TaxTMI 
TaxTMI 
2016 (12) TMI 1912
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....ni and Mr. Sai Vinod, Advocates for R-4 ORDER PRADEEP NANDRAJOG, J. 1. We shall be referring to the parties by their nomenclature in the suit. The appellants are the plaintiffs. The respondents are the defendants. The dispute before the learned Single Judge concerned photocopying of pages from the copyrighted publications of the plaintiffs; namely (i) Oxford University Press; (ii) Cambridge University Press, United Kingdom; (iii) Cambridge University Press India Pvt. Ltd.; (iv) Taylor & Francis Group, U.K.; and (v) Taylor & Francis Books India Pvt. Ltd. The first defendant : Rameshwari Photocopy Services has a shop licensed to it within the precincts of the Delhi School of Economics (University of Delhi). Albeit with an initial denial by the University of Delhi, the ultimate picture which emerged was that the professors imparting teaching in the Delhi School of Economics had authorized preparation of course packs and Rameshwari Photocopy Services was entrusted with the task of photocopying the pages from the books published by the plaintiffs, and after binding the same, to supply them to the students charging 50 paisa per page. Though not a part of the pleadings of the parties, ....
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....pages; 32 pages copied constituting 12.5%; publisher Cambridge University Press; Approximate Price : Paper Back Rs. 2750, Hard bound Data N/A) (ii) Capitalism : A Very Short Introduction : (160 pages; 48 pages copied constituting 30%; publisher Cambridge University Press; Approximate Price : Paper Back Rs. 225, Hard bound Data N/A) (iii) Post-Colonialism : An Historical Introduction (512 pages; 57 pages copied constituting 11.1%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 3126, Hard bound Data N/A) (iv) A Concise History of India : (372 pages; 16 pages copied constituting 4.3%; publisher Cambridge University Press; Approximate Price : Paper Back Rs. 2010, Hard bound Rs. 4411) (v) Oxford Journals : The Past and Present Society (204 pages; 39 pages copied constituting 19.1%; publisher Oxford University Press; Approximate Price : Paper Back Data N/A, Hard bound Data N/A) (vi) An Anthropologist among the Historians and other Essays (682 pages; 18 pages copied constituting 2.63%; publisher Oxford University Press; Approximate Price : Paper Back Rs. 814, Hard bound Data N/A) Course Pack III (i) Issues in Political Theory : (416 pages; 141 pages cop....
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....g course packs. It is the case of the plaintiffs that the course packs, which contain no additional material apart from photocopies of its copyrighted publications, were being used like textbooks and therefore, the compilations prepared were competing with the publications of the plaintiffs. According to the plaintiffs, Rameshwari Photocopy Services was operating commercially as was evident from the rate charged by it for selling the course pack is 40/50 paisa per page, as distinct from the market rate of 20/25 paisa per page being charged by other photocopiers from the students while photocopying material given by the students to be photocopied. Anticipating that the defence would be predicated under Section 52(1)(i) of the Copyright Act, 1957, the plaintiffs have pleaded that Section 52(1)(i) was not applicable since reproduction by Rameshwari Photocopy Services, with the assistance of Delhi School of Economics, could not be classified as reproduction by a teacher or a pupil in the course of instruction. Additionally/alternatively the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i) would render Section 5....
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....e within the meaning of Sections 52(1)(a) and (h) of the Copyright Act, 1957. (We are surprised as to why right under Section 52(1)(i) was not predicated for the reasons as would be evident from the decision of the learned Single Judge the debate principally centered around said sub-Section). Rameshwari Photocopy Services pleaded that its activity does not affect the market for the plaintiffs' books since it charges a nominal rate for its services as fixed by the License Deed executed between the Delhi School of Economics and Rameshwari Photocopy Services. As per it, the students cannot afford to buy all the books, extracts of which were mentioned in the syllabi prepared by the Delhi School of Economics. 5. Apart from adopting the stand taken by Rameshwari Photocopy Services, in its written statement, the University of Delhi pleaded that Section 52(1)(i) of the Copyright Act, 1957 permits students and educational institutions to copy portions from any work for research and educational purpose. The University pleaded that Rameshwari Photocopy Services has been licensed by it to operate a photocopy shop within its premises in order to facilitate photocopying by students for educatio....
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....rein it was held by the minority that the identity of the person operating the photocopy machine would not be material since the effect of commercial photocopying in bulk quantities was the same as photocopying by each student acting separately. Relying upon Province of Alberta's case (supra), SPEAK pleaded that Section 52 of the Copyright Act, 1957 was not to be interpreted as a proviso to Section 51 and therefore, there was no requirement to give a restrictive interpretation to the rights granted therein. SPEAK pleaded that given the beneficial nature of the Copyright Act, 1957; which seeks to promote creation and dissemination of knowledge in society by balancing the interests of creators of works with the society at large, Section 52(1)(i), which covers the preparation of course-packs by the Rameshwari Photocopy Services, with the co-operation of University of Delhi, must be interpreted widely. According to SPEAK, the term 'reproduction' used in Section 52(1)(i) was distinct from the term 'publication' used in Section 52(1)(h), and Section 52(1)(h) would not be applicable to the preparation of course- packs by photocopying of copyrighted work for educational purpose, since the ....
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....ght by the Copyright Act, 1957. Consequently unless it could be proved that the University of Delhi and Rameshwari Photocopy Services had infringed the copyright of the plaintiffs within the meaning of infringement under the Copyright Act 1957, no action for infringement would lie against them. 10. Relying upon the decisions reported as 1925 Ch. 383 British Oxygen Company Ltd. Vs. Liquid Air Ltd. and (2009) 3 Arb LR 486 Continental Telepower Industries Ltd. Vs. Union of India, the learned Single Judge has opined that the right to 'reproduce the work' which has been vested exclusively in the owner of the copyright under Section 14(a)(i) would include within its ambit the right to make photocopies of the copyrighted work. The learned Single Judge has opined that this conclusion was buttressed given that while the term 'reproduce' had not been defined in the Copyright Act, 1957, Section 2(hh) which defines 'duplicating equipment', Section 2(s) which defines 'photograph' and Section 2(x) which defines 'reprography', contemplate the process of copying. Therefore, according to the learned Single Judge, the act of making of photocopies of copyrighted material would amount to infringement....
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....o to Section 51, and the rights of the persons mentioned therein had to be read expansively. 11. Recording that the case of the defendants could lie perhaps only under Clauses (h), (i) and (j) of sub-Section (1) of Section 52 of the Copyright Act, 1957, the learned Single Judge held, relying upon the decisions reported as AIR 1961 SC 1170 J.K. Cotton Spinning & Weaving Mills Cp. Ltd. Vs. State of U.P. and (2014) 8 SCC 319 Commercial Tax Officer Vs. Binani Cements Ltd., that Clause (a) of sub-section (1) of Section 52, which was a general provision, would not operate to widen or restrict the scope of Clauses (h), (i) and (j) of sub-Section (1) of Section 52, which were special provisions covering the field of education/instruction. The learned Single Judge has opined that clause (h) would not be applicable to the preparation of course- packs by Rameshwari Photocopying Services, since Section 52(1)(h) would be applicable only where there was : (i) 'publication' of a collection, and (ii) comprising mostly of non-copyrighted material. According to the learned Single Judge, the context of the use of the term 'publication' in Section 4 and Section 5 of the Copyright Act, 1957 as well as....
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....has opined that the term 'instruction' was of wide import and would include anything that 'a teacher tells the student to do in the course of teaching or detailed information which a teacher gives to a student or pupil to acquire knowledge of what the student or pupil has approached the teacher to learn.' Noting that the term 'instruction' in Section 52(1)(i) was preceded by the expression 'in the course of', the learned Single Judge posited the question whether the interpretation of the term 'in the course of' would determine whether the scope of the term 'instruction' was limited to imparting instructions within the classroom or whether it had a wider import. 13. Relying upon the decisions reported as AIR 1953 SC 333 State of Travancore-Cochin Vs. Shanmugha Vilas Cashewnut Factory Quilon, (1969) 2 SCC 607 Mackinnon Machenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, (1996) 6 SCC 1 Regional Director, E.S.I. Corporation Vs. Francis De Costa, (1989) 1 SCC 760 Commissioner of Income Tax, New Delhi Vs. East West Import and Export (P) Ltd. and AIR 1973 Ori 244 Registrar of the Orissa High Court Vs. Baradakanta Misra, the learned Single Judge held that the expression 'in the course o....
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....he Copyright Act, 1957, holding further that it was immaterial whether the University carried out the photocopying through its employees or outsourced this work to a contractor. The learned Single Judge has further opined that since it was not the case of the plaintiffs that entire books published by them were being photocopied and offered for sale, and in any case, the students of Delhi School of Economics could not be regarded as potential customers of the plaintiff's books since it could not be expected that students would buy all the books, portions of which had been prescribed as part of the syllabus, Rameshwari Photocopy Services and Delhi School of Economics could not be called competitors of the plaintiffs. The learned Single Judge opined that the price being charged by Rameshwari Photocopy Services for its services was not competitive with the price being charged by the plaintiffs for their books and therefore, it could not be said that Rameshwari Photocopy Services was operating commercially. 16. Referring to Article 9 and Article 10 of the Berne Convention, Clauses 9.6 to 9.13 of the Code to the Berne Convention and Article 13 of the Agreement on Trade-Related Aspects o....
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....ions created under the Act to be harmonized if there is fuzziness found. 19. Whilst it is true that winds from across the border should be welcome in a country, but care has to be taken to retain the fragrance thereof and filter out the remainder. Reference to foreign case law while interpreting a municipal statute has to be with care and caution. Language used in a statute covering a field of law in different municipal jurisdictions may be different and we caution ourselves that some minor points of details here and there and difference in the language here and there may assume importance. 20. The debate before the Division Bench centered around the decisions rendered by the Courts in United States of America, United Kingdom, Canada and New Zealand. The decisions referred to were eleven in number, five of which have been referred to by the learned Single Judge. The eleven decisions referred to by learned counsel for the parties in the appeal are : 99 F.3D 1381 Princeton University Press vs. Michigan Document Services Inc, 758 F.SUPP.1522 Basic Books, Inc. vs. Kinko's Graphics Corporation; 661 F.SUPP.2D.786 Blackwell Publishing Inc.vs.Excel Research Group, LLC, 60 F.3D 913 Americ....
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.... of material for public sale and would exclude use by students for teaching purpose. The word 'reproduction' which finds a purpose in clause (i) has been given its ordinary meaning by the learned Single Judge (though not expressly so stated in the impugned judgment). 23. Whereas Sh.Sudhir Chandra, Senior Counsel and Ms.Pratibha M.Singh, counsel argued on behalf of the appellants, Sh.Pravin Anand, Advocate argued on behalf of the three interveners (supporting the appellants) : (i) Association of Publishers in India; (ii) The Federation of Indian Publishers; and (iii) Indian Reprographic Rights Organization. Though the three learned counsel took pain to ensure that there was no repetition in their arguments, keeping in view the span of the subject at hand, there was bound to be some overlapping and inter-mixing and thus we propose to intertwine the argument advanced by the three eminent counsel while recording the submissions. 24. Learned counsel argued that the historical origin of the law of copyright, as is well known, is the grant given by the Crown creating a monopoly in favour of the author of a work. This right was not treated as akin to a property. Eminent authors and think....
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....g of the acts enumerated in various clauses of Section 14 in respect of the work or any substantial part thereof. Each counsel highlighted the word 'substantial' used in Section 14 to urge that the legislative intent was clear. There was exclusivity in the exploitation of the copyright even with respect to a substantial part thereof in the copyright holder. With reference to sub-para (i) and (ii) of clause (a) of Section 14, learned counsel urged that in the case of literary, dramatic or musical works, right to reproduce the work in any material form was exclusively that of the author as also the right to issue copies of the work to the public. Learned counsel urged that the rights conferred under Section 52 are actually privileges in others and therefore on the principle of fiduciary obligation itself, where a person exercises a privilege with respect to the work of another, the privilege has to be exercised in a manner where the right or the interest of the owner is not prejudicially affected. With reference to Section 14, learned counsel argued that seven identifiable acts emerge as the right of the copyright holder : (i) reproduction, (ii) issuing copies (and with reference to ....
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.... prohibited by the Government, and the judgment or order of a judicial authority unless prohibited by the judicial authority. (xvi) Clause (r) embraces legislations, including delegated legislations with reference to translations. (xvii) Clauses (s) and (t) embrace painting, drawing, engraving, photograph of sculpture or other artistic works contemplated by the clause. (xviii) Clause (u) embraces cinematographic film. (xix) Clause (v) and (w) embrace artistic work. (xx) Clause (x) embraces architectural drawings and plans. (xxi) Clause (y) embraces literary, dramatic, artistic and musical works. (xxii) Clause (z) embraces sound recording. (xxiii) Clause (za) embraces literary, dramatic, musical works and sound recordings. (xxiv) Clause (zb) embraces all works. (xxv) Clause (zc) embraces literary and artistic works. 27. Thus, learned counsel urged that while interpreting various clauses of sub-Section (1) of Section 52 of the Act it has to be kept in mind as to which copyrightable work is embraced in a clause. Thereafter, the second stage analysis had to be on the activity. The activity could be a private use, a personal use, research, criticism, review, reporti....
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....ir use principle was weaved in the form of the organization being of the kind contemplated by the second proviso and the explanation thereto with further obligation on the organization to ensure reasonable steps to prevent the adaption or reproduction of the works contemplated by the clause to enter into the ordinary channels of business. The argument was that clause (i) cannot be read as done by the learned Single Judge for the reason it permits substantial photocopying of copyrighted works to prepare course packs. Learned counsel urged that the principle of fair use was to be found in the clause with reference to the phrase : (i) by a teacher or a pupil; and (ii) in the course of instruction. Thus, according to learned counsel institutional sanction or intervention in the reproduction of the works contemplated by the clause was not permissible. A direct connection between the teacher and the pupil, without an intermediary, had to exist. It had to be in the course of instruction and the phrase would be a verb i.e. the act of teaching by the teacher to the pupil and thus prepared course packs would not be a fair use. Learned counsel cited the decision reported as 695 F.2d 1171 (198....
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....course of instruction' used in clause (i) could not be interpreted as done by the High Court in New Zealand because the Statute in New Zealand expressly encompassed 'by correspondence'; which was missing in the Indian statute. As noted above, the argument was that the phrase in question denoted the activity of teaching and thus was a verb and could not be treated as a phrasal noun. Learned counsel urged that the learned Single Judge overlooked that in said judgment the offending course packs was held to be a text book since 2% to 18% copyrighted material was photocopied; spiral bound and made available to students from year to year. Save and except availability of instant course packs from year to year, learned counsel urged that offending course packs had all the features of a text book and on said account, there not being a claim of the same be a derivative work, infringement was writ large inasmuch as the protective umbrella of clause (i) was not available. Referring to articles authored by eminent academicians and treatise on the public debate concerning copyright issues, learned counsel urged that recognizing education being a good cause, the unanimous view was that a licensin....
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....tion of a work while a teacher is giving instructions in the class room. Learned counsel relied upon the Division Bench judgment of this Court reported as 2011 (47) PTC 244 (Del.) (DB) Syndicate of the Press of the University of Cambridge vs. B.D.Bhandari & Ors. to urge that Section 52(1)(h) as it existed in the statute book before the Copyright Act was amended by Act No.27 of 2012, which is identical to clause (i) post amendment of the Act, was interpreted by the Division Bench as incorporating fair use. As per learned counsel the issue was no longer res- integra. The lament was that the learned Single Judge noted the argument by the appellants in the impugned decision but left it at that. Learned counsel urged that at the relevant time charges for photocopying was 25 paisa per page and respondent No.1 was charging 50 paisa per page and thus there was a profit element in the enterprise undertaken at the instance of the University by respondent No.1. Lastly, learned counsel urged that notwithstanding definitions for textbooks being wide and varied, one common definition was that a textbook is a printing and bound artifact for each year or course of study containing facts and ideas ....
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....he debate in the Parliament when the Bill which led to the enactment of Act No.27 of 2012 was debated to highlight that the Minister piloting the Bill clearly told the House 'Of course, non-profit libraries should not be charged. Many of these copyrighted materials can be used, should be used and must be used in non-profit libraries'. Responding to the argument that the phrase 'course of instruction' in clause (i) was used as a verb, learned counsel urged that it could well be used as a noun, but left the quibbling at that for the reason the end would be the same and for which argument a flow chart could be prepared as under:- 29. On facts, learned counsel for respondent No.1 and respondent No.2 urged that as of January, 2012 the permissible charges for photocopying by respondent No.1 was 40 paisa per page and this was the market rate for photocopying and thus respondent No.1 did not make any extra profit for the course packs. The normal profit which respondent No.1 would have made while photocopying is the only profit made and thus the preparation of the course packs could not be equated with a profit making activity. 30. The importance of education lies in the fact that educati....
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....ans to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood. 34. Teaching is the imparting of instructions or knowledge. Perhaps this is a standard definition of the term. It places no limits on where the imparting of knowledge takes place. It certainly would include face-to-face instructions at a formal institution. Education is not just a relationship in a classroom between one teacher and multiple students. It is a process involving communication between students inter-se and between the student and the teacher and perhaps teachers inter-se too. 35. Thus, we reject the arguments by learned counsel for the appellants that the four factors on which fair use is determined in jurisdictions abroad would guide fair use of copyrighted material during course of instruction. The qualitative and quantitative test which is one of the four tests would not apply to clause (i). 36. In the context of the argument of an adverse impact or the likelihood of the same on the market of the copyrighted work in question, taking the ex....
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.... the respondents which we have tabulated in paragraph 28 above. The end result would be, irrespective of the word 'course' being treated as a verb or a noun, the entire process of education as in a semester or the entire programme of education as in a semester. Meaning thereby in a class room where the interactive method of imparting knowledge is adopted by a teacher and not the boring method where the teacher simply lectures and the pupils simply note, the photocopied work, pre-read and digested by the students, is discussed and debated in the class in an interactive manner with the teacher regulating the discussion. It would be akin to a group discussion with an anchor ensuring that the participants stick to the theme and do not astray. 40. On this aspect of the matter, the learned Single Judge has noted that the rival viewpoints urged were premised on the law declared by the High Court of New Zealand reported as (1991) 2 NZLR 574 Longman Group Ltd. Vs. Carrington Technical Institute Board of Governors. In that case, multiple copies of compilations stated by educational institutions to be course packs, consisting of extracts from copyrighted literary and artistic works, were pre....
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....d take the benefit of statutory exceptions enumerated in sub-Sections 19(1), 20(1), 21(1), 21(4) and 53(2) of the Copyright Act in New Zealand. 44. Recording that sub-Sections 19(1), 20(1), 21(1) and 21(4) were independent of each other and had to be given distinct meaning, failing which sub-Sections 21(1) and 21(4) would become superfluous, the Court opined that in order to claim the benefit of the exceptions under Section 19(1) and 20(1), the user of the copyrighted material had to meet the additional standard of fair dealing, while no such standard had to be met under Section 21(1) and Section 21(4). Concerning Section 21(1) the Court held that since the primary purpose of the preparation of the course-pack was to act as a teaching aid for the teacher; and since the course-pack had reproduced significant extracts from the copyrighted work, which had been reproduced for the same purpose, i.e. to act as a teaching aid, the course-pack was competing with the copyrighted works and therefore, its preparation could not be held to be fair dealing. Further, the Court held that the preparation of course-packs was not contemplated under Section 21(1) since the course- packs had been prep....
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....e reproduction was done by or for the teacher or student in the course of instruction, such copying would be permissible under Section 21(4). Interpreting the expression 'course of instruction', the Court negated the contention of the plaintiffs that the expression was to be limited to the time and place of instruction, and held that in its ordinary meaning 'the course of instruction would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction.' Further, according to the Court, this view was buttressed by the inclusion of the term 'by correspondence' in Section 21(4), which implied that the expression 'course of instruction' would include preparation of material to be used in the course of instruction and copying by the teacher prior to the delivery of the instruction. 48. Opining further that the interpretation of Section 21(4) must be informed by the presence of Section 19(6), which provided an exception for ....
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....tion would include anything in the process of instruction with the process commencing at a time early than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction.' We are in agreement with the opinion for this is the only logical meaning of the phrase 'in the course of instruction'. Having interpreted the phrase as above without factoring in the word 'correspondence' used in the statute the learned Judge reinforced the view with an additional reason that when the course of instruction encompasses correspondence, it must enable preparation of the material to be used in the course of instruction before the delivery of the instruction. Thus, the decision in Longman's case would be an authority supporting the expanded definition of the phrase 'in the course of instruction' opined by the learned Single Judge. 51. Similarly, the recognition by the Court in Longman's case that in the absence of legislative intent, a fair dealing standard or restrictions in the quantum of reproduction cannot be read into Section 21....
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....obviously amount to a publication and since use of copyrighted material with reference to the publication fell within the domain of Section 19(6) of the Copyright Act in New Zealand, the course pack fouled Section 19(6) (being held to be a textbook) and did not fall within the protective umbrella of Section 21(4). 56. The decision in Longman's case probably for the reason it was not argued, does not discuss the concept of fairness in the use as has been discussed by us and therefore at this stage we must part company with the said decision concerning its persuasive value on other issues. In the view we have taken in paragraphs 31 to 35 above, we declare that the law in India would not warrant an approach to answer the question by looking at whether the course pack has become a textbook, but by considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class and this would warrant an analysis of the course pack with reference to the objective of the course, the course content and the list of suggested readings given by the teacher to the students. This would require ex....
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....g of the whole or part of the work or edition if- (a) the copying is not done by mean of a reprographic process; and (b) the copying is done - (i) in the course of preparation for instruction; or (ii) for use in the course of instruction; or (iii) in the course of instruction; or (iv) after the course of instruction; and (c) the copying is done by a person who is to give, is giving, or has given the lesson or by a person who is to receive, is receiving, or has received the lesson; and (d) 1 or more copies of the whole or part of the work or edition is or are made on any one occasion. (3) Copyright in a literary, dramatic, or musical work or the typographical arrangement of a published edition is not infringed by the copying of part of the work or edition if - (a) the copying is done by means of a reprographic process or by any other means; and (b) the copying is done for an educational purpose; and (c) the copying is done by or on behalf of an educational establishment; and (d) 1 or more copies of part of the work or edition is or are made on any one occasion; and (e) no charge is made for the supply of a copy to any student or other person....
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....part of the work or addition is made on any one occasion, same would be permitted, if done by a student with the difference being that if it is not by way of photocopying, multiple copies could be made. Pertaining to educational institutions i.e. at the institutional level, a limit of the work capable of being photocopying by way of a fixed percentage for different periods being December 31, 1998 and post January, 1998 have been prescribed. Though principles of fair use are missing even in the 1994 Act, but the provisions by limiting the percentage in the third situation and number of copies in the first two situations, answer the problem. The decision would therefore have no relevance in the Indian context. 60. Concerning the argument that there cannot be an intermediary when use of copyrighted material post reproduction takes place in the course of instruction, common sense tells us that neither the teacher nor the pupils are expected to purchase photocopiers and photocopy the literary work to be used during course of instruction in the class room. A place where a photocopying machine, with a man behind to photocopy would be identified. Whether the teacher identifies the place a....
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....in the class room in course of instruction. Spiral bound it would be called a course pack. 62. Arguments advanced by learned counsel on either side with reference to articles and treatises by professors on what the policy of copyright law in its interface with education, especially in developing countries where literacy levels are low and purchasing power is less, should be are simply noted by us for record. Being a matter of policy, it is for the legislature to decide what should be the policy underlying the statute. If transposed into a judicial verdict it would be a doctrinal approach and we prefer to interpret the statute using the tools of grammar, giving meaning to the words as in ordinary English parlance and defining concepts with common sense. 63. Nothing much turns on Article 13 of the TRIPS Agreement and Article 9 of the Berne Convention for the reason that the contents thereof are merely directory and have enough leeway for the signatory countries to enact the copyright law in their municipal jurisdiction concerning use of copyrighted works for purposes of dissemination of knowledge. Though not conclusive, but the words of the Hon'ble Minister who piloted the Bill whi....
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....uidelines in question being non-statutory are not to be taken into account while discussing photocopying with reference to fair use. 67. Pertaining to the decision reported as (1983) F.S.R. 545 Sillitoe and Others Vs. Mcgraw-Hill Book Company (U.K.) Ltd. it deals with the scope of Section 6(1) and 6(2) of the U.K.Copyright Act, 1956, which has subsequently been replaced by the Copyright, Designs and Patents Act, 1988. Sections 6 of the U.K.Copyright Act, 1956 enumerated the exceptions to copyright protection. Sub-Section (1) of Section 6 provided that fair dealing with a literary, dramatic or musical work for the purposes of research or private study would not constitute infringement, while Sub-Section (2) of Section 6 provided that fair dealing with a literary, dramatic or musical work for the purposes of criticism or review, whether of that work or another work, would not constitute infringement, subject to a sufficient acknowledgement of the copyrighted material accompanying the dealing. 68. The decision would be relevant in the Indian context if Section 52(1)(a) of the Copyright Act, 1957 is under focus and would have no persuasive value qua the interpretation of Section 52(1....
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....a) of sub-Section (1) and not in the other clauses of sub-Section (1) of Section 52, and therefore, cannot be read into the other clauses. 73. Paragraph 37 of the decision B.D. Bhandari's (supra) reads as under :- "37. The appellant has contended before us, and rightly so, that these two concepts, as discussed above, are distinct from each other. There can be no dispute that the doctrine of fair use is an exception to the copyright protection as the opening line of section 52 uses the expression "The following acts shall not constitute an infringement of copyright namely - (a) A fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme] for the purposes of". This expression implies that without the fair use protection the use shall constitute an infringement of copyright. However, on the other hand, when we say that the work is in public domain it means that no copyright protection is available to the concerned work and everyone is free to use that work in whatsoever manner he wishes to." 74. Suffice it to state that the Court in B.D. Bhandari's case (supra), while contrasting the concepts of 'fair use' and 'public domain', has opined tha....
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....nd of all other instruments under a deafening thunder of the brilliant beating of the drums. Thus, it is possible that the melody of a statute may at times require a particular Section, in a limited circumstance, to so outstretch itself that, within the confines of the limited circumstance, another Section or Sections may be muted. 78. And now the final direction. 79. Apart from a triable issue on fact which would be as indicated in paragraph 56 above, another issue of fact would need to be tried. The same emerges from the report dated August 27, 2012 submitted in the suit by a learned Local Commissioner. Visiting the premises given on a licence to the respondent No.1 from where the work of photocopying is carried on the learned Local Commissioner who visited the premises on August 18, 2012 found apart from the offending course packs eight books photocopied back to back. There were four back to back copies of one book, three photocopies of another book, two of the third and one each of the other five. For this we permit the plaintiffs to amend the plaint and plead said fact giving opportunity to the defendants to file written statement to the amended plaint. The issue would then ....