A further Strike against Copyright Protection – Indian Court says: “Not a Divine Right”

A further Strike against Copyright Protection – Indian Court says: “Not a Divine Right”

In September 2016, the Delhi High Court (India) defends photocopying of university textbooks, here

http://timesofindia.indiatimes.com/city/delhi/Copyright-is-not-a-divine-right-Delhi-HC/articleshow/54372014.cms

In short words, the Delhi high court allowed Delhi University to issue photocopies of major textbooks published by leading publishers. The court said that this is allowed under the Indian Copyright Act, which exempts the area of education from copyright infringement. The court has extended this exemption to acts done by a commercial copy shop, which was still seen as a use for imparting education.

In a sideline only, this case gives also an idea about timelines of law suits in India. The law suit was initiated in 2012, resulting in a verdict in late 2016. This is seen as “fast” for a lawsuit in India.

A Bold Decision

What I find quite bold – and also factually correct – is the following statement in the verdict:

“Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.”

This may feel like a slap in the face of businesses who leverage on Copyrights in order to generate revenues: a group of publishers, including Oxford University Press, Cambridge University Press and Taylor & Francis, had sued one of the little private photocopy shops on the campus of the Delhi University. From a practical point of view, I find it surpring that this little defendant has fought back.

Some Background on University Copy Shops

For those of you who had the money to buy all the books when you studied at university, this may sound weird. But it has always been a common thing that copy shops at universities are selling “course packs”, that is, compilations of photocopied portions of different books prescribed by these universities as suggested reading in its syllabus. This does not only apply to Asia but to most other countries of the world.

And this university copying has now become a well-documented tradition. The Indian Justice who rendered the verdict recalled his own experience and he penned it down for the records:

“In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied.”

Is Collective Licensing a Way Out for Publishing Houses?

I remember myself standing for hours at copy machines, copying textbooks, during studying in Germany, 30 years back. This was only initially a problem. Copy shops first tried to prevent their customers from doing that but displaying information signages, but in vain. Copying books became even promoted by that. This issue has ultimately been solved by making copy shops paying lump royaltiy fees per page to authors’ copyright organisations, which in turn share a part of their income with those authors that are registered members of these organisations. German laws provide for such a solution, and the German Patent Office is the official body which overlooks these authors’ copyright organisations.

Being of German origin, I can say that this is a very German approach of dealing with this problem.

This once very German practice has today spread world-wide and there are now copyright collective management organizations (CMOs), also known as “collecting societies”, in many countries.

This does not only apply to written works. There are CMOs that specialize in different categories of works. In the field of text and image-based works these organizations are called Reproduction Rights Organisations (RROs). They typically deal with the licensing of secondary uses of books, journals, newspapers and magazines – in both their paper formats and their online or digital formats – and in some cases also with visual content such as motion pictures, photographs and illustrations. There are RROs in almost 80 countries, ranging from sophisticated organizations with long histories to start-up organizations in developing countries. Many RROs belong to the International Federation of Reproduction Rights Organisations (IFRRO).

RROs around the world work with different licensing models either required or permitted by their local copyright law. According to IFRRO’s Quick Guide there are three basic types of RRO licensing models, namely “Voluntary collective licensing”, “Voluntary collective licensing with legislative support”, and “Legal licenses”, and some RROs offer a combination of features from the three licensing models. RRO licenses can also differ in the number and types of works they include, the types of uses they allow, and their geographic scope.

This sounds nice and fair, right?

The Practical Side of It

Indian students have learned their lesson from the ongoing case. Their “course packs” are today distributed as neat PDF files over the Internet, so that they have their suggested readings on their laptops. For free. Or selectively printable for a small amount of money. Only then would a print shop generate some revenue. Not the publisher.

No one can sue a single student for doing this, and also not their suppliers. There are too many of them. And you don’t find them. Tor net and wireless networks make them invisibleand anonymous .

Conclusion

It is still to be seen whether the tidal wave that Internet is building up against Copyright can be chanelled by altering legislation and/or by introducing outdated concepts, such as CMOs.

Yet, I don’t believe in it, as it does not hit the nail on the head. Royalty fees are against human nature: I know from 20 years working in the area of IP enforcement that users are inherently not nice and fair.

Virtually no user is willing to pay royalties for Copyright protected works if one can get the same thing for free. This applies to all Intellectual Property rights: if one can 3D-print an article, it will be copied.

What can be copied will be copied, whether in Asia, in Europe or in the USA.

And if you are currently pursuing a career in a CMO, get out before it is too late. You will soon be riding a dead horse.

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