To photocopy or not to photocopy university course material – that’s the Hamletian dilemma many students are now confronted with in India.
Three of the world’s biggest publishers have taken legal action to halt textbook copying, a practice that is seen by many as crucial for the spread of education in the nation of more than one billion people.
Cambridge University Press (CUP), Oxford University Press and Taylor & Francis launched a lawsuit last year against Delhi University (DU) and a reprographics shop near its campus for producing “course packs” – bound collections of photocopied extracts from books and journals that are sold for much cheaper than textbooks. The publishers claim the practice infringes on copyright, and that they and their authors are losing money as a result.
“Where course packs are available, our books stop selling – even libraries stop buying multiple copies,” says Manas Saikia, managing director of publisher CUP India. “[This affects] the income of authors and returns to publishers.”
“The number of academics who’ve signed the petition should be clear indication that authors do not share these concerns.“
– Nivedita Menon, Jawaharlal Nehru University
The lawsuit includes a list of works the publishers alleged had been wrongfully photocopied, and the names of their authors. The publishers are demanding more than US$110,000 in damages.
“The illegal reproduction and sale of infringing copies … is unfair and cannot be permitted under the Copyright Act, 1957,” the lawsuit says.
But last week, more than 300 academics and authors – 33 of whom were mentioned in the lawsuit – sent a letter to the publishers demanding they abandon the legal action. Last year, Nobel laureate Amartya Sen wrote a similar letter urging the publishers to reconsider their court action.
The Delhi High Court has banned the production of course packs until the row is resolved, and students’ ability to study is suffering.
Academics step in
Academics – based in countries including the UK, the US, Australia, France, South Africa, Argentina, Egypt, and the occupied Palestinian territories – refute the idea that the publishers are acting in their interests. They also argue this kind of photocopying is within the law, that it is not causing the publishers to lose money, and that it is an essential part of education in India.
“The number of academics who’ve signed the petition should be clear indication that authors do not share these concerns. We want our works to be available as widely as possible,” says Nivedita Menon, a professor at Jawaharlal Nehru University in Delhi, who is involved in the anti-lawsuit campaign.
“The action is entirely to do with profit, and nothing to do with the authors, whose living expenses are met by the publicly funded university system, not piddly royalties,” Menon said.
Thomas Metcalf, a professor emeritus at the University of California, Berkeley, is mentioned in the lawsuit.
“As an author whose writings appear to have triggered this controversy, I am happy to accept smaller royalties on sales of my books to widen the audience, especially in a developing country such as India,” Metcalf says.
Shamnad Basheer, professor of intellectual property law at Kolkata’s National University of Judicial Sciences, argues that India’s 1957 Copyright Act allows the production of so-called course packs.
“Two exceptions in the rules cover this kind of photocopying,” Basheer says. “One allows fair dealing for private or personal use, including research. The other allows reproduction by a teacher or pupil in the course of instruction.”
As the reprographics shop in question was producing the course packs under an agreement with the university – and not for profit as the publishers claim – there is no reason it should not be allowed, he says.
Crucially, the anti-lawsuit campaigners argue, a win for the publishers could have a devastating impact on education in a country with as much poverty as India. Photocopying is an intrinsic part of the Indian education system.
“The books listed in our syllabi are unaffordable, and our libraries cannot support the sheer volume of students,” says Devika Narayan, a Delhi University philosophy student. “Photocopying is a necessity – there is no alternative.”
Brinda Bose, an associate professor at Delhi University, agrees.
“It is the lifeline of research and teaching at Indian universities, which have embarrassingly small funds for academic resources,” Bose says. “We have more than 700 master’s students in English literature. Even if a library possesses a book, at best there’s a single copy. It won’t be possible to function if these publishers are successful.”
Basheer says even if the publishers win the lawsuit, their income stream will not increase. “If you banned course packs, most students wouldn’t be able to buy the books anyway.”
Earlier this month, the court admitted a group of students, known as the Association of Students for Equitable Access to Knowledge, as a full party to the lawsuit, after the organisation filed a petition explaining students’ stake in the outcome.
The university’s faculty will this week attempt to do the same, and has attracted more than 1,200 signatures on a petition.
Meanwhile, the ban has hit hard. “We spent the last semester running around looking for alternative readings,” says Apoorva Gautam, a master’s student. “Teachers say this has diluted our quality of work.”
The practice of photocopying protected material for education is not unique to India – it is widespread across the developing world.
“There is a disconnect between copyright law on the books and practices on the ground,” says Jeremy de Beer, professor at the University of Ottawa, who has co-authored a book on the subject. “From Senegal to South Africa, we found evidence of widespread copying on campuses.”
“It is forcing many of us to think twice about publishing with big publishers … and making it viable for academics to publish through a medium that doesn’t cater to private interests.“
– Shamnad Basheer, Kolkata’s National University of Judicial Sciences
So far there has been no high-profile court decision to indicate what might happen if publishers clamp down across the developing world.
But in November last year, Costa Rican students protesting against a law that prescribed jail sentences for intellectual property crimes won a major victory when the president signed a decree reiterating the exemption on copying for educational purposes.
The financial situation of publishers is perhaps what this dispute is about most. The global publishing sector is in crisis, with the sales of books stagnating, and the rise of digital and self-publishing and piracy pointing to an uncertain future for its traditional business model. It is understandable then that publishers might want to secure an income stream in a country as populous as India.
However, even if the publishers win, the chances of enforcing a ban on copying are slim. There are hundreds of universities in India, and thousands of shops that are undoubtedly copying texts. It may seem odd then that the publishers would bother pursuing the case.
Their motives, however, are more complex, anti-lawsuit advocates say. It is not a ban on photocopying the publishers are actually seeking, or financial compensation through the courts, rather the establishment of a new system under which institutions have to buy licenses for copying – similar to the situation in countries such as the United Kingdom and Canada.
The US$110,000 in damages the publishers called for is the minimum the lawsuit needed for it to fall under the jurisdiction of the Delhi High Court.
A body to issue licenses for copying has recently been established, and publishers view the case in India as an opportunity to begin signing universities up.
“It has set rates that are the lowest in the world,” Saikia, from publisher CUP India, says of the licensing system.
But Basheer warns this is a dangerous path. “There is no reason the price should stay low,” he says. “Publishers will hike them up in due course, like they did in Canada and elsewhere. And the moment people sign up, it becomes a compulsory license.”
Despite the troubles caused to Indian students, Basheer sees a positive side to the case. “It is forcing many of us to think twice about publishing with big publishers, considering open access publishing and making it viable for academics to publish through a medium that doesn’t cater to private interests.”
Judicial cases in India take years to be resolved, and this one could last for the foreseeable future. But its outcome promises to change the landscape of global publishing in more ways than one.