The Delhi High Court on September 27, 2023 granted an injunction to the plaintiff in Jainemo Pvt Ltd. v. Rahul Shah, restricting the defendants from disseminating educational material online. Assessing the rationale of the order through the lens of DU photocopy case, we are pleased to bring to you this guest post by SpicyIP intern Yogesh Byadwal. Yogesh is a 3rd year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru. He is interested in IP Law, Constitutional Law and Criminal Law.
Looking at the DHC’s order in Jainemo Pvt. Ltd. v. Rahul Shah Through the lens of the DU Photocopy Case
Yogesh Byadwal
Recently, Delhi HC in Jainemo Pvt. Ltd. v. Rahul Shah and ors., passed an injunction order against certain individuals from disseminating the educational content, including ‘course material’ and ‘course videos’, belonging to the Plaintiff. The court held that the ‘course material’ and ‘course videos’ are included within ‘literary work’ u/s. 2(o) and ‘cinematographic films’ u/s. 2(f) of the Copyright Act respectively. In the present case, the defendants were using various digital platforms to disseminate the course, videos and course material of the Plaintiff. Moreover, these defendants were charging money in turn to provide access to these copyrighted resources.
The order raises certain important questions. What is the impact of the court on ‘access to knowledge’? Does it restrict the findings of the court in DU Photocopy case? Or is it balancing the rights and interests of Publishers vis à vis commons-based discourse?
Before we get to the Court’s order in Jainemo, let’s have quick look at the famed DU photocopy case. The facts in DU photocopy case were simple. The petitioners filed a suit for permanent injunction restraining Rameshwari Photocopy services and DU from infringing copyright owned by them in various publications which had been photocopied and distributed to students in course packs. The defendants, on the other hand, argued that this fell within the exception to copyright provided for under S. 52(1)(i) of the Copyright Act, 1957, which reads as:
52. Certain acts not to be infringement of copyright.—(1) The following acts shall not constitute an infringement of copyright, namely,-
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(i) the reproduction of any work—
(i) by a teacher or a pupil in the course of instruction; or
The main issue before the division bench was: whether the right of reproduction of any work, by a teacher or a pupil, in the course of instruction, is absolute, and not limited by the condition of ‘fair use’? The sub-question was regarding the scope of the phrase ‘course of instruction’? Another sub-issue was the interpretation of the word “reproduction” used u/s. 52 as against “publication”.
First, it observed that Sec. 52(1)(i) is not subject to four-factor test of fairness. Rather, it is subject only to a general principle of fair use. According to the court, the use would be fair so long as the copyrighted work is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood. In other words, the use of copyrighted material ‘in course of instruction’ is permitted ‘to the extent justified by the purpose’. This is called the purpose test.
Second, the court held that ‘Publication’ requires an element of profit whereas ‘reproduction’ “entails ‘copying’ for limited use i.e. for an individual or for a class of students being taught together by a teacher.” Therefore, a commercial motive to the activity renders it as ‘publication’ and outside the ambit of educational exception u/s. 52(1)(i). Publication were to be restricted to for-profit releases by rights- holders alone.
Lastly, ‘in course of instruction’ included within its ambit preparation and distribution of course packs to students. This phrase was a given broad interpretation to not only include imparting knowledge in classrooms but the stage of preparing the course material itself. (Those who are interested to read more about the case can see here.)
In Jainemo, the defendants were private individuals/entities who were uploading ‘complete’ copyrighted ‘course materials’ and ‘videos’ owned by the Plaintiff on various digital platforms.
The defendants were neither ‘teachers nor pupils’ u/s. 52(1)(i). Therefore, an enquiry whether the dissemination of ‘course material’ lies ‘in course of instruction’ is rendered irrelevant. A possible argument that it was merely an ‘intermediary’ between the teachers and pupil can be completely rejected owing to the ‘commercial motive’ of the defendants, charging a sum of Rs. 500 to 1000. The commercial element present also means that the defendants were not merely ‘Reproducing’ but ‘Publishing’ the material of Plaintiff which places the activity outside the ambit of ‘educational exception’ u/s. 52(1)(i). The defendants, by selling the ‘course material’ at a price competing with the Plaintiff’s price, detrimentally impacted the market of Plaintiff by disincentivising their first-market consumers. The defendants were not only making profits but providing the entire course material on such platforms which was clearly outside ‘fair use’ and fails the purpose test. The court, implicitly, recognised that the nature of the activity of the defendants could not be located within ‘educational exception’. Rather, it was illegally profiteering from unauthorised dissemination of copyrighted material u/s. 2(f) and (o) of Copyright Act.
Evidently, the order does not limit the findings of the court in DU photocopy case. The reasoning used by the court in the present case is in complete harmony with the observations of the court in photocopy case. Importantly, it addresses an important criticism often levelled against that judgement- that it skewed the balance between incentive to authors vis à vis ensuring public access to these works completely in favour of the latter.
The Jainemo order illustrates that the interpretation of the court in the Photocopy case puts in place adequate safeguards to ensure that ingenuine usage of educational material will not be protected u/s. 52(1)(i). In fact, this order broadens the protection against usage of copyrighted educational material by including ‘educational videos’ prepared by the copyright owner.
Pertinently, it recognises the challenge posed by digital platforms where copying and reproduction of course material is made easy and anonymous. The infringers create alternative and duplicate channels to distribute the copyright material even after the original channel is taken down. This further complicates the problem of protecting the monetary interests of copyright owner. To address this issue, the court, relied on Neetu Singh v. Telegram and directed Telegram, YouTube, GoDaddy to disclose the details of the persons sharing the infringing materials.
With the rise of education technology companies such as Unacademy, Byjus, PhysicsWallah etc. along with sophisticated encrypted digital platforms such as Telegram, WhatsApp, the Court will have to locate additional safeguards within the Copyright Act to ensure copyrighted materials are protected against anonymised infringers. It may also be incumbent on the legislature to accordingly amend the law.
