HC restores foreign publishers suit against photocopy shop

Delhi High Court today did not stop a shop in Delhi University from selling photocopies of textbooks published by leading foreign publishers but gave Oxford University Press, Cambridge University Press and others partial relief by restoring their lawsuit which was dismissed by a single judge.
A division bench of Justices Pradeep Nandrajog and Yogesh Khanna said it was "not inclined" to grant interim injunction to the foreign publishers but was setting aside part of the September 16 judgement of a single judge, who had allowed sale of photocopies of textbooks by saying there was "no triable issue" arising out of the dispute.

However, the division bench which restored the suit filed by the publishing houses, said there are triable issues involved in the lawsuit seeking to restrain the shop in the varsity campus from selling photocopies of textbooks.
It said it has to be determined whether photocopying of entire books would be a permissible activity and whether the inclusion of copyrighted work in course pack for students was justified.
"Having restored the suit and identifying the triable issue warranting evidence, we are not inclined to grant interim injunction to the appellants (publishers) but would direct respondent number one (photocopy shop) to maintain a record of course packs photocopied by it and supplied to the students," the bench said in its 58-page verdict.

"Every six months, the statement of number of course packs photocopied and supplied shall be filed in the suit," it said.

The bench disposed of the appeal filed by publishers -- Oxford University Press, Cambridge University Press (UK), Cambridge University Press India Pvt Ltd, Taylor and Francis Group (UK) and Taylor and Francis Books India Pvt Ltd -- while "setting aside the impugned judgment and decree holding that no triable issue on fact arises".
"The suit is restored for trial on the issue of fact and for which parties would be permitted to lead expert witness testimony," the court said and posted the matter for further proceedings before the single judge on January 4 next year.

The publishers have approached the division bench against the single judge order which had allowed the shop, Rameshwari photocopy services, to sell photocopies of their textbooks saying copyright in literary works does not confer "absolute ownership" to the authors.
Rameshwari photocopy service runs a shop in the precincts of Delhi School of Economics in the university campus.
In its verdict, the bench said the legal issue which
arises for consideration would be interpretation of section 52(1)(i) of the Copyright Act, 1957 as the photocopy shop and other defendants have admitted photocopying pages from the publications in different proportions.
"The issue would be: Whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not hedged with the condition of it being a fair use. This would subsume a sub-question: What is the span of the phrase 'by a teacher or a pupil in the course of instruction' in section 52(1)(i)(i)," it noted.

Stressing upon the importance of education, the bench said "education alone is the foundation on which a progressive and prosperous society can be built. Teaching is an essential part of education, at least in the formative years, and perhaps till post-graduate level. It would be difficult for a human to educate herself without somebody: a teacher, helping".
"It is true that there has to be fairness in every action, and irrespective of a statute expressly incorporating fair use, unless the legislative intent expressly excludes fair use, and especially when a person's result of labour is being utilised by somebody else, fair use must be read into the statute," it noted.

Referring to the foreign case laws on the issue, the bench said while interpreting a municipal statute, offshore case laws have to be referred with care and caution.
"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," it said.
(REOPENS LGD27)
The publishers had sought reversal of the single judge order, contending that sale of photocopies of books published by them affect their market share.
Their submissions was opposed by senior advocate Aman Sinha, appearing for DU, on the ground that "object of Copyright Act is to increase knowledge and not to impede it".

"We are developing country with limited resources and huge population and public interest comprising students, teachers, education has to be given priority over private interest of only handful of copyright owners for financial gains," he had told the bench.
Countering the submissions, senior advocate Pratibha M Singh and advocate Saikrishna Rajgopal, who appeared for the petitioners, had said their clients also provide customised content and sale of photocopies of books published by them affect their market share.
"The university, colleges and photocopiers should take a licence before xeroxing material published by petitioners," Singh had said, adding that the petitioners are not just publishing textbooks but are providing content online and provisions of the Act have to be interpreted as per "digital exploitation" of the material.

"Simply by arguing public interest, copyright cannot be trampled upon. The section 52(1)(i) of the Act has to be interpreted correctly in law," she had said.
The publishers have approached the division bench against the September 16 order claiming Rameshwari Photocopy Service in DU was infringing upon their copyright over the text books.
The order, which brought cheers to many students by rejecting the publishers' 2012 plea against the sale of photocopies of their textbooks, said copyright in literary works does not confer "absolute ownership" to the authors.