India: Revisiting The Doctrines In Copyright: The Oxford Dispute

Last Updated: 2 December 2008

The doctrines governing Copyright Law often compete against each other to enable determine disputes involving various aspects. The idea-expression dichotomy is often balanced against the fair-use provision in the Indian copyright regime. Explicating the same and also visualizing the dispute while drawing from the standpoint of the American transformative theory is the case of The Chancellor Masters and Scholars of The University of Oxford v. Narendra Publishing House and Ors. [IA 9823/2005, 51/2006 and 647/2006 in CS(OS) 1656/2005]

The Chancellor Masters and Scholars of the University of Oxford, a well-known publisher of academic books is engaged in publishing in India since 1912. With established show rooms in different places of India, Oxford claims to be publishing substantial number of school books for use at all levels of schooling and for all subjects, with the aid of a team of highly trained and committed editorial, research, production and marketing professionals.

The issue at hand dealing with mathematics text books i.e. ("Oxford Mathematics Part A" and "Oxford Mathematics Part B" (herein after referred to as "the textbooks"). for the students of Class XI, following the course structure prescribed by the Jammu and Kashmir State Board of School Education. Having published the same in collaboration with the Jammu and Kashmir State Board of School Education (hereafter "the Board"), an agreement had been entered into and the copyright in the said textbooks vested with Oxford. The textbooks authored by one Dr. A.K. Roy, assigned the copyright in Oxford through an agreement. Averring that great skill, knowledge and expertise being invested into the work, they claimed that no part of the textbooks could be stored in a retrieval system or transmitted in any form or by any means without the prior permission in writing given Oxford, or as expressly permitted by law.

Oxford alleged that they learnt of the existence of guide books namely "Teach yourself mathematics (Fully Solved) Part A" and "Teach yourself mathematics (Fully Solved) Part B" published by Narendra Publishing House and co-parties in 2005. The infringing books, they claimed had been published, to help those students who prefer to mug up the solutions/answers rather than seriously taking the course through text books. It was averred that the guide books had immensely hampered not only the sale of Oxford' work but had also "gravely prejudiced the interest of the students at large". Oxford averred that Narendra Publishing had reproduced the exercises and their solutions/answers from their work and thus had committed an act of infringement. It was also alleged that such reproduction by Narendra Publishing showed a deliberate and malicious intent and design on their part to misappropriate, trade upon and derive benefit from its reputation and goodwill and the copyright in the subject work, enjoyed exclusively by them, worldwide. In this regard, had granted an ex-parte injunction in favour of Oxford and Narendra Publishing moved for its vacation.

Oxford contended that Narendra Publishing had indulged in a brazen word-to-word copying of the questions, in the textbooks, while Oxford stated that they had given answers to the questions in the exercises, but had not provided detailed step-by-step process to arrive at such answers. It was argued that the questions formed a valuable and central part of the work, and their substantial copying amounted to violation of the Oxford's copyright. They further stated that questions, their arrangement and selection should be considered original literary works under the Act, and therefore, are entitled to copyright protection. Reliance was placed on University London Press v. University Tutorial Press [1916] 2 Ch. 601, to assert that question papers are literary works and that copyright could vest in questions.

Narendra Publishing contended that the present issue was one of fair use, stating that the preparation of a guide book, which independently contains the working of every mathematical problem and steps for solving them, cannot be termed as an infringement of the textbook. Further, it was averred that all students were well aware that the Narendra Publishing' books are guide books whereas Oxford's publications are textbooks. Further, the questions appearing in Oxford' books were claimed to be part of the common pool of questions used and contended that the nature of the subject is such that it would be impossible for one author to claim copyright over a set of questions. Reliance was placed on Eastern Book Company v. Modak, (2008) 1 SCC 1, while contending that Oxford' work, no question of infringement arose. It was contended that Oxford' books had not been pirated or reproduced. They, also stated that since their books did not constitute adaptation as under section 2 (a), and therefore, could not be in violation of section 14 (a) (vi). It was also contended that Section 52(1)(h) was inapplicable to the matter at hand since the reproduction of the literary work was as a part of answers to those questions. Further it was argued, placing reliance on RG Anand v. M/s Delux Films, (1978) 4 SCC 118 that there can be no copyright in ideas and therefore, the questions per se are not subject matter of copyright

The Court noted that two primary issues needed to be looked into, viz. whether that part of the work of Oxford which Narendra Publishing had reproduced, prima facie merits copyright protection. Secondly, in case it did, had a case of "fair dealing" or a "fair use" been made out.

The Court noting that the "doctrine of merger" being involved in this case, posits that where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted. The Court took notice of previous instances when on application of this doctrine the courts refused to protect the expression of an idea that could be expressed only in one, or in a very restricted manner, because doing so would confer monopoly on the idea itself. The Court opined that as far as the sequencing and schematic arrangement of the questions notice of Oxford' admission as to the same being in conformity of the J and K norms was taken notice of and that Oxford had to depict original effort, unique to their schematic arrangement or sequencing

The Court further referring to a numerous authorities on the subject observed that the same idea might be developed in different ways. Reiterating the test for determining infringement: "One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original", the Court, also looked at the "transformative work" doctrine developed in the United States, which held that: "Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises."

The Court in consideration of the wisdom behind Copyright and the various exemptions and doctrines therein, noted that whether statutorily embedded or judicially innovated, the law recognized the equally compelling need to promote creative activity while ensuring that the privileges granted by copyright do not stifle dissemination of information, vide the idea-expression dichotomy and the doctrine of "fair use" or fair dealing. The Court also opined that in addition, the transformative character of the use must also be considered, since the work if transformative, it might not matter whether the copying is whole or substantial. Further, a transformative work may not act as a market substitute and consequently, will not affect the market share of the prior work.

Looking at the dictionary meaning of the term "Review", the Court opined that in the context of a mathematical work a review could involve re-examination or a treatise on the subject. In that sense, the Court held that Narendra Publishing' revisiting the questions, and assisting the students to solve them, while providing "step by step" reasoning prima facie amounted to a review, thus falling within the "fair dealing" provision of Section 52 (1) (a) (ii) of the Act. Stating this reasoning, the High Court vacated the interim injunction.

© Lex Orbis 2008

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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