Copyright law and its Nexus with Education: A Critique Manasa Reddy Gummi

“Education, after all, proceeds from a kind of mimicry, and progress, if it is not entirely an illusion, depends on generous indulgence of copying.” Bejamin Kaplan

Right to Education  Article 21A of the Constitution of India- “The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State, by law, may determine.”  Directive Principles of State Policy ( Articles 41, 45 and 46 ) and Fundamental Duties ( Article 51A(k) )

Fundamental Issues  Affordability  Accessibility  Equity

Public interest versus Owners rights Fair use - 'privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner' of the copyright’

Challenges  What is the scope of the exceptions and limitations provisions in the Indian Copyright Act, sections 52(1)(g), (h), (i) and (p), and how effective are they in addressing the educational needs of India?  Do such exceptions and limitations meet, exceed, or fall short of the scope permissible for such provisions under the Berne Convention and the TRIPS Agreement?  What new exceptions and limitations are needed to facilitate greater access to education and to ensure that distance education programs and uses of technology for dissemination of educational materials are protected under Sec. 52?

Shortcomings of the present Copyright Act  Section 52(1)(h)-  The word “reproduction” is restrictive and leaves out of its ambit the communication of the material to the learners.  Only literary, dramatic, musical and artistic works are covered and other forms of copyrighted materials like sound recordings, cinematographic work are excluded.  The concept of “teacher” is traditionally applied leaving out other possible educational uses like distance education and use by non- teaching staff.  the phrase "in the course of instruction" is too ambiguous for the purposes of distance education and digital education.

Recommendations  Replacing the word “reproduction” with “utilization”  Widening the scope of copyrighted works  Laying quantitative restrictions on the concepts like ‘teacher’ and ‘in the course of instruction’ to avoid ambiguity  A statutory licensing provision facilitating large number of copies for use by students

 Section 52(1)(g)-  Hinders “distance education” and the method of teaching through “coursepacks” or “modules”  Inadequate in furthering India’s obligations under Article 10(2) of the Berne Convention. Recommendations - removal of the Proviso

 Section 52(1)(i)-  Limited audience  Not compatible with technological advancements like digital media  The word “directly connected” denies access to other students and public. Recommendations - widen the scope of performance to include a larger audience including public and other forms of performances

 Section 52(1)(p)-  “60 years from the date of death of the author” is an unreasonable period making contemporary research impossible. Recommendation -the time period must be reduced and flexibility to use of materials in libraries, both public and private, must be afforded.

International Obligations  Article 10(2) of the Berne Convention and Article 9(1) of the TRIPS Agreement- It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided that such utilization is compatible with fair practice.”

a. “utilization… of works for teaching” sets the outer limits within which the national legislations can be framed. b. “to the extent for justified purposes” gives room for local circumstances. c. “Compatible with fair practice” protects the interest of the copyright owner.

 Article 15(1)(d) of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)- “Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards: use solely for the purposes of teaching or scientific research.

The proposed Copyright Amendment Bill  The phrase ‘use of educational institutions’ in s.52(1)(h) has been changed to ‘instructional use’  The exception in s.52(1)(i) has been expanded to cover ‘any work’  ‘Public libraries’ identified as an exception allowing electronic copies and other beneficial changes.

Criticism  Distance education and digital education are not effectively identified.  Exception of ‘public libraries’ is very narrow.  The concept of “reproduction” stands, failing to incorporate the wider scope given by the TRIPS Agreement.  Technological innovations have not been considered  All media and forms of copyrights have not been effectively included.

Conclusion Should intellectual property rights be subject to societal requirements?- Yes The need of the hour- the Indian Copyright law must strike a fair balance between owner’s interests and social welfare and meet the increasing education needs of the country

Thank you