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!