Friday, September 28, 2012

Section 52(1)(i) of the Copyright Act: “in the course of instruction”


Section 52 of the Copyright Act, 1957 enumerates acts which do not amount to infringement. I have blogged on Section 52 earlier in the context of substantiality for infringement. In that post, I had written thus on the distinction between fair dealing and fair use under Section 52 before the Copyright Amendment Act, 2012:

As for fair dealing, fair dealing is a stricter approach to exceptions to infringement than fair use. Under fair dealing, limited situations are envisaged whose metes are bounds are almost clear. Therefore, use of fair use principles to broaden the scope of such limited situations may not be permissible.

Section 52 of our Copyright Act uses fair dealing for a few instances and fair use for a few other. When it comes to literary works:
A. Section 52 (a) permits “fair dealing” for private use and criticism,
B. 52(b) permits “fair dealing” for the purposes of reporting,
C. 52(c) permits reproduction in a judicial proceeding,
D. 52(d) permits reproduction or publication for Legislative purposes,
E. 52(e) permits reproduction for the purposes of a certified copy,
F. 52(f) permits only reading and recitation of a reasonable extract,
G. 52(g) permits publication in a collection of essentially non-copyright matter for use in “educational institutions”
H. 52(h) permits reproduction during the course of instruction or in examinations
I. 52(i) permits performance in the activities of an educational institution
J. 52(j) permits making sound recording of the work with the license or consent of the owner of the work
K. 52(l) permits performance in an amateur club to a non-paying audience, or in a religious institution
L. 52(o) permits making of three copies for a library if the book is not sold in India

There are a few other provisions besides the above, but none of the provisions seems broad enough to employ “fair use” principles propounded in the US. This is because “fair dealing” provisions in most jurisdictions appear to be restrictively worded and are treated as such too.”

In this post, I am specifically interested in understanding the import of Section 52(1)(i)(i) which deals with “reproduction of any work by a teacher or a pupil in the course of instruction”.

In understanding the scope of the non-infringing use envisaged in the provision, regard must be had to the other two exceptions spelt out as part of Section 52(1)(i). The provision reads as follows:

The following acts shall not constitute an infringement of copyright, namely:
(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;

What clearly comes to the fore on a reading of the provision is the specificity in wording and intent. The first thing that must be borne is that the provision refers to “reproduction” and not “issuance of copies”. The Act recognizes the distinction between “reproduction” and “issuing copies” under Section 14(a)(i) and 14(a)(ii) which applies to literary (except a computer programme), dramatic and musical works.

The distinction between “reproduction of the work” and “issuing copies of the work” is of critical importance since the specific situations covered under the provision rely heavily on the distinction between the two.

“Reproduction” could mean to “re-produce” the work, and not making copies from an original manuscript. This means if a book is re-written and not photocopied (beware, not “Xeroxed”), it could amount to "reproduction". If contents of the book are written again as part of a question in an exam or as part of an answer or on the blackboard/white board during the course of instruction, it would amount to “reproduction”, and not “issuing copies of the work”.

On the other hand, “issuing copies” would mean to distribute copies/duplicates of the work or parts of the work to the public. 

At the expense of sounding repetitive, I reiterate that Section 52(1)(i) refers only to “reproduction of any work”, and not “issuing copies of any work to the public”. Therefore, only reproduction of a work in the specific circumstances enumerated in the provision is exempt from infringement, issuing of copies is not exempt from infringement under the specific provision.

Having dealt with the issue of “reproduction”, the next point of focus is “in the course of instruction”. It is imperative to note that the provision’s applicability is restricted to reproduction of any work, including a literary work, by a teacher or a pupil “in the course of instruction”, and not “for the purposes of instruction”, nor is it “for the purposes of education”.

The difference between “in the course of instruction” and “for the purposes of instruction” would be clear to anyone with common sense since the former relates to the act of reproduction of the work during the course of instruction i.e. at the particular instant the work is taught.

Further, the meaning of "for the purpose of instruction" includes "in the course of instruction", whereas "in the course of instruction" cannot include everything which is for the purpose of instruction. Consequently, there is no blanket exemption for anything related to education under Section 52(1)(i).

Therefore, to my mind, issuing of copies, regardless of the number of copies or quantum of copying from the original is, is not exempt from infringement under Section 52(1)(i) of the Copyright Act.

Comments and corrections are welcome!

9 comments:

  1. Following is the comment I received from a distinguished commentator on copyright law, who wishes to remain anonymous:

    "Dear Sai Deepak
    I do have an issue with your interpretation of 'reproduction'. I do agree issuing of copies is actually an act of distribution. However, making copies is also reproduction and the latter cannot be limited to only rewriting. The dictionary meaning of reproduction that I could find most applicable was:
    "a copy of something, especially a painting, or the process of copying something"
    Therefore, issuing copies would come about after reproduction of the original took place. Otherwise there would be gap of logic between the original and the distribution of copies if copies were not to be made at all.
    Similarly, we may need to look at the legislative intent regarding 'during the course of instruction'. When does instruction take place? When does it start and when does it end? If we are able to satisfactorily answer these questions then all the activities in the interregnum would be considered 'during the course of instruction'. If we were to distinguish this phrase from 'for the purpose of instruction' then even reproduction on the blackboard/ whiteboard is also for the purpose of instruction. Perhaps a wedge of this kind is not needed.
    Would be happy to hear from you.
    Best wishes"

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    1. Following is my reply to the distinguished commentator's thoughts:

      "Dear Sir,
      Thanks for your comment. Following are my initial thoughts:
      1. Your point on distinction between "reproduction" and "issuing copies" finds support in the definition of "infringing copy" which means a reproduction of a literary, dramatic, musical or artistic work otherwise than in the form of a cinematographic film. However, I am not sure if in the context of Section 52(1)(i) reproduction envisages issuing copies of the work given the limitation in the form of "in the course of instruction". Also, as regards the logical gap you refer to between the original and distributed copies if making copies is not included in "reproduction", it could be argued that a right which is incidental to issuing copies i.e. making copies, could be read into 14(a)(ii) instead of 14(a)(i). In other words, making of copies may be deemed as incidental to the issuance of copies of the work under 14(a)(ii). Having said that, the definition of "infringing copy" does appear to weigh against this proposition.

      2. On "in the course of instruction", precisely to address a point such as yours, I had written in the post that "in the course of instruction" could be "for the purpose of instruction" (and obviously so), but the converse may not hold. "For the purpose of instruction" would be the universal set, with "in the course of instruction" being the subset. Since 52(1)(i)(i) limits itself to the subset, issuing of copies may not fall within the ambit of the provision since in entirety it reads "reproduction of any work in the course of instruction". This appears to refer to the act of reproducing the contents of the work in the course of instruction. Also, the principle of ejus dem generis may be applied given the other specific situations dealt with in 52(1)(i). This means, the nature and metes n bounds of the first exception must be similar to the second n third exceptions in order for the provision's latitude to be interpreted consistently. Therefore, the distinction I draw has an arguable basis in statutory interpretation.

      I'd be delighted to hear from you Sir.

      Sincerely,
      Sai."

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  2. I am so glad you wrote about this. While I completely agree with your explanation, I was wondering what are your thoughts on reprinting copyrighted materials in academic coursepacks. While US Court precedents say it is not fair use. See Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991) but what if permission is obtained for the course packs? Some universities have a simplified approach. See http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#4
    Won't taking permission from the publishers for this course packs be a good idea?
    The talks on blogosphere about paying to the Indian Reprographic Rights Organization seems like an unfeasible option to me hard to implement and perhaps not fair to the photocopy shop owners.
    I am interested as like most students I know, I have studied from Photocopies and this issue is close to heart.

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    1. Thanks a ton Vika. In answering your query, I'd like to clarify that none of my comments or thoughts relate to any matter which is sub-judice. I'd prefer to answer your question solely on the basis of the provisions of the law without any reference to the facts of any pending matter.

      Before I proceed to share my thoughts on your query, I must tell you I come from a background where thrift was valued, partly out of necessity, and is still valued. In my days as a student (engineering and law), I used to try and use material from the university's library as much as I could because it was not practically possible to buy more than one or two standard references for a subject. In short, I do understand the compulsions of a student.

      But here, what is being discussed is not a policy before a law is enacted. On the contrary, the law is being interpreted post its enactment, and in doing so, a spade must be called a spade, even if the implications may not be to everyone's liking or comfort. Assuming that you are a student of the law, I hope you agree with this thought.

      Now, on the issue of reprinting of any copyrighted material (not necessarily coursepacks), in my opinion, reference must first be made to the provisions of Indian law before applying or infusing US principles. This is necessary and important because Section 52 goes to great lengths to spell out acts which do not amount to infringement, some of which are so specific, that they leave very little room for subjective interpretation or application of fair use doctrine. Further, no act which is not mentioned in Section 52 can be force-fit into the provision.

      If Section 52(1)(a) envisages "fair dealing for the purposes of private or personal use", it would defeat the intent of the provision to say that the purchaser of a photocopied material would ultimately put the material to private and personal use, and therefore it falls within "private or personal use". If that be the case, every copyrighted material could be photocopied without the consent of the owner, and its sale would not be illegal since most purchasers would put the photocopy to personal or private use. I really dont think this is the intention behind the "fair dealing" envisaged under Section 52(1)(a).

      As regards 52(1)(i)(i), the post and the subsequent comments capture my thoughts on the issue, which, I must clarify, are not final.

      Consistent with these thoughts, I think that permission from the copyright owner or his licensee/publisher must be obtained by any organization before it appoints someone on its behalf to photocopy copyrighted material. The practice of US universities may not necessarily hold good for us since the practice appears to be based on fair use, whereas the Indian Act speaks of "fair dealing" and the contours of this window are much more specific.

      As regards the IRRO, at the end of the day, it is a collecting society, which may operate as a single window for a license on behalf of several publishers. Why would this be an unfeasible option if an organization procures licenses from the IRRO, which could permit photocopying by or on behalf of the organization? I would love to hear your thoughts on the practical difficulties with reference to real-time examples.

      Best Regards,
      Sai.

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    2. Thank you so much for such a detailed explanation. About the difficulties regarding implementing IRRO licenses, the photocopy shops are supposed to pay Rs.3,00,000/- per Shop annum ot 40% of Turnover. How is this affordable for the neighborhood photocopy shop owners?
      I understand that Indian Act speaks about 'Fair Dealing' and not fair use. I am quoting a Canadian Supreme Court Decision ,CCH Canadian Ltd. v. Law Society of Upper Canada where the Court said - The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. It also said that ‘Research’ must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts.I am quoting this because unlike US, Canada's provisions are on fair dealing.

      In interpretation Classes, we studied about a Section must be interpreted taking in mind the intention of the legislators. I completely agree that every book photocopied for personal and private use is not the intention behind Section 52(1)(a).

      But, here we are talking about just a few pages from each book. Why do you think adopting the practices of the US Universities to take licenses for course packs won't be good here?

      Apurba

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    3. Dear Apurba aka Vika,
      Thanks for continuing the discussion. Let me first address the CCH Canadian judgment. I am assuming your comment on the judgment was based on first-hand reading of the decision, and not from the wiki summary :-) There are certain essential facts in light of which the Canadian judgment must be understood, since facts come before the law. The following facts, in my opinion, were largely responsible for the outcome in that case and the opinions expressed by the Court therein:
      1. The Law Society essentially sought to be treated as a library. Also, it was a non-profit organization.
      2. The material which was copied in the Canadian case, to a large extent, was law reports (the CCH case is a precedent on copyright in judgments, which is why it was cited in the EBC Modak case).
      3. The photocopy service provided by the Law society was "request-based" in certain instances, and in certain other, only photocopiers were provided by the Society for use by its patrons. In other words, the patrons/users of the Library were the triggers for the act of photocopying. What is to be noted is that the Law Society did not issue copies of copyrighted material on its own to its patrons. This has been addressed under the issue of "authorization" in the decision. Please read Paras 37-47 of the decision. The issue of "authorization" is extremely critical to understand as to who is entitled to the defense of "fair dealing for the purposes of research". If an individual approaches a photocopier to make a photocopy of a copyrighted material for research or private use, it is only then that the next question as to the degree of "fair dealing" needs to be addressed. However, if a photocopier decides to issue photocopies on his own, I am not sure if he is entitled to the defense at all in the first place or whether the question of "degree of photocopying" needs to be addressed. What is also important to note is that in Para 55, the Court goes on to observe thus:

      "In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair. For example, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism."

      Please note that there is a clear reference to another case where "study notes" were being issued under the garb of "fair dealing", which was rejected. Guess that decision hits closer home :-)

      On the issue of degree of copying, if the issue of authorization and character of dealing do not fall within the defense of "research or private study", there is no need to address the issue of degree because degree is the second step after establishing that the character of dealing is entitled to a defense under the Act.

      Further, in Para 57 of the decision, the Court also discusses the alternatives to the dealing. In other words, if a non-infringing alternative exists such as a license for reprography, and it was not even explored, it could be used against a defendant.

      Continued...

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    4. The last factor considered by the Court is the effect of the dealing on the sales of the original. This is extremely important in situations where the photocopied material is capable of replacing and hence undermining the sales of the original within that limited segment to which the original is sold. If photocopied study notes undermine the sales of text books, it is a relevant factor to understand as to what constitutes "fair".

      Finally, the clincher in the decision appears to be the clear guidelines of the Law Society. This makes it very clear that the discussion on the issue here should not start or revolve solely around "number of pages"; it must first begin with authorization and character of dealing. I hope this addresses your points on the CCH case. Will address the other points in the subsequent comments.

      Best Regards,
      Sai.

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    5. Apurba,
      I went through the Stanford link on coursepacks, and it appears reasonable. I guess I misread the link the last time around. On the affordability of licenses from IRRO, I think that's a question of demand and supply. That said, to be honest, considering that I am not very familiar with the workings of the reprography industry, I do not have adequate knowledge to comment on the affordability of the license fees.

      Best Regards,
      Sai.

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    6. Thank you so much for your detailed reply. I did not comment on the judgement reading the wiki summary but some article. Now I'll read the judgement.

      Legal arguments aside, i think the main buyers of the books which are photocopied are never really the students but libraries. I completely agree when a photocopier sells a course pack it shouldn't come under Fair Dealing as you explained in your post. But punishing a photocopier with Rs. 60,00,000 fine is not justified at all! So, in my opinion a reasonable option is taking licenses for course packs.
      I am sure you also used DC ++ when you were in Campus to the fullest. I can only talk for myself, even if its implications on Copyright Laws are questionable, I would never had watched so many movies and listened to Great Musicians, in short developed a taste for good stuff.
      Similarly, photocopies and course packs are necessary too. Maybe the people who photocopy would love to own the original books when they can afford and buy them.

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