Fundamental Errors in Fundamental Places: A Case for Setting Aside the Delhi University Photocopying Judgement
Volume 9 Issue 1-2 (2016)
In September 2016, a single judge of the Delhi High Court dismissed a copyright infringement suit brought by a group of international publishers, against the University of Delhi, and a photocopying shop licensed to the university. In doing so, it liberally interpreted ‘ fair dealing for academic purposes’ as an exception to copyright infringement in India. The Court ruled that photocopies which are made a part of students’ reading material, even without the permission of the copyright holder, are non-infringing. In itself, this would have been a path-breaking conclusion. However, the Court went further and noted that it does not matter how much a copyrighted work is photocopied, distributed or sold, who orders or does the photocopying or, indeed, who profits from it and how much – so long as it is “in the course of instruction”, it is legal.
Now, as an appeals court of the Delhi High Court navigates through the dispute, I attempt what is perhaps the most detailed legal inspection yet of this remarkable judgment. I find that, while possibly sustainable on merits, the ruling is riddled with fundamental errors and confusions. Notably, it muddles the exceptions under Indian law which protect photocopying of copyrighted literary works for academic purposes. It potentially extends the academic fair dealing exception, to persons who are not remotely academic, nor have the slightest interest in fair dealing. It is a judgment that mischaracterizes key factors underpinning the economics of academic publishing in India. I argue that it urgently needs to be re-written – India’s students, universities, and certainly, its publishers, deserve much better.