22 December 2016

Qualitative or Quantitative tests not relevant to determine fair use

In the decision dated 16-9-2016, a Single Judge Bench of Delhi High Court had held that reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be fair use within the meaning of Section 52(1)(i) of the Copyright Act and hence would not amount to infringement.

The Judge in the case of also held that no trial was required and accordingly dismissed the suit. On appeal, the Division Bench of the Delhi High Court opined 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’. It set aside the judgment of the Single Judge and on 9-12-2016 held that fair use could not be determined 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.

The Division Bench in the case of The Chancellor, Masters and Scholars of University of Oxford & Ors v. Rameshwari Photocopy Services & Ors also noted that some books had been copied back to back and a question may arise whether photocopying of entire books would be a permissible activity. It however declined to grant interim injunction while restoring the suit for triable issues of fact. The Bench also directed that every six months the statement of number of course packs photocopied and supplied shall be filed in the suit.


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