By Kevin Smith

A few years ago, I was asked by the U.S. State Department to give a presentation on copyright for librarians in India.  I spoke via web conferencing to a group of Indian librarians gathered in an auditorium at the U.S. Embassy, and the session was moderated by an IP professor from Delhi University.  This moderator began the session by asking me a very challenging question; pointing out that the standard textbook that he would like to use for his class in trademark law cost more than a month’s salary for the average Indian, he asked me how the copyright balance between rights holders and the public could be calibrated in such economic conditions.  I don’t think I provided a very good answer at the time, but last week the High Court in Delhi took on that question and offered an amazing response.

The case involves a lawsuit brought by three publishers — Oxford University Press, Cambridge University Press and Taylor & Francis — against a kiosk on the Delhi University campus that was providing copying services for students, often providing so-called “course packs” consisting of photocopies of all the supplementary readings for a particular course.  This service apparently sometimes included copying of entire chapters from textbooks.

If this all sounds rather familiar, it should.  Two of the plaintiffs, of course, are also plaintiffs in the long-running case against Georgia State University, over scanning, for class use, of excerpts from books (after losing another trial court decision in that case, on remand, the plaintiffs recently announced their intent to appeal to the 11th Circuit, again).  OUP and CUP are, ironically, becoming the go-to publishers for attacks on higher education; their greed and poor judgment are actually serving the global higher ed community quite well because their losses help clarify the broad scope of fair use / fair dealing.  But the Delhi University case probably seemed easier picking to those publishers, since the copying was commercial, in that the copy kiosk was paid for the course packs, and some textbooks, works intended directly for the university market, were at issue.  But the decision was not easy for them; it was a disaster for the publishers.

The legal basis for Justice Rajiv Sahai Endlaw’s holding that the challenged copying is permitted was section 52 of the Indian Copyright Act, which enumerates instances of copying that are not infringement.  There is a broad exception for copying of literary works by teachers and students, and the Justice held that this “course pack” service from a commercial copyright service was allowed under that exception.  There are three aspects of this decision that I think make it quite remarkable.

First, Justice Endlaw took the step that courts in the U.S. were unwilling to take when hearing course pack cases; he held that if the copying would be permitted for the students themselves, it was permissible for them to employ an agent to do it for them.  These seems like a logical application of the law, and it is one that is really quite common.  Rights holders, for example, often employ agents to exercise their rights, particularly in sending take down notices about alleged infringement to internet services providers.  Why then, should users not be allowed to employ agents to exercise their rights?  Since the exceptions are based on the socially-desirable use that is being supported by the law, why should it matter who actually presses the “copy” button?

The second remarkable thing about this verdict is the Justice’s explicit statement that copyright is neither a divine nor a natural right.  It is amazing, first, that a court even has to say this, since it is settled law, at least in countries with British-influenced copyright laws.  But publisher rhetoric often sounds like they believe that they are entitled to be paid for every single use, and that every exception to their monopoly is an unjustified taking of their property (rights holders in the U.S. are making exactly this claim about compulsory licenses).  So the Justice reminds us that copyright does not emanate from on high, but is rather a practical policy designed to address a specific economic situation.  When the grant of exclusive rights does not work to solve the economic dilemma for which it is intended, those rights must give way.

The economic analysis that follows on this conclusion is the third remarkable thing about this verdict; that analysis is discussed in this article from Forbes.  Basically, the Justice tells us that the students for whom the copies at issue were being made would never be customers of the publishers because those publishers had priced their books too high for the market.  The students would not, could not, buy all of the books in question; were it not for the copy shop kiosk, they would need to laboriously take notes by hand, as Justice Endlaw tells us he did as a law student.  So the copy kiosk is not substituting for a legitimate market, it is just providing a labor-saving service.  What this seems to say, then, is that when the publishers get so greedy that they price themselves out of a specific and socially important market, they will not be allowed to use copyright to shut down market alternatives.  As prices for academic books rise throughout the world, this situation is becoming quite real even in more developed countries, so Justice Endlaw has provided us with a path forward that might well be important even in the U.S. and Europe.  Basically, we need to return to the economic roots of copyright and analyze alleged infringements through the lens of its original incentive purpose for authors, not the rent-seeking of publishers.  In fact, the fair use analysis in the U.S., especially in its second factor about the nature of the work, invites us to do just this.

With this ruling, Justice Endlaw indicates a possible solution for the damage that the copyright monopoly is doing to education and innovation around the world by looking at the economic incentives, and using exceptions to the exclusive rights to keep copyright within the bounds of the balance demanded by those incentives.  Personally, I am grateful to the Justice for pointing out how to answer that difficult question from Indian librarians that stumped me years ago.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (2)

  1. The economic justification for this is extremely interesting, and has implications for services like Sci-Hub, which justifies large-scale infringement using a very similar argument. What are the limits of the ‘it’s legal to copy because people can’t afford to buy it’ argument? Does the legality depend on having an easily-identifiable user base whose inability to pay can be documented, as in this case? Or could it extend to web-based services with a wide range of users, some of whom are getting access to content they would otherwise be unable to afford?

  2. It’s interesting that Kevin characterizes university presses here as “greedy” because he should know that they do not price their products so as to derive high profits to please shareholders but rather to cover costs, with enough margin to invest in future upgrades of their service so as to better serve their academic customers. The reason prices have risen as they have has much to do with the impact of piracy (like Lib-Gen), the decline of the market for monographs in academic libraries like the one he heads, as well as general inflation. Kevin also ignores the effects of the Kirtsaeng court decision, which has undermined the practice of many textbook publishers in providing cheaper foreign editions to countries like India. Ken applauds court decisions that have market-eroding effects and then accepts the weird logic that results in this judge’s decision, which says that it’s ok to pay the copyshop but not the rightsholder when the retail price becomes too high. I guess Kevin is happy with the idea of driving university presses out of business because he sure has little sympathy for their economic plight, to which he and some of his library colleagues have contributed by advocating for every market-eroding court decision and law that comes around .

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