‘Fair Use’ doctrine explained: DHC

Refusing to grant interim injunction on a claim that the course packs prescribed by Delhi University contain no additional material apart from photocopies of copyrighted publications, the Delhi High Court ruled that the concept of fair use in copyright law 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.

Oxford University Press, Cambridge University Press and other plaintiffs alleged that that the course packs, which contain no additional material apart from photocopies of its copyrighted publications, prescribed by Delhi School of Economics to its students were being used like textbooks and therefore, the compilations prepared were competing with the publications of the plaintiffs.

Interpreting Section 52(1)(i) of the Copyright Act, the Court said, “….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.”

The Court further said that 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 phrase ‘in the course of instruction‘ as used in Section 52(1)(i) of the Copyright Act shall include the entire process of education as in a semester or the entire programme of education as in a semester, the Court said.

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