Is Every ‘Educational Use’ a ‘Fair Use’? Looking at the AP HC’s Curious Decision on Textbooks and Copyright

In Addala Sitamahalakshmi vs State Of Andhra Pradesh, the Andhra Pradesh High Court held that no copyright vests in mathematical and science textbooks. It also observed that ‘educational use for the benefit of students and educational institutions’ is covered under ‘fair use’. I argue that the reasoning used to reach the above conclusions is both problematic and incomplete. The HC fails to take into account the relevant facts of the case in deciding the present case. In this post, I will highlight the shortcomings in the judgement and its (minimal) potential for bringing any ground-breaking changes. Although the case was also concerned with determining the constitutionality of the Government Order against Art. 19(1)(g), this post limits the discussion to the copyright questions raised in the case.

Facts and summary of arguments 

The government of Andhra Pradesh vide notification dated 09.11.2010 ‘restricted private colleges from publishing their own books’. Further, it directed all private colleges to purchase books, as prescribed by CBSE and ICSE, from respondent no. 2 i.e. Telugu Akademi, a government-controlled body under the Higher Education Department. It is supposed to prepare and publish books as per the syllabus approved by the Government which are later distributed to various private and Government colleges. As explained in the decision, the notification was aimed at curbing the sale of pirated copies of the books based on the approved syllabus and thereby securing revenue for the Government. 

Addala Sitamahalakshmi, the proprietor of Deepthi Publications House (Petitioner), prepared and published books on Mathematics and Science based on the syllabus approved by the Government for intermediary education. Telugu Akademi, having the exclusive right to publish the textbook, contended copyright infringement. It argued that the books published were its ‘original work’ and the petitioner could not reproduce and distribute the books without authorization. Further, they argued that since the petitioner sold the books for a commercial motive and thereby caused monetary loss to the respondent, the said infringement is not saved by the ‘Fair use’ exception. 

Petitioner, on the other hand, argued that the books for Mathematics and Science were ‘non-literary’ in nature and hence not copyrightable. Even assuming copyright infringement, it was argued that the production and sale of books by the petitioner was covered under ‘fair use’ since its guidebooks help students solve questions contained in books declared to be part of the syllabus. 

 Merger Doctrine: Copyrightability of Mathematics and Science Textbook

In this section, I argue that the court fails to properly appreciate the facts of this case while applying the previous precedents on similar issues. As a result, the outcome reached is susceptible to being criticized for not providing a definitive answer. I discuss this issue in detail later. 

The issues raised in this case are similar to The Chancellors Masters v. Narendra Publishing House. The facts of the case can be understood here. One of the issues was whether copyright can be extended to mathematical questions and answers thereof or not. The Single Bench, rejecting copyright protection to mathematical work, wrote that ‘mathematical questions are laws of nature’ and discovery thereof cannot confer a monopoly on persons describing it. Relying on the doctrine of merger (see here), it held that since laws of mathematics can be described in only a few ways, copyright protection over the description(expression) thereof will lead to conferring monopoly over mathematical concepts. 

However, in appeal, this finding was overturned. The division bench noted that although Mathematics is an expression of the law of nature, there can be different ways of describing the same. It held that creating questions for easy comprehension; writing the book for easier understanding at an intermediary level; and unique ‘sequencing and scheme’ of the book are copyrightable elements which meet the standard of minimum creativity. (here)Thus, the court rejected the application of the merger doctrine to the facts of that case. However, in cases of guidebooks, it would be infringement if the guide verbatim reproduces the original work to a great measure without any contribution. The guiding principle is whether the purpose served by the guidebook is ‘substantially different’ from the purpose served by the textbook. 

In the present case, the petitioner is preparing and selling books based on the intermediate syllabus for Mathematics, Physics, Chemistry, Botany and Zoology. The AP HC, along the lines of Chancellors Masters (SB), writes that Mathematics and Science are a ‘matter of fact and laws of nature’. Consequently, copyright protection over the description of such laws will confer monopoly protection over the laws themselves to the person writing them.  

However, nowhere does the court discuss the content of the petitioner’s book vis a vis Telugu Akademi’s book. It does not discuss whether there is a unique schematic arrangement of topics; new questions; absence of theoretical discussion; verbatim copy of other books etc. The court failed to recognize that the respondent is entitled to copyright protection against word-to-word copying of their material. In the absence of any description of the content of the book, it is hard to give a determinative finding. 

Fair use or not?

The respondent, as mentioned earlier, argued that the petitioner published and distributed the infringing copies of the book for commercial profit. Moreover, the actions of the petitioner were resulting in monetary losses for the respondent. The question which arises is, assuming there is an infringement of copyright, whether the publishing and sale of books by the petitioner is covered under fair use or not? 

AP HC does not substantially engage with this question(maybe because it already found that the content of the books was uncopyrightable). It ‘merely’ notes that since the books of the petitioner are put to ‘education use for the benefit of students in educational institutions’, the infringing copies are saved by ‘fair use’ exception. 

Does it make any difference that the petitioner in this case was a publisher? Or that the infringing copies were made with a commercial motive wherefrom it was earning Rs. 3.5 to 4 crores? Or that the business of the petitioner was competing with the copyright owner and thereby causing it monetary loss? AP HC fails to engage with the above questions. 

Reproduction of work: Sec. 52(1)(i) 

Sec. 52(1)(i) saves ‘reproduction of any work by a teacher or pupil or in the course of instruction’. Is the present case covered in this provision? 

There are two approaches to determining whether a particular ‘reproduction of work’ falls under the ‘fair use’ provision.

One is the test of fairness adopted in the DU Photocopy case. In that case, the Delhi High Court held that ‘fair use’ analysis under Sec. 52(1)(i) will be tested on the ‘touchstone of extent justified by the purpose’. In other words, the use of copyrighted work will be fair to the extent it is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood. (also see here) This is called the ‘purpose test’. Here, the AP HC could have analysed whether the extent of copying was to the extent justified for the purpose of ‘teaching’ or ‘private study’. There was no engagement with this issue by the court. 

This case also held that a ‘commercial motive to the activity renders it as ‘publication’ and outside the ambit of educational exception u/s. 52(1)(i)’. Since the decision of the Delhi High Court is not binding on the AP HC, it could have answered whether it agrees with the disqualification of publishers or not. In fact, in V. Ramiah v. K Lakshmaiah, a coordinate bench held that ‘mere use of the language couched in the textbook’ does not lead to infringement of copyright particularly when the guide is written for the benefit of students. There, the guidebook was sold by the publisher for commercial profit. 

Another approach is the ‘Transformative test’. The four factors of the test are-:

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the substantiality of the portion used in relation to the copyrighted work as a whole;

(4) the effect on the potential market for or value of the copyrighted work 

For a detailed explanation of the test, see here. 

The division bench in Chancellors Masters provided a test to ascertain whether a book is a guidebook or not. A guide is a ‘derivative work’ which is written for the purpose of helping, assisting and supporting the students. The determinative test is “whether such guide book provides explanation and/or step-by-step process for reaching the answer, detailed analysis of any problem with the objective of making the task simpler in understanding the subject provided in the textbook.” If this test is satisfied, the guidebook is ‘transformative’ in character since it is not a substitute for the textbook.  

Here, the petitioner’s book contains ‘exercises in a systematic manner to help the students work out the problems…and certain objective type questions are given to benefit the students preparing for the competitive examinations’. Would it qualify as a guidebook based on the above test? At this point, it is not possible to provide a final answer since various other factors need to be considered.  

The AP HC could have used any of the above two tests or fashioned a new test to determine whether the work of the petitioner was infringing copyright. Merely providing that it is fair use if books are used for ‘educational use for the benefit of students in educational institutions’ is vague and open-ended. The broad-based defence is also prone to commercial abuse, since any publisher could verbatim reproduce the text of the textbook prescribed by the University and exploit it for commercial gains, without having to pay any royalty towards the copyright owners. Similar concern was raised in the DB judgement noted above. 

Conclusion

The judgement is short on reasoning. It fails to substantially engage with existing authorities dealing with similar issues raised in this case. In declaring the books as non-literary, HC merely reproduces the reasoning used by Single Bench in Chancellors Masters. It fails to take into account that the logic used in Chancellors Masters was overruled later. On fair use, it notes that since the books are for ‘educational use for the benefit of students in educational institutions’, it is saved by ‘fair use’. However, it does not cite any authorities or literature to reach this conclusion. It fails to even engage with the question of disqualification of ‘publisher’ from being saved by fair use. Given the importance of the issue involved, the court should have been clear and concise with its reasoning. Without any solid reasoning behind it, it fails to make any substantial contribution to the copyright jurisprudence in India with regard to access to education. The case seems ripe for appeal given the shaky reasoning employed. 

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