Not all the uses of copyrighted work without the consent of the author, amount to infringement. On the considerations of public interest, certain uses with respect to the copyrighted works have been kept outside the purview of infringement. In legal parlance, these exceptions are known as ‘fair use exceptions’. Fair use exception is envisaged as a balance between the interests of the authors or owners of the copyright and the public at large. One such exception is contained in Section 52 (1)(h) of the Copyright Act, 1957 that runs as follows:
" The reproduction of a literary, dramatic, musical or artistic work—
- by a teacher or a pupil in the course of instruction
- as part of the questions to be answered in an examination; or
- in answers to such question"
In addition, the review, criticism of a copyright work does not amount to infringement. The scope of this provision came for determination before Delhi High Court in the recent case of Syndicate of Press of the University of Cambridge trading as Cambridge University Press & Anr V. B. D. Bhandari & Anr 2005 (31) PTC 58 (Del).
Cambridge University Press publishes the well-known grammar book titled "Advance Grammar in Use by Martin HEWINGS" which is prescribed textbook for many universities all over the World. In India, this publication is prescribed by Guru Nanak Dev University, Amritsar for graduation students in all streams of study. The defendant Mr. Bhandari began to publish English Guides titled "MBD English Guide" which was a verbatim copy of the several extracts from the Cambridge University Publication. The Defendant plagiarized even the scheme of exercise, answers, and placement topics in his impugned guide.
Cambridge University Press instituted a suit for infringement of its copyright. The Court passed ad interim ex parte injunction against Mr. Bhandari restraining him from incorporating and utilizing the verbatim text taken from Cambridge University press publication. After the notice Mr. Bhandari appeared before the Court and defended his case. The essence of argument put up by Mr. Bhandari was that ‘printing and publishing of a guide and reproduction of a matter essentially required from the point of view of examination from the book prescribed by the University in the syllabi does not amount to infringement of copyright’. The impugned guide provides understanding of the syllabi by giving detailed instruction for answering the exercises and is in nature of research work or review. The defendant claimed that his act is covered the exception enumerated in Section 52(1)(h) of the Copyright Act, 1957.
The defendant placed reliance on various precedents to bear out his contention. In Ramesh Chaudhry & Ors V. Ali Mohd AIR 1965 J&K 101 the Court had ruled that
"Once the original authors of the books allowed the University to publish it in their syllabus and the University published it as a part of their syllabus prescribed for its students, the matter went into the hands of the general public and no copyright in the strict sense of the term remained with the original authors. Having been published by the university, it became more or less a public property. Any member of the public could publish a review or a criticism, or guide to this book."
Delhi High Court considered the applicability of the above-mentioned precedent to the present case. The ratio of the said case was that review, criticism and guide of the work published by the university did not amount to infringement of copyright. The Court examined the meaning of the terms ‘review’, ‘criticism’ and ‘guide’ to see as to whether the impugned work was within the meaning of these exceptions. The Court Held:
"A review may summarize the original work and present it for the perusal to a third person so that such person may get an idea about the work. A criticism may discuss the merits and demerits of the work. A guide may seek to enable the students of the original work to better understand it from the point of view of the examinations. Verbatim lifting of the text to the extent of copying the complete set of exercise and the key to such exercise cannot be in any manner termed as review, criticism or a guide to the original work."
Therefore, the impugned guide published by the defendant cannot be called a review, criticism or guide of the ‘"Advance Grammar in Use by Martin HEWINGS" published by Cambridge University Press.
The applicability of the exception contained in Section 52(1)(h) (refer to the introductory paragraph) was also considered by the Court. The Court was of the opinion that this exception is applicable only where the reproduction is made as a part of the question to be answered in the examination or in answers to such questions. This exception would not be applicable in the instance case because the reproduction is not made as a part of the questions and answers; rather the complete set of questions and answers has been copied from the original work. The Court confirmed the grant of ad interim injunction against the defendant Mr. Bhandari.
Fair Use doctrine does not permit brazen copying of the original copyrighted work for commercial benefits. Even though review, criticism and publishing guide is permitted, independent mental labour and skill must go in such reproduction. Slavish copy of the original work be it a University prescribed publication, cannot be justified under this doctrine.
© Lex Orbis 2005
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