant pages. They use the services of photocopy shops outside the library in exchange of small payment.
The Delhi University also makes a master photocopy of the relevant portions as prescribed in the syllabus of the books of the plaintiffs purchased by the University and keep in its library for making further photocopies out of the master copy and distributing the same to the students.
The university also allowed the photocopying shops to supply photocopies made of the said master copy to the students. The university permitted the photocopier for photocopying the entire books, binding the same, offering or displaying the same for sale to whoever intends to purchase the same.
In two other cases in India the court held that the Copyright Act seeks to maintain a balance between the interest of the owner of the copyright in protecting his works on one hand and the interest of the public to have access to those works on the other and the two are competing with each other and a balance has to be struck. The copyright law is premised on promotion of creativity through sufficient protection on one hand and various exemptions and doctrines therein, whether statutorily embedded or judicially innovated, and recognising the equally compelling need to promote creative activity and ensure that the privileges granted by the copyright law do not impede dissemination of information, on the other.
Recently five publishers, namely i) Oxford University Press, ii) Cambridge University Press, United Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd., iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books India Pvt. Ltd., being the publishers, instituted this suit with Delhi High Court for the relief of permanent injunction restraining the two photocopy shops, who were doing business near University of Delhi, from infringing the copyright of the publishers by photocopy, reproduction and distribution of copies of these publishers' publications on a large scale and by sale of unauthorised compilations of substantial extracts from the plaintiffs' publications by compiling them into course packs/anthologies.
The High Court of Delhi observed that the copyright was designed to stimulate the art for the intellectual enrichment of the public. It is intended to increase and not to impede the harvest of knowledge. It is intended to encourage the creative activity of the authors and inventors in order to benefit the public. Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations.
But a recent decision of Delhi High Court, India on this issue changes the idea of protection of the rights of author or publisher as well as readers. According to the theme of the verdict there is no difference in the two situations, i.e., whether the photocopying machine is installed within the library or outside.
Even the university itself purchases photocopy machine and/or allows the students to photocopy themselves or employs a person for doing so. It is not infringement of Copyright law.
The Delhi High Court on September 16, 2016 has given its verdict that copy right is not a divine right and the Delhi University and the photocopy shops did not infringe the copyright of publishers under the Copyright Act of India.
The court observed that, in countries with not so much labour force, photocopiers are found to have been installed in libraries for the benefit of the patrons of the library so that they can make photocopies of passages of the publications in the library they are interested in for their personal use. India has abundant labour force and acts like photocopying are done by a person employed for the job.
This is not an issue whether the photocopying is done by an employee of the University or the machines are installed inside the library or any other place and the service is offered in lieu of payment.
The case of the plaintiffs before us is only of preparation of course packs, i.e., compilations of photocopied portions of different books prescribed by the University as reference in its syllabus. That, in my view, by no stretch of imagination, can make the photocopiers competitors of the publishers.
The judgment continued, in Indian context, imparting of education by the University is heavily subsidised with the students still being charged tuition fee only of Rs.400 to 1,200 per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying was unavailable, the students would instead of sitting in the comforts of their homes and reading from the photocopies, would be spending hours in the library taking notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail it. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better.
The Copyright Act of Bangladesh provides certain exceptions to infringement (under sec 72) for fair dealing without commercial benefits, namely, reproduction for use in academic discussion, review or criticism, publication of short passages, restricted reproduction or performance for educational purposes and reproduction of a few copies for use in libraries or for research or private study etc.
The publishers in the west and India are the source of books for university students in Bangladesh and they are served by low-cost photocopied books from Nilkhet market near the University of Dhaka.
There are few hundred photocopying shops to serve all the universities in Bangladesh. The western and Indian publishers have reservations about this market. The laws of Bangladesh and India have identical provisions of exception to infringement of copyright law and have similar economic condition. The Nilkhet market seems a legally valid market of books for Bangladesh students.
The writer is a Legal Economist and can be reached at firstname.lastname@example.org