A Comment on the Exceptions and Limitations in Copyright Law for Educational Purposes Prashant Reddy T.

The Education Sector in India FACTS: Extreme inequalities are apparent in the Indian education sector. Cash strapped government colleges v. Cash rich private colleges v. Subsidized education. POLICY CONSIDERATIONS: ‘One size does not fit all’ Quality of publications in educational sector? Nature of technology

Economic Rationale Behind Fair-Dealing Economics should play a primary role in copyright policy. Market failure: Inefficient markets Remedies for Market Failure: 1. Compulsory licensing 2. Fair dealing In cases of small portions of a work the transaction costs of contacting and negotiating with the copyright owner will be higher than the cost of the license. Should a fair-dealing exemption operate as a subsidy?

Section 52(1)(g) – A Classic Fair Dealing Provision Only 2 passages of a work can be used. The literary work can be used for an educational use only if that work itself is not published for the use of educational institutions. Recommendations: The two passage limit is unreasonable. The passage limit should be fixed in percentage terms.

Section 52(1)(h) It allows for the reproduction of a literary, dramatic, musical or artistic work in the course of instruction. This is not a fair-dealing exception to copyright law. It is a complete and total exception to copyright law. Recommendations: 1.The purpose of the work must be gone into i.e. an educational work cannot be reproduced under a fair dealing exception for educational purposes itself. 2.A limitation must be imposed.

Section 52(i) It is no infringement of copyright to perform in the course of the activities of an educational institution any copyright protected work including a cinematograph film or sound recording. Recommendation: What if the work is of a primarily educational nature? Limitation in regards quantity should be introduced.

Broadcast Reproduction Right & Performer’s Right S. 39(b): The use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting, review or teaching is not an infringement of copyright.

Are the Indian Provisions TRIPS Compliant? The Three Step Test of Article 13 of TRIPS: 1.The exception must be limited to certain special cases. 2.The exception does not conflict with the normal exploitation of the work. 3.The exception does not unreasonably prejudice the legitimate interest of the author.

The WTO Panel Interpretation 1. Exception should be clearly defined and narrow in scope. 2.Exception must not conflict with normal exploitation of the work in the sense that such exemption causes economic competition 3.Exception must not unreasonably prejudice the legitimate interests of the right holder. Section 52(1)(h) will not survive a TRIPs challenge.

Digital Rights Management Proposed Section 65A introduces anti- circumvention measures. Can such DRMs be allowed to curb fair dealing exceptions? Should the list of exceptions to DRMs be increased?

Contractual Obligations v. Fair Dealing Can contracts, especially in the digital era, be used to negate fair-dealing? Would such a contract be against public policy? Should there be some kind of statutory safe- guards?

Recommendations 1.Fair dealing guidelines that are formulated with all stakeholders involved. 2.Opens ended fair-use exception. 3.Educational works freely available on the internet. 4.Actual empirical study on the quality of educational material.