The Constitutional Case Against the Publishing Houses in the Delhi University Photocopying Case

– Gautam Bhatia*

The on-going copyright litigation between Oxford University Press, Cambridge University Press and Taylor & Francis publishing houses against Delhi University and the Rameshwari Photocopy Service is now well-known. Briefly, the publishing houses sued the University and the photocopying shop, alleging that the use of “course-packs”, that featured material from a number of books published by them, was a violation of the Copyright Act. The importance of this litigation cannot be underestimated: all of us who have ever been students will remember the indispensability of our local photocopying shop to our student lives, the only possible substitute for unaffordable books, whether it was preparing for exams or researching for papers. If the Delhi High Court rules in favor of the publishing houses, future generations of students will no longer have that option. The reasons on both sides of the argument, therefore, must be carefully scrutinized.

What is at issue here is the interpretation of the fair dealing exception to copyright claims. Under S. 52(a)(i), fair dealing with literary works, for the purposes of private use, including research, does not constitute an infringement of copyright. Corresponding provisions in countries like the USA have been read in a highly limited way, to allow photocopying 10% of a book, for example. Naturally, the claims, in this case, go much further, and the question is whether photocopying entire books qualifies as “fair dealing” within the meaning of the Copyright Act.

The Spicy IP blog, in a series of thoughtful posts, has analyzed the intellectual property and political aspects of this case. In this post, I want to highlight a constitutional argument that aligns in favor of the Court dismissing the suit. I do not claim this argument to be dispositive: only, that a well-reasoned judgment ought to accord it substantial weight, and that if the Court chooses to decide in favor of the publishers, it ought to provide good reasons for overriding important constitutional values.

I begin with two premises that, I hope, are unexceptionable: first, that the plaintiffs, in this case, are private entities, and not in any sense instrumentalities of the State. The argument, therefore, cannot be that fundamental rights may be enforced against them. Whatever the desirability of horizontally applying Part III between individuals, it is not the law of the land: indeed, most recently, it was proposed in oral argument in the Right to Education Case, passed over in silence by the majority, and explicitly rejected by the dissent. And secondly, it is an accepted principle of constitutional interpretation, not just in India, but in most other nations, that ordinary law must be interpreted in a way that would conform with the text and purposes of the Constitution. Of course, one must guard against the dangers of a purely reductive analysis here: England, New Zealand and Germany, to name just three States, all permit differing degrees of latitude to judges interpreting statutes to bring them in line with constitutional (or Human Rights Act) provisions. Nevertheless, that need not detain us here – unlike the most vexing cases before the UK, New Zealand, and German courts, this is not a case where the Court must choose between a linguistically more accurate interpretation of a provision that conflicts with basic law and a linguistically strained interpretation that conforms with it; the words “fair dealing” are not self-contained indicators of meaning. It, therefore, seems at least safe to say – subject to the risk of oversimplification – that when interpreting the Indian Copyright Act’s doctrine of “fair dealing”, the Court ought to be guided by the background principles of the Constitution.

Let us start with a preliminary objection: it might be argued that it is conceptually impossible for copyright protection and free speech to be at odds with each other. Through doctrines such as the idea-expression dichotomy, that do not extend protection to ideas that have not been crystallized into specific forms of expression (so the argument goes), there is no restriction on free speech at all; and even if there is, other concepts such as the fair dealing doctrine mean that the copyright regime internally strikes the balance between the rights of creators (who too, lest we forget, are exercising right of free speech), and the general freedom of expression. This seems to be the dominant position in the United States, as evidenced in the writings of Professor Nimmer and the decision of the American Supreme Court in Harper & Row Publishers vs Nation Enterprises; and in the United Kingdom, as observed by the House of Lords in Ashdown. Whatever the validity of these claims, there is good reason for rejecting them in the Indian context: the freedom of expression under Article 19(1)(a) is more multifaceted than comparable American and English jurisprudence; there is no equivalent of Article 21A’s right to education in America or the United Kingdom; and furthermore, the Indian Copyright Act was passed in 1957 – before the development of Article 19(1)(a) jurisprudence began in earnest, and long before the passage of Article 21A. We cannot, therefore, assume that a common-law or American-doctrinal interpretation of the Copyright Act will, as an a priori matter, conform to the principles of our Constitution; rather, it is our Constitution that must inform our interpretation of the Copyright Act.

Article 19(1)(a)

Let us now turn to Article 19(1)(a), which guarantees the freedom of speech and expression. For the purposes of simplicity, let me posit two possible philosophical approaches to free speech, that I will label the “market-based approach” and the “social good approach”. The market-based approach, that may be found in the writings of John Stuart Mill and in the judicial opinions of Oliver Wendell Holmes, takes the existing structure of market-relations as a given, background fact, requires complete freedom of speech within the structure of that market, and disallows governmental intervention to alter the existing pattern of relations. For instance, suppose that Anil Ambani and I both want to broadcast public messages of support for the rival candidates in the next parliamentary election. Mr Ambani’s wealth allows him to buy advertising space on television and on billboards to implement his wish; my (lack of) wealth does not allow me to do so. Under the market-based approach, if the government intervenes to – for example – limit the amount of advertising time or billboard space that Mr Ambani can buy in order to ensure that others can use that space as well, it would be an impermissible restriction upon his freedom of speech. My counter-argument that my freedom of speech is being violated by the current state of affairs would be rejected on the ground that it is not my liberty that is being restricted, but – in the words of Isaiah Berlin – my ability to exercise it, because of my lack of wealth. Cases such as Sakal Papers and Bennett Coleman are examples of the Supreme Court endorsing the market-based approach, where it disallowed the government’s attempts to bring down barriers to entry in the newspaper market by placing restrictions upon big newspapers.

The social good approach, on the other hand, does not take the existing market as given, but questions the justice of the initial distribution of resources that directly affects the exercise of free speech (the famous Oxford professor, G.A. Cohen, famously made this argument here). So when Mill argues, for instance, that an open marketplace would guarantee the contestation of all possible ideas and the survival of the best, the free-speech-as-social-good approach accepts his goal, but rejects his premise: the purpose of free speech is indeed to provide an environment in which there is as wide a range and diversity of ideas as possible, available to the public. The market is instrumental towards achieving this goal, and not an end in itself.

And it is this approach that, it is submitted, the Supreme Court has endorsed in a majority of its cases. It is found in the dissenting opinion of Mathew J. in Bennett Coleman, where he argued that: “an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.”

In the Cricket Association of West Bengal Case, the Court observed: “That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.”

And in Union of India v. Motion Picture Association, the Court observed interpreted Article 19(1)(a) as aimed at “promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues.”

And perhaps most significantly, in LIC v. Manubhai D. Shah, by effectively holding in favour of a “right of reply” in the case of contentious newspaper articles (even in an in-house newspaper), the Court noted: “fairness demanded that both viewpoints were placed before the readers, however limited be their number, to enable them to draw their own conclusions.”

Let us now make the argument. Article 19(1)(a), as the Court has held repeatedly, is most fundamentally about democracy. Freedom of expression is essential to maintaining a functioning democracy. The Court has endorsed a rich, substantive conception of democracy, which envisages a broad and diverse range of ideas open and accessible to the public. The freedom, under Article 19(1)(a), is not just the right of a speaker to speak his mind, but a community right to access information, an individual right to be informed, and the social good of a vibrant and engaged public. And lastly, this freedom is not exercised within the constraining influence of existing market relations that determine access to the means of communication and information, but contrariwise, it is the market relations that must be judged – and if necessary, modified – to comport with the right.

The last step is easy enough. The educational system is the most important avenue for access to knowledge and ideas. There is no substitute for it. Unaffordable book prices constitute a heavy barrier to access. It doesn’t matter – for the purposes of the present argument – that the prices are imposed by private entities because what is at stake here is the interpretation of a law (the fair dealing provision in the Copyright Act). It is submitted, therefore, that the Court ought to treat unaffordable book prices as impediments to a full exercise of Article 19(1)(a) rights and freedoms (as elaborated above), and interpret the Copyright Act in a manner that is most conducive to removing those barriers.

Articles 19(1)(g), 19(6) and 21A

But what, it might be argued, does this mean for Article 19(1)(g), which guarantees the freedom of occupation, trade or business? Shouldn’t that play a role in the interpretation of the Copyright Act as well, because an unrestricted permission to photocopy will certainly have an impact on the profits of the publishing companies? The answer is yes, of course, it should. And of course, 19(6), that permits reasonable restrictions in the interests of the general public, will play the role of a counterbalance. Now, I would submit that there are two considerations that ought to be borne in mind when analyzing the 19(1)(g) issue in this case. The first is that in a series of judgment, from Mohini Jain through Unnikrishnan and most recently in Right to Education, the Court has made it clear that the historical rootedness of education as a public service and a charity throughout Indian history implies that while it is protected under Article 19(1)(g), it does not enjoy the same levels of protection as other businesses – especially when it comes to the question of profit. What this means is that a 19(6) balancing test would give shorter shrift to profit than it would otherwise do (this argument is buttressed by Article 21A’s constitutional guarantee of education although that, of course, is limited in its scope to the ages of 6 to 14 and so can, at best, play only an indirectly interpretive role in this enquiry). And secondly, the public interest in this case – cheap access to educational materials in a nation that still suffers from grinding inequality and poverty – is close to overwhelming. Of course, it may be argued that the unrestricted photocopying will drive OUP, CUP and Taylor & Francis out of business, and so do a disservice to the public interest by constricting the availability of educational materials. That is a judgment for the Court to make, although my intuition is that a close analysis of the financial statements of these companies will reveal those fears to be – largely – groundless.

*The author is a former Rhodes Scholar and a graduate of NLSIU, Bangalore. He runs a blog on Indian constitutional law and philosophy at http://indconlawphil.wordpress.com, and may be reached at gautambhatia1988@gmail.com.