“Knowledge, like air is vital to life. Like air, no one should be denied it.”Alan Moore
The Intellectual Property regime in most nations are governed and controlled by the TRIPS Agreement. The Agreement allows for relaxations as far as they are limited exceptions that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. These relaxations sometimes referred to as the ‘TRIPS flexibilities’ are a solace to developing nations like India; and were incorporated into the TRIPS after considerable negotiations. However, the wordings and the spirit always indicated a balance between the interests of the IP holders and its users. The same spirit was to be reflected when member nations enacted their national legislations.
The Copyright Act, 1957 was enacted with the objective of incentivizing the creators of original work so that both the creators – through monetary incentives, as well as the public – through access to original works, are benefitted. Therefore, the main objective behind the Act is for the attainment of balance between the interests of the creators and that of the public. The balance is disturbed if either party is unjustly prioritized over the other. This equilibrium remained undisturbed until the recent COVID-19 pandemic.
COVID-19 and The Higher Education System
The pandemic hampered and disrupted all activities including the education system, especially the higher education system. The institutes were left with no option, but to switch to e-mode learning. The same resulted in the reproduction of reference textbooks and other copyrighted material over the internet in permanent reproducible form. One could pass it off as an exempted activity under S.52 (1) (i) of the Copyright Act, 1957, wherein reproduction of any work in the course of instruction by a teacher or pupil is permitted. The same provision has been explained in detail and the educational use exception was upheld in the DU Photocopy Case. However, the above-said case was concerning only the reproduction of relevant areas from a copyrighted material into course packs for educational purposes rather than the complete reproduction of reference textbooks in electronic format. One may wonder as to what is the difference when the Court has made it clear that the quantity reproduced is irrelevant? The difference lies in the fact that these e-copies which can be shared and reproduced for innumerable times affect the future markets of such textbooks/materials which in fact unreasonably prejudices the legitimate interest of the author, which is nothing but a blatant violation of the TRIPS mandate.
The major questions thus under consideration, include:
- Whether the unlimited reproduction and/or distribution of the entire copyrighted works in electronic format for educational purposes fall under the exceptions to infringement under S.52 (1) (i) of the Indian Copyright Act, 1957?
- Whether permitting the unlimited reproduction and/or distribution of the entire copyrighted works in electronic format for educational purposes would violate India’s obligations under any International Treaty/Law?
- Should S.52 (1) (i) be re-framed so as to explicitly include situations as the COVID-19 pandemic? If yes, how should the new provision read?
- How can a tradeoff between the rights of the students and copyright owners be attained in situations such as the COVID-19 pandemic?
Educational Use Exception in the light of COVID-19
S. 52 (1) (i) of the Copyright Act, 1957 permits the reproduction of any work in the course of instruction by a teacher or pupil. The ambit of this provision has been discussed in detail by the High Court of Delhi in the DU Photocopy Case. The court decided a scenario wherein various portions were taken from copyrighted materials to form a course pack for educational purposes. However, the COVID situation here is entirely different as the textbooks/materials shared are capable of unlimited reproduction and will always adversely affect the future market of those books. If we go by the letter of the law, the same is permitted in S. 52 (1) (i). But, a look into the rationale behind the legislation will reflect a need to attain a balance between the IP holders and IP users.
There is no doubt that the educational use exception under S. 52 (1) (i) was perfectly in tune with the objectives of the Copyright Act until the COVID-19 pandemic. The question of revising the provision should only be to the extent that it would be operative only during special cases such as the pandemic. Such revisions are needed to make the provision operative in tune with the objectives of the legislation in adversities like this pandemic in future.
If no revision is resorted to, the IP holders’ interest would be at jeopardy. That would disturb the equilibrium envisaged by the Act and there will no longer be any incentive for authors/writers to create original works – thereby obstructing the inflow of knowledge. Therefore, there appears an imminent need to strike a balance between the rights of IP holders and users.
India’s obligation under TRIPS
The TRIPS flexibilities were made a part of the Agreement after heated negotiations between the developing and developed nations. The educational use exception and for that matter S. 52 as a whole, of the Copyright Act, 1957 derives its power from Article 13 of the TRIPS. The educational use exception would have no meaning if it goes against its enabling Act i.e. The TRIPS. The TRIPS reads “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” Any activity that unreasonably prejudices the legitimate interests of the right holder would not come within the purview of the TRIPS flexibilities. During the COVID-19 pandemic, the unlimited reproduction of textbooks as a whole would definitely prejudice the right holder’s legitimate interests. The same would be unreasonable if the textbooks are distributed to the students in a further reproducible form – like a pdf file or so. These textbooks/materials in pdf format can be easily shared and reproduced and has great potential of adversely affecting the sale market of the original copyrighted textbook/material.
Conclusion, Findings and Suggestions
It is crucial to ensure access to original copyrighted works and at the same time the copyright owners also shouldn’t be put at jeopardy. A mutually benefitting mechanism is what is to be sought for. The balance can only be achieved if the copyright owners are ready to make their works accessible at affordable prices. It was seen that many Journals came forward and offered access to their database free of cost during the pandemic. If a similar initiative were to be undertaken, we may attain a consensus in protecting the rights of all parties. However, care must be taken to ensure that these works that are made freely accessible, shall not be misused.
It can be fairly concluded that:
- The educational use exception under the Copyright Act of 1957 finds its origin in the TRIPS flexibilities under Article 13.
- The Copyright Act, 1957 vide the educational use exception is silent regarding the quantity or portion of the book/copyrighted material reproduced.
- The DU Photocopy case has clarified that “so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use, i.e. to make the learner understand what is intended to be understood.”
- The TRIPS Agreement, however does not allow any kind of reproduction that conflicts with the normal exploitation of the work and that it would unreasonably cause prejudice to the legitimate interests of the IP right holder.
- Therefore, the reproduction and distribution of e-books is likely to conflict with the normal exploitation of the work and might cause unreasonable prejudice to the legitimate interests of its authors by adversely affecting the future market sales of the book, and would thus be violative of Article 13 of the TRIPS Agreement.
To attain a balance between the rights of both the IP right holder and the beneficiaries, the following suggestions may be considered:
- Copyright owners should make available the books and other materials via online in read-only formats.
- The works made available via online should be protected by using Technologically Protection Measures (TPM).
- Access should be denied to anyone who tries to circumvent the TPM.
- A Non-commercial public library that stores digital copies of the books it possesses in hardcopy can be made use of, by ensuring accessibility in read-only formats with adequate TPM. The same has been permitted under the Copyright Act, 1957.
- The educational use exception can be revised by incorporating a proviso that reads “Provided that, in circumstances where access to original works is near to impossible other than by resorting to electronic means, the right holders may take adequate measures to make the works accessible at affordable prices failing which, the reproduction in electronic means of copyrighted works for educational purposes will not be deemed to be an instance of infringement.”
 The Agreement on Trade Related Aspects of Intellectual Property Rights, 1994.
 The Agreement on Trade Related Aspects of Intellectual Property Rights, 1994, art. 13.
 The Copyright Act, 1957, No. 14 Acts of Parliament, 1957 (India).
 The Chancellor, Masters and Scholars of the University of Oxford and Ors. v. Rameshwari Photocopy Services and Ors., (2016) 160 DRJ (SN) 678.
 Id at para 33.
 Supra note 5.
 Kevin T. Richards, COVID-19 and Libraries: E-Books and Intellectual Property Issues, CONGRESSIONAL RESEARCH SERVICE (Dec. 23, 2020, 09:30 PM), https://crsreports.congress.gov/product/pdf/LSB/LSB10453.
 Namratha Murugeshan, CovEducation, Copyright and Fair Use in India, SPICYIP (Apr. 17, 2020), https://spicyip.com/2020/04/coveducation-and-copyright.html.
 Supra note 2.
 Supra note 3.
 EXLIBRIS KNOWLEDGE CENTER, List of COVID-19 and Temporarily Free Resources – Ex Libris Knowledge Center (exlibrisgroup.com) (last visited Dec. 23, 2020).
 Supra note 4.
 The Copyright Act, 1957, § 52 (1) (n), No. 14, Acts of Parliament, 1957 (India).
Karun Sanjaya, The Impact of COVID-19 on Higher Education – A Copyright Perspective, Ex Gratia Law Journal, (February 1, 2021), https://exgratialawjournal.in/journal/volume-2/vol-2-issue-1/the-impact-of-covid-19-on-higher-education-a-copyright-perspective-by-karun-sanjaya/.