A Decade after the DU Photocopy Case, Publishers get their Pound of Royalties from Indian Taxpayers

On the licensing agreement between publishing houses- Oxford University Press and Taylor & Francis and the government run digital consortium E-ShodhSindhu, we are pleased to bring to you this guest post by Prashant Reddy T., explaining how this agreement may technically give the publishing houses what they wanted through the decade old DU photocopy case. Prashant is an advocate and one of our most prolific bloggers (His posts can be accessed here ). He is also the co-author of two books- “Create, Copy, Disrupt: India’s Intellectual Property Dilemmas” (OUP, 2017) and “The Truth Pill: The Myth of Drug Regulation in India” (Simon and Schuster India, 2022).



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A Decade after the DU Photocopy Case, Publishers get their Pound of Royalties from Indian Taxpayers



By Prashant Reddy T.



More than a decade after the DU Photocopy case was filed, two of the three publishers behind the failed lawsuit for copyright infringement against Delhi University and the Rameshwari Photocopy shop – Oxford University Press and Taylor & Francis – have signed licensing agreements with a digital consortium called E-ShodhSindhu, funded by the Ministry of Education, Government of India for an annual licensing fee of Rs. 8.75 crores (OUP) and Rs. 10.71 crores (T&F). (I do not know when exactly these licensing agreements were signed – it is possible these agreements were signed some time ago, I only learnt of it recently in response to a RTI application, accessible below.) [ Editor’s Note: If anyone is not able to access the details in this document (journal names and amounts spent) due to the format of the PDF, please contact us ].



RTI_Reply Download



E-ShodhSindhu for its part, then provides access to all of its resources to 217 universities and 4,200 colleges in India. A few years ago, its budget used to be approximately Rs. 200 crores but the licence fee paid for 2023, appears to be substantially lower at Rs. 140 crores, as can be evidenced in the reply provided to me under the RTI Act by INFLIBNET which manages the procurement and access for E-ShodhSindhu. In addition to this consortium there are other consortia like the National Knowledge Resource Consortium which caters to the labs of the Council of Scientific & Industrial Research.



To be clear, the access through the E-ShodhSindhu is not always comprehensive enough for universities. I say this on the basis of my research along with Vishal Rakhecha a few years ago where we sought information from elite institutions like the IITs and IISc, only to discover that despite having access to E-ShodhSindhu, they were also spending up to Rs. 10 crores a year to buy additional access to other databases or archival access to some of the existing databases available through E-ShodhSindhu. We were collecting this information for an article that was accepted for publication in the Economic & Political Weekly, which we eventually withdrew after a nightmarish experience with their editors who simply stopped replying for months together on a tentative date of publication. We repackaged the piece into two op-eds which can be accessed over here and here . 



The government deserves some credit for putting together these consortia since pooling together resources have a number of benefits. First it allows for economies of scale and consolidates bargaining power for users. Rather than individual universities and colleges negotiating licensing agreements with the publishers, the Ministry of Education which funds all academic institutions set up by Parliament, negotiates on their behalf with the publishers. This reduces transactions costs for both sides and E-ShodhSindhu as a monopsony can wield considerable bargaining power against publishers, many of whom exercise near monopolistic power in certain academic disciplines.  



By striking these licensing deals with E-Shodhsindhu, OUP and T&F have achieved what they wanted through the DU Photocopy case. Long time readers may remember that the original complaint of the publishers was that they lost substantial revenue every time selective chapters of their books were photocopied by universities or students in order to prepare course-packs for different courses. Contrary to the rumours spread by activists at the time claiming that the publishers wanted to end photocopying entirely and force students to buy copies of each book, the actual aim of the publishers was to monetise the existing practice of photocopying. Their end game was to strike licensing agreements with the university or the photocopy shop wherein they could charge per page photocopied. The rate they had in mind was 50 paise per page. That case ended in both a public relations disaster and a legal disaster for the publishers when the Delhi High Court simply blew up copyright law in two successive judgments. (For two critiques of the judgment you can read Eashan Ghosh’s piece in NUJS here and my piece in the Indian Law Review . For a larger overview of the case, you can read all the posts on the SpicyIP website over here .) By signing these deals with E-ShodhSindhu, the publishers have effectively switched licensing models from charging per page photocopied to an annual licensing fee for their digital databases. While the actual licensing agreements are not publicly available, I suspect that the fee is payable regardless of the extent of use.



This shift to a model of digital subscriptions for databases has long term implications for copyright law and the manner in which traditional fair dealing limitations and exceptions to copyright law have worked. The first question in this regard is the governing law of the licensing agreement with the databases in question. Most foreign publishers choose the law of their home country as the governing law of the contract. For example, a British publisher may demand that the licensing agreement is governed by British copyright law and also choose a foreign arbitration forum for litigating disputes. Such an arrangement would preclude the application of the Indian Copyright Act, 1957 making Section 52 redundant. Theoretically, the Government of India has the negotiating power to ensure the licensing agreements are subject to Indian law and the jurisdiction of Indian courts but from what little I know of government contracting practices in India, these issues get little attention. The average Indian bureaucrat approaches legal contracts with the mentality of a “lala business”, looking at the bottom-line and no further.



Even presuming that Indian Copyright Act, 1957 is the applicable law to these licensing agreements there is the question of whether the publishers have negotiated contractual restrictions on the use of statutory fair dealing exceptions in the licensing agreements. For example, could publishers have negotiated a contractual exception to the interpretation of Section 52(1)(i) of the Copyright Act by the Delhi High Court in the DU Photocopy case and would such a contract be legal under Indian law?  



In addition to these questions regarding copyright law, there are also likely issues of competition law. The most common problem with publishers when they offer subscriptions has been their bundling practices. For example, publishers will try to bundle together different journals or books so as to force customers to buy the unpopular journals and books along with the more popular ones. Proving that such bundling practices are in fact an abuse of the publisher’s dominant position under competition law is not easy, as the evidentiary bar can be quite high.   



Given that these subscription models to academic databases are here to stay for the foreseeable future, it is worth looking more closely at how they operate and whether they need new forms of regulation either under copyright law or competition law or a sui generis legislation.