Copyright and Free Speech – I: Constitutional Arguments against OUP et al in the Delhi University photocopying lawsuit

The on-going copyright litigation between Oxford University Press, Cambridge University Press and Taylor & Francis publishing houses against Delhi University and the Rameshwari Photocopy Service is now well-known. Briefly, the publishing houses sued the University and the photocopying shop, alleging that the use of “course-packs”, that featured material from a number of books published by them, was a violation of the Copyright Act. The Delhi High Court is presently hearing oral arguments.

The importance of this litigation cannot be underestimated: all of us who have ever been students will remember the indispensability of our local photocopying shop to our student lives, the only possible substitute for unaffordable books, whether it was preparing for exams or researching for papers. If the Delhi High Court rules in favour of the publishing houses, future generations of students will no longer have that option. The reasons on both sides of the argument, therefore, must be carefully scrutinized.

What is at issue here is the interpretation of the fair dealing exception to copyright claims. Under S. 52(a)(i), fair dealing with literary works, for the purposes of private use, including research, does not constitute an infringement of copyright. Corresponding provisions in countries like the USA have been read in a highly limited way, to allow photocopying 10% of a book, for example. Naturally, the claims in this case go much further, and a related question (although not raised in this case) is whether photocopying entire books qualifies as “fair dealing” within the meaning of the Copyright Act.

The Spicy IP blog, in a series of thoughtful posts, has analysed the intellectual property and political aspects of this case. In this and the next post, I want to highlight a constitutional argument, grounded in Article 19(1)(a)’s guarantee of the freedom of speech and expression, that aligns in favour of the Court dismissing the suit. I do not claim this argument to be dispositive: only, that a well-reasoned judgment ought to accord it substantial weight, and that if the Court chooses to decide in favour of the publishers, it ought to provide good reasons for overriding important constitutional values.

I begin with three premises – one factual and two legal – that, I hope, are unexceptionable: the factual premise is that at present prices, buying textbooks is a matter of significant financial hardship for a significant number of Indian students. To prove this claim, of course, would require detailed information about the average price of textbooks, the distribution of income, expenditure on a number of indicators, and so on; for the purposes of argument, let us take it as given, with the rider that if the premise is false, then the argument, accordingly, fails.*

As to the legal premises: first, that the plaintiffs in this case are private entities, and not in any sense instrumentalities of the State. The argument, therefore, cannot be that fundamental rights may be enforced against them. Whatever the desirability of horizontally applying Part III between individuals, it is not the law of the land: indeed, most recently, it was proposed in oral argument in the Right to Education Case, passed over in silence by the majority, and explicitly rejected by the dissent. And secondly, it is an accepted principle of constitutional interpretation, not just in India, but in most other nations, that ordinary laws must be interpreted in a way that would conform with the text and purposes of the Constitution. Of course, one must guard against the dangers of a purely reductive analysis here: England, New Zealand and Germany, to name just three States, all permit differing degrees of latitude to judges interpreting statutes to bring them in line with constitutional (or Human Rights Act) provisions. Nevertheless, that need not detain us here – unlike the most vexing cases before the UK, New Zealand and German courts, this is not a case where the Court must choose between a linguistically more accurate interpretation of a provision that conflicts with basic law, and a linguistically strained interpretation that conforms with it; the words “fair dealing” are not self-contained indicators of meaning. It therefore seems at least safe to say – subject to the risk of oversimplification – that when interpreting the Indian Copyright Act’s doctrine of “fair dealing”, the Court ought to be guided by the background principles of the Constitution.

Let us start with a preliminary objection: it might be argued that it is conceptually impossible for copyright protection and free speech to be at odds with each other. Through doctrines such as the idea-expression dichotomy, that do not extend protection to ideas that have not been crystallized into specific forms of expression (so the argument goes), there is no restriction on free speech at all, because ideas are open to all; and even if there is, other concepts such as the fair dealing doctrine mean that the copyright regime internally strikes the balance between the rights of creators (who too, lest we forget, are exercising right of free speech), and the general freedom of expression. This seems to be the dominant position in the United States, as evidenced in the writings of  Professor Nimmer and the decision of the American Supreme Court in Harper & Row Publishers vs Nation Enterprises; and in the United Kingdom, as observed by the House of Lords in Ashdown. Whatever the validity of these claims, there is good reason for rejecting them in the Indian context: the freedom of expression under Article 19(1)(a) is more multifaceted than comparable American and English jurisprudence; there is no equivalent of Article 21A’s right to education in America or the United Kingdom; and furthermore, the Indian Copyright Act was passed in 1957 – before the development of Article 19(1)(a) jurisprudence began in earnest, and long before the passage of Article 21A. We cannot, therefore, assume that a common-law or American-doctrinal interpretation of the Copyright Act will, as an a priori matter, conform to the principles of our Constitution; rather, it is our Constitution that must inform our interpretation of the Copyright Act.

My argument, that I shall elaborate upon in the next post, shall be as follows: our Article 19(1)(a) jurisprudence does not require direct State censorship as a pre-requisite for an infringement of the freedom of speech; rather, it envisages that inequalities of resources acting as barriers to free expression, even though not directly caused by affirmative State action, nonetheless constitute an infringement of the 19(1)(a) right, since they are upheld by State legislation governing property, transfers of goods and, in this case, copyright; and that consequently, such legislation ought to be interpreted by the Courts in a manner that advances, instead of restricting, the freedom of speech and expression.

* For a taste, a quick trawl through OUP India’s website reveals, for instance,  Comparative Constitutionalism in South Asia priced at Rs 950, Romila Thapar’s Readings in Early Indian History at Rs 650, The Making of Modern Indian Art at Rs 3,950 and so on. This is only OUP India (many textbooks, as we well know, are not published in India Editions).

(A modified version of this post will appear here)


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One response to “Copyright and Free Speech – I: Constitutional Arguments against OUP et al in the Delhi University photocopying lawsuit

  1. Pingback: Copyright and Free Speech – II: Constitutional arguments against OUP et al in the DU Photocopying Case | Indian Constitutional Law and Philosophy

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