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