AI Drafter 
TaxTMI 
TaxTMI 
2016 (12) TMI 1912
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....a, Mr. Sanyat Lodha, Ms. Chanan Parwani 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 n....
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....und Data N/A) Course Pack II (i) The New Cambridge History of India III : 4 Ideologies of the Raj : (256 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 Univ....
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....ent of its copyright. It is the further case of the plaintiffs that the professors of the Delhi School of Economics, through its Library, issued the books published by the plaintiffs to Rameshwari Photocopy Services for preparing 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....
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....4. Rameshwari Photocopy Services contested the copyright of the plaintiffs in the books from which the course packs were prepared. Rameshwari Photocopy Services pleaded that the preparation of course packs by it amounts to fair use 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 w....
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....ot be limited to the time period of instruction in a classroom. SPEAK pleaded that the minority opinion, as opposed to the majority opinion, in the Princeton University Press case (supra) would be applicable in the Indian context; wherein 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 Se....
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....rein copyright was held to be a statutory right subject in its operation to the provisions of the Copyright Act, 1957, the learned Single Judge has opined that copyright has been converted from a natural/common law right into a statutory right 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) wh....
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....erated under Section 52 are outside the scope of Section 14, the performance of these acts cannot be an infringement of a copyright under Section 51. Accordingly, the learned Single Judge has held that Section 52 could not be read as a proviso 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 :....
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....'instruction' as well as the decisions reported as ILR 2009 Karnataka 206 B.K. Raghu Vs. The Karnataka Secondary Education Examination Board and AIR 1960 Bom 58 Bombay Municipal Corporation Vs. Ramchandra Laxman Belosay, the learned Single Judge 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 ....
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....p between Rameshwari Photocopy Services and the Delhi School of Economics, the learned Single Judge opined that making of multiple copies by photocopying copyrighted material by the University, being in the course of instruction was permissible under the 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 b....
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....equire an understanding of the other related provisions in the Act and ascribing a meaning to the words and expressions used therein, for the reason a statute has to be read harmoniously, within the confines of the legislative policy, with rights and obligations 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 p....
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....; or (ii) as part of the questions to be answered in an examination; or (iii) in answers to such question;' 22. The learned Single Judge has highlighted that whereas clause (h) uses the word 'publication', clause (i) uses the word 'reproduction' and has held that the concept of publication would be the preparation and issuing 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 inter....
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.... are.' 25. The aforesaid formed the backdrop of the canvass on which learned counsel painted their picture. Referring to the Copyright Act, 1957, learned counsel urged that works in which copyright subsists are enumerated in Section 13 of the Copyright Act, 1957. As per Section 14, copyright would mean the exclusive right to do or authorize the doing 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 priv....
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....braces a literary work being an article, (xii) Clause (n) embraces all works. (xiii) Clause (o) embraces literary work. (xiv) Clause (p) embraces unpublished literary, dramatic and musical work. (xv) Clause (q) embraces official gazettes, the legislative enactments made by the Legislature, the report of Committees, Commissions, Councils, Boards, or the like appointed by the Government unless reproduction or publication is 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) ....
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....as not available for sale in India, with further fair use in the form of use of the copies in a non-commercial public library. Concerning clause (p) the fair use was in built in the form of the work being unpublished and its reproduction being by a library, museum or other institution to which the public has access for the purpose of research or private study by the public or with a view to publication. Concerning clause (zb) learned counsel urged that meant to facilitate spread of knowledge to differently abled persons, the fair 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; an....
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....nsel criticized the view taken by the learned Single Judge concerning interpretation put to clause (a) by urging that the four well known principles of fair use had been overlooked by the learned Single Judge while upholding the offending activity in the context of clause (a). Since the learned Single Judge has heavily relied upon 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, learned counsel urged that the phrase 'in the 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 availabili....
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....use, being violative of Article 13 of the TRIPS Agreement and Article 11 of the Berne Convention. It was held in said decision that the exemption does not qualify as 'certain special case' as contemplated by Article 13 of the TRIPS Agreement. Referring to the legislative intent underlying Section 52(1)(i) learned counsel referred to the debate in the Rajya Sabha concerning the Copyright Bill, 1955 wherein the distinction given to educational institutes to reproduce the work of an author was highlighted as distinct from reproduction 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 impugn....
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....fter reading the course pack and proclaim that one has understood the subject. It is a primer and a precursor to the discussions which transpire in the class as part of the course. Learned counsel referred to articles by authors to highlight that in third world countries, where literacy levels are low and purchasing power weak, even compulsory licensing had failed to achieve the desired end of dissemination of knowledge. Meaning thereby, a very liberal interpretation had to be accorded to clause (i). Learned counsel referred to the 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 couns....
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....Films Pvt.Ltd. 32. But what would be fair use? Obviously, the purpose of the use would determine whether it is fair use. 33. In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of 'extent justified by the purpose'. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, 'to utilize' means 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 b....
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....ntext, words in the singular shall include the plural, and vice-versa. Thus, making more than one copies of the original i.e. photocopying is contemplated by the statute. Similarly, the words 'teacher' and 'pupil' would also include the plural and hence it could be teachers or pupils. Meaning thereby, the activity of reproduction could be resorted to by teachers as well as pupils. Is the phrase 'in the course of instruction', a phrasal verb or is it a phrasal noun. We need not quibble for the reason we find merit in the graphic reproduction of the argument by learned counsel for 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 d....
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....ndon Press Ltd. Vs. University Tutorial Press Ltd., the Court opined that in order to ascertain whether a substantial portion of the copyrighted work had been reproduced, the quantitative and qualitative aspects of the portion reproduced were to be evaluated. Opining that the extracts copied from the copyrighted work were of importance and significance, and essential to the integrity of the work being copied from, the Court held that the teacher had copied a 'substantial' part of each copyrighted work and had therefore, infringed the copyright of the plaintiffs. Consequently, the Court evaluated whether the defendants could 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....
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....or adaptation is made by a teacher or student; or (b) As part of questions to be answered in an examination or in answer to such a question." 47. Relevant for the purposes of the Indian statute would be the Court interpreting Section 21(4) strictly; holding that no restrictions on the method of reproduction, the length of the extract that could be copied from any copyrighted work or the number of copies of any extract could be read into the section since no such restriction had been provided for in the provision by the legislature, the Court further held that the language of the provision did not bar the use of an agent to conduct the copying and as long as the 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 l....
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....correspondence' as provided in Section 21(4) is absent in Section 52(1)(i). The legislative provision considered in the said judgment was : 'In the course of instruction, whether at a University or a school or elsewhere or by correspondence, where the reproduction or adaption is made by a teacher or student'. As noted above, the argument by learned counsel for the appellants was that the word 'correspondence' used in the statute in New Zealand would give a wider meaning to the phrase 'in the course of instruction' and thus as per them the judgment would not have any persuasive value. The learned Judge in said judgment has opined : 'In its ordinary meaning, the course of instruction 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 factor....
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.... would be an exception to the charge of infringement and there was no necessity for the Court to consider whether it was a fair dealing because the statute had not made requirement of fair dealing as a part of the exception. The phrase 'in the course of instruction' was given a wide meaning. But on facts the compilation was held to be akin to a textbook and copies prepared in one year were used for subsequent years as well. 55. The decision in Longman's case reconciles Section 21(4) and Section 19(6) of the Copyright Act, 1962 in New Zealand. Though not expressly stated by the learned Judge who has authored the opinion, implicit would be that a course pack if used as a textbook would 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....
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....he copying of the whole or 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- (i) in the course of preparation for instruction; or (ii) for use in the course of instruction; or (iii) in the course of instruction; and (c) the copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment; and (d) no more than 1 copy of the whole or part of the work or edition is made on any one occasion. (2) Copyright in a literary, dramatic, musical or artistic work or the typographical arrangement of a published edition is not infringed by the copying 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,....
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....n behalf of that educational establishment; and (b) no other part of that work or edition may, within 14 days of that copying, be copied under that subsection by or on behalf of that educational establishment. (7) In subsections (3) to (6), published edition or edition, in relation to a collective work, means that part of the edition containing each work or part of a work, in relation to a collective work, means each of the works or parts of the works in the collective work." 59. The Section deals with copying for educational purposes and pertaining to the issue at hand if done in the course of preparations for instructions or for use in the course of instructions or in the course of instructions and copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment and further that not more than one copy of the whole or 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 wo....
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....e activity in question and the activity therefore would simply be to photocopy pages and not prepare course packs in the context of the activity. 61. We do not find any institutional sanction for photocopying as was urged by learned counsel for the appellants for the reason that the role of the University of Delhi ends when its academic council lays down the course curriculum. Thereafter, the individual teacher or the teachers acting collectively for a particular degree course sit down and prescribed the relevant reading material to be read by the students keeping in view the objective of the course as per the curriculum set by the academic council of the University. The next exercise done by the teacher or the teachers would require eclectic selection of reading material and this would be the copyrighted works. This would constitute the reading material for the pupils, to be used by the teacher 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....
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.... upon consideration of all the above factors." 66. Suffice it to note that the statute in America, with reference to teaching, which would include multiple copies for classroom use, is circumscribed by 'fair use'. The statute has an expansive definition as to what would be fair use and lists four fair use factors. The decisions by Court in America would therefore have no persuasive value in the Indian context. It would be further relevant to note that in the United States of America an Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions exists which provides guidelines on the extent of permissible photocopying. The majority opinion in the decisions in the United States of America has relied thereupon while discussing concept of fair use to hold on the facts of different cases for infringement being made out and photocopying not protected by Section 107. The minority opinions have taken the view that the guidelines 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 Comp....
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.... the educational institutions or their students, infringed the copyright in the textbooks. While ultimately holding that the guidebooks did not constitute an infringement of the copyright in the prescribed textbooks, the Court, interpreting Section 52(1)(h) of the Copyright Act, 1957, which is pari materia to Section 52(1)(i) of the Copyright Act, 1957 after the 2012 Amendment to the Copyright Act, held that since publishing houses were neither teachers nor students nor a person giving or receiving instruction, and were reproducing copyrighted material for commercial gain, Section 52(1)(h) would not be applicable. Thus, the decision in B.D. Bhandari's case (supra) is distinguishable on its peculiar facts. 72. Further, while the Court in B.D. Bhandari's case (supra) did hold that a fair dealing standard was to be read into all clauses of Section 52 of the Copyright Act, 1957, as held hereinabove, a fair dealing standard has only been provided in clause (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.....
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....n may question as to how a provision in a statute results in an interpretation where a right conferred on a person to use the work of another without any compensation would be just and fair. The question would obviously arise : Is it possible that a provision in a statute partially drowns another provision. This lay person would obviously desire, and perhaps logic would feed the desire, that no provision should be drowned or partially drowned. After all, in the melody of the statute all notes should be heard. 77. We therefore answer this question, which certainly arises, using the imagery of music. A melody is the outcome of the sounds created when different instruments, such as a lute, flute, timbale, harp and drums are played in harmony. The notes of the instruments which are loud and resonating have to be controlled so that the sound of the delicate instruments can be heard. But it has to be kept in mind that at proper times the sound of the drums drowns out the sound 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, t....