Frederick FN Noronha फ्रेड्रिक न on Fri, 16 Sep 2016 16:40:01 +0200 (CEST)

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<nettime> INDIA: Publishers vs. Delhi University students... and David wins!

   Good news! This case pertains to some ludicrous copyright violation
   allegations made by major publishers, involving Indian university
   students (and cheap photocopying outlets) reproducing their work for
   educational purposes.

   See the comments on the judgement below.

   I believe the role of publishers is to spread knowledge, not to block
   it. Also, as a class we publishers should not be so stingy just to
   maintain desired or dreamt-of standards of affluence. Fair use and
   readers' rights should also be kept in mind and enforced. FN


Breaking News: Major Victory for Students and Educational Access in DU
Photocopy Case!

   by Shamnad Basheer September 16, 2016

   As many of you may have heard, the Delhi High Court just handed down a
   major IP verdict in the DU photocopy case. In a 94 page decision, the
   court (Justice Rajiv Sahai Endlaw) dismissed the suit of the plaintiffs
   (CUP, OUP and other leading academic publishers) and held that the
   educational exception under section 52(1)(i) of the copyright act is
   broad enough to cover the acts of photocopying and the creation of
   course packs by Delhi University (DU) for their students.

   For background to this case, see our posts here and here.
   Other posts with the tag DU can be found here.

   As some of you know, a group of us academics (drawn from the law and
   social sciences) intervened in this DU copyright matter and presented
   arguments to the court. We formed an association
   called SPEAK (Society for the Promotion of Educational Access and
   Knowledge) for this purpose. Our counsel was Swathi Sukumar, a
   terrific lawyer at the Delhi high court, who was led by the wonderful
   Neeraj Kishen Kaul, a leading senior counsel. Similarly a number of
   students had formed an association called ASEAK and their counsel
   was Jawahar Raja, an exceptional  lawyer (I had the great privilege of
   going to law school with him).

   DU�counsel was the truly gifted Gopal Subramanium (one of India�   leading senior counsels or silks) who ran a rather maverick argument
   stating that the earlier framework where one qualified an act as an
   infringement and only then went into the �fences�as wrong and in
   cases such as this, there is no infringement at all in the first place.
   From my limited understanding of the order at this point, I believe the
   judge did incorporate this insight into his decision.

   On a broader note, it seems like the court was pleased to accept many
   of the arguments that we had advanced. Here are the key highlights
   based on a quick understanding of the order (this is my version and
   only I am to be held responsible if there are any errors).

    1. The judge (Justice Endlaw: god bless his soul!) dismissed the
       publishers�aw suit as a whole. Noting that there was no cause of
       action at all. Since there was no actionable infringement in this
       case. All the alleged copying is covered under the broad
       educational exception under section 52(1)(i) of the copyright act.
       In short, the judge noted that there was no need for trial at all
       in this matter, since there was no actionable infringement.

    2. The decision stands at a whooping 94 pages!

    3. The judge explicitly stated that the educational exception under
       section 52(1) (i) should be construed widely and clearly covers the
       present set of acts engaged in by DU (photocopying excerpts of
       books etc and creating course packs). Plaintiffs�rgument that it
       should cover only photocopying in the classroom is incorrect. The
       exception should cover all kinds of educational copying including
       copying for the purpose of preparatory work towards a class etc.

    3. Copyright is not a �vine�ight! The judge actually said this! I
       repeat: God bless his soul!

    4. IRRO doesn�even come into play since educational exception covers
       the alleged acts. And no need to pay IRRO. So out goes the IRRO
       business model strategy, which I believe is why this suit was
       brought in the first place at all.

    5. If DU can photocopy, so can its agents (Rameshwari photocopiers) or
       any photocopier for that matter, whether inside or outside the

   This decision will prove one of the biggest landmarks in IP
   jurisprudence the world over. And clearly spells out that private
   rights will have to yield to larger social goals which have to be
   interpreted widely. Much like the Supreme Court decision in the
   Novartis case, this decision too makes it amply clear that while India
   will be guided by foreign precedent, it will carve out its own IP
   jurisprudence and interpret the law in a way that suits its own
   societal requirements.

   On a related note, I�really happy to see such a progressive decision
   come out of the Delhi High Court (which, when compared to the Mumbai
   high court) has, of late, been churning out atrociously one sided and
   skewed IP decisions.

   A great number of players came together in a wonderful collaboration to
   make this victory happen. Students, lawyers, academic, activists and
   many other well wishers. Well done to all of them! And heartfelt thanks
   for preserving this much needed academic space when all other spaces
   have been shrinking thanks to an ever expansive notion of private IP
   rights. (the latest being a hugely problematic ruling from the EU
   making even hyperlinking illegal!)

   More when we get a copy of the order on the court website. Stay tuned!


   _/  Frederick Noronha
   _/  P +91-832-2409490 M 9822122436 Twitter @fn Fcbk:fredericknoronha
   _/  Hear Goa,1556 shared audio content at

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