This post continues the discussion on Copyright Reform suggested by the Parliamentary Standing Committee Report on IPR, which Adyasha had discussed on the blog here.
In a recent opinion piece in The Hindu (available behind a paywall here), Rahul and I discussed the Committee’s Report in context of the State’s obligations as part of the Right to Education. In this post, we are briefly highlighting some of the points we had made there, along with relevant excerpts:
- Nature of these Obligations:
Various Supreme Court orders have viewed the right to education in an expansive manner which would entail taking affirmative measures to guarantee this right. In the context of the current pandemic and the constrained means to access educational material, this should have ideally translated into more proactive and robust measures to reform copyright law such that it does not attenuate the enjoyment of the right to education.
“In 2002, in light of two progressive Supreme Court pronouncements (Mohini Jain v. State of Karnataka and Ors. and State of HP v. HP State Recognised High Schools Managing Committee), the right to education found a secure Constitutional home in the fundamental rights chapter of the Indian Constitution. This fundamental right, set out in Article 21A, guarantees every child between the ages of 6 and 14 access to free and compulsory education. In a series of rulings (Anuradha Bhasin v. Union of India, Avinash Mehrotra v. Union of India), the Supreme Court has interpreted the right in a broad and expansive way, holding that it imposes an affirmative obligation on the government and civil society to secure its enjoyment. Consistent with this spirit, the Supreme Court held in Farzana Batool v. Union of India that, while access to professional education is not a fundamental right, the state must take affirmative measures to secure the right to education at all levels.”
- The Committee’s Discussion on the DU Photocopy Case:
The manner in which the Committee discusses precedent in this regard, i.e., the Delhi High Court’s landmark judgment in the DU photocopy case, is misinformed and completely oblivious to the richly articulated state obligations under the right to education. Below is an excerpt which highlights the law as laid down by the judgment and the broad construction of permitted uses of copyrighted material for educational purposes.
“In that case, the Court [the Single Judge and the Division Bench] adopted a robust understanding of the educational exception enumerated in the list of fair dealing provisions in Indian copyright law. Section 52(1)(i) allows the reproduction of any work by a teacher or pupil in the course of instruction. The Court held that ‘course of instruction’ therein is not confined to the time and place of instruction, and would include anything that could be justified for the purpose of instruction. This includes steps commencing at a time prior to lecturing and continuing till after it. It also noted that apart from S.52(1)(a), which provides for the right to a “fair dealing” of any copyrightable work, other rights/purposes enumerated under S.52 would not have to meet the express requirement of fair dealing. Thus, S.52(1)(i) was recognized as enumerating an affirmative purpose exempt from infringement. The fairness of use under these Sections can be deemed to be presumed by the legislature as long as it is justified by the purpose specified. Consistent with this, the Court also noted that there are no quantitative restrictions on the extent of the reproduction permitted as long as it is justified by a specific purpose under S.52.
In its report, the Standing Committee notes that it is distressed that the conflict between educational institutions and copyright owners does not bode well for the ‘overall literary culture and image of the country.’ In a bid to make the system fair and equitable, it calls on the government to amend S. 52 to allow for such copying only in government-owned institutions. It further states that there should be a quantitative limit on how much copying is permissible and regulation of the storage of copied works in digital formats.”
- Flaws in the Committee’s Views:
Finally, the excerpt below highlights the Committee’s flawed views in its discussion of the DU photocopy case.
“First, they betray a profound misunderstanding of the raison d’etre for granting copyright in educational content. As the single judge eloquently noted in the DU photocopy case, the purpose of copyright is to increase the: “harvest of knowledge, motivate the creative activity of authors and inventors in order to benefit the public.” Therefore, the rights of publishers are only a means to an end.
Relatedly, the Committee misunderstands the role of fair dealing provisions within this framework. Fair dealing provisions are user rights which are no less important than the rights of publishers. Given the fundamental character of the right to education, the importance of these rights can be traced to the Constitution. Therefore, their interpretation should reflect their salutary nature.
Second, the Committee errs in assuming that the rights of publishers were not duly accounted for in the DU photocopy judgments. Addressing arguments regarding any adverse impact of adopting a broad interpretation of the educational purpose exemption on the market of the concerned copyrighted works, the Division Bench noted with an example that access to copyrighted material for literacy and education does not curtail the market for these works. It held that students are anyway not potential customers of 30-40 reference books in the library, and that citizens with improved literacy, education and earning potential expand the market for copyrighted materials in the long run.”
Lastly, Adyasha has already discussed on the blog (here) that having any quantitative restrictions on the extent of permissible copying would be inapposite, because any limit would be arbitrarily arrived at.
To conclude, at a time of deepening socio-economic inequalities when educational needs should have been a priority, the Committee’s suggestions are regressive instead of forward looking. Copyright reform should be aimed at enabling access to online and offline education without the law acting as an impediment to the same.