In an ongoing case in the Delhi High Court, where a consortium of publishers, namely Oxford University Press, Cambridge University Press and Taylor & Francis Group have filed a suit against Delhi University and M/S. Rameshwari Photocopier (the licensed photocopy shop at Delhi School of Economics) alleging copyright infringement, students from across India have come together to challenge these allegations in Court. On 1 March, 2013, the impleadment filed by the Association of Students for Equitable Access to Knowledge (ASEAK) to be made a party to the ongoing lawsuit was accepted in Delhi High Court and the Association will represent the interest of students in the said case.
ASEAK has been formed out of the Campaign to Save the D. School Photocopy Shop, a Campaign that arose spontaneously following the suit when it was initiated in August last year. The publishers had claimed that photocopying of prescribed study material constituted an infringement of their copyright and claimed damages in excess of Rs. 60 lakhs. However, the Indian Copyright Act 1957 makes for exceptions to copyright infringement in Section 52, Article (h) of the Act, which states: “(h) the reproduction of a literary, dramatic, musical or artistic 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” does not amount to an infringement of copyright.
ASEAK reaffirms the need for such exceptions in a developing country like India where photocopying ensures the access to otherwise prohibitively expensive books to the majority of students of higher education. It condemns the move of these publishers who claim to be fostering academic excellence, two of which are in fact University Presses (OUP & CUP), but are in fact working towards making higher education a preserve of the privileged few who can afford these books. It further condemns the crass attempt of the publishers to use the pretext of the interest of scholars in filing this suit, where this move has drawn severe and widespread condemnation from the academic community including scholars who have published with these publishers.
In October 2012 the Delhi High Court had passed an interim injunction staying further photocopying of ‘course packs’ which are essentially compilation of prescribed reading materials. To the objections raised by the publishers' lawyer to the Association's impleadment, the honourable High Court observed “that the presence of the applicant is necessary and proper for adjudication of the present suit”. ASEAK seeks a revocation of the interim order and will work to defend the educational exception in favour of the interests of the student community at large.
That photocopying of educational material takes place at such a large scale across the country and across disciplines is indicative of the gap within our education system that is filled by photocopying. Until alternative mechanisms of access to the same material is evolved, any curbing on photocopying will severely impact the student community, not only in Delhi School of Economics, or Delhi University, but in every educational institute across the country. We affirm and express solidarity with the students of Costa Rica who are fighting for their right to photocopy, directly linked with access to education, as it is in India. We express our solidarity with the open access movement and affirm the cause that Aaron Swartz fought for. We welcome the move in the USA that has led to the decision of free access to publicly funded research after one year of remaining within subscription journals, and will push for similar moves for opening access to publicly funded research within India, including academic works produced by teachers while being employed by State Universities.
Below is a reproduction of the Delhi High Court order :
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 2439/2012, IAs No.14632/2012 (u/O 39 R-1and2), 14635/2012 (for exemption), 14636/2012 [u/S 80(2)] and 430/2012 (of D-2 u/O 39 R-4)
THE CHANCELLOR,MASTER and SCHOLARS OF THE UNIVERSITY OF OXFORD and ORS ..... Plaintiffs
Through: Mr. Saikrishna Rajagopal and Mr. Sahil Sethi, Advs.
RAMESHWARI PHOTOCOPY SERVICES and ANR..... Defendants
Through: Mr. Saurabh Seth, Adv. for D-1.
Mr. Saurabh Banerjee, Adv. for D-2.
Mr. Sanjay Parikh with Mr. J. Raja and Mr. B. Parveen, Advs. for the applicant in CM No.3454/2013.
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
IA No.3454/2013 (of the Association of Students for Equitable Access to Knowledge, for impleadment in the present suit)
1. The counsel for the plaintiffs appears on advance notice and though seeks time to file the reply to the application but considering the nature of the application, it is not deemed appropriate to keep the same pending.
2. The counsel for the plaintiffs, though initially left the matter of impleadment to this Court, but has subsequently argued that though the applicant may be allowed to intervene but not be impleaded as a party. He has also argued that University of Delhi is already a party in the present suit and the interest of the applicant, which is an association of students of the University, can well be looked after by the University.
3. The counsel for the applicant has argued that the purpose of the applicant will not be served by merely permitting intervention and in which they will be entitled to only make legal arguments. It is pointed out that another application has been filed for vacation of the ad-interim order in the suit as the same is affecting the members of the applicant.
4. The counsel for the plaintiff has also argued that the applicant itself is still under the process of registration and has been formed only after the institution of the present suit.
5. This suit is for injunction restraining photocopying by the defendant No.1 in the University Campus of the books of which the plaintiffs have a copyright and from creating course packs from the said photocopy material.
6. Though traditionally the test for grant of interim relief was on the touchstone of three ingredients of prima facie case, irreparable loss and injury and balance of convenience but off late as noticed in Smt. Ishmali Devi Vs. Delhi Development Authority MANU/DE/1838/2009, the Courts have introduced the forth element of public interest and the injunctions, even where satisfies the three ingredients, have been refused on the touchstone of the test of public interest.
7. The applicant claims to represent the public interest and being the affected party, it is in the circumstances felt that the presence of the applicant is necessary and proper for adjudication of the present suit.
8. The application is accordingly allowed. The applicant is impleaded as defendant No.3 to the suit.
IA No.3455/2013 (of the newly impleaded defendant No.3 u/O 39 R-4 CPC)
9. Issue notice. Notice is accepted by the counsel for the plaintiffs and the counsel for the non-applicant / defendant No.2. Reply if any be filed before the next date. Though the counsel for the newly impleaded defendant has expressed urgency but in the facts and circumstances and considering the Board of this Court, it is not possible to prepone the date from the date already fixed for 25th April, 2013.
10. List on 25th April, 2013. CS(OS) 2439/2012
11. Written statement by the newly impleaded defendant No.3 be filed within two weeks. Replication thereto, one week before the next date of hearing.
12. List on 25th April, 2013.
RAJIV SAHAI ENDLAW, J
MARCH 01, 2013