Photocopying, Course Packs and Access to Education

In one line

A Delhi photocopy shop compiled chapters from prescribed textbooks into course packs for students, three publishers sued, and the court held that section 52(1)(i) covered it because the course of instruction is the whole semester and not the classroom hour.

In the wording a student can write in an exam: section 52(1)(i) of the Copyright Act, 1957 provides that the reproduction 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, shall not constitute an infringement of copyright, and the Delhi High Court in The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, decided on 16 September 2016, held that the course of instruction covers the whole process of imparting instruction and that the clause is a stand alone exception not measured by quantity.

Why this case matters more than any other

Because it is about access. A prescribed textbook costs several thousand rupees, a course prescribes eight of them, and a student needs one chapter from each.

Because the alternative was a licence nobody could pay for. The publishers offered a reprographic licence; the University's position was that the copying was outside infringement altogether.

And because the court decided it on the words of the section. Not on hardship, not on public interest as an override, but on what "in the course of instruction" means.

The provision

Section 52(1)(i). "The reproduction of any work

(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or

(iii) in answers to such questions."

Notice three things. "Any work", with no limit of class. "Reproduction", with no limit of quantity. And no requirement that the dealing be fair, because the clause does not use the words.

Which is why the argument was about the words and not about proportions. The publishers said only a limited quantity could be taken; the court said the clause does not say so.

The decision

The case. The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, decided on 16 September 2016, is worked in the chapter on the education and library exceptions, which owns it. What follows is its reasoning applied.

"In the course of instruction" is not the classroom. The court held that the phrase covers the whole process of imparting instruction over the semester, from the setting of a reading list through the tutorial to the examination, and is not confined to what happens in a room with a teacher present.

Section 52(1)(i) is not a fair dealing provision. The words "fair dealing" appear in clause (a) and not in clause (i). A clause that does not require fairness cannot be given a quantitative limit by reading fairness into it.