Delhi University vs. Publishers; A Critical Appraisal on Doctrine of Fair Dealing Vis a Vis Fair Use
Indeed even the words are not enough to express how grateful students and scholars are to the inventor of the photocopier Chestor Carlson, a patent attorney whose job compelled him to invent perhaps one of the greatest innovation and valuable ally to the students. Nevertheless, excess of anything is catastrophic at least to the exclusive copyright owners whose copyrighted work is subjected to extreme overuse and misuse of Photostatting eventually resulting in penetration of intellectual property rights that were originally granted to the authors of that work. The idea behind granting copyrights to author of books was to promote literary work and secure the ideas which author wished to preserve and share only by legal publication. This article is an endeavor to explore the legality of photocopying of copyrighted work and extent to which copyrighted work is permitted to be photocopied. It gives an opportunity to the authors to discuss the doctrine which promotes the fair use of the copyrighted work and most importantly the existing differences to their understanding. However, it is significant in this respect to discuss the intent or the purpose of use of such photocopied copyrighted material whether ‘commercial’ or ‘academic’. Since time immemorial it is observed that although the rights of the author and the publisher is exclusive over the intellectual property but the access to such intellectual property is right of the public at large but when such access to the intellectual property restrained being contentious it becomes question of law and therefore requires debate by intellectuals.
“The more extensive a man’s knowledge of what has been done, the greater will be his power of knowing what to do”
For years photocopying has been serving student as a valuable ally. Whether it is for copying important notes of friend or getting a copy of your favorite extract we cannot imagine our day to day operations without help of this machine. However excess of anything could be catastrophic. Overuse and misuse of Photostatting has resulted in penetration of intellectual property rights that were originally granted to the authors of that work. The idea behind granting copyrights to author of books was to promote literary work and secure the ideas which author wished to preserve and share only by legal publication.
Doctrine of Fair Dealing
The doctrine of fair dealing or fair use is an integral constituent of copyright law. It allows replication or reproduction of the copyrighted work or use in a manner, which without an exception carved out would have subjected to infringement of copyright. It is therefore, been kept out of the preview or mischief of the copyright law.The defence of fair dealing originated as an equitable doctrine permitting certain uses of literary works that copyright law would otherwise have prohibited, if prohibiting such uses ‘would stifle the very power that the law is intended to foster’. Fair dealing also is a solution to those ‘fair’ copyright proponents who consistently debate that copyright, not being a patent, is not an exclusive right and may so be balanced against user rights.
India’s fair dealing doctrine, at the side of that of other former British colonies, has been perceived as having the weak imperial import. Fair dealing, as found within the United Kingdom’s copyright framework has been wide characterized as restrictive, that includes a thoroughgoing list of outlined exceptions. Its United States ‘cousin’, fair use, has been seen as a sturdier vehicle for users. In distinction to the Indian and therefore the UK provisions, which are historically applied solely to a work used for one in every of a closed list of enumerated purposes, fair use within the U.S. permits any use of a work to be ‘fair’ subject to a set of factors that aid within the decision-making process.
Before analyzing the jurisprudence of fair dealing as developed by the Indian Courts, it’ll be helpful to stipulate concisely the Indian legislative fair dealing context. In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the Indian Copyright Act, 1957.The Indian Copyright Act, 1957 amended the law prevailing before its enforcement and consolidates the law concerning copyrights. The statement of objects and reasons of the Indian Copyright Act reflects the recognition that the new copyright regime in India was to be engineered on the bedrock of growing public consciousness of the rights and obligations of authors.
The new statute additionally wanted to adapt the legislation to advances in technology and create the domestic copyright law consonant with India’s international obligations.
The various amendments to the Copyright Act also have an obvious implication as to the reasoning behind fair dealing defense under the Indian Act. The new exceptions to copyright infringements introduced via the amendments brought to Section 52 in 1995 have also endeavored to strike a balance with the emerging technical challenges.
Recently, the Delhi High Court, in the case of Chancellor Masters, has aptly summed up the policy behind the defence of fair dealing. The Court held that fair dealing ‘….legitimizes the reproduction of a copyrightable work. Coupled with a limited copyright term, it guarantees not only a public pool of concepts and information, but conjointly a vivacious public domain in expression, from which an individual can draw as well as replenish fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and therefore the often competitory interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativeness, and therefore the same time must discourage blatant plagiarism. It, therefore, should receive a liberal construction harmonised with the objectives of copyright law. Section 52 of the Act solely details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts …….’
In Wiley Eastern Ltd and Ors v Indian Institute of Management, the Court clearly traced the purpose of the defence of fair dealing to the Indian Constitution:
‘The basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India so that research, private study, criticism or review or reporting of current events could be protected. Section 52 is not intended by Parliament to negatively prescribe what infringement is.’
Judicial Treatment of Fair Dealing
The Indian Copyright Act under Section 52 carves out fair dealing from copyright infringement as affirmative defences, which places the onus of proving the defences onto the user once the copyright owner establishes prima facie infringement by substantial copying of expression. However, the fair dealing cases in India do not always establish prima facie infringement before considering the application of fair dealing. The first issue in these cases, following the text of the Copyright Act, is the definition of fair dealing. As the Act does not define fair dealing, the Indian courts have heavily referred to the English authority of Hubbard v Vosper which contained the often-quoted definition of fair dealing by Lord Denning:
‘It is impossible to define what is ‘fair dealing.’ It must be a question of degree. You must consider first 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 to mind also. But, after all is said and done, it must be a matter of impression.’
Also, the enumerated purposes under Section 52 have been generally taken as exhaustive, inflexible and certain, since any use not falling strictly within an enumerated ground is considered an infringement. The courts have time and again reiterated that it’s not possible to develop a ‘rule of thumb’ for cases of fair dealing as every case depends upon in its own facts and circumstances. As the courts in India have analyzed the doctrine of fair dealing, within which they drew primarily from UK and US approaches, they supported certain factors that will be additional or less relevant in fair dealing cases and which are not provided by the Indian copyright statute. The Courts have traditionally articulated and applied the three factors when deciding the cases.
However, the difficulty of substantialness is that the subject of two completely different considerations. First, there’s no infringement unless there’s substantial taking. Second, once there’s clear infringement, whether or not a use is fair is partly determined by the substantialness of the taking together of the factors. Therefore, for fair dealing the use, the employment should be substantial enough to render an infringement, and for the use to be honest, it should not be too substantial. However, in Indian jurisprudence, the courts are unable to separate the two terribly completely different inquiries. In either case, however, generally, Indian courts have applied each quantitative and qualitative check of substantialness and also the literal range of words derived has not been held to be a determinative issue. The courts have recognized that the permissible quantum of extracts or quotations can rely on the facts of every case.
In Blackwood case, which concerned the reproduction of the work in the form of guides, the court rightfully held that the alleged infringer’s intention is an important but not a decisive factor in determining whether or not the work in question was traced thus substantially that the copying would amount to negative ‘fairness’. The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, where the dispute was supported the utilization of certain quotations from a work. The Court interpreted the very fact of acknowledgement by the authors of the plaintiff’s material to mean that had the authors created any other use of the plaintiff’s book in compiling their own book, they might have acknowledged it; so, the copying was held not to be a considerable taking.
Character, Purpose (and Commercial Nature) of the Dealing
The next thought relates to the purpose and character of the use. Section 52 of the Indian Copyright Act additionally sets out in an exhaustive list varied purposes that make up the domain of fair dealing. If the purpose of the reproduction isn’t one of those enumerated within the statute the question of fair dealing wouldn’t arise. The key purposes that the act enumerates are: research, criticism, personal study, review.
When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use as well as analysis and criticism or review, whether or not of that work or of any other work, there is no claim on copyright infringement. Thus, if some performance or dance is carried out within the reach of the aforementioned clause, the mischief of copyright can’t be claimed. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes inside the scope of amateur club or society, the same would not constitute any violation.
In Syndicate of the Press of the University of Cambridge and Anr v B D Bhandari and Anr, the Court while holding the work of the defendants to be transformative and not merely a substitute for the book of the plaintiff was reluctant to issue an injunction order because of the large scale use of such guide books and dependence thereon by students.
On the other hand, in Syndicate press of University of Cambridge v Kasturilal and Sons, the Court went ahead to hold that even if it is assumed that the defendant’s work could have enabled students to give effective answers in examinations, such a situation cannot permit purloining verbatim texts of the original work.
It is important to note that the courts may also relied on public-interest purposes for allowing an otherwise infringing activity, but this common law power has been rarely exercised in India or in the UK, where it was invented. In Rupendra Kashyap v Jiwan Publishing House, where the defendant was involved in publishing question papers of the CBSE’s examinations, to which, the plaintiff contended to hold an exclusive license, the Court has very explicitly held that ‘the law as to copyright in India is governed by a statute which does not provide for defence in the name of public interest. An infringement of copyright cannot be permitted merely because it is claimed to be in public interest to infringe a copyright.’
The most extensive judicial discussion on the topic of fair dealing surrounds the third American factor of substantiality. According to some, this factor is the least significant in the United States. This is somewhat also reflected in the American decision of Williams & Wilkins Co v US, where the US Supreme Court held that ‘sometimes been suggested that the copying of an entire copyrighted work cannot ever be ‘fair use,’ but this is an overbroad generalization the extent of the copying is one important factor, but only one, to be taken into account, along with several others’
The more structured view of the issue of substantiality appeared first in India in the Blackwood case, where, as mentioned before, the Court in citing English authorities held ‘that rather the intention it is important to see how substantially has the work in question been copied that such an amount of copying would negative ‘fairness’.
It was in E M Forster and Anr v A N Parasuram, which involved alleged violation of plaintiff’s copyright by reproduction of his book in a guide, that the Court explicitly divided its decision between the determination of infringement and that copying must be substantial enough to render an infringement, and the determination of fair dealing (that the copying must not be too substantial) and refused to deal with the issue of fair dealing until infringement was found.As mentioned before, this structured approach in analyzing the issue of substantiality is rare among Indian cases of fair dealing.
The fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, is seen as the most important one in the United States. In Harper & Row v Nation Enterprises, the US Supreme Court applied much emphasis on the implication of the defendant’s use on the potential market of the copyrighted work. The Court held this fourth factor as the single most important factor while determining fair use. However, as mentioned earlier, this factor is little used in Indian cases on fair dealing.
Delhi University vs Publishers
A very important litigation in Indian context that came up in this regard has given more focus to this grey area is that of Delhi University vs. Publisherswhere the photocopy shop inside the campus were engaged in the business of photocopying studying material for student. Publishing houses like Oxford & Cambridge University Press along with Press of Cambridge University sued Photocopying shop along with Delhi University and asked for permanent injunction of the practice and recompense them monetarily.
The purpose of photocopying was though academic and scholastic in nature; but facts dictate that often the students demanded xerox of whole book. Pressurized by the demand of the customers the shop owner normally complied with the directions. For students there was a clear intention to save few bucks that might result as a result of purchasing the authentic copy. The plaintiffs argue that they are “publishers are not charity house” further they do not have any see reason why publishers should be giving out their works for free as they have also paid the authors of the books enough money to sell their written material. The entity administers the reproduction of such works by issuing licences and collecting and distributing royalties to affiliated copyright owners.
It is an undisputed fact that the data compiled in these books are hard work and result of concentrated research. There would be no use of publishing books if authors/publishers cannot derive benefits out of it. And if authors and publishers are not paid well they will keep their work from the society which will ultimately deprive us of knowledge and ideas.Any academic research which has not been shared with others to the extreme possible extent is a lost opportunity both in terms of its immediate impact and its reference value for the future researchers. Therefore it is of extreme significance to strike a balance between rights of the owners and easement that has been granted to public in the form of Section 52. The bailout policies are of no use in this regard. Either there is a concrete law or there is a complete violation.
Copyright v/s Open Access
It would be pertinent to notice that our globe has yet not adopted the thought of open access. Open Access deals with free access to and reuse of scholarly works. So far it’s been primarily concerned with scholarly journal articles; of course, digital books, electronic theses and dissertations, and research data have been of growing concern. Books in arduous copies are not yet subject to open access. Although differing slightly, the statements essentially note that OA accords users to read, copy, download, print, distribute, search, or link to the complete text of works, permitting use for any lawful purpose, as long as internet access to the material is feasible. Open access isn’t applicable to content that authors/publishers expect financial benefits and functions within current copyright law by permitting authors to either retain the right to post their papers on institutional servers or transfer rights to publishers who enable free access to their work. 
Natural resources need robust preservative action, self-governing mechanisms, for its sustainability, on the other hand, we have enclosed, prevented and copyrighted knowledge to an unsustainable and self-degrading commodity. For long, we have protected knowledge as ‘Holy Grail’ proscribed for public consumption. However, the past twenty years have seen the emergence of a movement that seeks to revive the knowledge commons back to the knowledge creators and world at large, through facilitating open access (OA). Although the OA movement began before the advent of the net, it might not be an exaggeration to mention that it might not have grown except for the emergence and widespread use of the internet.
In a vital international development in open access to legal information, in October 2002, delegates to the fourth Law via internet Conference in Montreal issued a Declaration on Public Access to Law stating that public legal information, being a part of the common heritage of humanity, ought to be accessible to all or any on a non-profit basis and freed from charge maximizing access to the current to this promotes justice and also the rule of law.
Recent Developments in the domain of Copyright
Going by the global outlook Copyright in its domain is also experiencing revolution. The judgments of foreign courts have played an important role in molding and shaping the law relating to copyrights.
In a recent case filed before the District Court of Georgia Atlanta court considered the question regarding extent of copying copyrighted material. In this case it was alleged that Defendants, officials of Georgia State University in Atlanta, Georgia, had infringed copyrights held by Plaintiffs, publishing houses, by allowing unlicensed portions of Plaintiffs’ copyrighted books to be posted electronically and made available electronically to students.
Court opined that to meet the test of brevity, the amount copied of a prose work may be “either a complete article, story or essay of less than 2,500 words” or “an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less.” The test of spontaneity requires that the decision to use the work and the moment when it is used “are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” Finally, under the cumulative effect test, the copying may only be for one course, no more than three articles from the same collective work or two excerpts from the same author may be used during one class term, and a teacher may not have more than nine instances of such copying for one course. Blanket prohibition is required that copying shall not “substitute for the purchase of books, publishers’ re prints or periodicals” nor “be repeated with respect to the same item by the same teacher from term to term.” Quantitative assessment becomes the determining factor in these kind of cases.
Legality of copying vis-à-vis Doctrine of Purpose of end-user
This doctrine postulates that where the purpose of the end-user is academic in nature it would not come within the domain of copyright infringement. There must be an endeavor to exploit the resource commercially so as to drag it within the definition of infringement. In the Rameshwari Photocopy Shop case the intent of the end-user was purely educational. Students intended to enhance their knowledge and the same will be protected by Section 52 of the Act. There are no strong proofs in the hands of the plaintiffs which dictate that the defense is vitiated.
Further it cannot be denied that the objective of the University is to promote the goals of education, which is squarely covered under the copyright law exceptions. The photocopy shop can be safely presumed to be the instrumentality which is merely trying to facilitate the object of the institute. There is no mala fide intent to exploit the works of the authors to the prejudice of the rights granted to them
Doctrine of Alternative to the Dealing
Under this doctrine the Court tries to see whether there was any other alternative available to the defendant apart from going for the copying. This doctrine has been observed in the case of Alberta (Education) v Canadian Copyright Licensing Agency.For the case in hand it would be seen whether the students could have used the library and internet for reading the material. The main issue in this case was whether the photocopies made by the teachers of the excerpts in the textbooks were considered fair dealing. In Alberta Case it was observed that the schools had already purchased originals that were kept in the class or library, from which the teachers made copies. As per Board’s schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher. The majority concluded that photocopying short excerpts is reasonably necessary to achieve the purpose of “research” and “private study” for the ultimate users, the students.
Potential Market for the book
Though not a much formulated approach it can be considered wherever needful. The court can always go into the question of what effects will such copying have on marketing of the book. If the only market the book had was because of the same people photocopying the data it would mean that such photocopying is improper.
Educational purposes are protected by the Copyright Act. But this Defense should not be misused to the prejudice of copyright holders. Current section grants access for scholastic and research purpose but it should not defeat the purpose of granting exclusive rights to the owner. It would be very convenient if Courts come out with guidelines as to the extent of copying which should be made permissible. Needless to say that Indian Courts do not recognize copyright infringement on the ground of public interest as observed in Rupendra Kashyap v Jeevan Publishing House.“How much a student can demand and how much an author can grant” should govern the law. In India many students belong to the families who barely afford their education. Purchasing a book for small abstract is not economic for them. But we also cannot disregard the right of the authors and publishers. It is imperative to mention that the Copyright law in India permits photocopying of literary works for limited private research, review or criticism only. According to the Indian Reprography Rights Organization (IRRO), as a Copyright Society under sub-section (3) of Section 33 of the Copyright Act, 1957and an organization that is the sole licensing authority to issue license to users of copyrighted works of its members and collect the royalties on their behalf and distribute them the university or any individual can only photocopy 20 copies of the work of no more than 10 percent or the first chapter of any publication per year. The IRRO represents numerous Authors and Publishers of India as well as represents the foreign Authors and Publishers and the societies of similar nature in India via its bilateral/unilateral agreements with similar societies of other countries. Therefore, in the light of the above reference it is clear that the extent of use by the universities of the copyrighted material is restricted in the aforementioned reference but in practice such use of copyrighted material by universities for academic as well as for other purposes as in the case of Rameshwari Photocopy Shop case is very common and which gives antagonists an opportunity to defend their case on the basis of exceptions under section 52 of Copyright Act.
Indeed it is a complex issue to asses based on the fact that the reproduction of the copies by the photocopier under the directions of the University and selling such units of contentious units of books to students or anyone who pays for that whether amounts to infringement is a subject matter which can be well argued on both sides reasoning being exception under section 52. But a fact remains that when such copies are generated for commercial intent by the photocopier and sold at competitive prices it will be well within the scope of copyright infringement even when it is under exception. It is worthy to note that it is not settled law as to what extent copying from books for academic purpose is permitted and which should drag the attention of the judiciary to define such limits to save the exclusive right owners of the copyright from exploitation by hands of infringers. Perhaps need of the time is to balance the rights of the copyright owners and the public at large to ascertain the degree and cap on the use of such copyrighted works.
 Aniket Pandey, student pursuing B.B.A.,LL.B Corporate Law (Hons.) 5th yr from University of Petroleum & Energy Studies, Dehradun and Apoorv Pandey, student B.B.A.,LL.B (Hons) 3rd yr ITMU, Gurgaon. They can be reached at email@example.com and firstname.lastname@example.org.
 The Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House and Ors, 2008 (38) PTC 385 (Del) at Para 23
 SK Dutt v Law Book Co and Ors, AIR 1954 All 570 at Para 12 and Kartar Singh v Ladha Singh, AIR 1934 Lah 777.
 Harper & Row Publishers v Nation Enterprises, 471 US 539 at 550.
 Giuseppina D’Agostino, Healing fair dealing? A comparative copyright analysis of Canada’s fair dealing to UK fair dealing and US fair use, McGill Law Journal, 53 (2008) 309-363
 Sing Jayakumar, Hansard Parliamentary Debates, 78 (2004) 10.
 Craig Carys J, The Changing Face of Fair Dealing in Canadian Copyright Law in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, Toronto), 2005, p. 437.
 Narayanan P, Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata), 2002, p. 8.
 2008 (38) PTC 385(Del) Para 33
 61 (1996) DLT 281
 Ibid para 19
 Civic Chandran v Ammini Amma, 1996 PTC 16 670
 (1972) 1 All ER 1023 p. 1027
 Blackwood and Sons Ltd and Othrs v AN Parasuraman and Ors, AIR 1959 Mad 410 Para 84 and Civic Chandran ,1996 PTC 16 670
 ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008(36) PTC 492 (Del) Para 34.
 Civic Chandran, 1996 PTC 16 670. It may be noted that these factors correspond with the fair use factors which find statutory recognition under section 107 of the US Copyright Code, 17 USC §107 as limitations on exclusive rights: Fair use
 Lape L G, Transforming fair use: The productive use factor in Fair Use Doctrine, Albany Law Review, 58 (1995) 677-724.
Blackwood Case, AIR 1959 Mad 410 Para 71 and Civic Chandran, 1996 PTC 16 670. It may be noted that in Harper& Row Publishers v Nation Enterprises, 471 US 539, the US Supreme Court also focused on quantity and quality and though insubstantial in quantity, the copied extracts were held to constitute the ‘heart of the book’.
Civic Chandran, 1996 PTC 16 670 and ESPN Stars Sports v Global Broadcast News Ltd. and Ors, 2008 (36) PTC 492(Del) Para 34.
AIR 1959 Mad 410 Para 86
AIR 1954 All 570 Para 45
Section 107(1) of the US Copyright Statute, 17 USC §107.
Blackwood Case, AIR 1959 Mad 410 Para 84.
 Academy of General Edu, Manipal and Anr v B MaliniMallya, 2009 (2) SCALE 310 Para 20.
MIPR 2009 (2) 60 Para 8.
2006 (32) PTC 487 (Del) Para 7
David Vaver, Canada’s intellectual property framework: Acomparative overview, Intellectual Property Journal, 17
1996 (38) DRJ 81 Para 24
 AIR 1964 Mad 331 Para 14.
 471 US 539 (1985).This factor constitutes the fourth factor under Section 107 of the US Copyright Statute, 17 USC
The Chancellor, Masters & Scholars of University of Oxford & Ors vs Rameshwari Photocopy Services & Anr, I.A. No. 14632/2012 in CS (OS) No. 2439/ 2012
 Prof. J. Grey, Battle to preserve Copyrights, 2011 (2) Intellectual Property Law & Policy pg. 233
Subhradipta Sarkar ‘Open Access Initiatives and Scholarly Publishing’Conference on Access to Legal Information & Research in the Digital Age (Icalirda) 2012
 See Section 52, Indian Copyright Act 1957
 Karen M. Albert, Open access: Implications for Scholarly Publishing and Medical Libraries, 94(3) J. MED. LIBR. ASSOC. 253, 253 – 54 (Jul. 2006), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1525322/pdf/i1536-5050-094-03-0253.pdf (last visited Jan. 1, 2014)
 Subbiah Arunachalam, Open Access in India: Hopes and Frustrations 271, 271, Proceedings ELPUB 2008 Conference on Electronic Publishing, Toronto, Canada (Jun. 2008), available at http://elpub.scix.net/data/works/att/271_elpub2008.content.pdf (last visited on Jan. 15, 2014)
 Montreal Declaration on Public Access to Law, available at http://www.paclii.org/other/Montrealdec.html. (last visited Jan. 18, 2014)
Cambridge University Press v. Becker Civil Action No.1: 08-CV-1425-ODE
 Supra, note 1
Alberta (Education) v Canadian Copyright Licensing Agency, 2012 SCC 37
Alberta (Education) v Canadian Copyright Licensing Agency, 2012 SCC 37, Access Copyright at para 31
 1996 (36) DRJ 81