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TMI Blog2016 (12) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of number of course packs photocopied and supplied shall be filed in the suit. The suit would now be listed for directions before the learned Roster Judge on January 04, 2017. - HON BLE MR. JUSTICE PRADEEP NANDRAJOG AND HON BLE MR.JUSTICE YOGESH KHANNA For the Appellant : Mr. Sudhir Chandra and Ms. Pratibha M. Singh, Sr. Advocates instructed by Mr. Saikrishna Rajagopal, Mr. Sidharth Chopra, Mr. Sahil Sethi, Ms. Sneha Jain, Mr. Devanshu Khanna, Mr. Prasanna and Ms. Rachel Mamatha, Advocates for appellants Mr. Pravin Anand, Advocate with Mr. Dhruv Anand, Ms. Udita Patro and Mr. Shamim Nooreyezdan, Advocates for interveners For the Respondent : Mr. Sourabh Seth, Advocate with Mr. Neeraj Yadav and Mohd. Umar Iqbal Khan, Advocates for R-1 Mr. Aman Sinha, Sr. Advocate instructed by Mr. Sourabh Banerjee, Mr. Sanjai Pathak and Mr. Pravesh Thakur, Advocates for R-2 Mr. Anup Bhambani, Sr. Advocate instructed by Mr. Jawahar Raja, Mr. Gautam Bhatia and Mr. Chinmay Kanojia, Advocates for R-3 Mr. Neeraj Kishan Kaul, Sr. Advocate instructed by Ms. Swathi Sukumar, Ms. Anu Paracha, Mr. Sanyat Lodha, Ms. Chanan Parwani and Mr. Sai Vinod, Advocates for R-4 ORDER PRADEEP NANDRAJOG, J. 1. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Nehru and the Language Politics of India : (280 pages; 27 pages copied constituting 9.64%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 650, Hard bound Data N/A) (vi) The Political Economy of Federalism in India : (432 pages; 14 pages copied constituting 3.24%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 1304, Hard bound Rs. 3487) (vii) Politics in India : (618 pages; 19 pages copied constituting 3.07%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 595, Hard bound Data N/A) (viii) The Production of Hindu-Muslim Violence in Contemporary India : (500 pages; 21 pages copied constituting 4.2%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 2364, Hard bound Rs. 6210) (ix) The New Cambridge History of India (IV) The Politics of India since independence (428 pages; 21 pages copied constituting 4.9%; publisher Cambridge University Press; Approximate Price : Paper Back Rs. 3918, Hard bound Data N/A) Course Pack II (i) The New Cambridge History of India III : 4 Ideologies of the Raj : (256 pages; 32 pages copied constituting 12.5%; publisher Cambridge University Press; Approximate Price : P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges; 14 pages copied constituting 3.34%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 450, Hard bound Rs. 11429) AVERAGE PRICE OF BOOK = Rs. 2542 AVERAGE PERCENTAGE OF ENTIRE BOOK COPIED = 8.81% 2. For record it be noted that vide order dated March 01, 2013, allowing IA No.3454/2013 filed by the Association of Students for Equitable Access to Knowledge (ASEAK), the Association was impleaded as defendant No.3. Thereafter, vide order dated April 12, 2013 allowing IA No.5960/2013, Society for Promoting Educational Access and Knowledge (SPEAK) was impleaded as defendant No.4. 3. It is the case of the plaintiffs that the inclusion of specific pages of its publications by Rameshwari Photocopy Services, under the authority of the Delhi School of Economics, amounts to institutional sanction for infringement of its copyright. It is the further case of the plaintiffs that the professors of the Delhi School of Economics, through its Library, issued the books published by the plaintiffs to Rameshwari Photocopy Services for preparing course packs. It is the case of the plaintiffs that the course packs, which contain no additional material apart from photocopies of its c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kinko s Graphics Corporation, the plaintiffs pleaded that in order to equitably balance the interests of academic publishers and students, the University must be directed to obtain licenses from the Indian Reprographic Rights Organization (IRRO) in order to reproduce extracts from the books published by academic publishers : given that academic institutions are the only market for academic books published by academic publishers and if unrestricted reproduction from these books are allowed the academic publishing business would suffer irreparable loss. Relying upon the decision reported as (2001) Chancery 143 Hyde Park Residence Ltd. Vs. Yelland, the plaintiffs pleaded that relief cannot be denied on the ground of public interest ; when exceptions to public interest had been delineated in the statute itself. 4. Rameshwari Photocopy Services contested the copyright of the plaintiffs in the books from which the course packs were prepared. Rameshwari Photocopy Services pleaded that the preparation of course packs by it amounts to fair use within the meaning of Sections 52(1)(a) and (h) of the Copyright Act, 1957. (We are surprised as to why right under Section 52(1)(i) was not predica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi pleaded that both, the Berne Convention and the TRIPS Agreement, permit signatory nations to make reasonable exceptions to copyright and the educational exception created under Section 52(1)(i) was such a reasonable exception. 6. Relying upon Province of Alberta s case (supra), SPEAK pleaded that the market for the plaintiffs books are not affected by preparation of course- packs by Rameshwari Photocopy Services since these course-packs contain only small portions from the books in question; carry an independent user right and in any case students would not be able to purchase all the books. Only extracts have been prescribed in the syllabi of the Delhi School of Economics. Relying upon Longman Group Ltd. case (supra), SPEAK pleaded that the expression course of instruction could not be limited to the time period of instruction in a classroom. SPEAK pleaded that the minority opinion, as opposed to the majority opinion, in the Princeton University Press case (supra) would be applicable in the Indian context; wherein it was held by the minority that the identity of the person operating the photocopy machine would not be material since the effect of commercial photocopying in bul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranting a trial. 9. Referring to Section 13, Section 14, Section 16 and Section 51 of the Copyright Act, 1957, wherein right of the copyright holder have been recognized, the learned Single Judge has noted Section 52 thereof which, if we may use the expression, makes particular use of a copyrightable work non-actionable or to put it differently could be said to be without limiting the rights of the copyright holder permitting use of a copyrightable work by the members of the society without any limitation; and the decisions reported as (2007) 140 DLT 758 Time Warner Entertainment Company, L.P Vs. RPG Netcom, (2008) 13 SCC 30 Entertainment Network (India) Ltd. Vs. Super Cassettes Industries Ltd. and (2016) 2 SCC 521 Krishika Lulla Vs. Shyam Vithalrao Devkatta, wherein copyright was held to be a statutory right subject in its operation to the provisions of the Copyright Act, 1957, the learned Single Judge has opined that copyright has been converted from a natural/common law right into a statutory right by the Copyright Act, 1957. Consequently unless it could be proved that the University of Delhi and Rameshwari Photocopy Services had infringed the copyright of the plaintiffs withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out with a commercial intent. Relying upon the decision reported as (1995) 4 SCC 572 Nand Kishore Mehra Vs. Sushil Mehra, the learned Single Judge has opined that the scheme of the Copyright Act, 1957, as evident from a reading of Sections 2(m), Section 14, Section 16 and Section 51(a)(i) gives rise to the conclusion that Section 52 cannot be read as a proviso to Section 51 of the Copyright Act, 1957. According to the learned Single Judge, under Section 52 certain acts are declared as not constituting infringement of copyright, and therefore, these acts do not fall within the ambit of Section 14, which enumerates acts which can be performed exclusively by the owner of the copyright. Consequently, according to the learned Single Judge, since acts enumerated under Section 52 are outside the scope of Section 14, the performance of these acts cannot be an infringement of a copyright under Section 51. Accordingly, the learned Single Judge has held that Section 52 could not be read as a proviso to Section 51, and the rights of the persons mentioned therein had to be read expansively. 11. Recording that the case of the defendants could lie perhaps only under Clauses (h), (i) and (j) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of instruction as well. 12. Noting that the term instruction had not been defined in the Copyright Act, 1957, the learned Single Judge negatived the plea of the plaintiffs that the term instruction used in Clause (i) of sub-Section (1) of Section 52 ought to be interpreted to mean the imparting of instruction in classrooms or tutorials, and thus opined that such a limited interpretation of the term instruction would mean that the term was synonymous to the term lecture , as defined in Section 2(n) of the Act; and if the legislature had intended such a narrow interpretation, it would have simply used the term lecture in Clause (i) of sub-Section (1) of Section 52. Relying upon the dictionary meaning of the term instruction as well as the decisions reported as ILR 2009 Karnataka 206 B.K. Raghu Vs. The Karnataka Secondary Education Examination Board and AIR 1960 Bom 58 Bombay Municipal Corporation Vs. Ramchandra Laxman Belosay, the learned Single Judge has opined that the term instruction was of wide import and would include anything that a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student or pupil to acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d pupils pre and post lecture. 14. A subtle, but distinct reasoning also emanates in the impugned decision concerning the applicability of Section 52(1)(a) of the Copyright Act, 1957. Relying upon the decision reported as 420 U.S. 376 Williams Wilkins Co. Vs. U.S., the learned Single Judge has opined that since photocopying of copyrighted books by individual students, acting separately, would be fair dealing under Section 52(1)(a), the University making multiple copies of copyrighted material for its students in the course of instruction while photocopying could also not be deemed to be infringing copyright, since the effect of the two actions was the same. 15. Examining the relationship between Rameshwari Photocopy Services and the Delhi School of Economics, the learned Single Judge opined that making of multiple copies by photocopying copyrighted material by the University, being in the course of instruction was permissible under the Copyright Act, 1957, holding further that it was immaterial whether the University carried out the photocopying through its employees or outsourced this work to a contractor. The learned Single Judge has further opined that since it was not the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book, and in respect of which we have enlisted the data in paragraph 1 above. The issue would be : Whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not hedged with the condition of it being a fair use. This would subsume a sub-question : What is the span of the phrase by a teacher or a pupil in the course of instruction in Section 52(1)(i)(i). Sub issues arising regarding reproduction and publication shall be discussed at the appropriate places. 18. These are the two questions which were principally debated, and the task of answering the two by no means would be simple because it would require an understanding of the other related provisions in the Act and ascribing a meaning to the words and expressions used therein, for the reason a statute has to be read harmoniously, within the confines of the legislative policy, with rights and obligations created under the Act to be harmonized if there is fuzziness found. 19. Whilst it is true that winds from across the border should be welcome in a country, but care has to be taken to retain the fragrance thereof and filter out the remainder. Reference to foreign case law whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years. Explanation- In the case of a work of joint authorship, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person. x x x (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 question; 22. The learned Single Judge has highlighted that whereas clause (h) uses the word publication , clause (i) uses the word reproduction and has held that the concept of publication would be the preparation and issuing of material for public sale and would exclude use by students for teaching purpose. The word reproduction which finds a purpose in clause (i) has been given its ordinary meaning by the learned Single Judge (though not expressly so stated in the impugned judgment). 23. Whereas Sh.Sudhir Chandra, Senior Counsel and Ms.Pratibha M.Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of copyright is of course deeply rooted in our economic system, and much of our economy does in turn depend on intellectual property. But, no less important, copyright is deeply rooted in our conception of ourselves as individuals with at least a modest grade of singularity, some degree of personality. And it is associated with our sense of privacy and our conviction, at least in theory, that it is essential to limit the power of the State. We are not ready, I think, to give up the sense who we are. 25. The aforesaid formed the backdrop of the canvass on which learned counsel painted their picture. Referring to the Copyright Act, 1957, learned counsel urged that works in which copyright subsists are enumerated in Section 13 of the Copyright Act, 1957. As per Section 14, copyright would mean the exclusive right to do or authorize the doing of the acts enumerated in various clauses of Section 14 in respect of the work or any substantial part thereof. Each counsel highlighted the word substantial used in Section 14 to urge that the legislative intent was clear. There was exclusivity in the exploitation of the copyright even with respect to a substantial part thereof in the copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) embrace all works. (v) Clause (g) embraces published literary or dramatic works. (vi) Clause (h) embraces published literary or dramatic works. (vii) Clause (i) embraces all works. (viii) Clause (j) embraces literary, dramatic, musical and cinematographic works. (ix) Clause (k) embraces sound recordings. (x) Clause (l) embraces literary, dramatic and musical work. (xi) Clause (m) embraces a literary work being an article, (xii) Clause (n) embraces all works. (xiii) Clause (o) embraces literary work. (xiv) Clause (p) embraces unpublished literary, dramatic and musical work. (xv) Clause (q) embraces official gazettes, the legislative enactments made by the Legislature, the report of Committees, Commissions, Councils, Boards, or the like appointed by the Government unless reproduction or publication is prohibited by the Government, and the judgment or order of a judicial authority unless prohibited by the judicial authority. (xvi) Clause (r) embraces legislations, including delegated legislations with reference to translations. (xvii) Clauses (s) and (t) embrace painting, drawing, engraving, photograph of sculpture or other artistic works contemplated by the clause. (xviii) Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taff, students, parents and guardians. Fair use was in built concerning the act contemplated by clause (o) by limiting the making of the copies of the works envisaged by the clause to only three; further fairness to be found on the condition that such work was not available for sale in India, with further fair use in the form of use of the copies in a non-commercial public library. Concerning clause (p) the fair use was in built in the form of the work being unpublished and its reproduction being by a library, museum or other institution to which the public has access for the purpose of research or private study by the public or with a view to publication. Concerning clause (zb) learned counsel urged that meant to facilitate spread of knowledge to differently abled persons, the fair use principle was weaved in the form of the organization being of the kind contemplated by the second proviso and the explanation thereto with further obligation on the organization to ensure reasonable steps to prevent the adaption or reproduction of the works contemplated by the clause to enter into the ordinary channels of business. The argument was that clause (i) cannot be read as done by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g it not being made available to all and sundry. The relevance of the argument was to criticize the view taken by the learned Single Judge by equating publishing a literary work, to it being made available to all the members of the community. Learned counsel criticized the view taken by the learned Single Judge concerning interpretation put to clause (a) by urging that the four well known principles of fair use had been overlooked by the learned Single Judge while upholding the offending activity in the context of clause (a). Since the learned Single Judge has heavily relied upon the law declared by the High Court of New Zealand reported as (1991) 2 NZLR 574 Longman Group Ltd. Vs. Carrington Technical Institute Board of Governors, learned counsel urged that the phrase in the course of instruction used in clause (i) could not be interpreted as done by the High Court in New Zealand because the Statute in New Zealand expressly encompassed by correspondence ; which was missing in the Indian statute. As noted above, the argument was that the phrase in question denoted the activity of teaching and thus was a verb and could not be treated as a phrasal noun. Learned counsel urged that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted States of America whereby a blanket exemption to restaurants having covered area of 3750 sq.feet was permitted as per Section 110 of the Copyright Act in United States of America and the decision was to the effect that such user would not be fair use, being violative of Article 13 of the TRIPS Agreement and Article 11 of the Berne Convention. It was held in said decision that the exemption does not qualify as certain special case as contemplated by Article 13 of the TRIPS Agreement. Referring to the legislative intent underlying Section 52(1)(i) learned counsel referred to the debate in the Rajya Sabha concerning the Copyright Bill, 1955 wherein the distinction given to educational institutes to reproduce the work of an author was highlighted as distinct from reproduction of a work while a teacher is giving instructions in the class room. Learned counsel relied upon the Division Bench judgment of this Court reported as 2011 (47) PTC 244 (Del.) (DB) Syndicate of the Press of the University of Cambridge vs. B.D.Bhandari Ors. to urge that Section 52(1)(h) as it existed in the statute book before the Copyright Act was amended by Act No.27 of 2012, which is identical to clause (i) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense to an outsider and would appear to be irrelevant. It has a limited use. It has a meaning only if used as part of a lecture or a discussion in the course of instructions as reference material. It is not to be that one can sit at home and after reading the course pack and proclaim that one has understood the subject. It is a primer and a precursor to the discussions which transpire in the class as part of the course. Learned counsel referred to articles by authors to highlight that in third world countries, where literacy levels are low and purchasing power weak, even compulsory licensing had failed to achieve the desired end of dissemination of knowledge. Meaning thereby, a very liberal interpretation had to be accorded to clause (i). Learned counsel referred to the debate in the Parliament when the Bill which led to the enactment of Act No.27 of 2012 was debated to highlight that the Minister piloting the Bill clearly told the House Of course, non-profit libraries should not be charged. Many of these copyrighted materials can be used, should be used and must be used in non-profit libraries . Responding to the argument that the phrase course of instruction in clause (i) was us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e United States of America which was held to be applicable to clause (a) by the Division Bench of this Court in the decision reported as 2013 (53) PTC 586 (Del.) (D.B. India TV Independent News Service Pvt.Ltd. Ors. vs. Yashraj Films Pvt.Ltd. 32. But what would be fair use? Obviously, the purpose of the use would determine whether it is fair use. 33. In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of extent justified by the purpose . In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, to utilize means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood. 34. Teaching is the imparting of instructions or knowledge. Perhaps this is a standard definition of the term. It places no limits on where the imparting of knowledge takes place. It certainly would include f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reproduction means to make a copy of. Section 13(2) of the General Clauses Act, 1897 states that unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice-versa. Thus, making more than one copies of the original i.e. photocopying is contemplated by the statute. Similarly, the words teacher and pupil would also include the plural and hence it could be teachers or pupils. Meaning thereby, the activity of reproduction could be resorted to by teachers as well as pupils. Is the phrase in the course of instruction , a phrasal verb or is it a phrasal noun. We need not quibble for the reason we find merit in the graphic reproduction of the argument by learned counsel for the respondents which we have tabulated in paragraph 28 above. The end result would be, irrespective of the word course being treated as a verb or a noun, the entire process of education as in a semester or the entire programme of education as in a semester. Meaning thereby in a class room where the interactive method of imparting knowledge is adopted by a teacher and not the boring method where the teacher simply lectures and the pupils simply note, the photoco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs. William Hill (Football) Ltd. and [1916] 2 Ch 601 University of London Press Ltd. Vs. University Tutorial Press Ltd., the Court opined that in order to ascertain whether a substantial portion of the copyrighted work had been reproduced, the quantitative and qualitative aspects of the portion reproduced were to be evaluated. Opining that the extracts copied from the copyrighted work were of importance and significance, and essential to the integrity of the work being copied from, the Court held that the teacher had copied a substantial part of each copyrighted work and had therefore, infringed the copyright of the plaintiffs. Consequently, the Court evaluated whether the defendants could take the benefit of statutory exceptions enumerated in sub-Sections 19(1), 20(1), 21(1), 21(4) and 53(2) of the Copyright Act in New Zealand. 44. Recording that sub-Sections 19(1), 20(1), 21(1) and 21(4) were independent of each other and had to be given distinct meaning, failing which sub-Sections 21(1) and 21(4) would become superfluous, the Court opined that in order to claim the benefit of the exceptions under Section 19(1) and 20(1), the user of the copyrighted material had to meet the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or adaptation is made by a teacher or student; or (b) As part of questions to be answered in an examination or in answer to such a question. 47. Relevant for the purposes of the Indian statute would be the Court interpreting Section 21(4) strictly; holding that no restrictions on the method of reproduction, the length of the extract that could be copied from any copyrighted work or the number of copies of any extract could be read into the section since no such restriction had been provided for in the provision by the legislature, the Court further held that the language of the provision did not bar the use of an agent to conduct the copying and as long as the reproduction was done by or for the teacher or student in the course of instruction, such copying would be permissible under Section 21(4). Interpreting the expression course of instruction , the Court negated the contention of the plaintiffs that the expression was to be limited to the time and place of instruction, and held that in its ordinary meaning the course of instruction would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 21(4) is absent in Section 52(1)(i). The legislative provision considered in the said judgment was : In the course of instruction, whether at a University or a school or elsewhere or by correspondence, where the reproduction or adaption is made by a teacher or student . As noted above, the argument by learned counsel for the appellants was that the word correspondence used in the statute in New Zealand would give a wider meaning to the phrase in the course of instruction and thus as per them the judgment would not have any persuasive value. The learned Judge in said judgment has opined : In its ordinary meaning, the course of instruction would include anything in the process of instruction with the process commencing at a time early than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction. We are in agreement with the opinion for this is the only logical meaning of the phrase in the course of instruction . Having interpreted the phrase as above without factoring in the word correspondence used in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o necessity for the Court to consider whether it was a fair dealing because the statute had not made requirement of fair dealing as a part of the exception. The phrase in the course of instruction was given a wide meaning. But on facts the compilation was held to be akin to a textbook and copies prepared in one year were used for subsequent years as well. 55. The decision in Longman s case reconciles Section 21(4) and Section 19(6) of the Copyright Act, 1962 in New Zealand. Though not expressly stated by the learned Judge who has authored the opinion, implicit would be that a course pack if used as a textbook would obviously amount to a publication and since use of copyrighted material with reference to the publication fell within the domain of Section 19(6) of the Copyright Act in New Zealand, the course pack fouled Section 19(6) (being held to be a textbook) and did not fall within the protective umbrella of Section 21(4). 56. The decision in Longman s case probably for the reason it was not argued, does not discuss the concept of fairness in the use as has been discussed by us and therefore at this stage we must part company with the said decision concerning its persuasive value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hic process or by any other means; and (b) the copying is done- (i) in the course of preparation for instruction; or (ii) for use in the course of instruction; or (iii) in the course of instruction; and (c) the copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment; and (d) no more than 1 copy of the whole or part of the work or edition is made on any one occasion. (2) Copyright in a literary, dramatic, musical or artistic work or the typographical arrangement of a published edition is not infringed by the copying of the whole or part of the work or edition if- (a) the copying is not done by mean of a reprographic process; and (b) the copying is done (i) in the course of preparation for instruction; or (ii) for use in the course of instruction; or (iii) in the course of instruction; or (iv) after the course of instruction; and (c) the copying is done by a person who is to give, is giving, or has given the lesson or by a person who is to receive, is receiving, or has received the lesson; and (d) 1 or more copies of the whole or part of the work or edition is or are made on any one occasion. (3) Copyright in a literary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to a collective work, means each of the works or parts of the works in the collective work. 59. The Section deals with copying for educational purposes and pertaining to the issue at hand if done in the course of preparations for instructions or for use in the course of instructions or in the course of instructions and copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment and further that not more than one copy of the whole or part of the work or addition is made on any one occasion, same would be permitted, if done by a student with the difference being that if it is not by way of photocopying, multiple copies could be made. Pertaining to educational institutions i.e. at the institutional level, a limit of the work capable of being photocopying by way of a fixed percentage for different periods being December 31, 1998 and post January, 1998 have been prescribed. Though principles of fair use are missing even in the 1994 Act, but the provisions by limiting the percentage in the third situation and number of copies in the first two situations, answer the problem. The decision would therefore have no relevance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teacher or the teachers acting collectively for a particular degree course sit down and prescribed the relevant reading material to be read by the students keeping in view the objective of the course as per the curriculum set by the academic council of the University. The next exercise done by the teacher or the teachers would require eclectic selection of reading material and this would be the copyrighted works. This would constitute the reading material for the pupils, to be used by the teacher in the class room in course of instruction. Spiral bound it would be called a course pack. 62. Arguments advanced by learned counsel on either side with reference to articles and treatises by professors on what the policy of copyright law in its interface with education, especially in developing countries where literacy levels are low and purchasing power is less, should be are simply noted by us for record. Being a matter of policy, it is for the legislature to decide what should be the policy underlying the statute. If transposed into a judicial verdict it would be a doctrinal approach and we prefer to interpret the statute using the tools of grammar, giving meaning to the words as in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... America an Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions exists which provides guidelines on the extent of permissible photocopying. The majority opinion in the decisions in the United States of America has relied thereupon while discussing concept of fair use to hold on the facts of different cases for infringement being made out and photocopying not protected by Section 107. The minority opinions have taken the view that the guidelines in question being non-statutory are not to be taken into account while discussing photocopying with reference to fair use. 67. Pertaining to the decision reported as (1983) F.S.R. 545 Sillitoe and Others Vs. Mcgraw-Hill Book Company (U.K.) Ltd. it deals with the scope of Section 6(1) and 6(2) of the U.K.Copyright Act, 1956, which has subsequently been replaced by the Copyright, Designs and Patents Act, 1988. Sections 6 of the U.K.Copyright Act, 1956 enumerated the exceptions to copyright protection. Sub-Section (1) of Section 6 provided that fair dealing with a literary, dramatic or musical work for the purposes of research or private study would not constitute infringement, while Sub-Section (2) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiving instruction, and were reproducing copyrighted material for commercial gain, Section 52(1)(h) would not be applicable. Thus, the decision in B.D. Bhandari s case (supra) is distinguishable on its peculiar facts. 72. Further, while the Court in B.D. Bhandari s case (supra) did hold that a fair dealing standard was to be read into all clauses of Section 52 of the Copyright Act, 1957, as held hereinabove, a fair dealing standard has only been provided in clause (a) of sub-Section (1) and not in the other clauses of sub-Section (1) of Section 52, and therefore, cannot be read into the other clauses. 73. Paragraph 37 of the decision B.D. Bhandari s (supra) reads as under :- 37. The appellant has contended before us, and rightly so, that these two concepts, as discussed above, are distinct from each other. There can be no dispute that the doctrine of fair use is an exception to the copyright protection as the opening line of section 52 uses the expression The following acts shall not constitute an infringement of copyright namely - (a) A fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme] for the purposes of . This expression implies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re answer this question, which certainly arises, using the imagery of music. A melody is the outcome of the sounds created when different instruments, such as a lute, flute, timbale, harp and drums are played in harmony. The notes of the instruments which are loud and resonating have to be controlled so that the sound of the delicate instruments can be heard. But it has to be kept in mind that at proper times the sound of the drums drowns out the sound of all other instruments under a deafening thunder of the brilliant beating of the drums. Thus, it is possible that the melody of a statute may at times require a particular Section, in a limited circumstance, to so outstretch itself that, within the confines of the limited circumstance, another Section or Sections may be muted. 78. And now the final direction. 79. Apart from a triable issue on fact which would be as indicated in paragraph 56 above, another issue of fact would need to be tried. The same emerges from the report dated August 27, 2012 submitted in the suit by a learned Local Commissioner. Visiting the premises given on a licence to the respondent No.1 from where the work of photocopying is carried on the learned Local C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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