In a decision that will go down as a landmark in the annals of global copyright jurisprudence, Justice Pradeep Nandrajog (along with Justice Yogesh Khanna) brings bold clarity to a much needed area in copyright law. Namely that when interpreting copyright defences, one has to be guided by their “purpose”. And not some fancy sophisticated four factor fair use/fair dealing test, notwithstanding that it emerged from arguably sophisticated common law courts.

Pankhuri has already dealt extensively with the decision in a very thoughtful post here. And referred to an opinion piece of mine in the Scroll.

Let me take the liberty of reproducing that piece here to build on the argument above. Given the lightning speed with which Justice Nandrajog conducted the proceedings, none of us knew which way the case would swing.

The judgement is a treat to read, as this is one judge that boasts a fair bit of literary flair. Sample this extract from a previous post of mine.

“In what is now coming to be a pattern of sorts, Justice Nandrajog intersperses his astute legal analysis with a litany of literary outpourings, likening the legal dispute to a maritime voyage filled with ships, lighthouses and what not. He introduces the dispute thus:

“While chartering the voyage the learned Single Judge has steered the ship in the choppy waters guided by what he saw to be lighthouses. Since we are re- navigating the same waters, our job in appeal would be to see : Whether what were perceived to be lighthouses were actually mirages, and due to which, on the wrong belief that these were rocky areas, the course of the ship was steered in a wrong direction to reach a wrong port of destination.”

In this DU copyright decision too, he plays on our sense of poetry, what with musical allegories and the like. And a reference to the fragrance in the foreign wind that blows. As I noted in one of my emails to our group of stellar defence lawyers who so powerfully argued this case and persuaded the judge that our interpretation was the right one.

“In one swell judgment, he’s invoked sound (music) and smell (fragrance of foreign winds). He did “sight” in an earlier decision on trademark exhaustion (Samsung case).  Wonder what’s next on the sensorial front? Touch? Taste?”

I also want to really thank Prof Ariel Katz, a very dear friend and a leading copyright scholar from the University of Toronto for his stellar help on this case. He spent several sleepless nights along with the rest of us owing to Justice Nandrajog’s super speedy shuttling of the proceedings. Including tipping us off on a wonderful thesis that he’d just examined…from a Canadian doctoral student, Lisa Di Valentino, who demonstrated that more than 70% Canadian universities (that she’d sampled) walked out of licensing arrangements with Access Copyright [the IRRO equivalent] in the last few years, owing to various reasons such as sharp price hikes by Access Copyright). The danger in going down the IRRO route (and converting what is essentially an educational exception into a compulsory licensing scheme) has been repeated ad nauseam on this blog and was powerfully presented again by our counsels to the court.

For those interested, my Scroll opinion piece reproduced below:

Publishers vs Pupils: Delhi High Court has struck a blow for the right to copy copyrighted material

The Delhi High Court has ruled that there is no restriction on how much of a book can be photocopied, so long as the course demands it.

In a process that will go down in Indian legal history as one of the quickest appeals ever, a Delhi High court bench comprising Justices Pradeep Nandrajog and Yogesh Khanna handed out a significant victory to Indian students, upholding their right to affordable education.

The initial lawsuit had been brought in 2012 by three leading global publishers, namely Oxford University Press, Cambridge University Press and Taylor & Francis. They alleged that by creating and compiling course packs for students (comprising copyrighted excerpts from books), Delhi university and its photocopying agent, Rameshwari Photocopy Service, were indulging in heavy duty copyright infringement.

Subsequently, two associations – Association of Students for Educational Access to Knowledge and Society for Promotion of Equitable Access to Knowledge – comprising students and faculty members and educationists were granted permission by the court to intervene in the dispute as defendants and support the stand taken by Delhi University.

In a fairly detailed judgment, a single judge had ruled in favour of the defendants, noting that the photocopying was perfectly legal under the terms of the educational exception contained in section 52(1)(i) of the Indian Copyright Act, which provides that any “reproduction” of copyrighted material in the “course of instruction” by “teachers or students” is kosher and does not amount to copyright infringement.

It was against this order that the global publishers had appealed.

Meteoric moment

The appellate court appears to have largely concurred with the overall conclusion of the single judge, though there are critical differences in the reasoning deployed. The single judge had dismissed the lawsuit outright, noting that the position of law was absolutely clear and the case did not warrant a trial.

While the single judge heard arguments over a couple of months and then waited more than three years to pronounce judgment, the appellate court went the other extreme and closed the matter in a mere month – from start to finish, proving that when our judges put their mind to it, justice can be dispensed at the speed of light. This is truly a meteoric moment for a country plagued by a pathetic pendency rate.

Much like the United States Supreme court, the appellate court kept most lawyers on a tight time leash, making it clear that it would brook no laborious or long winded legal arguments. The only unfortunate bit was that the court did this without any prior warning or notice, owing to which a number of counsels were caught unaware in terms of dates, availability and preparedness. One of them was almost forced to put her marriage on hold.

A schedule announced a bit in advance might have offset this negative, but thankfully, unlike the catastrophe of a similarly surprising note ban, this one fared better in terms of execution and final outcome.

Justice Pradeep Nandrajog, well known in the legal firmament for penning many a delectable decision with musical metaphors and the like, delivered this verdict too with a fair bit of literary flair. Sample this song of a sound-byte:

“After all, in the melody of the statute, all notes should be heard….A melody is the outcome of the sounds created when different instruments, such as a lute, flute, timbale, harp and drums are played in harmony. The notes of the instruments which are loud and resonating have to be controlled so that the sound of the delicate instruments can be heard.”

And later, while dealing with the applicability of foreign precedent, the judicious judge echoed MK Gandhi’s sentiment (on keeping his doors open for “foreign winds” to flow in, but refusing to be “blown off his feet” by them), noting:

“Whilst it is true that winds from across the border should be welcome in a country, but care has to be taken to retain the fragrance thereof and filter out the remainder.”

Crux of the ruling

The appellate court noted in pertinent part that the term “course of instruction” as used in section 52(1)(i) could not be limited to merely what transpired in the classroom, as the publishers contended. Rather drawing on a New Zealand case, the court held that it had to go well beyond the class.

The various defence counsels had vehemently protested this interpretation, noting that in this age of “flipped learning” and the like, where the initial acquisition of knowledge comes out of readings done by a student at home (as opposed to an age old lecture method where even basic information content is disseminated in a classroom), such an interpretation would be terribly anachronistic and obsolete.

It is rather surprising that a publisher such as Oxford University Press which is, by its own admission, a “department” of the University of Oxford, one of the foremost centres of educational excellence and learning, should countenance this line of argument.

The court went on to also clarify that unlike the US and other common law countries that engaged in a fairly laborious four factor “fair use” test (including the effect of the copying on the market for the copyrighted work), Indian law did not warrant such an investigation. Rather, the bench clarified, our courts were bound by the strict wordings of section 52(1)(i), which provided no such traditional fair use restriction. This is not to suggest that the Indian educational defence is not a fair one. Rather, the “fairness” component had to be gleaned from the very purpose for which the copyright exception had been carved out in the first place by our Parliament, namely to further educational instruction.

So, any copyright taking or reproduction would be legally permissible, if it stayed true to this purpose – that is, one must demonstrate that the portions copied (be it 10% or 100% of a book) was reasonably necessary to achieve the overall purpose of educational instruction. In an earlier piece, this writer had advocated such a “reasonable nexus” test between the copyrighted taking and the purpose of the taking.

The judges therefore remanded the case back to the lower trial court for a fact-specific determination on whether or not each of the copyrighted extracts in the course packs made by Delhi University was reasonably necessary to fulfil the purpose of educational “instruction”. Unless the publishers appeal to the Supreme court, the next site of legal action will be the trial court in Delhi. One hopes that this trend of speedy justice continues.

In the meantime, our universities can continue to instruct their students meaningfully through course packs, both within and without the classroom. As Justice Nandrajog rightly noted:

“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.”