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Does course packs amounts to infringement of copyright of publishers

In 2012, publishers filed a petition for injunction before the Delhi Court claiming that the been photocopying substantial excerpts from their publications and issuing/selling unauthorized compilations of them in the form of course packs or anthologies is infringement of their copyright under Section 51 r/w Section 14 of the Copyright Act

Defendants contested the suit by arguing that their actions constituted fair use of the Plaintiff-Publishers’ works under sections 52(1)(i), 52(1)(a) and 52(1)(h) of the Act and therefore did not amount to copyright infringement.

The Delhi Court granted the injunction and an appeal was filed against this order by Delhi University in which ASEAK and SPEAK was allowed to be impleaded as necessary party and they argued that because of economic constraint of students and library, course packs are helpful in providing accsess to the relevant portions of the books at low costs.

In 2016, Single Bench dismissed the suit of plaintiff stating that the course packs made by teachers in the course of instruction does not infringe the copyright of the publishers.

Single Bench held that the term ‘teacher’ in Section 52(1)(i) is not restricted to an individual teacher but extends to educational institutions as a whole.

It also held that the word “instruction” in section 52 (1) (i) is not limited to a lecture in the classroom and that the imparting of instruction does not begin and end in the classroom or tutorials only but extends beyond that and thus Section 52(1)(i) covers reproduction by an educational institution during the entire academic session.

An appeal was filed against this decision before the Division Bench and the Division Bench’s judgment clearly held that in order to determine whether the use of a copyrighted work is permitted under Section 52(1)(i), it is only to be seen whether the  work used was necessary for achieving the purpose of educational instruction, irrespective of whether only a certain percentage of the work or the entire work is used.

It was also held that a student is not a potential customer of the multiple books used in the course packs.

The court also acknowledged that teaching does not involve simple lecturing by the teacher and taking of notes by the students in the classroom but an interactive discussion based on the pre-reads etc. by the students that is regulated by the teacher.

The Division Bench disagreed with the Single Bench judgment and said that the distribution of course packs to students amounts to publication but also said that in the present case since it is not done for the profit, so it does not amounts to publication.

The Division Bench therefore dismissed the appeal concluding that Section 52(1)(i) permits unauthorised preparation and distribution of course packs to students, if the works included therein are necessary for effectuating the purpose of the course packs i.e. educational instruction.

IRRO filed an SLP before the Supreme Court which was rejected on the grounds that the original petition was removed by the plaintiffs and IRRO was just an intervenor before the High Court.

Source: SPICYIP

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