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TMI Blog2016 (9) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... 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(1)(zb) excluding from the purview of infringement any reproduction, adaptation, issuance of copies to facilitate persons with disabilities to access such works for educational purposes; (ix) that the only nexus of the defendant No. 2 University with the defendant No. 1 is of the University having permitted the defendant No. 1 to carry on photocopy operations from its premises; else, the defendant No. 2 University is nowhere photocopying for its own purpose nor does anyone to whom books are issued by the library of the defendant No. 2 University discloses the purpose of taking the said books; (x) that the defendant No. 2 University has never issued books to the defendant No. 1 for reproduction; (xi) that the defendant No. 2 is not gaining anything out of such reproduction; (xii) that the defendant No. 2 University is in the process of forming a Committee of Heads of all the constituent departments of DSE with the mandate to explore the ways and means to ensure access to educational material keeping in mind the interest of the students, including of providing E-Books, online digital holdings, supporting open service editions and such other measures as may be available to ensure wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s preferred by the plaintiffs thereagainst but dismissed vide order dated 12th April, 2013 with some clarification. The defendant No. 3 has also filed IA No. 3455/2013 under Order XXXIX Rule 4 of the CPC. 12. Society for Promoting Educational Access and Knowledge (SPEAK) filed IA No. 5960/2013 for impleadment and which was also allowed on 12th April, 2013 and SPEAK impleaded as defendant No. 4. 13. The hearing of the applications under Order XXXIX Rules 1 & 2 of the CPC and Order XXXIX Rule 4 CPC commenced on 25th April, 2013 and concluded on 21st November, 2014, when judgment was reserved. However, need to re-list the matter for hearing is not felt as copious notes were taken at the time of hearing and written arguments have also been filed and perused and the same keep the matter fresh. 14. It is the contention of the counsel for the plaintiffs (a) that the defendant No. 2 University has institutionalised infringement by prescribing chapters from the publications of the plaintiffs as part of its curriculum / syllabus and permitting photocopy of the said chapters and sale thereof as course packs; (b) however the defendant No. 2 University in its written statement has dis-associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1; (n) that the publishers invest in publishing the books and if the copyright of the publishers is not protected, it will sound a death knell for the publication business; (o) that on further enquiry it was informed that the cost per college would be Rs. 12,000/- per year, if an IRRO licence were to be taken; (p) that what the plaintiffs are wanting is only a paltry licence fee and on obtaining such licence, the course packs can be made in terms of the said licence; (q) that the IRRO licences would be subject to scrutiny of the Copyright Board under Section 33A of the Act; (r) that unless the rights of the plaintiffs are protected, educational publications would become an unfeasible business; on further enquiry as to the licence fee that would be required to be paid if an IRRO licence were to be taken, attention was drawn to Rule 57(5) of the Copyright Rules, 2013; (s) that the actions of the defendants are clearly in the teeth of Section 14(a)(i) & (ii) of the Copyright Act and constitute infringement; (t) that Section 52 is akin to the law in U.K. and unlike Section 107 of the United States (US) Laws defining 'fair use' only briefly; (u) that India is bound by the Berne Convent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparation for instruction" were dropped in the final amendment act and which is again indicative that the applicability of Section 52(1)(i) is confined to reproduction "in the course of instruction" and not "in the course of preparation for instruction"; (ze) that it matters not whether the author or the publisher intended the book to be for instructional use-Section 52(1)(h) uses the words "published literary or dramatic works" irrespective of whether they were published for instructional use or not; (zf) that there is a difference in the meaning of the words "in the course of instruction" used in Section 52(1)(i) and "for the purpose of instruction"; (zg) that the copying and reproduction being done by the defendants is not "in the course of instruction" but "for the purpose of instruction"; (zh) that if Section 52(1)(i) were to be read as allowing the teacher to make copies for the purposes of instruction, there would have been no need for Section 52(1)(h); (zi) reliance was placed on Princeton University Press Vs. Michigan Document Services Inc. 99 F.3d 1381 (6th Cir. 1996) also concerned with an action for restraining the defendant from reproducing substantial segments of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic interest; (zr) that the matter has to be looked at not with a short sight but with a long term impact as allowing the photocopying as is going on to continue would adversely impact the publishing industry resulting in stoppage of publication of textbooks, at the cost of education and research; (zs) attention was invited to Syndicate of The Press of The University of Cambridge Vs. B.D. Bhandari 185 (2011) DLT 346, holding that the defence of 'fair use' as provided in Section 52(1)(h) is only available to the teacher and pupil to reproduce the literary work in the course of instructions or examination paper setter to reproduce any literary work as part of the questions or to the pupil to reproduce the literary work as answers to such questions and further holding that the publishers of commercial books were neither teachers nor students nor a person giving or receiving instruction and that if the defence of fair use is allowed to a publisher, then it would result in a situation where every publisher, without permission from the owner of copyright, would reproduce the ad verbatim literary text from the educational textbooks prescribed by the University and for commercial gains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education, Manipal Vs. B. Malini Mallya (2009) 4 SCC 256, laying down that when a fair dealing is made inter alia of a literary or dramatic work for the private use including research and criticism or review, no infringement can be claimed and that no injunction will be granted with respect to this as mentioned in Section 52 of the Act; (viii) reliance was placed on Longman Group Ltd. Vs. Carrington Technical Institute Board of Governor (1991) 2 NZLR 574 holding that in its ordinary meaning the words "course of instruction" would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student and that so long as the copying forms part of and arises out of the course of instruction, it would normally be in the course of instruction; it encompasses preparation of material to be used in the course of instruction; (ix) that once reproduction i.e. photocopy is expressly permitted under Section 52, no limitation should be placed thereon; (x) that even in the judgment of the Supreme Court of Canada in Province of Alberta supra in the compilation of judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in this regard was placed on the judgment dated 11th May, 2012 of United States District Court for the Northern District of Georgia (Atlanta Division) in Cambridge University Press Vs. Mark P. Becker holding that small parts averaging around 10% of the whole copyrighted work did not substitute for the book and the court is required to consider whether the conduct engaged in by the defendant would result in a substantially adverse impact on the potential market for the original and if a professor used an excerpt of 10% of the copyrighted work and this was repeated by others many times, it would not cause substantial damage to the market for the copyrighted work because 10% excerpt would not substitute for the original, no matter how many copies were made; (xviii) that in Section 52(1)(i) restriction of 10% also does not exist and the only criteria is of effect on marketability; (xix) that no excerpt can be enough to replace a book; (xx) that the question has to be judged qualitatively and not quantitatively; (xxi) that all these are matters of trial and without which it will not be determined as to how much portion of the book has been copied and what damage has been caused there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to be widely interpreted; (xxix) that the course packs contains a collection of wide ranging works; (xxx) that the Division Bench in Syndicate of The Press of The University of Cambridge supra had prescribed a 'four factor test' to be followed to determine fair use under Section 52(1)(a); (xxxi) that the effect on the market cannot be the sole criteria under Section 52(1)(i); (xxxii) that serious users of the books will not rely on course packs and therefore no serious commercial interest is hit and the miniscule commercial interest which is hit is within the permitted rights; (xxxiii) that the proportion of the copyrighted work included in the course packs is irrelevant as far as India is concerned; (xxxiv) that public interest has been accepted as the fourth ingredient in the grant of interim relief; (xxxv) that the defendant No. 2 University is not required to go to IRRO as it is exercising the rights recognised in Section 52 and only those who are exploiting the copyright are required to go to IRRO; (xxxvi) that the Indian law is different from the laws of other jurisdictions; (xxxvii) that the majority of the Judges in Princeton University Press supra disagreed with the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess to knowledge and the injury if any ultimately found to the plaintiffs can be compensated with money; (xlix) reliance in this regard is placed on Dalpat Kumar Vs. Prahlad Singh (1992) 1 SCC 719 holding that the burden of proving that there exists a prima facie case and infraction thereof and that the damage would be irreparable and the balance of convenience is in favour of injunction is on the plaintiffs; (l) reliance is placed on Helen C. Rebello Vs. Maharashtra State Road Transport Corporation (1999) 1 SCC 90 laying down that whenever there are two possible interpretations of a beneficial legislation then the one which subserves the object of the legislation with benefit to the subject should be accepted; (li) reliance was placed on ESPN Star Sports Vs. Global Broadcast News Ltd. 2008(38) PTC 477 (Del) to contend that in the absence of any imminent threat or danger of legal injury of the kind that damages or a claim which money cannot compensate, no injunction can be granted; (lii) that once it is found that the injury if any would be compensable, it matters not whether the compensation would be recoverable or not; (liii) that Section 52(1)(h) is in the context of guide book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counsel for the defendant No. 1 adopted the arguments of the senior counsel for the defendant No. 2 University. 17. The counsel for the defendant No. 3 ASEAK adopted the arguments of the other counsels. 18. The senior counsel for the defendant No. 2 University argued (i) that the question as has arisen has not arisen in the country till now; (ii) that the question, though relating to copyright law, has to be judged in the light of the right to access to knowledge; (iii) that the right to education finds mention in the Constitution not only as a Fundamental Right but also as a Directive Principle of State Policy; (iv) that access to education is a cherished constitutional value and includes within it access for students to books in library and right to research and to use all materials available; (v) that there is no dispute that a copyright would certainly subsist in the works published by the plaintiffs but it is to be examined whether the said copyright vests in the plaintiffs or not; (vi) that abstraction of work is not the same as reproduction of work mentioned in Section 14(a)(i) defining copyright, though reproduction would include reproduction by photocopy; (vii) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions have to be read together and that profit is irrelevant to test infringement; (xxii) however Sections 51 & 52 make profit an indice and the Division Bench of this Court in paras 63 and 105 of Syndicate of The Press of The University of Cambridge supra also mentioned commercial exploitation; (xxiii) that the defendant No. 2 University is not shying from full responsibility for the actions; (xxiv) that students are integral part of the University; (xxv) that thus anything done by the University, even if students mak use thereof is one and the same act; (xxvi) that Section 52(1)(g), as it stood prior to 2012 Amendment and which is equivalent of the present Section 52(1)(h), used the words 'publication' and 'educational institution' and which included selling to public and not necessarily to students only; (xxvii) that by the amendment, the word 'educational institution' has been deleted, lifting the limitation and now there is no limitation for educational institutions as under old Section 52(1)(g); (xxviii) that thus whatever is for education is not infringement; (xxix) that the plaintiffs also do not call the defendant No. 1 a publisher; (xxx) that a chart of the quantum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of instruction; (xlv) that Section 107 of the United States Copyright Act, 1976 is different and thus the judgment of the US Court of Appeal, Sixth Circuit in Princeton University Press supra relied upon by the plaintiffs is not applicable; (xlvi) that even otherwise applying the four factor test, there is no infringement; (xlvii) that though Universities were part of reprographic society in Canada but have broken off their ties therefrom; (xlviii) that the TRIPS Agreement also accepts exemptions to copyright; (xlix) that no premium can be put on knowledge; (l) that the tuition fee in the defendant No. 2 University is subsidised and at interim stage there should be no injunction; (li) that education was never meant to be exploitative; (lii) that in all jurisdictions education is treated separately and has a special status; that Article 26 of the Declaration of Human Rights also provides for a right to education; (liii) that no legitimate rights of any of the publishers have been infringed; (liv) that though the defendant No. 2 University had nothing to do with the impugned acts but is taking up the matter in the interest of the students; (lv) that the test of fairness is not quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued (I) that the course packs are sold like text books; (II) that the objective of this litigation is not to compel the buying of books but to compel the defendant No. 2 University to enter into a licencing agreement with IRRO which is now fully functional; (III) that IRRO is the only Society registered under Section 33 of the Act; (IV) that earlier IRRO permitted only 20 copies to be made but now permits 15% of the copyrighted work to be copied; (V) that if the defendant No. 2 University feels that 15% is less, it can challenge the same before the Copyright Board and the Copyright Board is now empowered to give interim orders also; (VI) that the argument of public interest is a myopic argument; (VII) that if injunction would be refused there would be no incentive for new literary work; (VIII) that even if the academicians continue to write for themselves, the publishers would not be willing to publish; (IX) that Section 52 sets out the public interest policy and the policy having been statutorily laid down, there could be no public interest outside Section 52; (X) that copyright would become useless if the entire work were allowed to be copied under Section 52(1)(i); (XI) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 33 of the Copyright Act, offered a solution to the issue as has arisen but on further consideration I tend to agree with the senior counsels for the defendant No. 2 University and defendant No. 4 SPEAK that the question of issuing any such direction would arise only upon finding that what the defendant No. 2 University is doing is not covered by Section 52 of the Act and which would make it an infringement of the copyright and to avoid which it can go before IRRO. 24. To be able to gauge the full import of Section 52 of the Copyright Act, I have examined the provisions of the said law from the beginning of the statute. 25. The Copyright Act was enacted "to amend and consolidate" the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. Vs. State of Karn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a statutory right. 29. Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright. It follows, if there is no exclusive right, there is no infringement. Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and the outcome thereof will not be infringing copy within the meaning of Section 2(m). Section 55 also, entitles the owner of copyright to remedies by way of injunction, damages, accounts or otherwise as are conferred by law for infringement of a right, only when copyright is infringed and except as otherwise provided by the Copyright Act. Thus unless there is infringement of copyright within the meaning of the Act, owner of copyright is not entitled to sue. 30. A Division Bench of this Court in Time Warner Entertainment Company, L.P. Vs. RPG Netcom (2007) 140 DLT 758 held that copyright cannot be claimed and suit for infringement of copyright cannot be maintained de-hors the Copyright Act and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the defendant No. 2 University is doing. The word "reproduce" has not been defined in Section 2 of the Act though i) Section 2 (hh) defines "duplicating equipment" as any mechanical contrivance or device used or intended to be used for making copies of any work; ii) Section 2(s) defines "photograph" as including photo-lithograph and any work produced by any process analogous to photography; and, iii) Section 2(x) defines "reprography" as making copies of a work by photo-copying or similar means. On the basis thereof, I conclude that the words in Section 14(a)(i) "to reproduce the work" would include making photocopy of the work in contravention of the provisions of the Act. I have in Continental Telepower Industries Ltd. Vs. Union of India MANU/DE/1691/2009 held that a photocopy is certainly a copy. Long back, in British Oxygen Company Ltd. Vs. Liquid Air Ltd. 1925 Ch. 383 also it was held that making photographic copy of literary work is reproduction thereof. I thus conclude that the right to make photocopies is the exclusive right of the author or composer of the literary work and a copyright within the meaning of Section 14. Axiomatically, the making of photocopies by the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk and which copy as per Explanation to Section 14 is a copy already in circulation, to make more copies of the said work for issuance thereof to the public as the defendant No. 2 University is doing but have concluded that the words "to issue copies of the work" cannot be read/interpreted as "to make copies of the work" and which under Section 14(a)(i) is the exclusive right of the author and composer and that the purport of Section 14(a)(ii) is only to not vest in the owner of copyright any right to further issue to public a copy which he has already once issued. If the words "to issue copies of the work" were to be read also as "making copies of the work", the same would tantamount to the owner of copyright after having once sold a copy thereof, being left with no right to restrain the person who has purchased the copy from making further copies thereof and selling the same. 37. The defendant No. 2 University thus, though entitled to issue the books, published by the plaintiffs and purchased by it and kept by the defendant No. 2 University in its library, to whosoever is entitled to issuance of the said books from the library, per Section 14(a)(i) and Section 51(a)(i) would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omposers; and b) and having statutorily enacted what is copyright; and c) having made what is copyright also subject to other provisions of the Act; and d) having in successive provisions of the Statute prescribed "when copyright infringed" and "certain acts not to be infringement of copyright"; and e) having vested the right to civil remedies only to situations when copyright is infringed, the rules of interpretation of Statutes as applicable to Proviso and Exception cannot be applied to Section 52 of the Copyright Act. Once the acts listed in Section 52 are declared as not constituting infringement of copyright and the reproduction of work resulting from such acts as not constituting infringing copy, it follows that the exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14; of copyright, once that is so, the doing of such act cannot be infringement under Section 51 and the question of taking the same out by way of proviso or exception does not arise. Supreme Court, in Nand Kishore Mehra Vs. Sushil Mehra (1995) 4 SCC 572, dealing with Sections 3(1) and 3(3) of the Benami Transactions (Prohibition) Act, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the work. 43. The various clauses under Section 52(1) deal with different factual situations. I am of the view that once the legislature has in Clauses (h), (i), (j) under Section 52(1) provided specifically for the field of education/instruction, the scope thereof cannot be expanded or restricted by applying the parameters of the omnibus or general Clause (a). It is a well known rule of construction that general provisions yield to special provisions. Supreme Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh AIR 1961 SC 1170 held that this rule has not been arbitrarily made by lawyers and judges but springs from common understanding of men and women that when the same person gives two directions, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. This rule was recently reiterated in Commercial Tax Officer Vs. Binani Cements Ltd. (2014) 8 SCC 319. I thus hold Section 52(1)(a) to be having no applicability to the impugned action. Thus the extent of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copyright exclusive right to issue copies of the work to the public and which according to me would fall within 'publication' within the meaning of Section 3 of the Act. The same leads me to infer that the word "publication" in Section 3 refers to an act of preparation and issuing of a book, journal or piece of music for public sale as the plaintiffs are doing and does not refer to the act of making photocopies of a already published work and issuing the same. The meaning ascribed in Section 3 to 'publication' becomes clear on reading thereof with Section 4 titled "When work not deemed to be published or performed in public" and Section 5 titled "When work deemed to be first published in India" and is found to be in the context of being made available to the public for the first time. When photocopies of an already published work are made, the same does not amount to making the work available to the public for the first time. Even otherwise it is a settled principle of interpretation that the definition even if given in a Statute to any word may not apply to the word used in another provision of the Statute if the context does not so permit. Supreme Court in Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Though not addressed by either counsel but I have also considered whether the defendant no. 2 University which is reproducing the work by making photocopies thereof would fall within the meaning of the word "teacher" in Section 52(1)(i). Significantly Section 52(1)(j) which prescribes the action of performance of a literary, dramatic or musical work by the staff and students as not constituting infringement uses the words 'educational institution' and which are conspicuously missing in Section 52(1)(i). The questions arise a) whether owing to the difference in language between Sections 52(1)(i) and 52(1)(j) with Section 52(1)(i) using the words "teacher" and "pupil" and Section 52(1)(j) using the words "staff" and "students" of "educational institution" it has to be held that Section 52(1)(i) is not applicable to defendant no. 2 University as an educational institution; or (b) whether the scope of Section 52(1)(i) is restricted to the actions of an individual teacher and an individual pupil or extends to action of the institution and its students. 55. On consideration, I am of the view that the scope and ambit of Section 52(1)(i) cannot be so restricted. The settled principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(g) as it stood prior to the, amendment of the year 2012 of the Copyright Act with the words "intended for instructional use" in equivalent Section 52(1)(h) post amendment. The only effect of such substitution in my view is to expand/widen the scope thereof. 'Instruction' is not confined to Educational Institutions or Establishments. The word 'instruction' embraces any form of instruction wheresoever and not necessarily in educational institutions. It has been so authored in Para 21.84 of the Modern Law of Copyright & Designs Fourth Edition by Laddie, Prescott and Vitoria, also. However as distinct therefrom Section 52(1)(h) of pre 2012 amendment corresponding to Section 52(1)(i) of post amendment used the words 'in the course of instruction' 'by a teacher or a pupil' only. Thus while publication in a collection mainly composed of non-copyright work of two short passages of copyrighted work was earlier permitted only if intended for use of educational institutions, it is now permitted for any instructional use, not necessarily in educational institutions. 57. The use of the word 'publication' in Section 52(1)(h) as distinct from the word 'reproduction' in Section 52(1)(i) furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or pupil to acquire knowledge of what the student or pupil has approached the teacher to learn. A Division Bench of the High Court of Karnataka in B.K. Raghu Vs. The Karnataka Secondary Education Examination Board ILR 2009 Karnataka 206 also equated education to instruction or training by which people, (generally young), learn to develop and use their mental, moral and physical powers. It was held that 'formal education' is instruction given in schools and colleges-In this type of education, the people in charge of a school or college decide what to teach and learners then study those things under the direction of teachers. A Division Bench of the High Court of Bombay in Bombay Municipal Corporation Vs. Ramachandra Laxman Belosay AIR 1960 Bom 58 held that the words "educational objects" in Section 63(b) of the Bombay Municipal Corporation Act, 1888 and the word "instruction" used in clause (k) are words of very wide import. Education was held as meaning "totality of information and qualities acquired through instruction and training which further the development of an individual physically, mentally and bodily". The word "instruction" was held to mean, to furnish knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and in great many cases they have to procure the goods to implement the foreign orders; the overseas orders in such cases immediately necessitate the purchase of the goods and eventually occasion the export; the three activities were held to be so intimately and closely connected, like cause and effect, with the actual export that they may well be regarded as integral parts of the process of export itself. It was yet further held that one cannot overlook or ignore these well known preliminary but essential activities of the export merchants which necessarily precede and lead up to and indeed occasion or eventually make possible the ultimate physical movement of the goods and to hold that these purchases are independent local purchases totally distinct from the export trade will be to unduly narrow down the wide meaning of the flexible phrase "in the course of". 65. It would thus be seen that for construing the phrase "in the course of", the test of "an integral part of continuous flow" and of "commercial sense" was evolved. I must however mention that by the Constitution Sixth Amendment Act, 1956, Parliament was given power to formulate principles for determining when a sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s "in the course of such previous year" were thus held to refer to the period commencing with the beginning of the previous year and terminating with the end of the previous year. 70. A Five Judges Bench of the High Court of Orissa in Registrar of the Orissa High Court Vs. Baradakanta Misra AIR 1973 Ori 244 in the context of the words "due course of justice" in Section 13 of the Contempt of Courts Act, 1971 held that one of the meanings of the word "course" is "the path in which anything moves". The words "course of justice" were therefore held to mean the path in which justice moves. It would thus be seen that the test of "the path in which anything moves" was applied to the interpretation of the words "in the course of"; 71. The phrase/words "in the course of" are thus found to have a definite connotation and meaning and it has to follow that when the legislature used this phrase/words, it intended them to have the same meaning. The rule of construction approved by the Supreme Court in Banarsi Devi Vs. Income Tax Officer AIR 1964 SC 1742, is that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the academic year would be within the meaning of Section 52 (1)(i) of the Act. 73. The matter can be looked at from another angle as well. Though I have held Section 52(1)(a) to be not applicable to the action of the defendant no. 2 University of making photocopies of copyrighted works but the issuance by the defendant no. 2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. The counsel for the plaintiffs also on enquiry did not argue so. I have wondered that if the action of each of the students of having the book issued from the library of defendant No. 2 University and copying pages thereof, whether by hand or by photocopy, is not infringement, whether the action of the defendant no. 2 University impugned in this suit, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a machine made available by the library, he might conceivably be "copying" but he would not be "printing" or "reprinting" ; (iii) the library is in the same position when responding to the demands of individual researchers acting separately; (iv) there is no "publication" by the library, a concept which invokes general distribution, or at least a supplying of the material to a fairly large group; (v) it is common for courts to be given photocopies of recent decisions with the publishing company's headnotes and arrangement and sometimes its annotations; (vi) it cannot be believed that a Judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both Judges are then considering in a case before them, is infringing the copyright; (vii) library was not attempting to profit or gain financially by the photocopying; (viii) the medical researchers who had asked the library for the photocopies and the scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to re-duplicate them for sale or other general distribution; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion rights of authors were restricted in favour of freedom of information; that it was sufficient to escape liability for copyright infringement if the customer of the library could claim the benefit of the exemption which allowed the copying for personal use, of articles published in a periodical; whether or not the library charges for its service is immaterial; there may be an act of 'circulation' where copies are offered which had not yet been made at the time of the 'circulation' but not when copies are made; the same does not constitute commercialisation of copies of protected works. 80. Copyright, specially in literary works, is thus 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. For this reason only, Section 14(a)(ii) as aforesaid, applies the principle of 'exhaustion' to literary works and which, this court in Warne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices to this Court for citing judgments therefrom during the course of arguments and instead of giving in advance the list of such books to the Restorer of this Court and the Restorer of this Court also taking out the court's copies of the same books for the Judges to read, and all of which was cumbersome and time consuming, started having the photocopies of the relevant judgments made from the books in the Bar Association Library of this Court. Initially the said photocopying was got done by having the book issued from the library and carrying the same to the photocopier who had, for the convenience of the advocates, been granted a licence to operate from the premises of this Court. Subsequently, for expediency and to avoid the books being taken out of the library, the Bar Association library itself allowed the photocopier to install his machine within the library premises and any advocate could get the photocopy done by having the relevant judgment photocopied within the Bar Association library by paying the cost of photocopy as is fixed by the Bar Association. 85. The defendant no. 2 University also could have possibly devised the same arrangement as has been followed in the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packs i.e. compilations of photocopied portions of different books prescribed by the defendant no. 2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no. 1 as competitor of the plaintiffs. Imparting of education by the defendant no. 2 University is heavily subsidized with the students still being charged tuition fee only of Rs. 400 to 1,200/- per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying were to be not available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better. 88. Just like the cost to the respondent no. 2 University of employing a pho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty as held hereinabove to be not amounting to infringement of copyright in books, to infringement. 91. I next take up the aspect of the international covenants. 92. Articles 9 and 10 of the Berne Convention supra to which reference was made are as under: "Article 9 Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention. Article 10 Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the work) one must look and see whether the second is satisfied. Note that it is not a question of prejudice or no: all copying is damaging in some degree; a single photocopy may mean one copy of the journal remaining unsold and, if the author had a share in the proceeds of publication he lost it. But was this prejudice unreasonable? Here, scarcely. It might be otherwise if a monograph, printed in limited numbers, were copied by a large firm and the copies distributed in their thousands to its correspondents throughout the world. Another example is that of a lecturer who, to support his theme, photocopies a short article from a specialist journal and reads it to his audience; clearly this scarcely prejudices the circulation of the review. It would be different if he had run off a large number of copies and handed them out, for this might seriously cut in on its sales. In cases where there would be serious loss of profit for the copyright owner, the law should provide him with some compensation (a system of compulsory licensing with equitable remuneration). 9.9. Most countries allow a few photocopies to be made without payment especially for personal or scientific use, but exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy one. This paragraph, with its two conditions, provides him with certain guidelines." (emphasis added) 94. Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights is as under: "Article 13 Limitations and Exceptions Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the right holder." 95. It would thus be seen that under the Berne Convention also, the only binding obligation on the privy countries is to in their respective legislations i) not permit reproduction of the work so as to conflict with a normal exploitation of the work and so as to unreasonably prejudice the legitimate interest of the author; and, ii) to while permitting utilization of the literary works including in publications for teaching ensure that such utilization is to the extent justified by the purpose and compatible with fair practice. Similarly, under the TRIPS Agreement also the member countries have agreed to confine the exceptions to the copyright to the extent they do not unreasonably prejudice the legitimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, it has to be interpreted in the same sense as latin maxim dulo lex sed lex which means law is hard but it is law and there cannot be any departure from words of law. 99. In accordance with the aforesaid international covenants, the legislators of some other member / privy countries in the context of their respective countries have worded the exceptions differently and on an interpretation of which legislation, the Courts of those countries have adjudicated and which judgments have been cited by the counsels. I am however of the opinion that the said judgments in the context of different legislations on the basis of perception by the legislators thereof of the purpose of teaching and unreasonable prejudice to the legitimate interest of the author cannot form the bedrock for this Court to interpret the Copyright Act of this country. 100. I am therefore not proceeding to discuss the said judgments. The reference herein above by me to some foreign judgments is only to demonstrate the diversity. 101. I therefore conclude the actions of the defendants to be not amounting to infringement of copyright of the plaintiffs. 102. Once that is so, no trial is required in the suit. 103. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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