It would be hard
for me to overestimate the importance of reading. Nothing can expand the mind
and heart like the magic al world of books. .... Our libraries
are an essential resource for our children, our communities, and our future.-
Danielle
Steel
The Corona virus pandemic and the
subsequent lockdown across the globe have changed the lifestyle pattern of each
and every individual. Work from home and online classes which were once
considered as a privilege have now become a necessity. With chances of a
vaccine in the near future looking quite bleak, this trend is likely to
continue for a reasonable period of time. Like the entire population, the
student community too is experiencing this uncertain time. There is no clarity
about the mode and calendar of examinations. Most of the students are unable to
access the online classes due to many reasons one of those being weak network connectivity
issues. Educational institutions are coming with some or the other way but all
of them prove to be futile. With very little access to course books in hard copy one of the solutions
could be providing these online through emails and applications like Whatsapp.
At a time when the country is engulfed in a dystopian
spirit and a fear of death has taken the front-seat, is it right to penalize
students for not finishing a certain reading or mailing an assignment on time?
Do all students have the economic privilege to buy the readings online (as not
all materials are available free of charge), or the socio-political privilege
of living in a region with a good internet connectivity? These types of questions might sound silly to someone
living in a metropolitan city but are still very prevalent to a majority of
the population. And what does the copyright act say about the material which is
being provided through emails and whatsapp.
Is there any specific provision in the act dealing with photocopied and
scanned online study materials? Is there any violation of the copyright act if
books are scanned or photocopied? And what is the scope of the copyright act?
In this Article we’ll cover each of
these aspects.
What
is Copyright?
Copyright is a form of intellectual
property protection granted under Indian law to the creators of original works
of authorship such as literary works (including computer programs, tables and
compilations including computer databases which may be expressed in words,
codes, schemes or in any other form, including a machine readable medium), dramatic,
musical and artistic works, cinematographic films and sound recordings.
Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works. Section
14 defines the word copyright and the exclusive rights which are available to
the copyright holder.[1] Similarly section 51 of the act describes
Infringement of a copyright and situations which would constitute infringement.[2] We
are concerned here with Section 51{b}{ii}. It says that if any person distributes either for the
purpose of trade or to such an extent as to affect prejudicially the owner of
the copyright. The sending of online material and course books through emails
and online platforms would definitely affect prejudicially the owner of the
copyright as this would lead to a loss of revenue for the copyright holders.
The exceptions to copyright infringement are enshrined in Section 52 of the
Act. Section 52(1) of the Copyright Act
lists out acts that do not constitute copyright infringement. Sections 52(1)(h)
to 52(1)(j) contain exceptions for use of copyrighted material for educational
purposes. Whether a particular use of a copyrighted work falls within the scope
of these provisions is determined by whether it is made for the purpose and in
the manner as specified therein. However, the problem posed by Covid 19 is
extraordinary and with educational institutions, faculties and libraries closed
it becomes even more pertinent to discuss some of the landmark judgments
delivered in which such factors were discussed.
Education in India is still quite expensive and in reality is accessible
to only a privileged few.
Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.
The observations of the Supreme Court in the
landmark judgment of Francis Coralie Mullin vs The Administrator,
Union..[3] has laid down the
foundation for the fundamental rights of education. One of the challenges India
faces in its educational sectors is the cost of reading materials and the
Indian copyright law which has a very pertinent role in overcoming this
challenge. Contrary to popular perception, the cost of books in India is not
comparatively cheaper than other countries. Keeping this background in mind,
educational photocopying has a very important role to play. One of the modes of promoting access in the
area of education is by ensuring that copyright act has strong exceptions and
limitations that enable the fair dealing of material for educational purposes.
With education moving towards online mode it is quite relevant for us to have a
discussion regarding online mode, material circulated and the copyright
laws.
The doctrine of Fair Dealing
Fair
dealing is a limitation and exception to the exclusive right granted by
copyright law to the author of a creative work. It permits reproduction or use
of copyrighted work in a manner, which, but for the exception carved out would
have amounted to infringement of copyright. It has thus been kept out of the
mischief of copyright law.[4] This doctrine is one of the aspects of copyright
laws which tries to strike a balance between the individual right of the
copyright holders and the rights of public at large. The doctrine of Fair Use
is quite rigid in cases of Indian and United Kingdom legislations while it is
quite fair in the U.S legislation.
The laws
relating to fair dealing have been incorporated in Section 52 of The Copyrights
Act, 1957. As the Indian Copyright Act does not defines the term "fair
dealing" ,and due to this, the courts have on
various occasions referred to the authority English case Hubbard v
Vosper[5] on the
subject matter. The words of Lord Denning in this case lay down a much
descriptive outline of fair dealing.
"It is impossible to define what is
"fair dealing". It must be a question of degree. You must first
consider the number and extent of the quotations and extracts.... then you must
consider the use made of them....Next, you must consider the
proportions...other considerations may come into mind also. But, after all is
said and done, it is a matter of impression."
One of the most interesting observations
regarding the doctrine of fair use was rendered by Judge Pierre Leval in
the recent judgment of the U.S. Supreme Court involving Google and the Authors
Guild.[6]
Judge Pierre Leval wrote the longstanding interpretation of copyright law
had for 300 years been that authors do not have "absolute control"
over their works, and that there are important exemptions for "fair use,"
including news reporting, historical analysis, parody and other
"transformative" purposes.
Sections 52(1)(h) to
52(1)(j) of the Indian Copyright Act contain exceptions for use of copyrighted
material for educational purposes. Whether a particular use of a copyrighted
work falls within the scope of these provisions is determined by whether it is
made for the purpose and in the manner as specified therein. The fair dealing in case of copyright matters related to
educational institutions has been elaborately dealt in the landmark judgment of
Delhi High court in the Landmark judgment of Chancellor, Masters &
Scholars of the University of Oxford and Ors. vs Rameshwari Photocopy Services
and Ors[7]., where the Delhi
High Court ("the Court") upheld the supremacy of public welfare over
the interests of publishers/authors, by laying down that:
"Copyright, especially 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. Copyright is intended to increase and not to impede the harvest of
knowledge. It is intended to motivate the creative activity of authors and
inventors in order to benefit the public."
Section
52(1)(i) permits reproduction of any work by a teacher or pupil in the course
of instruction (among other purposes). In determining the permissibility of use
of copyrighted work under this exception, the Court held that the extent or
quantity of the material used does not matter as long as it is reasonably
necessary to use the same for the purpose of educational instruction. And the
scope of words ‘in the course of instruction’ as per the expansive
interpretation of the Court,
isn’t merely limited to classroom lectures but includes any activity that falls
within the ambit of providing educational instruction, both prior and post the
actual act of lecturing.
This
judgment is perhaps one of the most critical judgments as it addressed the
issue of the most marginalized group of people i.e. the student community and
their basic right to access to books and coursepacks.
The court’s reasoning in the judgments was based
on the socio-economic context of India, the realities of the education system,
and the progress afforded by modern technology. These are developments that
will enable the law to adapt to new situations and current needs of Indian
society. The judgment gains more significance in these times and could open
gates for new online libraries and big authors whose books cost a bomb can tie
up with these platforms and it could be a win -win situation for both the
students and publishers.
While the language of the
exception under the Indian Copyright Act does not expressly contemplate online
education, as clarified by the DU Photocopying case, the scope of section
52(1)(i) is not limited to classroom teaching but the entire process or programme
of education in a semester, which would include online education as well. In
any case, online classes would be covered under classroom education because the
change in the medium has been forced onto us due to the pandemic and is
currently the only substitute left for traditional physical classes.
The US Laws, Circular 21: Reproduction of
Copyrighted Works by Educators and Librarians (SectionC,2B,ii, Page 7)[8]
gives guidelines for classroom copying with respect to books and periodicals
copying of books and periodicals shall not be
a) substitute for the purchase of
books, publishers’ reprints or periodicals;
b) be directed by higher authority;
c) be repeated with respect to the same item by
the same teacher from term to term.
d) No charge shall be made to the
student beyond the actual cost of the photocopying.
Are there special rules for scanning
copyright protected material?
No, scanning is allowed within the
same parameters as any other method of copying.
If we want to scan something, we may
do so only if the use falls within one of the exceptions in the Copyright
Act, such as fair dealing, or where no permission is required, such as
scanning a public domain work (one in which copyright has expired).
If we want to scan a work that is
still in copyright and add it to a website under fair dealing, you need to be
sure that the website is password protected (e.g., SFU’s learning management
system) and restricted to students enrolled in your course, and follow the fair
dealing limits.
If what we want to do falls outside
the exceptions and is not in the public domain, we would need to get the
copyright owner’s permission.
However seeing the conditions which are
prevailing due to the lockdown where the libraries are shut, there is no access
to institutions and deliveries of books is at a halt and the weak connectivity
issues the only solution left for the students is to get the pdfs of material
and books online . However not everyone can buy the the e-Books
as the population is divided into different income groups. Some can afford and
some can’t. So it shouldn’t be a disadvantage to the group who is unable to get
their hands on these materials. Eg : This is
particularly likely as education in India and especially in the State run
educational institutions is heavily subsidized, thereby enabling students from
low-income families to also attend the university. With
the extension of lockdowns even though the exams have been postponed still the
student have to study and the only solution is to get the scanned copy of books
online or if it’s made available to them by the institution on their websites.
Section
(§) 108 of Title 17 of the United States Code[9]
outlines the exceptions by which libraries and archives may make copies of
copyrighted materials without seeking permission of the copyright holders. When
Countries like US can have such laws why can’t India make such laws and help
its citizens to deal with the current situation instead of making students feel
helpless..
CONCLUSION
With
right to education enshrined as a fundamental right under Article 21-A and with
opening of regular schools and colleges looking a distinct reality it becomes
quite pertinent to devise new methods of online education. With some of the
universities already planning to take exams through online mode the issue
becomes even more important. Exams and studies without access to course books
would be a futile exercise. Union HRD
Minister Ramesh Pokhriyal had urged the students to read books in the free time
available to them due to Coronavirus lockdown in the country. The minister used
the micro blogging site Twitter, to make students aware about the importance of
books in one’s life.
In his
tweet, the minister wrote, “Dear students, I know all of you at the time of
#Lockdown21, must be missing your friends while sitting at your homes. No one
can take the place of friends, but you can befriend books while sitting in your
homes.” [10]
But the question is where are the books available for everyone
to read them freely and utilize this time? This pandemic has only accelerated our need to
think of a copyright law that is more cognizant of digitization and is more
anticipative of extraordinary situations. The move to online education shows
the dire need for planning within the Indian copyright law framework for a
situation that is here to stay at least for the immediate future so that
education can be provided without any other major hurdles.
Where the mind is without fear and the head is held high Where
knowledge is free.-
Rabindranath Tagore
[1]
1[14. Meaning of copyright.—For the purposes of this Act,
“copyright” means the exclusive right subject to the provisions of this Act, to
do or authorise the doing of any of the following acts in respect of a work or
any substantial part thereof, namely:—
(a) in the case of a
literary, dramatic or musical work, not being a computer programme,—
(i) to reproduce the work
in any material form including the storing of it in any medium by electronic
means;
(ii) to issue copies of
the work to the public not being copies already in circulation;
(iii) to perform the work
in public, or communicate it to the public;
(iv) to make any
cinematograph film or sound recording in respect of the work;
(v) to make any
translation of the work;
to
do, in relation to a translation or an adaptation of the work, any of the acts
specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a
computer programme,—
(i) to do any of the acts
specified in clause (a); 2[(ii) to sell or give on commercial rental or offer
for sale or for commercial rental any copy of the computer programme: 2[(ii) to
sell or give on commercial rental or offer for sale or for commercial rental
any copy of the computer programme\:" Provided that such commercial rental
does not apply in respect of computer programmes where the programme itself is
not the essential object of the rental.]
(c) in the case of an
artistic work,—
to reproduce the work in any material
form including depiction in three dimensions of a two dimensional work or in
two dimensions of a three dimensional work;
(ii) to communicate the
work to the public;
(iii) to issue copies of
the work to the public not being copies already in circulation;
(iv) to include the work
in any cinematograph film;
(v) to make any
adaptation of the work;
(vi) to do in relation to
an adaptation of the work any of the acts specified in relation to the work in
sub-clauses (i) to (iv);
(d) in the case of a
cinematograph film,—
(i) to make a copy of the
film including a photograph of any image forming part thereof;
(ii) to sell or give on
hire or offer for sale or hire, any copy of the film, regardless of whether
such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the
film to the public;
(e) in the case of a
sound recording,—
(i) to make any other
sound recording embodying it;
(ii) to sell or give on
hire, or offer for sale or hire, any copy of the sound recording, regardless of
whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the
sound recording to the public. Explanation.— For the purposes of this section,
a copy which has been sold once shall be deemed to be a copy already in
circulation.]
[2] 51. When copyright
infringed.—Copyright in a work shall be deemed to be infringed—
(a) when any person, without a
licence granted by the owner of the copyright or the Registrar of Copyrights
under this Act or in contravention of the conditions of a licence so granted or
of any condition imposed by a competent authority under this Act—
(i) does anything, the
exclusive right to do which is by this Act conferred upon the owner of the
copyright, or 1[(ii) permits for profit any place to be used for the
communication of the work to the public where such communication constitutes an
infringement of the copyright in the work, unless he was not aware and had no
reasonable ground for believing that such communication to the public would be
an infringement of copyright; or] 1[(ii) permits for profit any place to be
used for the communication of the work to the public where such communication
constitutes an infringement of the copyright in the work, unless he was not
aware and had no reasonable ground for believing that such communication to the
public would be an infringement of copyright; or]"
(b) when any person—
(i) makes for sale or hire, or
sells or lets for hire, or by way of trade displays or offers for sale or hire,
or
(ii) distributes either for the
purpose of trade or to such an extent as to affect prejudicially the owner of
the copyright, or
(iii) by way of trade exhibits in
public, or
(iv) imports 2[***] into India, 2[***]
into India," any infringing copies of the work: 3[Provided that nothing in
sub-clause (iv) shall apply to the import of one copy of any work, for the
private and domestic use of the importer.] Explanation.—For the purposes of
this section, the reproduction of a literary, dramatic, musical or artistic
work in the form of a cinematograph film shall be deemed to be an “infringing
copy”.
[3] AIR 1981 SC 746
[4] SK DUTT v. LAW BOOK CO. & Ors. AIR 1954 ALL 750
[5] (1972) 1 All ER 1023 p. 1027.
[6] (2d
Cir. 2015/10/16
[7] (2016) 160 DRJ (SN) 678.
[10] https://www.hindustantimes.com/education/hrd-minister-ramesh-pokhriyal-urges-students-to-read-books-during-lockdown/story-k6lcL4Bb43GaI96Hn1S3YO.html
IF A GOOD WRITER LIVES INSIDE YOU, THEN MAIL YOUR BIO, PICTURE WITH YOUR BLOG.... WE WILL SHORTLY PUBLISH IT
JUST MAIL US ON abizchancellor@gmail.com
AUTHOR: JASLEEN KAUR
Currently in the Final Year of 3 Year LLB in Law Centre-2,
Faculty of Law, University of Delhi
B.Com (DU), Company Secretary (CS) Aspirant,
Technical Content Writer for the portal Cscartindia.com which
caters to Company Secretary Students
.
From a CA aspirant, to pursuing bcom hnrs,from someone working at Pwc to someone pursuing law from Faculty of Law Delhi University, life has been a roller coaster ride for Gurkaran Singh. Presently he is pursuing Law from Law centre 2 Delhi University. He has authored a policy document for ministry of law and justice. He has also worked as a research assistant on a book on mediation
Disclaimer:
No reader should act on the basis of any statement contained herein without seeking professional advice. The results & the interpretation has been done on the basis of my understanding of the Act & Rules, where applicable and with reference to the general articles and analysis. The author explicitly disclaims any financial or other liability of any kind arising on account of any action taken pursuant to the results or interpretation of this document. With respect to information available herein before, the author doesn’t make any warranty, express/implied or assume any liability or responsibility for the accuracy, completeness, or usefulness of such information.
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