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India: An expansive education exception to literary works

In a recent decision that has been welcomed and criticised all at the same time, the Delhi High Court in The Chancellor, Masters & Scholars of the University of Oxford v Rameshwari Photocopy Services & Ors has given, as is argued by many, an expansive interpretation to copyright exceptions applicable to educational institutions.

The infringement case was against the preparation and distribution of course packs or compilations of photocopied portions of different books prescribed in the syllabus of a University. This was contracted out to a photocopy services company by the University. As the Court observed, the case boiled down to whether such actions are exempt from copyright infringement. On both counts, the Court ruled in favour of the University and photocopy services provider.

Indian copyright law contains a long list of enumerated exceptions to copyright infringement and the heart of the judgment relates to the one exception that allows a teacher or a pupil to reproduce a copyright protected work, inter alia, in the "course of instruction". The Court was of the view that creating course packs was included in this exception, since it fell within the ambit of the "process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, that the pupil stands instructed in what he/she has approached the teacher to learn". The Court further ruled that the application of this exception is not affected merely because the work is contracted out to a third party service provider.

Such questions of law are never likely to have one correct answer, though some of the statements in the judgment do raise eyebrows. The Berne Convention provides India with the discretion to allow reproduction, but only in special cases, if it does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Whether the Court's ruling properly accounts for the Berne Convention's test is a different story altogether.

R Parthasarathy

Lakshmi Kumaran & Sridharan

B6/10 Safdarjung Enclave

New Delhi 110029, India

Tel: +91 11 41299800

Fax:91 11 41299899

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