DU Photocopy Case: Fair Dealing or Raw Dealing?

It is fascinating to observe how one common law judicial decision can have a ripple effect in another jurisdiction, especially one eleven thousand kilometres away. The Supreme Court of Canada’s (SCC) decision in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) [Alberta] had exactly such an effect on India.

Earlier this September, the decision of the Delhi High Court in The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr [DU Photocopy] created flutters across the globe when Endlaw J. proclaimed that, “copyright is not a divine right”, quoting Leval J. of the US Court of Appeals for the Second Circuit. The well-reasoned ninety-four-page judgment held that the fair dealing exceptions encompass the right to create ‘course packs’ (a compilation of study materials from several books) and broadened the interpretation of the common-law principle of fair dealing.

The above suit was instituted right on the heels of the Alberta decision (which was also quoted in the DU case) in which, in 2012, the SCC allowed teachers to distribute photocopies of study materials to their students under fair dealing (even before the inclusion of ‘education’ in s.29 by an amendment). In DU Photocopy, licensed agents were making photocopies for the students on behalf of their teachers.

The Delhi High Court judgment in DU Photocopy upholds the right to access of education under the fair dealing exception provided in Section 52(1)(i) of the Copyright Act, 1957 [Indian Act]. The Indian Act creates ‘education’ exceptions similar to its Canadian counterpart (especially in light of the 2012 amendments that included ‘education’ as an allowable fair dealing purpose).

Section 52(1)(i) allows for exceptions to copyright protection where there is:

i. “The reproduction of any work –

(i). By a teacher or a pupil in the course of instruction; or

(ii). As part of the questions to be answered in an examination; or

(iii). In answers to such questions;”

The Delhi High Court included the University within the ambit of the term ‘teacher’ while considering the licence for making course packs provided by Delhi University to the defendant. It clarified that if the University was not competing with the price fixed by the publisher, it would not amount to acting commercially. It also interpreted the term ‘in course of instruction’ broadly to include reproduction of work outside class during the entire academic year. This is similar to the broad approach Abella J. took when she allowed teachers to provide photocopied notes for the use of students in class in Alberta. In particular, she interpreted ‘private study’ not to mean studying in “splendid isolation”.

It was argued that instruction should only mean lectures and tutorials but the court refused this contention, stating that the legislature intended to broaden fair dealing by choosing to use ‘instruction’ instead of ‘lecture’.

However, publishers impleaded such a judgment would be a death knell to their business.[1] There is an instance of photocopying up to 33.8 per cent of the book (although the average of all books copied was 8.81 per cent, see Annexure to the petition). In all fairness, if we look at the approach taken by the SCC in CCH Canadian Ltd. v. Law Society of Upper Canada, the requirement under ‘amount of dealing’ is not met. In Canada, any dealing with more than 10 per cent of the work tends to be unfair[2]. The DU Photocopy judgment remains silent on the amount of dealing.

The way out is to follow the reasonable nexus doctrine as suggested by some scholars. In future, the courts must examine if there is a reasonable connection between the photocopying and the furtherance of educational instruction. If the prescribed text is not available (or priced at a prohibitively high level) then such a dealing may be considered fair.

As for the ‘death knell to publishing industry’ argument, it seems a bit far-fetched. Studies have suggested that the profit margins of big publishers have only gone up. Also, 33 out of the 52 authors whose work was in question gave a ‘no objection’ to the course packs, which demonstrates that fair dealing does not necessarily impact scholarship.

The first copyright law in the UK, the Statute of Anne, 1710, described itself as “An Act for the encouragement of learning.” The concept of fair dealing evolved in the UK as a broad common law principle which was later, unfortunately, fettered to an exhaustive list that was later transcribed to Canada.

While other common law jurisdictions are increasingly seeing excessive copyright as detrimental to the right to access of education, it will be interesting to see how the Federal Court rules in Access Copyright v. York University (which deals with the issue of whether the copyright practices at York University fall under the fair dealing exception of the Copyright Act) now that ‘education’ has been included in fair dealing.

The intellectual property world is watching with bated breath. Your move, Canada.

 

Prasang Shukla is an IPilogue Editor and an International Business Law LL.M. candidate at Osgoode Hall Law School.

 


 

[1] The Chancellor, Masters & Scholars of the University of Oxford & Ors v Rameshwari Photocopy & Anr, CS (OS) 2439/2012, at 12 at para (n).

[2] Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in Its Repertoire (Copyright Bd.), online: http://www.cb-cda.gc.ca/decisions/2016/DEC-K-122010-2015-19-02-06.pdf, at para 288.

 

2 Comments
  1. Prasang,
    Thanks for this post. I think that DU decision is entirely consistent with CCH, including on the “amount of the dealing”. In CCH, the Court noted that

    “It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.” (CCH, para 56).

    Therefore, I don’t think it is correct to say that “In Canada, any dealing with more than 10 per cent of the work tends to be unfair.” The Copyright Board decision that you cited indeed took this approach by way of approximation, but the Board never explained why copying more than 10% would tend to be unfair, and CCH strongly suggests that such a categorical rule is misguided.
    The common thread in the 3 CCH fair dealing cases is that as long as the copying is “reasonably necessary to achieve the ultimate purpose” it would likely be fair. Adopting a “reasonable nexus” doctrine, as Prof Basheer suggests, would be consistent with that approach.

  2. Thank you for your insightful comment Prof Katz. I agree that the DU Photocopy decision is consistent with CCH and for the purpose of private study or research one is allowed to even copy entire articles.

    However, the point I was trying to make when I said that any dealing more than 10% in Canada tends to be unfair is that it is the de facto practice here. For example, at the York library, the fair dealing guidelines suggest that a photocopy must be 10% (or less) of the original work (though there are certain exceptions to that).

    I agree that CCH strongly suggests that there is no categorical rule but the Copyright Board still construed the any dealing more than 10% to be unfair, albeit without going into greater detail.

    I am reproducing the relevant portion of the York Fair Dealing Guidelines:

    “2. The copy must be a “Short Excerpt”, which means that it is either:

    10% or less of a Work, or

    no more than:

    (a) one chapter from a book;

    (b) a single article from a periodical;

    (c) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a Work containing other artistic works;

    (d) an entire newspaper article or page;

    (e) an entire single poem or musical score from a Work containing other poems or musical scores; or

    (f) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work,

    whichever is greater.”

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