Copyright Act, 1957 – Sections 52(1)(a) & (h) – Copyright, specially in literary works, is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.
CORAM: HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Date of decision: 16th September, 2016.
CS(OS) 2439/2012, I.As. No. 14632/2012 (of the plaintiffs u/O 39 R-1&2 CPC), 430/2013 (of D-2 u/O 39 R-4 CPC) & 3455/2013 (of D-3 u/O 39 R-4 CPC)
THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY OF OXFORD & ORS. ….. Plaintiffs Through: Mr. Saikrishna Rajagopal with Mr. Sahil Sethi, Advs. Versus RAMESHWARI PHOTOCOPY SERVICES & ANR. ……Defendants Through: Mr. Rajesh Yadav and Mr. Saurabh Seth, Advs. for D-1. Mr. Gopal Subramaniam, Sr. Adv. with Mr. Saurabh Banerjee, Adv. for D-2. Mr. Rajat Kumar, Adv for D-3. Mr. N.K. Kaul, Sr. Adv. with Ms. Swathi Sukumar and Ms. Anu Paarcha, Advs. for D-4.
1. The five plaintiffs, namely i) Oxford University Press, ii) Cambridge University Press, United Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd., iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books India Pvt. Ltd., being the publishers, including of textbooks, instituted this suit for the relief of permanent injunction restraining the two defendants namely Rameshwari Photocopy Service (carrying on business from Delhi School of Economic (DSE), University of Delhi) and the University of Delhi from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs’ publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from the plaintiffs’ publications by compiling them into course packs / anthologies for sale.
2. The plaintiffs, in the plaint, have given particulars of at least four course packs being so sold containing photocopies of portions of plaintiffs’ publication varying from 6 to 65 pages. It is further the case of the plaintiffs that the said course packs sold by the defendant No.1 are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs’ publications. It is yet further the case of the plaintiffs that the libraries of the defendant No.2 University are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.
3. The suit along with IA No.14632/2012 under
Order XXXIX Rules 1 & 2 of Code of Civil Procedure, 1908 (CPC)
for interim relief restraining photocopying/reproducing copies of plaintiffs’ publication and sale of course packs came up before this Court first on 14 th August, 2012 when summons of the suit and notice of the application for interim relief were issued and though no ex-parte ad-interim relief granted but a Commissioner appointed to visit the premises of the defendant No.1 without prior notice and to make an inventory of all the infringing and pirated copies of the plaintiffs’ publication found and to seize and seal the same.
4. The defendant No.1 has filed a written statement defending the suit inter alia
(a) disputing the copyright of the plaintiffs and contending that the plaintiffs have not produced any document to establish their copyright;
(b) denying any act of infringement of copyright and alternatively pleading that the activities carried on by it amount to fair use of the works within the meaning of
Sections 52(1)(a) & (h) of the Copyright Act, 1957
(c) that it has been granted licence with respect to a small shop within the campus of DSE to provide photocopy services to students and faculty at nominal rate and as per the terms of licence, the defendant No.1 is required to provide 3000 photocopies per month to DSE, an institute of the University of Delhi, free of cost and to charge only the prescribed rate for the photocopy service meted out to others;
(d) that the defendant No.2 University recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students;
(e) that the syllabi of the defendant No.2 University does not recommend the entire publication but only certain extracts from the same;
(f) that the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading;
(g) that to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 University which provides such expensive books for reference of students;
(h) however owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study;
(i) that the services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only;
(j) that in view of the limited number of original books stored in the library, the faculty of DSE has compiled various master copies of books, articles and journals, which are then used for photocopying by the defendant No.1 in order to save the original work from being damaged;
(k) that such course packs are used by teachers and students in the course of academic instructions and for research purposes;
(l) that in fact the Licence Deed executed between the defendant No.2 University and the defendant No.1 expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for xeroxing, saving the original document;
(m) that the defendant No.1 is xeroxing the master copy at the instructions of and on the terms imposed by the defendant No.2 University;
(n) that the defendant No.1 is not commercially exploiting the author’s copyright but is giving copies to students at nominal rates of 40 paise per page to aid their education;
(o) that even if the students were to bring the original work to get the same photocopied, the defendant No.1 would charge the same rate;
(p) that the defendant No.1 has acted in good faith within the meaning of Section 76 of the Copyright Act.
5. The defendant No.2 University has also contested the suit by filing a written statement in which, besides the pleas in the written statement of the defendant No.1, it is further pleaded