Promoting right of access to knowledge for educational advancement: Indian court decision a model for South Africa?

by Desmond Oriakhogba

india-safrica-flagA five-years courtroom tussle concerning the rights of access to knowledge for the advancement of education in India was brought to an end in May 2017 by the Indian Supreme Court (ISC). Interestingly, the struggle ended in favour of the right of access to knowledge. A petition for leave to appeal lodged by the Indian Reprographic Rights Organisation (IRRO) against the decision of the appellate division of the Indian High Court (IHC – which upheld the right of access to knowledge) was summarily dismissed by the ISC.

It all began in 2012 when three publishers (Oxford University Press, Cambridge University Press and Taylor & Francis) filed a suit before the High Court in New Delhi (trial court – the trial court was constituted by a single judge of the IHC.) against the University of Delhi and a photocopying services provider. The publishers sought a permanent injunction restraining the defendants from infringing the copyright in their publications. The publishers also applied for interim injunction pending the trial for the main suit.

The uncontested facts of the case are that the University of Delhi identified course materials based on its syllabi. The course materials included extracts from textbooks published by the publishers. The extracts where photocopied and bound in four course packs by the photocopying services provider and sold to students and faculty of the University of Delhi at a fee of 40 paise (~ZAR 0.08 at today’s conversion rate) per page. The photocopying services provider operated from the premises, and on the authorisation, of the University of Delhi. On the average, the extracts constituted 8.8% of the textbooks each of which cost 2,500 Indian Rupees (~ZAR 510).

During the pendency of the suit, the trial court granted two interim reliefs in favour of the publishers. First, an ex parte order was granted in August 2012 appointing a Local Commissioner to visit the premises of the photocopying services provider unannounced for a search and seizure. The Commissioner discovered that apart from the course packs in issue, the photocopying services provider also photocopied whole textbooks back-to-back. The second relief was an interim injunction restraining the photocopying services provider from “making or selling course packs and also reproducing the plaintiff’s publication or substantial portion thereof by compiling the same either in a book form or in the form of a course pack, till the final disposal of the said application”.

In September 2016, however, the entire suit was dismissed, along with the interim injunction of October 2012, by the trial court . The trial court refused to restrain the University as prayed by the publishers. The court reasoned that the defendants’ acts complained about did not constitute infringement as they fell under the educational exceptions in section 52(1)(i) of the Indian Copyright Act, 1957 (ICA).

The foregoing led to an appeal to the appellate division of the IHC (appellate court), which was decided in December 2016. The appellate court upheld the order of the trial court refusing the interim injunction. However, it remitted the case back for trial of the following issues of fact by the trial court:

  • is the inclusion of the copyrighted work in the course pack justified by the purpose of the course pack?and
  • is photocopying of entire books permissible?

The appellate court carried out an in-depth interpretation of the copyright exception in section 52(1)(i) ICA. According to that section, “the production of any work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions” is not copyright infringement. The appellate court held that the fair dealing provisions in section 52(1)(a) ICA (which are similar to the fair dealing provisions in section 12(1) of the South African Copyright Act, 1978 [SCA]) were not applicable to the case because the case fell squarely within the ambit of the section 52(1)(i). The opinion of the appellate court is expressed as follows:

“In our opinion the additional reasoning by the learned Single Judge with respect to course packs on the strength of Section 52(1)(a) of the Copyright Act, 1957 is probably intended to support the interpretation placed by the learned Single Judge to Section 52(1)(i). The reasoning being that for purposes of private research, private study and criticism if a single individual could copy a copyrighted work then it made no difference if same activity was done in the plural. This reasoning overlooks that even if a single individual were to use a copyrighted work for private research, private study and criticism the use would be subject to ‘fair dealing‘ because clause (a) expressly uses the said expression and thereby limits the contours of the use. We find that the learned Single Judge has not discussed this aspect i.e. the applicability of fair dealing if the offending activity was covered by Section 52(1)(a) of the Copyright Act, 1957. Concededly, the course packs were claimed to be material used during course of instruction and therefore photocopying copyrighted material i.e. reproduction had to be determined with reference to clause (i), and clause (a) has no relevance”. 

Even so, the appellate court adopted a broad, liberal, purposive and progressive interpretation of section 52(1)(i). It interpreted the section in the light of users right. In interpreting the section, the appellate court examined notable cases from the US, the UK, New Zealand and Canada that addressed fair dealing or fair use. However, the appellate court held that section 52(1)(i), unlike the fair dealing and fair use exceptions in those cases, does not contain any quantitative or qualitative limitations to the user right in the section. According to the appellate court, in considering section 52(1)(i):

“[…] the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative”.

The right of access to educational materials for the advancement of education within a developing country context such as India formed the main discussion of the case. The pronouncement of the appellate court on this issue is instructive. According to the appellate court:

 “The importance of education lies in the fact that education alone is the foundation on which a progressive and prosperous society can be built. Teaching is an essential part of education, at least in the formative years, and perhaps till post-graduate level. It would be difficult for a human to educate herself without somebody: a teacher, helping. It is thus necessary, by whatever nomenclature we may call them, that development of knowledge modules, having the right content, to take care of the needs of the learner is encouraged. We may loosely call them textbooks. We may loosely call them guide books. We may loosely call them reference books. We may loosely call them course packs. So fundamental is education to a society – it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position. Of course, the more indigent the learner, the greater the responsibility to ensure equitable access.” 

The argument by the publishers that the defendants were making profit from the course packs and that the defendant were constituting direct competition to their publishing business was rejected by the court. The court was of the view that students would not be potential customers for the textbooks used in the course packs because of the option of visiting the library. Also, the court reasoned that by “producing more citizens with greater literacy skills and earning potential, in the long run, improved education expands the market for copyrighted materials.”

It could be argued that Indian courts have shown the way to promote the right of access to knowledge for educational advancement for other developing countries to follow. The decision of the appellate court reflects both legal and policy judgments that are very important within developing countries’ socio-economic context such as South Africa. The judgment is a manifestation of how copyright law balances public interest in the promotion of societal wellbeing and the need to provide sufficient reward for copyright owners.

The judgment is coming at an auspicious moment when South Africa is taking steps to amend its Copyright Act. It should be noted that there is currently no provision similar to section 52(1)(i) ICA in the South African Copyright Act. However, the 2017 Copyright Amendment Bill presently being considered by the South African parliament contains a proposed section 13B(1) which is similar to section 52(1)(i). If so enacted, the Indian court decision will act as useful guide in interpreting the proposed section 13B(1) in South Africa.

The case also awakened societal consciousness (particularly students, academics and authors) in India on the importance of access to knowledge and how copyright law could be used to achieve it. It united students, academics and authors in India. Student bodies joined the suit as defendants. Also, students and authors mounted pressure on the publishers to withdraw the suit. Although, the suit was remitted for trial on some issues as indicated above, the publishers who initiated the suit eventually withdrew from the trial.