THE CHANCELLOR, MASTERS & SCHOLARS OF UNIVERSITY OF OXFORD Vs. RAMESHWARI PHOTOCOPY SERVICES & ORS

JUDGEMENT

(1.) We shall be referring to the parties by their nomenclature in the suit. The appellants are the plaintiffs. The respondents are the defendants. The dispute before the learned Single Judge concerned photocopying of pages from the copyrighted publications of the plaintiffs; namely (i) Oxford University Press; (ii) Cambridge University Press, United Kingdom; (iii) Cambridge University Press India Pvt. Ltd.; (iv) Taylor & Francis Group, U.K.; and (v) Taylor & Francis Books India Pvt. Ltd. The first defendant : Rameshwari Photocopy Services has a shop licensed to it within the precincts of the Delhi School of Economics (University of Delhi). Albeit with an initial denial by the University of Delhi, the ultimate picture which emerged was that the professors imparting teaching in the Delhi School of Economics had authorized preparation of course packs and Rameshwari Photocopy Services was entrusted with the task of photocopying the pages from the books published by the plaintiffs, and after binding the same, to supply them to the students charging 50 paisa per page. Though not a part of the pleadings of the parties, access to the website of the plaintiffs gives valuable data concerning the number of pages comprising the publications, the price thereof in the paper back edition as also the hardcover edition. The number of pages copied and bound in the course pack have been pleaded in the plaint and therefore mixing the information available on the website with the one pleaded in the plaint, reduced in a statement form, pertaining to the four course pack prepared, the data would be as under:- Course Pack I

(2.) For record it be noted that vide order dated March 01, 2013, allowing IA No.3454/2013 filed by the Association of Students for Equitable Access to Knowledge (ASEAK), the Association was impleaded as defendant No.3. Thereafter, vide order dated April 12, 2013 allowing IA No.5960/2013, Society for Promoting Educational Access and Knowledge (SPEAK) was impleaded as defendant No.4.

(3.) It is the case of the plaintiffs that the inclusion of specific pages of its publications by Rameshwari Photocopy Services, under the authority of the Delhi School of Economics, amounts to institutional sanction for infringement of its copyright. It is the further case of the plaintiffs that the professors of the Delhi School of Economics, through its Library, issued the books published by the plaintiffs to Rameshwari Photocopy Services for preparing course packs. It is the case of the plaintiffs that the course packs, which contain no additional material apart from photocopies of its copyrighted publications, were being used like textbooks and therefore, the compilations prepared were competing with the publications of the plaintiffs. According to the plaintiffs, Rameshwari Photocopy Services was operating commercially as was evident from the rate charged by it for selling the course pack is 40/50 paisa per page, as distinct from the market rate of 20/25 paisa per page being charged by other photocopiers from the students while photocopying material given by the students to be photocopied. Anticipating that the defence would be predicated under Section 52(1)(i) of the Copyright Act, 1957, the plaintiffs have pleaded that Section 52(1)(i) was not applicable since reproduction by Rameshwari Photocopy Services, with the assistance of Delhi School of Economics, could not be classified as reproduction by a teacher or a pupil in the course of instruction. Additionally/alternatively the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i) would render Section 52(1)(h) superfluous was the contention. Meaning thereby, the plaintiffs had required the two sub-Sections to be harmonized. The plaintiffs have further pleaded that Section 52(1)(i) only covered reproduction in the course of instruction' and not in the course of preparation for instruction' as was evident from the replacement of the expression in the course of preparation for instruction' in the Bill which was tabled before the Legislature with the expression in the course of instruction' in the Act as finally promulgated upon the Bill being adopted; with modifications by the Legislature. According to the plaintiffs, reproduction by Rameshwari Photocopy Services fell within the ambit of Section 52(1)(h) and would have to be limited to two passages from works by the same author published by the same publisher during any period of five years as provided under the sub-Section. According to the plaintiffs, such an interpretation was buttressed by Article 9 and Article 10 of the Berne Convention, 1886 as well as Article 13 of the Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995. Relying upon the decisions reported as 99 F.3d 1381 Princeton University Press Vs. Michigan Document Services Inc., 2012 SCC 37 Province of Alberta Vs. Canadian Copyright Licensing Agency and 758 F. Supp. 1522 Basic Books Inc. Vs. Kinko's Graphics Corporation, the plaintiffs pleaded that in order to equitably balance the interests of academic publishers and students, the University must be directed to obtain licenses from the Indian Reprographic Rights Organization (IRRO) in order to reproduce extracts from the books published by academic publishers : given that academic institutions are the only market for academic books published by academic publishers and if unrestricted reproduction from these books are allowed the academic publishing business would suffer irreparable loss. Relying upon the decision reported as (2001) Chancery 143 Hyde Park Residence Ltd. Vs. Yelland, the plaintiffs pleaded that relief cannot be denied on the ground of public interest'; when exceptions to public interest had been delineated in the statute itself.