The Chancellor, Masters & Scholars of the University of Oxford and Ors. V. Rameshwari Photocopy Services and Ors. - (High Court of Delhi) (16 Sep 2016)

When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified

MANU/DE/2497/2016

Intellectual Property Rights

Plaintiffs, being the publishers, including of textbooks, instituted instant suit for relief of permanent injunction restraining Defendants from infringing copyright of Plaintiffs in their publications by photocopying, reproduction and distribution of copies of Plaintiffs' publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from Plaintiffs' publications by compiling them into course packs/anthologies for sale. Suit for interim relief restraining photocopying/reproducing copies of Plaintiffs' publication and sale of course packs filed in 2012. Vide ad-interim order, Defendant No. 1 was restrained from making, selling course packs/re-producing Plaintiffs' publications or substantial portions thereof by compiling the same either in a book form or in a course pack, till final disposal of application for interim relief.

Copyright, though may subsist under natural law in any work, has been made subject to statute and if statute limits works in which copyright subsists, there can be no natural copyright therein. Section 2(m) defines "infringing copy" as meaning in relation to literary works, a reproduction thereof, if made in contravention of the Act, meaning, if any provision of Act permits any person to reproduce any work or substantial part thereof, such reproduction will not be infringing copy. Section 51 prescribes that copyright is infringed inter alia when any person does anything exclusive right to do which has been conferred by the Act on the owner of copyright. It follows, if there is no exclusive right, there is no infringement. Section 52 lists the acts which do not constitute infringement. Thus, even if exclusive right to do something constitutes copyright, if it finds mention in Section 52, doing thereof will still not constitute infringement and outcome thereof will not be infringing copy within meaning of Section 2(m). Thus, unless there is infringement of copyright within meaning of Act, owner of copyright is not entitled to sue.

There can be no copyright in any author, composer or producer save as provided under the Copyright Act. Unless the action of defendants No. 1 and 2 amounts to infringement of copyright within meaning of the Copyright Act, Plaintiffs or any other person in whom copyright vests cannot sue for infringement or damages or accounts. Works in question fall in category of original literary work. Once the acts listed in Section 52 are declared as not constituting infringement of copyright and the reproduction of work resulting from such acts as not constituting infringing copy, it follows that the exclusive right to do the acts mentioned in Section 52 has not been included by the legislature in the definition in Section 14; of copyright, once that is so, the doing of such act cannot be infringement under Section 51 and the question of taking the same out by way of proviso or exception does not arise.

When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.

Under Berne Convention also, only binding obligation on privy countries is to in their respective legislations i) not permit reproduction of work so as to conflict with a normal exploitation of work and so as to unreasonably prejudice legitimate interest of author; and, ii) to while permitting utilization of literary works including in publications for teaching ensure that such utilization is to extent justified by purpose and compatible with fair practice. Similarly, under TRIPS Agreement also member countries have agreed to confine exceptions to copyright to extent they do not unreasonably prejudice legitimate interest of right holder. India, under the international covenants, though has the freedom to legislate as to what extent utilization of copyrighted works for teaching purpose is permitted but agreed to ensure that, same is to extent "justified by the purpose" and does not "unreasonably prejudice legitimate rights of the author".

Parliament/legislators have permitted reproduction of any work by a teacher or a pupil in the course of instructions. In accordance with the meaning which has been assigned by the Courts to the words/phrase "in the course of" since prior to the use thereof in Section 52(1)(i) and in accordance with the meaning of the word "instruction", interpreted Section 52(1)(i). It is not for this Court to impose its own wisdom as to what is justified or what is unreasonable, to expand or restrict what the legislators have deemed fit. The legislature is not found to have imposed any limitation on the extent of reproduction.

Once legislature which under our Constitution and under international covenants aforesaid was entrusted to while making law in relation to copyright take a call on what is justified for the purpose of teaching and what will unreasonably prejudice the legitimate interest of the author has not imposed any such limitation, this Court cannot impose the same. High Court opined that, judgments in context of different legislations on basis of perception by legislators thereof of purpose of teaching and unreasonable prejudice to legitimate interest of author cannot form bedrock for this Court to interpret Copyright Act of this Country. Therefore, rejecting the suit filed by international publishers, Court held that, actions of Defendants to be not amounting to infringement of copyright of Plaintiffs.

Relevant : Warner Bros. Entertainment Inc. v. Mr. Santosh V.G., Sections 51(a)(i), 14(a)(i) and (ii), 51, 52, 2(m) of Copyright Act, 1957