In the High Court of Delhi at New Delhi

I.A. No. of 2013

In
Civil Suit Number 2439/2012

In the Matter of:

The Chancellor, Master And Scholars Of The University Of

Oxford And Ors ..... Plaintiffs
Versus
Rameshwari Photocopy Services and Anr. Defendants

AND

Association of Students for

Equitable Access to Knowledge Applicant

Application For Impleadment Under Order I, Rule 10 (2), Read

With Order I Rule 8A And Section 151 Of The Code Of Civil
Procedure, 1908 on behalf of ‘Association of Students for
Equitable Access to Knowledge’

Most Respectfully Submits:

1) That the proceedings referred to above are pending before this Hon’ble
court and have been listed for 26 February 2013.

2) That this application for impleadment is preferred by ‘Association Of

Students For Equitable Access To Knowledge’ an association of
students of Delhi University concerned at ensuring access and
availability of educational and learning materials to all students that is
today 122 strong. The applicant association was constituted on the 21 st
of November 2012 and is in the process of applying for registration with
the Registrar of Societies under the Societies registration Act, 1860.
Annexure A 1 to the present application is a true copy of the
constitution of the applicant association adopted at the General Body
meeting of the 21 of November 2012 and Annexure A 2 is a copy of
the resolution of the association authorizing its President to agitate the
present application

3) That the second defendant is the University of Delhi and the first
defendant is the only licensed photocopy service provider on the
campus of the Delhi School of Economics.
4) That the suit is instituted primarily in respect of reading materials,
(referred to in the plaint as course packs), that are prepared in the course
of instruction of the students of Delhi University and seeks, inter alia,
injunction restraining the defendants, their agents and assigns and all
other persons, in association with the defendants, from photocopying
material that the plaintiffs claim copyright over, and delivery up of all
material in which the plaintiffs claim copyright.

5) That it is also the case of the plaintiffs that the material that constitutes
what they refer to as course packs are prescribed as part of the syllabus
of various programmes and courses offered by Delhi University
generally, and the Delhi School of Economics, more particularly.

6) That it is most respectfully submitted that the suit is instituted on a

misreading of the law of copyright and is clearly not maintainable. The
copying sought to be injuncted in the present proceedings is specifically
declared as not amounting to copyright infringement by -

a) section 52 (1) (i) (i) of the Copyright Act, since it is

reproduction in the course of instruction

b) and also Section 52 (1) (a), i.e., fair dealing for private or
personal use, including research

7) That the applicants, as students of the Delhi School of Economics are

entirely dependent upon the defendants in order to ensure access to
reading materials that are part of their syllabus. If the prayers in the
plaint are granted it would effectively exclude access to the applicants
as well as a substantial portion of the student body of Delhi University
to materials that are a part of their syllabus. Significantly it has come to
the knowledge of the applicants that several publications that form the
subject matter of the present suit are available only through external e-
commerce sites and not through the Indian websites of the plaintiffs and
four of the publications that the plaintiffs claim copyright in are
 available neither on their Indian websites nor on external
websites.

a) Hindu Nationalism and Indian Politics: An Omnibus, Zavos, J.,

Hansen, T.B., and Jaffrelot, C.

b) Domestic Roots of Foreign Policy, Appadorai, A

c) The Politics and Economics of India’s Foreign Policy, R.

Thakur

d) Comparative Politics, Andersen, J.G.

8) That the present applicants have a real and subsisting interest in the
subject matter of the present suit proceedings.

9) That the present applicants are necessary and proper parties to the
present proceedings for the following, among other, reasons:

a) Because clauses 52 (1) (i) (i) and 52 (1) (a) of the Copyright Act are
a statutory declaration of an exclusion of copying in the course of
instruction from the ambit of what constitutes infringement under the
act. These clauses recognise an important right in the applicants and
other students of access to knowledge, and more specifically, access
to all materials required in the course of instruction. By the present
suit, the plaintiffs seek to eclipse substantial portions of these
statutory rights that are conferred upon the applicants and other
students (as well as defendant number 2), by rendering impossible,
acts permitted by the Copyright Act. The applicants have a real and
subsisting interest in ensuring that their rights under Clauses 52 (1)
(i) (i) and 52 (1) (a) of the Copyright Act are not unfairly infringed
by process of court.

b) Because copying of the nature sought to be injuncted in the suit is

explicitly excluded from the scope of what constitutes infringement
under the Copyright act and any determination of the issues in the
suit proceedings are likely to have the greatest impact upon the
applicants and other students of Delhi University.
c) Because determination of whether the defendants’ actions amount to
infringement of the plaintiffs copyright will adversely affect the
applicants rights to copy material in the course of instruction,
especially since defendant number 1 is the only licensed photocopier
on the campus of the Delhi School of economics.

d) Because if the prayers in the suit are granted, there is a very real
possibility that the decree in these proceedings will also bind the
applicants and other students of Delhi University in other
proceedings.

e) Because the statutory exclusion in clause 52 (1) (i) (i) is an explicit

recognition of the importance for developing countries of the
teaching exception recognized by the Berne Convention as well as
the Trade-Related Aspects Of Intellectual Property Rights
Convention (hereinafter, ‘TRIPS convention). Granting the prayers
in the suit will unfairly narrow the scope of the exception to the
serious prejudice of the right of the applicants to access knowledge
and course material that is part of their syllabus.

f) Because the suit invokes an interpretation of infringement that is

even broader than that existing in most developed countries, such as
the United States of America, that do not have provisions pari
materia with clause 52 (1) (i) (i). The suit does not so much as aver
that the defendant number 1, by providing copies of material over
which the plaintiffs’ claim copyright, enjoys any competitive
advantage over other photocopying services available to the
applicants or other students. Clearly, the copies are being made
available to the applicants and other students of Delhi University and
not to the general public; they are not being made available at a
profit; and the benefit of making material accessible to all students
far outweighs any possible harm caused by the copying. Clearly as
well, it is not even the case of the plaintiffs that the defendants are
re-duplicating for sale or general distribution.
g) Because the prayers in the suit are not confined to remedies against
defendant numbers 1 and 2 but also seek reliefs against

"all persons … in active concert or participation with the

defendants from photocopying/reproducing …. Plaintiffs’
publications or substantial portions thereof”. (emphasis
supplied)

The applicants and other students have a statutorily recognised right

to access copies in the course of instruction and therefore have a real
and subsisting interest in the subject matter of the suit.

h) Because although the prayers in the suit are cast in terms of

injunctive reliefs, by invoking an over-expansive understanding of
infringement and completely ignoring the provisions of section 52 of
the Copyright act the suit also, in effect, seeks declaration of the law
applicable to the students of Delhi University. This is especially so
since the prayers are not confined to the parties arrayed as
defendants in the suit. The applicants therefore, as an association of
students, most of who are students of Delhi University, are necessary
and proper parties to these proceedings.

i) Because contrary to the claims in the plaint, there is no commercial

exploitation in the copying of material for the applicants by the
defendants. The provisioning of these materials for the applicants by
defendant number 2, through defendant number 1, meets the
obligations of defendant number 2 to the right to education and the
right of access to knowledge of the applicants and other students.

j) Because if the prayers in the suit are granted, the parties whose
rights and interests will be most seriously prejudiced will be the
applicants and other students of Delhi University. The defendants
have merely a commercial interest in resisting the suit, whereas the
applicants rights of access to knowledge and education will be
severely compromised. The applicants
 are therefore necessary and proper parties to these
proceedings.

k) Because the invocation of an over expansive definition of

infringement sought in the plaint will seriously upset the careful
balance between the rights of owners of copyright and the
importance of ensuring access to knowledge legislated in the
Copyright act. In this context it is relevant that most of the authors,
whose works the plaintiffs claim copyright in, are salaried university
academics (many of whom are employees of Delhi University). The
plaintiffs claim copyright over the material that has been made part
of the syllabus of Delhi University, on the basis of assignment or
license to them by these academics in terms of the Copyright act.
The profit that is had by the plaintiffs by the fact that works in which
they have secured copyright are prescribed as part of the University
syllabus is incalculable. The University’s prescribing the works as
part of the syllabus not only confers a premium on these works but
also introduces the entire student population to these works, thereby
expanding the market for the plaintiffs’ works among the non-
student populace, whose numbers the students will join on
completing their course of instruction with the University. The
Copyright act while instituting a limited monopoly and facilitating
commercial exploitation, explicitly excludes copying in the course of
instruction from the scope of that monopoly. To allow the plaintiffs
to commercially exploit the labour of salaried academics, and to reap
the benefits of having their works prescribed as part of the syllabus,
while simultaneously restricting the right of the University to make
available copies in the course of instruction will do serious injustice
to the balance in the Copyright act between the rights of owners of
copyright and the right of the applicants and other students to access
material that is a part of syllabus prescribed by Delhi University.

l) Because neither the defendant number 1, nor defendant number 2

can be relied upon to defend the interests of the
 applicants and other students of Delhi University. While there is
some co-incidence of the interests of defendant nos.1 and 2 and the
applicants, the interest of the applicants in the subject matter of the
suit, it is most respectfully submitted, far exceeds that of defendant
nos.1 and 2.

m) Because the right of students to educational material cannot be left to

the vagaries of private treaty between commercial publishers and
universities – either in the form of reprography licence or other
commercial arrangements - especially in the light of the explicit
legislative mandate of clauses 52 (1) (i) (i) and 52 (1) (a) of the
Copyright Act. Through the present proceedings, the plaintiffs
attempt is to subvert the mandate of the law and read the limited
monopoly conferred by the Copyright act over-broadly and the
specific exceptions too narrowly.

n) Because the present suit proceedings require an adjudication of the

nature and extent of the monopoly conferred by the Copyright act
and the applicants have a real and subsisting interest in ensuring that
the limited monopoly instituted by the Copyright act does not
encroach upon the area expressly excluded from its operation by
clauses 52 (1) (i) (i) and 52 (1)
(a) of the Copyright Act.

o) Because an adjudication of the issues involved in the present

proceedings will have far reaching consequences for the right to
educational materials of students of Delhi University and other
universities. Although the plaintiffs have sought to portray the
present suit proceedings as having been occasioned by the failure of
the defendants to purchase a licensing arrangement with the
plaintiffs – seeking to portray the impact upon the cost of
publications as minimal – international experience has shown that
making access to educational materials contingent upon such
licensing arrangements is the first step towards placing the materials
out of the financial reach of most students. It is therefore imperative
that the class of persons most affected by such a
 reconfiguration of the law – i.e., students –is heard in the present
proceedings.

p) Because the entire suit is based on a presumption of loss on the part

of the plaintiffs without even an averment as to the basis for the
determination of such loss. Even if one were to assume some loss to
the plaintiffs in the short term, such loss is clearly offset by the
expansion of the market for such material caused by the University
prescribing the material as syllabus.

q) Because if the prayers in the suit are granted, there will be a serious
infringement of article 14 of the Constitution: while some students
will be able to afford and therefore access all the material required
for study, some other students will be completely denied access to
material that is part of their syllabus.

10)That the applicant is a necessary and proper party to the present

proceedings and have a direct and subsisting interest in the subject
matter of the present proceedings. Further, legal rights and interests of
the members of the applicant will be seriously prejudiced if the suit
were decreed in favor of the plaintiff.

11)That the presence of the applicant is necessary in order to enable this

Hon’ble Court to effectually and completely adjudicate upon and settle
all questions involved in the suit.

12)That by adding the applicant to the array of parties, no prejudice will be

caused the parties already on record; neither will fair trial of the
questions in controversy be prejudiced. On the other hand, not making
the applicants party to the present proceedings will cause serious
prejudice to the rights of the applicants and other students of Delhi
School of Economics and Delhi University.

13) That this application is bona fide and in the interests of justice.
 PRAYER

In the facts and circumstances set out above, it is most respectfully prayed
that this honourable Court be pleased to:

a. implead the applicants as defendants in Civil Suit Number

2439/2012

b. pass such further orders as this honourable court may deem fit

Applicant
Through

Counsels for the Applicant

Jawahar Raja (D/3218/1999) &
Rajat Kumar (D/4394/2010) 64,
LGF
Bhagwan Nagar Aashram,
New Delhi -14 Ph:
9810639608

Verification
Verified at New Delhi on this the day of February 2013 that the
contents of paragraph 1 to the above application are true and correct
to the best of my knowledge, information and belief, no part of it is false
and nothing material has been concealed.

Applicant
 In the High Court of Delhi at New Delhi
I.A. No. of 2012
In
Civil Suit Number 2439/2012
In the Matter of:
The Chancellor, Master And Scholars Of The University Of
Oxford And Ors ..... Plaintiffs
Versus
Rameshwari Photocopy Services And Anr. Defendants

Affidavit in Support of an Application For Impleadment Under

Order I, Rule 10 (2), Read With Order I Rule 8A And Section 151
Of The Code Of Civil Procedure, 1908 on behalf of ‘Association
of Students for Equitable Access to Knowledge’

I, Apoorva Gautam, daughter of Prabhakar Singh Gautam, Aged 21 Years,

resident of village Nakaury, Thana Sikriganj, Tehsil Khajni, Gorakhpur,
UP, presently at D-47, University Hostel for Women, Delhi University
North Campus, Delhi- 110007, do solemnly swear on oath:

1. That I am the President of the applicant in the abovementioned

proceedings, fully aware of the facts and circumstances of this case
and duly authorised and competent to swear this affidavit on behalf
of the applicant.

2. That the accompanying ‘Application For Impleadment Under Order

I, Rule 10 (2), Read With Order I Rule 8A And Section
151 Of The Code Of Civil Procedure, 1908 on behalf of ‘Association
of Students for Equitable Access to Knowledge’ has been drafted by
counsel under my instructions. The contents of the application are
true to the best of my knowledge, information and belief, no part of
it is false and nothing material has been concealed.

Deponent
Verification
Verified on this the th day of February, 2013 at New Delhi that
the contents of this affidavit are true to the best of my knowledge,
information and belief.

Deponent