Journal of Intellectual Property Rights Vol. 9, May 2004, pp 207-225

Copyright Law of and the Academic Community†

T C James* Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Udyog Bhavan New Delhi 110011 Received 3 March 2004

Copyright plays a crucial role in academic institutions. Although, copyright protection has been in existence in India for more than 150 years, copyright issues in academic institutions have not received enough attention. This paper attempts to look at the issues in the background of the philosophical justification for copyright protection. After a bird’s eye view of the basics of copyright, the paper looks at the traditional issues relating to scope, ownership and use of copyrighted works in educational institutions, in the light of case laws. Then the possible issues that Indian educational institutions may have to face in the context of the emergence of digital technologies and widespread use of information technology are examined. The paper concludes with certain suggestions for the consideration of the educational institutions.

Keywords: Copyright law, Moral rights, Economic rights, Legal rights, Exclusive rights, Copyright ownership, Copyright regime, Digital technologies, Educational institutions

India has one of the oldest academic tra- and institutional structures emerged. ditions with formal education finding a Western style universities and schools place in its ancient history. The universi- came into existence2. Approach to prod- ties of Taksila and Nalanda were great ucts of mind that formed the content of centres of learning in the ancient world,1 educational institutions also got changed brimming with students and teachers over the centuries. Concept of copyright from different parts of the world, not to in literary works found a place in India by say about the great Gurukul tradition in the nineteenth century. the hoary past. However, those were the India had its first copyright law en- days when learning was considered as gift acted on 18th December 1847 much ear- of God, freely received and freely given. lier than many other countries. It is inter- Over the centuries, approach to education esting to read the title of that legislation: and learning changed. Old traditions gave “An Act for the encouragement of learn- way to new ones. New economic models ing in the Territories subject to the Gov- ______†The ideas in this paper are of the author that was presented at the PAN-IIT Workshop on Management of Intellectual Property in Academia organized by the Indian Institute of Technology, Mumbai, during 26-27 February 2004 *Email: [email protected] 208 J INTELLEC PROP RIGHTS, MAY 2004

ernment of the East India Company, by not have such a right. The current law of defining and providing for the enforce- copyright in India is the 1957 Act, but it ment of the right called Copyright has been amended a number of times, last therein3” .The scope of that Act covered being in 1999, to keep it abreast with the books only4 and not other kinds of crea- socio-economic and technological devel- tive expressions. It is, however, remark- opments able that the Act provided for compulsory Although India has been providing licence to publish a book, which the copyright protection since the nineteenth original publisher had refused to repub- century, copyright issues had not exer- lish so that books in demand were not cised the academic community in a scale withheld from the public.5 Although such commensurate with their role in academic legislation existed, the Bombay High activities. There could be various reasons Court in a judgement towards the end of for the same. First, the traditional Indian the 19th century held the British Copy- attitude to knowledge dissemination and right Act, 1842 as the one applicable to cultural efforts has been non-commercial. India6. In 1911 “An Act to amend and the Secondly, most considered, the income law relating to copyright” was enacted by derivable from copyright is not very sig- the British Parliament. That Act had ex- nificant and, therefore, a lax attitude to tended application to all the British do- the enforcement of the existed. minions including India. It, however, had Thirdly, educational institutions did not a provision enabling the legislatures of look upon intellectual property effort as a the dominions to alter or modify the pro- wealth creation activity. In fact, copy- visions of the Act in its application to that rightable works such as course material or dominion. Accordingly, the Government textbooks were not looked upon as of India enacted the Copyright Act, 1914. ‘commodities’ in the market place but as That Act remained in force till 1958 when instruments for achieving the primary the new Copyright Act, 1957 passed by objective of such institutions, that is, im- the parliament of independent India was parting of education. However, with the brought into force.7 An interesting feature development of new technologies in stor- of the British phase of copyright protec- age and dissemination of information the tion in the country is that while in Britain, situation has changed and now academic the universities of Cambridge and Ox- community cannot be a silent spectator. ford, the four universities in Scotland8, The issues need to be addressed properly. and the several colleges of Eton, West- In order to get a clear picture of the prob- minster and Winchester as well as Trinity lems, we may first look at the basics of College, Dublin , had the right “to hold in copyright protection, then the traditional perpetuity their copyright in books given copyright issues in education and finally or bequeathed to them for the advance- at the new emerging challenges.

ment of useful learning and other pur- Basics of Copyright 9 poses of education,” universities in India The most important argument advanced such as Kolkata, Bombay and Madras did for copyright protection is the need to JAMES: COPYRIGHT AND THE ACADEMIC COMMUNITY 209

shield the author’s personality from distor- should be possible for an author to earn tions and also to ensure economic returns to from his works if there is a popular de- him for his creative efforts. mand for them. In the absence of any The concept of protection of author’s regulation, any unscrupulous enterpriser personality emerges from the view that or carpetbagger may publish the work of every creative work is an extension of the an author and make money out of it with- self of the creator. This protection in- out giving any penny to the author. volves right to claim authorship of the Therefore, copyright provides exclusive work and to restrain or claim damages in rights to the author to reproduce or adapt respect of any distortion, mutilation, or communicate to the public his work.13 modification or other act in relation to the These rights are referred to as economic work, which would be prejudicial to the rights as they enable an author to make honour or reputation of the author10. pecuniary gains by controlling those These rights are generally known as rights, i.e., he can negotiate financial re- moral rights (droit moral). In some coun- turns for licensing the use or for assign- tries the right to publish the work is also ment of any of those rights. This brings considered as a moral right. copyright to the stable of property rights, While moral rights may ensure creative as one kind of intellectual property rights. satisfaction for an author, they do not There are major differences between guarantee economic gains for him. It is intellectual property rights (IPR) and argued that the possibility of fair eco- other property rights. IPR are rights over nomic returns from the work is a neces- intangible property or property incorpo- sary incentive for creation of original real. Physical property gets exhausted works. After all, an author spends time when consumed whereas the use of intel- and energy in creating a new work and lectual property does not exhaust the like any other individual he also has to same; rather it enhances the value of the earn his daily bread by the sweat of his property. Consequently intellectual prop- brow unless he was born with a silver erty is one, which can be concomitantly spoon in his mouth. Even if he has other used by many. means of livelihood, he still has a right to There is a public interest angle to be economic returns for his effort. Just as a taken care of while providing legal rights manual labourer gets paid by the benefi- to authors in the use or exploitation of ciary (exploiter) of his labour, an author their creative efforts. This is because has a basic human right to get paid for the these rights are in essence a right to con- labour, skill and energy that he has spent trol access to cultural, educational and over his work by the user (exploiter) of scientific material. Control over these is, that work11. This is the traditional eco- in effect, control over the intellectual life nomic rationale of copyright law. It is of the community. It is control over na- natural justice that the product of the la- tional, if not universal, cultural patri- bour, skill and capital of one man must mony. While in the realm of physics it not be appropriated by another.12 It may be a fact that the quantum of matter 210 J INTELLEC PROP RIGHTS, MAY 2004

plus energy is constant and there can be (1) Everyone has the right freely to par- no addition, in the intellectual property ticipate in the cultural life of the domain there is always new creations and community, to enjoy the arts and to additions to the existing ones. This addi- share in scientific advancement and tion occurs not in a vacuum but as a result its benefits. of utilization of existing substance and (2) Everyone has the right to the protec- bringing out advancement on the same. tion of the moral and material inter- Total prohibition of the use of the new ests resulting from any scientific, lit- material by the society will adversely af- erary or artistic production of which fect the intellectual growth of the society, he is the author. as new creative efforts will be restrained. Since its beginnings in the 15th century Therefore, this tension between individ- as a stationer’s right, the nature and phi- ual author’s claims (both moral and eco- losophy of copyright have undergone nomic) to control his creative effort and substantial changes. The economic ra- the society’s interest in having access to tionale of ensuring returns for investment the fruits of creativity in the larger inter- has over the course of time overshadowed est of humanity emerges as the principle the author-creativity justification for the of balance of rights in copyright. Every existence of copyright. Copyright is now copyright law has to keep a balance be- perceived more as an industrial property tween the author’s rights based on the than as an author’s right. But the new need for protecting his personality and for perspective also recognises the ‘public ensuring fair economic returns to him for good’ aspects which necessitates a bal- his creative efforts and the society’s in- ance between controlling the use of works terest in having access to the work in the and providing reasonable access to them, interest of intellectual growth. if not for any other reason than that “it is This principle of the balancing of the impossible to exclude free riders, except exclusive right of the author or publisher at a cost.”15 in the work with the public interest in the While the author’s interests are taken free dissemination of all works got en- care of by the provisions relating to the sconced In the British legal tradition with exclusive rights, both moral and eco- the historic judgement of the House of nomic, the societal interest is protected in Lords in the case of Donaldson v Beckett most copyright laws through limitations 14 in 1774 . Since then, common law coun- and exceptions to these rights. These are tries, including India, have generally ad- generally of three categories, viz., limited hered to this principle of balance between duration of protection, provision for com- exclusive rights of owners and the inter- pulsory licences and allowing certain uses ests of society at large without specific authorization by the This basic principle of copyright finds owner of copyrights, known as its raison d’etre in the Universal Declara- provisions in copyright parlance. tion of Human Rights too. Article 27 of Copyright is not a right in perpetuity this Declaration states: but is limited in time. The period of pro- JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 211

tection can vary from country to country. that it should not unreasonably prejudice However, as per the the legitimate interests of the author. The for the Protection of Literary and Artistic Convention also indicates quotations and Works, the minimum term of protection, illustrations for teaching as permissible which every country is obliged to pro- uses.21 Using certain copyright material vide, is life term of the author plus fifty for reporting of current events is also years.16 In India this period is life term of considered as a fair use.22 The Indian law the author plus sixty years.17 After expiry specifies such permissible uses in Section of this period the work comes into what is 52 of the Copyright Act. These provisions referred to as ‘public domain’, i.e., when enable legitimate use of new copyrighted any person can exploit the work without works for the educational, scientific, and either an authorization from the right cultural advancement of the society owner or any mandatory payment to such which is the implied objective of copy- owner. In other words, it becomes a right law as could be derived from the common heritage of the society. title of the first copyright law of this The other means used for ensuring the country. balance of rights principle is that of hav- Copyright law is built upon a number ing limitations on the exercise of the ex- of concepts. The most fundamental of clusive rights. These may be through pro- them is that copyright applies only to ex- visions relating to compulsory licences in pressions and not to ideas. There is no certain circumstances, and by totally ex- copyright in ideas or scientific principles empting certain uses from the purview of or historical facts. “An idea, principle, copyright. For example, Section 31 of the theme or subject matter or historical or Copyright Act provides that the Copy- legendary facts being common property right Board can grant licence on applica- cannot be the subject-matter of copyright tion for publication in certain cases, such of a particular person.”23 Any person can as works withheld from the public, and pick up an idea, develop it in his own subject to certain conditions.18 Payment manner and express it in his own unique of a specified royalty is normally pre- style. Paul Goldstein puts the rationale for scribed as a condition in these cases. this in the following words: While the copyright owner has exclusive Copyright law excludes protection for right over exploitation of a work, copy- ideas because ideas, particularly good right laws permit certain uses without any ideas, are relatively few, are rarely specific authorization of the owner and at original and are the necessary building no cost. These are referred to as fair use blocks for all literary, musical and ar- provisions.19 The Berne Convention pre- tistic expressions. If copyright is to scribes a three-step test for such excep- promote a wide variety of expression, tions20. It stipulates that such permissible authors, composers and artists must be reproduction should be only in certain free to draw on the pool of ideas from special cases, that it should not conflict which expression inevitably springs. with normal exploitation of the work and Also, the production of ideas consumes 212 J INTELLEC PROP RIGHTS, MAY 2004

few resources and thus needs few of sonal and moveable property.” Transfer- the economic incentives required for ability is necessary for proper exploita- the protection of more fully realized tion of the rights. In copyright the transfer works.24 takes place through assignments28. An Originality is a sine qua non for copy- assignment is in essence a transfer of right protection.25 Copyright protects the ownership even if it is partial. Unlike the originality in the expression of a thought case with other property, in the case of or information in some concrete form.26 copyright there can be separate and inde- However, the concept of originality varies pendent owners for a single work, the from legislation to legislation. Civil law ownership being portioned out for doing jurisdictions like those of France and different acts, at different times and in Germany who prefer to call the right in different areas. As Copinger puts it, question as author’s rights (droit “Rights of this character can be divided d’auteur) generally insist upon a high up horizontally and vertically so that dif- degree of originality whereas in common ferent people can own different rights in law traditions as those of United King- different countries.”29 The assignment is dom and India the threshold level of required to be in writing. An assignee can originality insisted for getting protection further assign the same to another person. is not so high. It should be the original A copyright owner can permit another creation of the author. That is to say, the person to do certain acts without assign- work should not have been copied from ment. This is by licensing.30 In the case of another work. It should be the result of licensing the ownership does not get the skill and labour of the author. Both transferred. While an assignment is in traditions, however, agree, that originality essence a transfer of ownership, even if it does not require that the work should be is partial; on the other hand a licence is a the expression of original or inventive permission to do something which but for thought. the licence would be an infringement. Another basic principle in copyright is Copyrights can be transferred also by a that protection should not be subject to testamentary disposition or by the opera- formalities.27 While copyright, like other tion of law as in the case of other proper- intellectual property rights, is a statutory ties. On the death of the owner, the right right, unlike other IPRs, it is not to be passes on to the legal heirs. acquired through a process of law. Copy- right is inherent in the creation of an Traditional Copyright Issues in Educa- original work. The author gets his copy- tion right instantly on the creation of the work There are three areas of copyright, without any application to or registration which have special significance for edu- with any statutory or non-statutory. cational institutions. These are the laws Like any other property, copyright is relating to the works protected, the own- transferable. In fact, it is ‘transferability’ ership of copyright and the use of the which really makes it a property, a “per- works protected by copyright regime. JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 213

Scope of Works may also be within the ambit of copy- The objects of copyright protection are right. However, syllabus “merely pre- referred to as ‘works’. The first articles, scribing the guidelines which are to be which got copyright protection in the followed by the textbook writers” has not modern world, were books. While in been accepted as an original work.39 course of time copyright protection has Abridgements, adaptations and transla- extended to several other artistic and tions of existing works are new works creative expressions, literary works con- and entitled for copyright protection tinued to be a major area in which educa- though issues had arisen regarding the tional institutions had a stake. character of abridgement40 and adapta- Most issues in ‘literary work’ that had tion. Such new works will not have any been agitated in the past related to the copyright if the same infringes another’s scope of that term. The unamended Copy- copyright. Anthologies and selections are right Act, 1957, had a simple inclusive extensively produced in the education definition of that term to the effect that it system to cater to the requirements of 31 “includes tables and compilations.” students of various classes. Questions had What was really a literary work was left been raised about copyright protection for to case law to clarify. In the context of such works in the past but the decisions educational institutions, this had given have been in the positive.41 rise to many questions such as whether Many questions were raised as to the books of arithmetic and algebra were lit- ‘literary quality’ of the literary work as erary works or whether question papers well as the degree of originality required set up by examiners would come under of the same for being entitled for copy- the definition of literary work, or guide right protection. So far as literary quality books could be considered as original is concerned as early as 1916 in Univer- literary works entitled for protection. sity of London Press Ltd v University Tu- Over the years, the courts have clarified torial Press Ltd case Justice Peterson many such cases. Thus, question papers stated: 32 set for examination, research theses and It may be difficult to define ‘literary 33 dissertations prepared by students, com- work’, as used in this Act (Copyright pilation of a book on household accounts Act 1911 of UK) but it seems to me 34 and domestic arithmetic , school text- plain that it is not confined to ‘literary 35 36 books, guide books , a book of scien- work’ in the sense in which the phrase 37 tific questions and answers, question- is applied, for instance, to Meredith’s naire for collecting statistical informa- novels and the writings of Robert 38 tion, and lecture notes have all come Louis Stevenson. In speaking of such under the class of literary works entitled writings, as literary works, one thinks for copyright protection. By extension, of the quality, the style, and the literary course materials, research reports, labora- finish, which they exhibit. … The tory notebooks in research laboratories, word ‘literary work’ seems to be used student course work and such other works in a sense, somewhat similar to the use 214 J INTELLEC PROP RIGHTS, MAY 2004

of the word ‘literature’ in political or musical work, which is written, spoken or electioneering literature, and refers to sung.”45 For subsistence of copyright in a written or printed matter. literary, dramatic or musical work, the The issue of originality also exercised UK Act makes recording, in writing or the minds of courts. While the work need otherwise, a precondition46 whereas in not be the expression of an original Indian Act does not have such a qualify- thought or idea, it must be the original ing clause for literary or other works for expression of the thought. It should not copyright subsistence in them. This have been copied from another but ema- leaves ground for exploring the possibil- nated from the author. Many judgements ity of copyright protection for original refer to the expending of labour and skill and oral literary and dramatic pieces. in a work to be considered as an original However, in the case of musical works, in work. “There is no guiding principle as to India, the condition of fixation in a me- the quantum of skill or judgement re- dium has been done away since 1994 as quired.”42 Similarly the issue of original- can be deduced from the amended defini- ity in collections, compilations43, tion of ‘musical work’ compared to the abridgements, adaptations, translations, pre-amended one.47 This was following dictionaries44, etc. had posed problems in Justice Krishna Iyer’s observation in In- the past. So also questions were asked dian Performing Right Society v Eastern about satisfying the ‘originality’ criterion India Motion Picture Associates case that when different authors use the same facts. the earlier provision was an “un-Indian It is now accepted that use of same his- feature.”48 torical or scientific data or identical facts The advent of computers leads to new did not prevent a work from claiming creations of the mind in the form of com- copyright so long as it is not copy of an- puter programs. Since from the beginning other work. the programs were ‘written down’ they Another doubt is related to the ques- were generally looked upon as literary tion of fixation. The general view had works. However, doubts persisted as to been that in order to be protected a work whether they were really ‘literary’ or not. must be expressed in print or writing. In order to remove all such doubts, the With the advancement of technology it amendment to the Copyright Act in 1984 has come to mean some kind of recording included ‘computer programs’ within the whether on paper or on tape or any other definition of literary works. The provi- medium such as an electronic one. While sion, after the amendments in 1994 and the Indian Copyright Act does not explic- 1999 reads: “literary work” includes itly state about the fixation question in the computer programs, tables and compila- matter of literary works, the Copyright, tions including computer databases, leav- Designs and Patents Act 1988 of the ing no doubt about extension of copyright United Kingdom defines ‘literary work’ protection to computer programmes and as “any work, other than a dramatic or databases as literary works.49 JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 215

Artistic work is the other category, case of an artistic work, other than a pho- which has an important place in the aca- tograph, it is the artist.57 In relation to a demia. Artistic work is defined by the photograph, the author is the person who Copyright Act as meaning: takes the photograph.58 In the case of a (i) a painting, a sculpture, a drawing cinematograph film and a sound re- (including a diagram, map, chart or cording the producer is the author.59 In plan), an engraving or a photograph, relation to any literary, dramatic, musical whether or not any such work pos- or artistic work which is computer gener- sesses artistic quality; ated, the person who causes the work to (ii) an architectural work or art; and be created is the author and, thereby, the (iii) any other work of artistic craftsman- first owner of the copyright therein.60 ship.50 This provision is of particular signifi- There are, however, some exceptions cance for engineering, architecture and art to this general rule such as: schools. Drawing would include any kind (a) Literary, dramatic or artistic work of drawing whether mechanical or engi- made by an author in the course of neering or, for that matter, artistic. Even a employment in a newspaper or pe- drawing based upon an earlier drawing riodical (in which case the proprie- can also get copyright protection pro- tor of the newspaper or periodical vided sufficient original skill and labour is the owner so far as publication in 51 the newspaper or periodical is con- has been spent on creating it. A photo- 61 graph gets protection as an artistic work.52 cerned); Even a portrait based on two photographs (b) Photograph, painting, portrait, en- could become the subject of copyright if graving, and cinematograph film it is original and produced a result differ- made for valuable consideration (in 53 which case the person who paid the ent from the photographs. 62 So far as educational institutions are valuable consideration); concerned the other classes of works such (c) Work made in the course of author’s employment (in which case the em- as dramatic works, musical works, sound 63 recordings and cinematograph films have ployer); not posed much definitional issues in In- (d) Public speech on behalf of another person (in which case the other per- dia. 64 son); Ownership of Copyright (e) Government work (in which case Ownership of works created by aca- the government);65 demics has been a major problem. Gener- (f) Work of a public undertaking (in ally the first owner of copyright in a work which case the public undertak- is the author.54 The author in relation to a ing)66; and literary or dramatic work is the creator or (g) Work of an international organiza- writer of that work.55 Composer is the tion (in which case the organiza- author of a musical work56 whereas in the tion).67 216 J INTELLEC PROP RIGHTS, MAY 2004

The issue of ownership of work cre- with that contention and observed, “Pa- ated in academic institutions has exer- per-setters are not in the position of ser- cised the mind of courts in India and vants acting under a contract of service abroad many times in the past. One of the and subject to the commands of the mas- reputed copyright cases in England re- ter as to the manner in which they shall lated to ownership of copyright in ques- work but they are like independent con- tion papers of a university. This was the tractors acting under a contract for service already cited University of London Press not subject to direct control in the per- v University Tutorial Press case.68 This formance of those services.” As such, case discussed in detail the difference question papers set for the examinations, between ‘contract of service’ and ‘con- in the absence of an assignment or con- tract for service,’ an issue for persons un- tract giving up the claim for copyright dertaking work on behalf of school and belongs to the paper setter except in a college boards of examination. Keeping master-servant relationship between the in view the freedom enjoyed by the paper examination board and the paper setter in setter as to the time and space for prepar- the matter of preparation of the question ing the question paper and the skill and paper. judgement required of the examiner, the Another issue of ownership arises in court came to the conclusion that he was the case of books, papers and articles not acting under the ‘contract of service’ written by the academics. It is commonly (apprenticeship) but under the ‘contract accepted that creative literature such as for service’ (independent contractor) and fiction, drama, poetry and so on are therefore the copyright vests in him. In purely personal and copyright on them is Jagdish Prasad Gupta v Parmeshwar with the author, even if the author is an Prasad Singh69 also the point of dispute employee of an institution. Doubts, how- was about the ownership of question pa- ever, arise when a professor or a teacher pers. The court held that the paper setters writes a book on the subject, which he is were the first owners of the copyright in teaching. The question was agitated in the those question papers. In Agarwala Pub- past and the courts have clarified71 that if lishing House v Board of Higher Secon- a teacher or professor wrote a book on the dary and Intermediate Education, UP,70 subject he was teaching, he was the au- also this issue figured and the court held thor and the owner of the copyright be- that the first owner of copyright in respect cause he was employed to teach and not of examination question papers was the to write books. paper setter. One of the issues that had While research theses are literary cropped up in the last case was whether works and thus entitled for copyright pro- question papers prepared for a board of tection, issues had been raised in the past education set up by the government could as to who would be the owner of the be considered as government work. If it copyright in the same, the student re- was so ownership of copyright would be searcher or the research guide? It has with the Board. The court did not agree been held that the copyright belongs to JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 217

the student and not the guide.72 But the of short passages from published liter- work of an apprentice belongs to the mas- ary or dramatic works, not themselves ter.73 published for the use of educational in- stitutions, in which copyright subsists: Use of Copyright Material in Educational Insti- tutions Provided that not more than two such Educational institutions are one of the passages from works by the same au- thor are published by the same pub- major users of copyright material. They 76 do so by almost all methods of exploita- lisher during any period of five years. tion of a work, i.e., by reproduction, The reproduction of a literary, dra- communication to the public, adaptation, matic, musical or artistic work: abridgement, translation and even by per- (i) by a teacher or a pupil in the formance. Copyrighted works are often course of instruction; or required to be used in course materials (ii) as part of the questions to be an- and textbooks, in class rooms, in research swered in an examination; or 77 work and in research theses, in examina- (iii) in answers, to such questions. tion question papers and answer books The performance in the course of the and in extracurricular activities by the activities of an educational institution, students and the faculty such as enter- of a literary, dramatic or musical work tainment programmes, publication of by the staff and student of the institu- school/college magazines and so on. tion, of or a cinematograph film or a Ordinarily any use of a copyrighted sound recording, if the audience is lim- material needs permission of the owner74. ited to such staff and students, the par- However, education is an activity, which ents and guardians of the students and requires special treatment in view of its persons directly connected with the ac- role in human development. Hence statu- tivities of the institution or the com- tory exemptions are given for some of the munication to such an audience of a uses by educational institutions. cinematograph film or sound re- 78 The Copyright Act permits a fair deal- cording. ing with a literary, dramatic, musical or Some other statutory exemptions also artistic work not being a computer pro- come handy for educational institutions in gram for the purpose of private use in- certain of their activities. These are the cluding research and criticism or review exemptions relating to: of that work or another work.75 Some of the performance of a literary, dramatic the other permitted acts are: or musical work by an amateur club or The publication in a collection, mainly society, if the performance is given to composed of non-copyright matter, a non-paying audience, or for the bene- bona fide intended for the use of edu- fit of a religious institution;79 cational institutions, and so described the reproduction in a newspaper, in the title and in any advertisement is- magazine or other periodical of an arti- sued by or on behalf of the publisher, cle on current economic, political, so- 218 J INTELLEC PROP RIGHTS, MAY 2004

cial or religious topics, unless the au- protection, once the university published thor of such article has expressly re- the same, they became public property. In served to himself the right of such re- 1965, the Jammu & Kashmir High production;80 Court86 also quoting the above case held, the publication in a newspaper, maga- once the original authors of the books zine or other periodical of a report of a allowed these books to be published by lecture delivered in public;81 and the university in their syllabus and the the reproduction for the purpose of re- university in its turn published these search or private study, or with a view books as part of the syllabus prescribed to publication, of an unpublished liter- for the students, … it was open to any ary, dramatic or musical works kept in member of the public to publish a re- a library, museum or other institution view or a criticism or a guide to these to which the public has access.82 books.

The special provisions relating to com- In a case involving a guidebook on puter programs, which permit decompila- E M Forster’s famous novel, A Passage tion and reverse engineering under certain to India, which was a book for general conditions are also of extreme relevance study in the B.A. course of the Madras for educational programmes.83 University in 1955, dismissing the charge The statutory provisions, many of of infringement of copyright, the court which were introduced through amend- held that the guide was a “commentary ments to the original statutes, though, upon the original work, designed to en- have not prevented issues being taken to able University students to give effective the courts who, however, have generally answers to questions that maybe set in the adopted a pro-education approach in their university examination upon their study interpretation as set out in a 1934 judge- of the novel” and everything else was ment:84 subordinate to that main function.87 The All laws, which put a restraint upon reproductions in the guide were held as human activity and enterprise, must be “” within the provisions of the constructed in a reasonable and gener- law. In Romesh Chowdry v Ali Mo- ous spirit. Under the guise of the copy- hamad 88 also the guide notes were well right, a plaintiff cannot ask the Court within the exception. However, in another to close all the avenues of research and case the Calcutta High Court took the scholarship and all frontiers of human view that guidebooks, which compete knowledge. with the original textbooks, were not in This is in line with an earlier judge- the “general interest of educational ad- ment of the Allahabad High Court in vance of learning” and held them as not 191685 which had held that when a person eligible for copyright protection.89 had “placed the results of his labours un- Issues had also been posed as to what reservedly at the disposal of the univer- is ‘private study’ and what is ‘research’, sity authorities”, even though he would for which copyrighted works can be used have desired remuneration or copyright legitimately without permission of the JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 219

owner. Since the Act is silent on the educational institutions. Reprography is meaning of these terms, courts have to reproduction and the statute makes repro- take recourse to the dictionary meanings duction an exclusive right of the owner of of them. In the Blackwood v Parasuram copyright. While any reproduction with- case 90 the court, however, clarified that out permission, unless allowed under the private study did not involve publication fair use provisions, is an infringement of and if the work was published it could not the copyright therein, ordinarily serious take protection under the clause relating view is taken only when the entire work to private study. The judgement quoted or a substantial part of it is copied and not the following from Copinger and Skone in the case of duly acknowledged short James: “Private study only covers the quotations. Since the statute does not de- case of a student copying out a book for fine what is substantial that will have to his own use, but not the circulation of be done by the courts and it will depend copies among other students.”91 Simi- on several factors including, as mentioned larly, the court also rejected the argument above, how the reproduction has materi- that a guide book, which is a summary of ally adversely affected the copyright a copyrighted work with substantial re- owner. productions from the same in the form of Two issues related to copyright, which extracts, is a research work since research have not received sufficient attention, is “an investigation directed to the dis- particularly in educational institutions, covery of some fact by careful study of a are regarding use of premises of the insti- subject; investigation, inquiry in to tution and use of pirated software. The things.”92 Copyright Act specifically prohibits the The scope of “fair dealing93” had also use of premises for copyright infringe- been an issue in many instances. The ment96 and also prescribes separate penal- statute does not define the phrase, and it ties for use of infringing copies of com- is generally left to be decided in a case- puter programs.97 As commercial value of to-case basis. A publication, which mate- copyright increases, the owners are likely rially injures the copyright of the owner, to take recourse to these provisions to has been held as not a fair dealing.94 In contain infringement and institutions will fact, this goes in line with an English case have to be on their guard. where it was observed “full acknowl- edgement of the original, and the absence Emerging Challenges to Conventional of any dishonest intention, will not ex- Copyright Regime in Educational Insti- cuse the appropriator where the effect of tutions his appropriation is, of necessity to injure The emergence of information tech- and supersede the sale of the original nology (IT) has revolutionized the way work.”95 information is stored and transmitted. This also raises the issue of legality of Digital technologies have reduced expres- reprography of books and other copyright sions of knowledge, literature and arts material, a common practice in many into bits. This has made copying and dis- 220 J INTELLEC PROP RIGHTS, MAY 2004

semination easier and faster. At the click There are administrative and access is- of a button, millions of copies of a work sues. Administrative issues relate to own- can be made and disseminated over dif- ership and protection and access issues to ferent parts of the world. The digital cop- use of works. In addition, there are certain ies from the original as well as from the non-educational issues such as misuse of digital copy itself are perfect ones. This new technology for has made protection of copyright a very of which the institutions have to be on the difficult proposition to enforce while watch out. making copying an easy activity. There is Ownership of works created in and for a radical shift in the ability of individuals educational institutions is likely to raise and academic institutions to reproduce, fresh issues in the context of digital tech- distribute, control and publish informa- nologies. While the books and papers that tion, altering the economics of publish- academicians write even on the subjects ing.98 Since the problem is one created by they are teaching may continue to be their technology, the first place sought for a intellectual property, the ownership of the solution was technology itself. The result copyright in the course materials and other has been introduction of technological teaching literature that they might create in measures of protection99 such as encryp- order to discharge their duties as employees tion, which prevent unauthorised copying of the university may lead to disputes be- of the material protected. A field where tween the institutions and the creators. For this has serious implications is education. example, if a professor conceived and con- IT is increasingly being used in educa- cretized a particular course in a university, tional institutions in India. Internet and ran it for some time, then quit that institu- Intranet have become part of the teach- tion and joined another one, whether he ing-learning process at almost all levels could run the same course in the new insti- of education. Virtual classrooms have tution without infringing copyright may already become a reality. Distance educa- very well become an issue. Technological tion is now an instantaneous process. changes have also altered the model of Students can access knowledge stored in creation of works within the educational any website anywhere in the world at institution. Collaboration and association of their convenience. Teachers can instruct a number of persons within the faculty and without having the students physically staff are many a time involved in the pro- before them. Computer screens have re- duction of multi-media education kits used placed blackboards. Notes and materials particularly in distance education. There are distributed not on paper but through may also be instances where administrative computer networks. studies may be entrusted to the faculty such All these developments have profound as, for example, a study on the use of com- impact on copyright issues in the educa- puters in the college or university. The issue tional institutions. While some of the tra- of ownership of the study report could be a ditional issues have acquired new dimen- contentious issue between the faculty and sions, totally new issues have also arisen. the institution. JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 221

Unlike in the past, higher education in- Net, downloads the material and distrib- stitutions are now encouraged to generate utes the same to the group. Is it possible their own revenue and attract private to prevent his sharing the material with funding instead of being solely dependent the other nine who did not pay for the on grants from the public exchequer. same? Consequently, a number of institutions One of the problems associated with undertake industry sponsored R&D pro- online courses and websites is that of grammes, surveys, studies, etc. for a choice of law. The Internet is a borderless price. The copyright ownership of the web whereas copyright laws are national resultant studies may pose a problem in in nature. Laws of all countries are not the absence of clear contractual provi- alike and an act, which is legal in one sions. Even where the university and the country, may be illegal in another coun- sponsor have a contract assigning copy- try. Litigations have to be based on the right to either of them or both, issues may law of the country where the proceedings crop up on the ownership rights of the are initiated. In such a situation, universi- faculty and students who are the authors ties will have to decide on choice of law of the output works. for fighting infringement of their copy- Computer education is one area where right material on the Web keeping in the ownership issue may have a new di- view which country’s law suits their in- mension. The faculty and students, as part terests best when the owner and infringer of a class project, may create new soft- belong to different countries. The issue ware programs, which could be later also will arise in joint ventures and commercially exploited. While there is no courses with universities abroad and pro- doubt that the resultant software is their visions regarding the law applicable will intellectual product, the creation of the have to be negotiated before starting on same involved utilization of the institu- such ventures. tional facilities, materials and class time. Perhaps, the most crucial issue is the In such situations disputes between the one about access to copyright material in institution and the authors as to the own- the digital environment where access in- ership cannot be ruled out. volves reproduction and copying. While Protection problems are also likely to the technological measures of protection assume major proportions as education employed by a right owner prevent copy- through IT leads to placement of substan- ing, they also take away the access to the tial copyright material on the Net. This is works, whether allowed under the fair use particularly so in paid distance and online provisions or not. As technology is not education programmes. Can universities moral sensitive, it does not distinguish prevent Ekalavyas? To illustrate, out of a between legal copying and illegal copy- group of ten students, nine register as pri- ing. The already existing right of use for vate candidates and one enrols in the dis- research, education or quotation, etc. gets tance education programme. The enrolled withdrawn from the public thus tilting the one gets the learning material through the legal balance against the societal interest. 222 J INTELLEC PROP RIGHTS, MAY 2004

This, in the long run, may stunt intellec- ments in the same to make use of the best tual and cultural growth. In this context, effects of such developments. What are educational institutions face the problem perhaps needed in Indian educational insti- of how to retain and avail themselves of tutions are dynamic new policies. Each the statutory exemptions provided for institution would need to have a copyright education and research. It may be neces- policy. The overall objectives of such sary for educational institutions to work policies should be provision of incentive with content providers on how to develop for the faculty and other employees of the a mechanism for fair use exemptions in university for creation of quality works, the digital environment. Institutions may facilitation of easy access to the treasury have to see how the existing legal exemp- of human knowledge by the faculty and tions can be worked out in the digital con- students and creation of a tension free text through clarifications or amendments atmosphere for the academic work. To- to the statute wherever necessary. wards this, the policy should set out clear So far as university administrators are guidelines as to regulating the ownership concerned, they already may be having and exploitation of works by its faculty new problems in hand because of the fast and students. It may perhaps even be nec- spread of computers. Earlier, the major essary for institutions to have contracts infringing activity of reprography of with its employees and may be even with books and papers was taking place out- students. Simultaneously, it is also neces- side the institution’s premises and was sary for institutions to come out of their done by outsiders. Now in order to repro- apathy towards government policy formu- duce any digital work, one needs only a lation and legislation in copyright mat- computer and consequently students and ters. They should examine whether cur- teachers can download and disseminate rent legislations are sufficient to enable any number of copies of copyrighted them to continue their mission of educat- works such as music. Unauthorised music ing people or whether any amendments in downloads in university campuses have laws are required to facilitate their task in emerged as a major problem in the West. the light of new technologies. Primary It is quite possible that in the Indian cam- objective of a higher education institution puses also such unauthorized downloads is imparting education at affordable in literary and musical works and cine- prices to the people. It should, therefore, matograph films are taking place. act as a watchdog for protecting public

Conclusion access rights and ensuring that the bal- While technological progress is a ance between author’s rights and soci- boon, it comes with a host of problems. ety’s larger interests is not tilted. They are never insurmountable. Most of- ten as not technology itself comes out with Acknowledgement solutions. However, policies, programmes The author is grateful to Mr Zakir T and laws have to keep track of technologi- Thomas, former Registrar of Copyrights, cal progress and make suitable amend- India, for his valuable suggestions and JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 223

comments on the subject. 7 Enforced w.e.f 21st January, 1958, vide S.R.O. 269 dated 21st January 1958 Bibliography 8 Universities of St Andrews, Glasgow, Consortium for Educational Technol- Aberdeen and Edinburgh ogy for University Systems, Ownership 9 Copinger and Skone James on Copyright th of New Works at the University: Unbun- (Sweet & Maxwell), 13 ed, 1991, Para 13-48 10 See Section 57 of the Copyright Act, 1957 and dling of Rights ands the Pursuit of Higher Article 6bis of the Berne Convention for the Learning, 1997, available at Protection of Literary and Artistic Works http://www.cetus.org. (Paris Act of 1971) (Hereafter Berne Kelley Kimberly B, Courseware De- Convention) velopment for Distance Education: Issues 11 See Article 27 of the Universal Declaration on Human Rights and Policy Models for Faculty Owner- 12 Privy Council in Macmillan & Co Ltd v ship, 2000, available at Cooper (K&J) (1923) 932. J P C 113 http://www.educause.edu. 13 See Section 14 of Copyright Act, 1957 The National Academies Policy Advi- 14 4 Burr. 2408; see Stewart James, International Copyright and Neighbouring Rights sory Group, Intellectual Property and the (Butterworths, London), 2nd ed, 1989, p 23 Academic Community, The Royal Soci- 15 See para. 21 of Guide on Surveying the ety, London, 1995. Economic Contribution of the Copyright- Townsend Elizabeth, Legal and Policy based Industries by World Intellectual Responses to the Disappearing “Teacher Property Organisation (WIPO) Geneva, 2003 16 Article 7 of the Berne Convention Exception,” or Copyright Ownership in st 17 Sections 22-29 of the Copyright Act, 1957 the 21 Century University in Minnesota 18 See Sections 31A, 32 and 32A of the Intellectual Property Review, 2003, Copyright Act for other cases of compulsory http://mipr.umn.edu. licences 19 The Copyright Act, 1957 puts such uses under Twigg Carol A, Who Owns Online Section 52 with the heading ‘Certain acts not Courses and Course Materials? Intellec- to be infringement of copyright’ and uses the tual Property Policies for a New Learn- expression ‘fair dealing’ in Sub-section (1) (a) ing Environment (Centre for Academic therein. In this paper ‘fair use’ and ‘fair Transformation, New York), 2000, avail- dealing’ are used interchangeably to refer to all permitted acts under the copyright law able at http://www.center.rpi.edu. 20 Article 9 of the Berne Convention 21 Article 10 ibid References 22 Article 10 bis ibid 1 The Report of t he University Education 23 Supreme Court in R G Anand v M/s Deluxe Commission under the chairmanship of Films and Others, AIR. 1978 SC 1613 S Radhakrishnan; Government of India, 24 Goldstein Paul, Copyright – Principles, Law Ministry of Education and Culture, 1983, p1 and Practice (Little Brown Co, Canada), Vol. 2 The Calcutta University, the first Western II, pp 512-513 style Indian university, was established in 25 The Copyright Act, 1957 does not qualify 1857, p8 ibid cinematograph films and sound recordings 3 Act No. XX. of 1847, Calcutta, 1848: Printed with the adjective ‘original’ possibly because at the Military Orphan Press, by W Ridsdale they include other original works. See Section 4 Section I ibid 13 of the Act 5 Section II ibid 26 Copinger W A, Copinger and Skone James on 6 I L R (1895) 19 Bom. 557 Copyright (Sweet & Maxwell, London), 1991, 224 J INTELLEC PROP RIGHTS, MAY 2004

p165 intended to be sung, spoken or performed with 27 Article 5 (2) of the Berne Convention the music. Before the amendment it read, 28 See Sections 17-21 ibid “musical work” means any combination of 29 Copinger, op.cit, p 111 melody and harmony or either of them, 30 See Sections 30-32B of the Copyright Act, printed, reduced to writing or otherwise 1957 graphically produced or reproduced 31 Section 2(o) before the amendment by Act No 48 AIR 1977 SC 1443 23 of 1983 49 Before the amendment in 1984 the provision 32 Jagdish Prasad v Parameshwar Prasad, AIR read: “literary work” includes tables and 1966 Patna 33; Aggarwala Publishing House compilations. After the 1984 amendment and v Board of High School and Intermediate before the 1994 amendment it read: “Literary Education UP, AIR, 1957 Allahabad 9 work” includes tables, compilations and 33 Fateh Singh Mehta v Singhal, 1990, A.I.R. computer programmes, that is to say, 1990, Rajasthan 8 programmes recorded on any disc, tape, 34 Manohar Lal Gupta v State of Haryana perforated media or other information storage (1977) 79 Punj LR 181 (Delhi) device, which, if fed into or located in a 35 Ghafur v Jwala AIR, 1921 All 95. Also computer or computer based equipment, is Educational Co of Ireland Ltd v Fallom Bros capable of reproducing any information Ltd (1919) 1 Ir R 62 50 Section 2 (c) of the Copyright Act, 1957 36 E M Forster v A N Parasuram, AI R 1964 51 Alibert v O’Connor, 1982 FSR 317 Madras 391 52 Section 2 (c ) (i) of the Copyright Act, 1957 37 Jarrold v Houlston (1857) 3 K&J 708 53 Associated Publishers v. Bashyam, AIR. 1964 38 Interfirm Comparison (Australia) Pty Ltd v Madras 114 Law Society of New South Wales (1977) RPC 54 Section 17 of Copyright Act, 1957 149 55 Section 2 (d) (i) ibid 39 M/s Nag Book House v State of West Bengal 56 Section 2 (d) (ii) ibid AIR 1982 Cal. 245 57 Section 2 (d) (iii) ibid 40 Mary P Marshall v Ram Narain Lal, AIR 58 Section 2 (d) (iv) ibid 1934 Allahabad 922. At issue was the 59 Section 2 (d) (v) ibid abridgement of Marshall’s Principles of 60 Section 2 (d) (vi) ibid Economics entitled A Digest of Marshall’s 61 Proviso (a) of Section 17 of the Copyright Principles of Economics by Dr King; Act, 1957 Macmillan v Cooper, 1923 Law Reports 51 62 Proviso (b) ibid Indian appeals 101 63 Proviso (c) ibid 41 Macmillan v Suresh Chunder Deb, ILR 17 64 Proviso (cc) ibid 951 At issue was reproduction of Palgrave’s 65 Proviso (d) ibid Golden Treasury of English Songs and Lyrics 66 Proviso (dd) ibid 42 Copinger and Skone James, 3-52, op.cit 67 Proviso (e) ibid 43 Macmillan v Suresh Chander Deb ILR 17 C 68 1916 2 Ch 601 951 69 AIR 1966 Patna 33 44 Govindan v Gopalkrishna, AIR 1955 Mad. 70 AIR 1967, Allahabad 91 391 71 Stevenson Jordan v MacDonald Evans (1952) 45 Section 3 (1) of Copyright, Designs and 69 RPC 10 Patents Act, 1988 (CDP Act) 72 Fateh Singh Mehta v Singhal, 1990 op.cit 46 Section 3 (2) of CDP Act ibid 73 Dunk v George Waller, 1970 2 WLR 241 47 See Section 2 (p) of the Copyright Act, 1957 74 The acts, which come under the ambit of as amended in 1994 which reads as “musical copyright, are specified in Section 14 of the work” means a work consisting of music and Copyright Act, 1957. While they vary from includes any graphical notation of such work one of work to another, generally comprise but does not include any works or any action reproduction including storing in any medium JAMES: COPYRIGHT LAW OF INDIA AND THE ACADEMIC COMMUNITY 225

by electronic means, issuing copies, dealing’. The terms have been used communication to the public, public interchangeably in this paper performance, translation, and adaptation. In 94 M/s Blackwood & Sons v A N Parasuram, the case of computer programmes, AIR 1959 Madras 410 cinematograph films and sound recordings 95 Scott v Stanford, 1867, L R 3 Eq. 718 sale and commercial renting are also part of 96 Section 51, inter alia, states that when any copyright person, permits for profit any place to be used 75 Section 52(1)(a) of the Copyright Act, 1957 for the communication of the work to the 76 Section 52 (1) (g) ibid public where such communication constitutes 77 Section 52 (1) (h) an infringement of the copyright in the work, 78 Section 52 (1) (i) ibid unless he was not aware and had no 79 Section 52 (1) (l) ibid reasonable ground for believing that such 80 Section 52 (1) (m) ibid communication to the public would be an 81 Section 52 (1) (n) ibid infringement of copyright 82 Section 52 (1) (p) ibid 97 Section 63B of the Copyright Act, 1957, 83 See Section 52 (aa), (ab) (ac) and (ad) ibid op.cit 84 Kartar Singh Giani v Ladha Singh, AIR 1934 98 See http://www.nap.edu/html/digital_dilemma/ Lah. 777 for the report entitled Digital Dilemma by the 85 Mohamed Abdul Jalil v Ram Dayal, AIR 1916 Committee on Intellectual Property Rights All. 216 and the Emerging Information Infrastructure 86 Ramesh Chowdhry v Kh. Ali Mohammad (2000) Nowsheri, AIR 1965, J&K, 101 99 The WIPO (World Intellectual Property 87 E M Forster v A N Parasuram, AIR 1964 Organisation) Copyright Treaty (WCT) Madras 331 (1996) makes it an obligation of the 88 Op.cit contracting parties “to provide adequate legal 89 Secondary Board of Education v The protection and effective legal remedies against Standard Book Company, Calcutta Weekly circumvention of effective technological Notes (1966) 1130 measures that are used by authors in 90 M/s Blackwood & Sons v A N Parasuram, connection with exercise of their (copy) rights AIR 1959 Madras 410 … and that restrict acts, in respect of their 91 Ibid works, which are not authorised by the 92 Ibid authors concerned or permitted by law” (See 93 Some legislations use the term ‘fair use’ Article 11 therein) whereas the Indian Act uses the term ‘fair