India: Interplay Of Section 51 And 52 Of The Copyright Act, 1962: Delhi High Court Judgement

Last Updated: 6 October 2016
Article by Divya Choubey

This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962. This case tries to draw the line between the rights of the author, publishers of the work and competing rights of society.

The case was between THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY OF OXFORD & ORS. Vs. RAMESHWARI PHOTOCOPY SERVICES & ANR. In this case, five plaintiffs THE OXFORD UNIVERSITY PRESS, CAMBRIDGE UNIVERSITY PRESS U.K., CAMBRIDGE UNIVERSITY PRESS INDIA PVT LTD., TAYLOR & FRANCIS GROUP U.K., and TAYLOR & FRANCIS BOOKS INDIA PVT. LTD. filed a suit against RAMESHWARI PHOTOCOPY SERVICE and UNIVERSITY OF DELHI for the relief of permanent injunction 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. Amongst other arguments, defendant replied with claiming that their activities fall under section 52 of the Copyright Act, 1962 and hence do not constitute infringement.

The article does not intend to discuss all the arguments on the behalf of the plaintiff, defendant and views of the judges on the same. Instead, this article intends to discuss effect of the judgment on the interplay between section 51 which declares certain acts as infringement of copyright and section 52 of the act which allows certain acts to be done without falling within the purview of infringement. Article also intends to discuss the scope of educational use allowed under copyright act in light of this landmark judgement.

In September, 2012, University of Delhi (DU) was ordered by the court to examine the proposal to obtain a license from Reprographic Rights Organisation such as IRRO for preparing course packs was passed. By the same order, court also ordered defendant No.1 to maintain proper accounts of sales and to file a fortnightly statement before the court. In reply, DU submitted that question of obtaining licenses arises only if their activity causes infringement of the plaintiffs' right. Court accepted the contention of the DU and decided on whether activities of defendant fall under infringement.

Vide order dated 17th October, 2012, the defendant No.1 was restrained from making, selling course packs / re-producing the plaintiffs' publications or substantial portions thereof by compiling the same either in a book form or in a course pack, till the final disposal of the application for interim relief.

Later, in order to decide whether activities of defendant fall under section 51 or not and if so did they fall under section 52 or not, court observed as below:

Did the activities of defendant fall under section 51?

The court concluded that activities of defendant fall under section 51 and observed as below:

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 be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein.".

Did the fall under section 52?

Court had to decide whether reproduction of material fall under section 52 (i) and while doing that court had to decide whether activities allowed so as not to constitute infringement also cover institution and more than one pupil and whether interpretation of term 'instruction' should be restricted to lecture or not. Court held that institution providing instructions to more than one pupil fall under activities allowed under section 52. Moreover court also held that instruction cannot be limited to the term lecture in classroom.

Can section 52 be interpreted as independent of the section 51 or it is proviso or exception to section 51?

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.

Are defendants liable for infringement?

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).

Ultimately, court held defendants not liable of infringement.

Court observed that if students were not having access to course packs provided by the defendants, it would not have resulted students buying books, rather it would have resulted in students sitting in libraries taking notes by hand. That would have been injustice in the age of modern technologies. Court also held that declaring acts of defendants as infringement would result in such interpretation of law that results in regression of the evolvement of the human being for the better.

However this judgement did not deal with the cover-to-cover copying of the books as that was not a fact in issue. We will have to wait till we get verdict dealing with such issue.

Further, as consequences of this judgement, with free licensing of photocopying the books, publishers are more likely to invest less in Indian markets. However, some IP experts are also of the view that there would not be any such effect. Let time reflect the real effects.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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