IS COPYRIGHT THE RIGHT TO COPY?

“IN INDIA, COPYRIGHT MEANS THE RIGHT TO COPY!”
Nasreen Munni Kabir (author of Guru Dutt)

(Scroll down this post for responses from Nandini Sundar and Partha Chatterjee)

Nandini Sundar, a friend in the Delhi teaching community, voiced a strong feeling in many of her colleagues when she stressed how important it is for teachers to be allowed to use photocopying shops. Her perspective, outlined in the context of a court case against one such shop at the Delhi School of Economics, is roughly this:

Nandini Sundar

Yesterday (18 October 2012), OUP, CUP, and Routledge, who had filed a case against the Delhi School of Economics photocopying shop for making course packs, won in the high court. So now no more course packs.
   This will make it impossible to teach—since a lot of my teaching (as also that of others) depends on new books I buy from abroad, or out of print books, which simply aren't available in India.

Most publishers’ perspective on the matter is bound to be very different. Some of the questions that come to mind appear below.
1. Course packs are not peculiar to India. They are required in universities everywhere and there are reasonable yet legal methods of ensuring their availability to students at affordable prices. Teachers could make a case for what is called ‘compulsory licensing’ (a euphemism for taking the law into your own hands, in this case photocopying) if publishers either routinely denied course pack rights without valid reason, or demanded prices for granting permission that are exorbitant. But that is rare: academic publishers do not want to alienate university people—from whom they acquire scripts to publish—by denying rights or demanding impossible fees. Besides, course packs are very far from being the main reason for the setting up of photocopying shops in India: much of their sale is entire photocopied books, which means the photocopying shop is not doing it for charity. The shop is a business, and its profit is high partly because the investment is low and partly because the author is denied royalties.

2. Books that are out of print and in the public domain do not come into this picture at all: photocopying material or books over which personal property rights no longer exist is legitimate and legal.

3. The advocacy of photocopying shops could be replaced with more constructive steps in line with what happens in universities elsewhere. Course packs abroad are usually handled by department secretaries or outsourced to secretarial service providers who write to publishers, negotiate and obtain rights for reduced fees that are affordable, and handle student needs in a legal way. This precludes the denial of royalties to authors and does not violate intellectual property rights that the publisher has paid for and obtained by agreement with the author. The argument cannot be that since many Indian publishers do not pay royalties, and do not adequately publicize books and authors, the photocopying shop is necessary in India. There are large numbers of Indian publishers now who account fairly, pay royalties honestly, and do a good job of promotion. Authors can always abandon a publisher they suspect, or write them a legally threatening letter: publishers will not normally risk legal action or a threat to reputation.

4. Part of the problem may be that university teachers are either unwilling or in no position to bulldoze babus and secretaries and admin people in their departments to do the work of negotiating and securing rights cheaply from publishers. The photocopying shop is the easy way out. The people advocating photocopying mean well, are altruistically motivated in relation to their students, and have their hearts in the right place. But do they spend time and energy ensuring that their libraries function as they should, or make their admin folk perform the functions that admin folk do in well-functioning universities? Even when academics do so exercise themselves, the fact remains that most Indian admin and bureaucracies are notoriously recalcitrant and unbudgeable. So, some of the problem may lie here.

5. The logic that students are needy and therefore need educational material cheaply cannot logically be restricted to the sphere of books. Other rights must enter the picture as well: if infringements are advocated, why should they be limited to a publisher’s and author’s rights? Why not also the rights of others, such as, for example, property owners: why shouldn’t owners of houses adjoining universities be made to provide free housing instead of signing tenancy agreements with students? Students need cheap housing even more than they need cheap books. The logic of advocating a violation of property rights would, from this perspective, lead to a violation of all sorts of rights that would, perhaps, benefit students only in the short run. A larger view of the politics that comes into play as a consequence of advocating such violations seems inescapable.

6. Besides this larger theoretical issue, it is probably true that a reasonable proportion of university students now includes those from the middle class who pay high ticket prices for movies, smartphones, branded apparel, computers, and so on. One of our infrequently examined cultural assumptions (deriving in part from images such as Vidyasagar acquiring learning below streetlamps?) is that books must come nearly free. So, while we’re willing to be consumerists in many spheres, there is an unspoken consensus that students and teachers who can be consumerist in many areas of everyday life must spend almost nothing on books.

7. If you’re a teacher writing books or textbooks, you can’t logically both sign over your property by making an agreement with a publisher to invest in it and sell it, and then undermine that agreement by advocating the photocopying of everyone’s books, including your own. Logically, you should, if you feel strongly about the need for books being available free or very cheap, either sign on direct with the photocopying shop, or dispense with all traditional publishing methods altogether and move to the net, where your material can appear for free globally.

8. What is the international norm on photocopying, not just in the rich West but in just about any country where the rule of law is meant to protect private property rights, material and intellectual? To say the hell with such rights is surely anarchy. Admittedly, special provisions relating to property rights must exist to enable education, but photocopying shops aren’t the answer. In this scenario, the photocopier becomes the de facto ‘publisher’. In effect, an entrepreneur, who does not invest in the author or her book along the long-established routes that a regular publisher does, replaces the publisher. This means that the author is robbed of royalties—which, for some textbook authors, are the sole means of livelihood—as well as the investments required for the longer-term success of her book. The photocopying entrepreneur does not invest in promoting, marketing, and advertising, and incurs no costs necessary for the proper dissemination of books—such as warehousing and distribution.

9. There is an assumption of cordiality when authors and publishers sign on a book with each other. There is also the legitimate assumption that such agreements are made in the best interests of the book. These author–publisher agreements often include a time limit (ideally they always should); even before the agreed time limit, however, the author is in a legally strong position to annul the agreement if there are grounds for her feeling aggrieved. Publishers seldom insist on keeping on an angry or unhappy author, and not even in India is the working out of reasonable severance terms a cumbersome or endless process. So, to undermine via the advocacy of photocopying a normally cordial relationship, forged on the basis of honest and good intent by authors and publishers, seems unreasonable and unfair — never mind the illegality. Why replace an ethos of cordiality, and often friendship, with acrimony? Publishers are at least minimally sensitive to educational needs and requirements, and usually open to discussion.

10. The most basic point is that rampant and illegal photocopying would not be upheld in any law court or legally based regime anywhere in the world. Sensible ways of making course packs and related material available are operational the world over. They can be duplicated in India without either anarchy or involving denial to the author of a basic right over her intellectual property.



Excerpts from Nandini Sundar's emailed response to the above, reproduced with her permission, appear below:

I read the article you put on your blogspot with great interest. Might I point out just a couple of issues:

1. I think you have no idea of university bureaucracies - the VC of Delhi once told me he has to write all his letters himself. [...] 

SO IN EFFECT WHAT YOU ARE SAYING IS THAT FACULTY SHOULD DO ALL THE NEGOTIATING WITH PUBLISHERS. WE ALREADY DO EVERYTHING OURSELVES - THROUGH DEPARTMENTAL COMMITTEES, SO THIS CAN BE ONE MORE, BUT LET'S NOT THEN KID OURSELVES THAT WE ARE RUNNING RESEARCH UNIVERSITIES. [...]

2.  All the concern for authors is very laudable. But apart from the fact that royalties are so small, and are scarcely the reason why authors publish, this completely ignores the economics of writing as well as the publishing industry and the extent to which this is subsidized by universities. The academic research that results in books is costly and is funded by universities and research grants. Second, scholars routinely perform services for publishers like refereeing which are not compensated at anything like their actual cost. For instance, a day’s salary for a Professor would be about Rs 3000. Reading and writing a report on a manuscript can take anything from a minimum of one day to a week. Referees are usually paid about Rs 1000 [towards the purchase of] books and nothing at all for journal articles (published by Cambridge and T&F), which means not only that individual authors but also universities are heavily subsidizing the presses.

3. While it is true that a lot of students are rich, there are many who are not. They may not be Vidyasagars sitting under street lamps, but if you are working (as some do), or live far away in Noida or Ghaziabad and don't cycle to college, as in Oxford or Cambridge, you can't be sitting in the library after classes. Xeroxes are essential. And anyway, students aren't likely to buy books if they don't get copies - they will rely on kunjis and class notes.  

And excerpts from our reply to Nandini Sundar:

I’m glad to get this kind of info about your department, and the economics behind the thinking — the petition also stressed the fact that academic presses are implicitly subsidized by university teachers. There is certainly no valid reason for [the bigger publishers] to pay a pittance as reader’s fee ...

But that then would take us deeper into the economics of academic publishing for the university, and questions about the extent to which it is viable at all anywhere in the world independent of subsidies. The USA has about 130 university presses and only about 6 of them survive without subsidies. The reason the largest of the unsubsidised ones, OUP USA, manages to keep its academic publishing alive is because of cross-subsidization from its heavy sale of dictionaries, bibles, reference books, trade books, and sci-med-tech books. Why do so few investors in publishing in India put money into higher academic books as against school textbooks, MBA books, pulp fiction, and paperback imports? The reason is that this is by far the most unprofitable sector in publishing. If Permanent Black had overheads such as a regular office and editorial staff, it would have collapsed long back. [...] OUP India’s academic staff and office overheads are so high that, independent of cross-subsidies from sales of school books, atlases and dictionaries, etc., it would simply never exist. It only exists because if it were allowed to go under, the tax-free status of Oxford University might be called into question. In short, the extent to which university teachers support the academic publisher is small in relation to the far larger sources of support it needs to exist at all.

In any case, I don’t really believe that the economics of it all has some crucial bearing on the issue of teachers justifying photocopying shops. It is not a convincing or sufficient reason given that there are much better alternatives which are also legitimate and defensible ways of generating course packs in universities the world over. You’re probably right in saying there are more poor students than rich ones in our universities, so there is something to be said for the Robin Hoodism that is the photocopying shop, but the problem is that the man running the photocopying shop is no Robin Hood, he’s more like a small-time Sheriff of Nottingham posing as Robin Hood by sheltering behind the altruistic university teacher, his fig leaf. Besides, there are workable alternatives for making course packs without resorting to moral theft. They exist in other contexts and could be made to exist in ours ...

Nandini Sundar's reply:

Thanks for your mail. I completely appreciate the point you are making about academic publishing being unprofitable [...] It is overall a vanity business for academic presses ...

But while [academic] publishing may be unprofitable, it's not as if poor Rameshwari [the photocopier at the Delhi School of Economics] is making big bucks at the expense of the poor publishers. Of course he is doing it for profit - he is not a charity - but when small vendors make a living at the margins, the solution is not to hit them with Walmart type operations. And if OUP, CUP, etc. are doing it to get tax free status for their wine drinking dons, one can hardly call it any great service ...

In fact, if anything, despite his modest profits - Rameshwari is doing a real service to the university - I certainly would not want to stand over a flashing photocopier in the summer heat in that hole in the wall that his shop is.

I also appreciate that we get a lot out of good publishers [...] I was talking about all the inputs that authors get from publishing with places like Perblack rather than with Rameshwari publishers!

But the real issue in all this is what constitutes fair use. I have never photocopied stuff for teaching which is available in India and can be ordered for the library; and even if I have initially copied a foreign book for immediate classroom teaching, I have later ordered it for the library. And yes, teachers in India have been lazy - we need to get organised and give our course lists in advance for ordering books, just as everyone else in the world does.

But course packs are a different matter altogether - they really do constitute fair use - which is allowed within the law, since they consist of compilations of chapters/articles from different books. I have done a survey with faculty abroad - everyone uses e-course packs because their libraries subscribe to journals digitally, but here not all students have computers or access to them. 

When I photocopied my books for the protest - it was not because I think that is a real alternative, but as a symbol of protest against what I  saw as the publishers' violation of the fair use clause.  

The other main issue is that, unlike universities abroad where librarians are highly valued, library science in India is not appreciated enough. We need to change that and many other things - before we target shops like Rameshwari.

[...]

Permanent Black's reply to Nandini Sundar:  

... I hadn’t thought of academic publishing as a variety of vanity publishing, having been brought up on the idea that acceptance by the OUP was like reaching orgasm among the learned. So here at PB I’ve mainly been trying to make people shift their idea of peaking in favour of this smaller massage parlour ...

Maybe the simple solution would be to let Rameshwari continue but make him your outsource secretarial person, asking him to dish out a tiny portion of what he makes from the proceeds of illegally copied essays and deposit it in your department’s piggy bank. You can then rattle out the coins on the desks of OUP, CUP, and Routledge and make them feel beggared (or buggered). Rameshwari could change his name to Bhagwan Photocopeshwari and make the shop resemble a temple to the god of photocopying. That would keep the cops away.

To put it minus the levity, I think the cost of legalizing his business is not at all high. With a little tweaking, he’d be legit ...



Nandini Sundar has the last word: 
 

But if its fair use, it's legal anyway.

 

Partha Chatterjee

Partha Chatterjee, joining the discussion, says:
I disagree with a lot of things you have said about Indian teaching conditions. But without getting into that subject, let me tell you what I have seen in more than 20 years teaching in US universities.

At present, every major US university has a website that gives access to all its students where teachers can put up scanned course material. The rule is: no more than 1/4th or 1/3rd of a book (I have heard both figures mentioned). Material in the public domain can be freely uploaded. Besides, since most current books have e-book editions that are available free to all students through the university library, these don't have to be put up on the course website. I don't know if the university has blanket licensing agreements with publishers, but certainly there is no paperwork on permissions for specific course material put up on the website.

Before this system came into place (in the last five years or so), there was the commercial photocopier. They would put together photocopied course packs for each course. The teacher had to sign a declaration saying that no more than 25% (or some figure like that) of a book was being copied and that the pack was to be sold only to students registered for the course. Photocopy shops appeared to be doing good business and the publishers were apparently not complaining. These days I see most of these shops have disappeared.

As for academic publishing, I think paper books published by university presses have a future of about ten years -  no more. My recent books have been simultaneously published as e-books. And most young people I meet no longer read paper books. I also know that enterprising students in India - only a few at this moment but likely to multiply rapidly - manage to find freely downloadable copies of every recent book from student websites located all over the world.

This will not solve the problem for the bulk of Indian university students, but it may indicate the future for academic publishing in India. In other words, shutting down Rameshwari's shop won't necessarily save academic publishing in India.