Breaking:Delhi HC disposes of publisher’s appeal in DU photocopier case, restores suit

Wrapping up the appeal in a relatively short span of time, a division bench of the Delhi High Court today refused to grant an injunction to the international publishers in the Delhi University photocopiers case. However, the court has set aside the finding of the single bench that “no triable issue on fact” arose, and has restored the suit initiated by the book publishers..The bench of Pradeep Nandrajog and Yogesh Khanna JJ. had started hearing arguments on November 29 and delivered the judgment at 10.30 this morning. From the very start, Justice Nandrajog was adamant about not granting unnecessary adjournments to either side and had heard arguments stretching for over three days, over five hours each day..The appeal arises out of the single judge order of Rajiv Sahai Endlaw, J. who had earlier this year pronounced a groundbreaking judgment that hinges on the exceptions to copyright infringement mentioned in Section 52 of the Copyright Act of 1957..Stating that copyright was “not a divine right”, Justice Endlaw had dismissed the infringement suit filed by a consortium of international publishers including Oxford University Press, Cambridge University Press and Taylor and Francis Group against a photocopy shop located in Delhi University, accusing them of selling “course-packs” that are compilations of text-books and other course materials for “commercial gain”..Today, the division bench disposed of the appeal against this judgment. While refusing to grant injunction to the appellants, the court set aside the single judge’s finding that no triable issue of fact had arisen in the matter..The appellants were represented, once again, by senior counsel Sudhir Chandra and Pratibha Singh while the respondents’ counsel included senior advocates Anup Bhambhani, and Neeraj Kishan Kaul..The bench recognized two principal questions of debate in the matter – Whether the right of reproduction of any work by a teacher or a student in the course of instruction is absolute and not hedged with the condition of it being fair use, and the scope of the phrase “by a teacher or a pupil in the course of instruction” mentioned in S.52(1)(i) of the Copyright Act..The bench relied on several international conventions and precedents stating,.“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. Reference to foreign case law while interpreting a municipal statute has to be with care and caution. .The language used in a statute covering a field of law in different municipal jurisdictions may be different and we caution ourselves that some minor points of details here and there and the difference in the language here and there may assume importance.”.The bench also recognised the importance of promotion of education amongst students, stating,.“The importance of education lies in the fact that 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 is thus necessary, by whatever nomenclature we may call them, that development of knowledge modules, having the right content, to take care of the needs of the learner is encouraged. .…So fundamental is education to a society – it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position. Of course, the more indigent the learner, the greater the responsibility to ensure equitable access.”.The bench heavily relied on the High Court of Wellington, New Zealand judgment of Longman Group Limited v. Carrington Technical Institute Board of Governor to discuss several aspects of copyright law along with the scope of the term “course of instruction”..“We declare that the law in India would not warrant an approach to answer the question by looking at whether the course pack has become a textbook, but by considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class and this would warrant an analysis of the course pack with reference to the objective of the course, the course content and the list of suggested readings given by the teacher to the students. This would require expert evidence, and we shall pass appropriate directions on this while bringing the curtains down.”.In light of the above stated observations, the appeal was disposed of, but the suit was restored for trial on the issue of fact for which the parties would be permitted to lead expert witness testimony..The bench identified the triable issues warranting evidence and directed the photocopiers to maintain a record of the course packs supplied to the students. The bench ordered filing of statements of the number of course packs photocopied and supplied every six months and listed the suit for January 4, 2017..Read the full judgment below.