India: The Fair-use Doctrine And Printing Of Guide Books

Last Updated: 23 May 2009

The printing of guidebooks and associated copyright concerns have cropped up before the Courts for adjudication in multiple instances in the recent times. The case of Syndicate of the Press of the University of Cambridge & Anr v. B.D. Bhandari & Anr [2009 (39) PTC 642] is one such case which addresses the interplay between infringement and fair use vis-à-vis the printing of guidebooks.

Syndicate of The Press of The University of Cambridge (hereinafter Cambridge Press) had filed a suit for infringement of copyright & to restrain the B.D. Bhandari from selling books containing illegal and unauthorized reproduction of literary content of their publication. The books were English Guides for various courses taught at Guru Nanak Dev University and were sold in the name of 'MBD English Guide'. The Books were alleged to contain substantial literary content of the Cambridge Press's publication titled Advance English Grammar by Martin Hewings. In pursuance of the matter, an ex parte order had already been passed by the Delhi High Court in their favour whereby Bhandari was restrained from utilizing verbatim text taken from the Cambridge Press's publication. The contesting applications by Bhandari for interim relief were disposed of and the injunction order was confirmed during the pendency of the suit. The present proceedings at hand finally dismiss the suit.

Cambridge Press contended that their works had been prescribed and used in several institutions and universities all over the world and is inter alia prescribed by Guru Nanak Dev University, Amritsar in the State of Punjab for the students of Bachelor of Arts Part I, II and III. Bhandari concurring to this stated that Cambridge Press' work although had been prescribed, the guides were mainly for the facility of the students and better understanding of the subject matter. Cambridge Press also raised a contention with respect to the pricing of the book at Rs.95, while Bhandari had produced a high price edition at the price of Rs.600. They also alleged that Bhandari had published 3 books which contained a brazen copy of a reproduction of the subject work and incorporated verbatim the literary work of Cambridge Press which included the complete set of exercises and the Answer Key to the said exercises from Unit 1 to 120.

The Defendants retorting to these allegations stated that the introduction before each exercise in the two publications was different, illustrations present in the textbook of Cambridge Press were omitted and that they had included the answers together with the questions unlike Cambridge who had provided answers to the questions at the end of the book. Further, Cambridge Press' publication was stated to have two choices of answers to most questions, while Bhandari provided only one answer to a question.

Deciding upon the question ownership of the copyright of the literary work and if Bhandari had in fact reproduced verbatim Cambridge Press' work, the Court perused the written statement filed by Bhandari which reflected that they were not contesting the copyright of Cambridge Press. While averring that they were engaged in the aimed to be in the business of publishing guides, they confirmed that the textbook of Cambridge Press had been prescribed by the Guru Nanak Dev University, Amritsar. Bhandari stated that they had to naturally publish the answers as in Cambridge Press's book and could not have deviated from it. Bhandari also stated that they had given credit to Cambridge Press. They averred that they had given due credit to Cambridge Press in their publication and that the format of the two books was substantially different.

Further, mulling over infringement of the Cambridge Press's copyright in the said work, Bhandari relied upon Section 52 of the Copyright Act and cited several precedents. They stated that being in the business of publication of guides, their act amounted to a fair dealing with the works which were prescribed by the universities and thus fall in public domain. The court in this pursuance stated that once the book of the plaintiffs was prescribed by the university, the questions and answers given in the exercises and key therein, became questions to be answered in an examination and hence Bhandari' work qualifying to fall under Section 52(1) (h).In this respect it was held that no infringement of Cambridge's work had taken place.

To determine the entitlement of an order of permanent injunction, the Court referred to the decision of The Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House(I.A. 9823/2005, 51/2006 and 647/2006 in CS(OS) 1656/2005) while considering an application for interim relief against another publisher of such guidebooks. Herein, the court refused to grant any interim injunction, and held that the content of what is meant by originality had under gone a paradigm shift from the days of sweat of the brow doctrine to the modicum of creativity standard and which has been recognized by the Apex Court in Eastern Book Company v DB Modak 2008(1) SCC 1. Reiterating the opinion held in these decisions, the Court held that the present case would severely affect the very existence of such guide books and put the students in a jiffy. The impugned books were stated be completely different from the Cambridge Press's work and therefore involved skill and labor. In this respect, the court denied the grant of a permanent injunction, owing to the absence of a case of infringement being made out in the first place.

Further, addressing the question of fair dealing under the Copyright Act, 1957, the Court noted that Bhandari hadreproduced questions and answers from Cambridge Press's book but the purpose thereof was different. The Court opined that with respect to the grammar section of such book, the same exercises as prescribed by the university had to be considered and cannot be expected to give a different exercise. The Court stated that while Cambridge' book had 120 units, each one looking at a particular area of grammar, each volume of Bhandari's books dealt with grammar, English prose, comprehensions, poems, paragraph writing, plays, essays writing etc. and the books also contained translation from English to Hindi and Punjabi. Though the practice exercises are copied in toto, Bhandari had given an original introduction to some of the units and had given the same answers at the end of each exercise itself unlike as in the key at the end of Cambridge Press's books. The Court opined that the questions and answers given in the exercises and key therein fall in public domain and the subsequent use of these by the defendant falls under the purview of fair dealing (S.52 (1) (h)), thus ordered the dismissal of the suit.

© Lex Orbis 2009

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