WHAT IF HACHETTE CAME TO INDIA? A WHAT-IF ANALYSIS

Introduction

In a pivotal decision by the US Court of Appeals of the Second Circuit, in Hachette Book Group v. Internet Archive, where the court found the IA’s digital lending program to be in violation of the copyright law, raising several questions at the forefront of its broader implications on the copyright regime globally. Against this backdrop, the current blog seeks to examine the implications of the same on Indian jurisprudence where a comparable dispute is ongoing and attempts to explore the plausible approach by Indian courts and the viability of the possible extrapolation of the reasoning of Hachette in Indian jurisprudence.  Part II of the blog provides a concise overview of Hachette, while Part III delves into the likelihood of its adoption in the Indian regime.

UNDERSTANDING HACHETTE BOOKS V. INTERNET ARCHIVE: THE LEGAL FALLOUT

The US Second Circuit Court of Appeals affirmed the district court’s decision, positing that Internet Archive’s controlled digital lending programme (CDL) constituted a copyright infringement. The dispute arose in 2020, when four major publishing houses, including Hachette, claimed that the change in IA’s position regarding CDL, where multiple users could borrow a scanned book simultaneously, violated the copyright provisions. They asserted that as opposed to the lending system by traditional libraries or even IA’s own prior CDL programme, where it maintained a one-to-one ratio of books owned in physical copy vis a vis the scanned version available digitally, the current scenario amounted to unauthorised reproduction and distribution. The free lending programme, they argued, constituted a market harm to the publishers and that IA’s act of digitalisation of the copies was not, in itself, transformative, to be warranted a copyright exception of the fair use doctrine. The Second Circuit looked closely at the fair use doctrine and applied the four-factor test to determine the authenticity of the claims. At the same time, IA argued that its programme made a digital library more ‘accessible and convenient’ and thus allowed and encouraged writers to produce transformative work. The argument, however, suffered from being too unduly expansive and was similarly echoed by the court in opining that ‘ digital books serve the exact same purpose as the originals, namely making authors work ‘available to read’ and therefore, in no stretch of imagination be held transformative. Although the appellate court disagreed with the district court’s characterisation of IA’s work as inherently commercial, this distinction was insufficient to sway the judgment in IA’s favour. In analysing the fourth factor—the effect of the use on the potential market—the court placed the burden on the defendants to demonstrate the absence of harm to the market value of the copyrighted works. While IA presented data to argue that its actions did not negatively affect the market, the court ultimately found this evidence unpersuasive; the court held –

         “We are likewise convinced that “unrestricted and widespread conduct of the sort engaged in by [IA] would result in a substantially adverse impact on the potential market for [the Works in Suit]. . . . Though Publishers have not provided empirical data to support this observation, we routinely rely on such logical inferences where appropriate in assessing the fourth fair use factor. . . . Thus, we conclude it is “self-evident” that if IA’s use were to become widespread, it would adversely affect Publishers’ markets for the Works in Suit.”

This reasoning, however, has drawn criticism for not only placing an unjustified burden on IA but also for placing its reliance on conjectures rather than concrete evidence. Scholars have argued that if one were to extrapolate the court’s interpretation, even physical libraries would fall afoul, with publishers asserting that free lending of books by public libraries eats into their potential revenue.

IF INDIA HAD THE GAVEL:  ADOPTING AN INDIAN LENS TO HACHETTE V. INTERNET ARCHIVE

The present case involves us gathering much speculation about its influence on the Indian copyright regime, specifically around the first sale doctrine and the fair use exception. Section 14 of the Copyright Act provides that the holder of the copyright has an exclusive right of reproduction, and any infringement on the right would constitute a copyright infringement. The right to control the reproduction of one’s work is the cornerstone of any copyright legislation. The basic principle of a first sale doctrine is that upon the sale of the copyrighted good, the copyrighted owner loses the ‘good’ and, therefore, any claims over the right to its copyright, which instead gets transferred to the owner of the property. While this principle is more straightforward in instances of tangible goods, it has been a source of intense scholarly debate in the digital realm, where the application of the doctrine faces a fierce challenge because, theoretically, downloading an e-book/ a digital copy from a public library would mean a duplication of the work, and therefore reproduction and with concerns over further distribution. With no Indian case laws on the matter, navigating the approach may be influenced by the American framework, which provides some sense of orientation. In Capitol Records LLC v. ReDigi Inc., it was stated that the transfer of a digital file electronically would constitute reproduction.[i] While the court’s rationale in Hachette Books is that such libraries ultimately stifle creativity, at least historically, the Indian courts have overwhelmingly tended to approach a different route.

Section 52 of the Copyright Act prescribes the exceptions to copyright infringement, which also provides for the ‘fair dealing exception’, which permits specific usages of copyrighted material without infringement.  A major issue in Hachette revolved around the interpretation of the fair use doctrine; with the absence of a statutory definition of the phrase in the Indian Copyright regime, courts have keenly considered the English authority of Hubbard v. Vosper and adopted a case-to-case base analysis,[ii] which historically translates to no conformity to a uniform approach with interpreting fair use to factor copyright ownership vis a vis public interests.

While  India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd, in Oxford University v. Rameshwari Photocopy Services,[iii], the court favoured what we call incorporated the four-factor test in the Indian jurisprudence;  a much different approach was adopted in the University of Oxford v. Rameshwari Photocopy Services of what we may refer to as the purpose test, over the four-part test, opining that fairness was to be determined by the extent of the purpose of such infringement.[iv] To quote –

“It could well be argued that by producing more citizens with greater literacy skills and earning potential, in the long run, improved education expands the market for copyrighted material.”[v].

In other instances, the courts have adopted a more pro-copyright approach. In M/s Blackwood & Sons v A N Parasuram, for example, the court held that a publication which causes material injury to the copyright owner does not constitute fair dealing[vi] or in V Ramaiah v. K. Lakshmaiah, where it was held that the defence of fair dealing is disregarded when the work fails to be transformative.[vii] Perhaps the most stern instance to augment a pro-copyright regime was in Rupendra Kashyap v. Jiwan Publishing House, where it was opined that the law of copyright was a product of a statute, with no mention of a defence of public interest. Therefore, an infringement cannot be permitted on grounds of public interest, as it would amount to constructing a defence to a statute which otherwise does not exist.[viii]

However, it contradicts the catena of judgements provided to the contrary. For instance, even the ratio in Blackwood must not be viewed in a vacuum as Justice Rajgopala Ayyanagar, in the very same case, had made the following observation with regards to defining ‘fair’ in the fair use doctrine, firstly, that the unfair nature must originate from the desire to compete and secondly, it must be advanced by an inappropriate motivation. In this context, IA’s program was arguably motivated by the desire to expand access to knowledge rather than an intent to compete with the copyright holders. Moreover, due to such considerations, statutory provisions like Sections 52(1)(p)(o) and 52(1)(n)—both of which provide exceptions under copyright law—could be heavily relied upon by the defendants and likely to be interpreted in their favour owing to the non-commercial nature of Internet archive, which relies primarily on donations.

 It has been held that ‘fair dealing’ under the Indian Copyright Act should be construed liberally to help strive for an even balance between exclusive rights of the copyright domain and competing public interests.[ix] Courts have tended to refuse injunctions on the ground of widespread use by the public en masse and the dependence thereof,[x] and have even instances where a guidebook had copied a substantial portion of a book, which could easily be construed as a mere reproduction of the work, the court was still reluctant to hold the same as transformative. X[xi] Therefore, one cannot emphasise the influence of public interests in warranting a decision in IA’s favour. The significant difference in the nature of the market of the two parties, despite a consistent overlap in terms of IA’s catering to individuals who likely would not have the means to access digital copies otherwise, could also play a factor in the court’s decision as has in the past.

It has even been expressed, in Wiley Eastern Ltd and Ors v Indian Institute of Management,[xii], that the objective of Sec. 52 of the Copyright Act is to preserve the freedom of expression guaranteed under Art. 19(1) of the Indian Constitution and promote criticism, review, and the purposes of research, which has been referred to as a rationale in other instances.[xiii]

The ban on such shadow libraries would also entail implications on the right to receive information, interpreted as an embodying part of Art. 19(1)(a). While an argument is to be made regarding the conflict between Art. 19(1)(a) and Art. 19(1)(g), it would be no misnomer to acknowledge the triumph and prioritisation of public welfare over the right to trade and in this context, it is no difficult to gauge the outcome of the court.

There is no doubt, moreover, that India’s international obligations would play a part in influencing the court’s decision, as it has in the past. Article 9 of the TRIPS agreement provides that members comply with Art. 1-21 of the Berne convention. Article 10 of the  Berne Convention for the Protection of Literary and Artistic Works provides –

“ 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 utilisation, 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 utilisation is compatible with fair practice.”

Due to an absence of sufficient disputes surrounding the said clause, we use the Vienna Convention on the Law of Treaties as a guiding influence to interpret the meaning and scope of the terms ‘utilisation’ and ‘teaching’. Utilisation is defined as making practical and effective use of something and, therefore, could encompass digital media. While ‘teaching’, usually meaning ‘imparting of knowledge’, has been interpreted in the broadest manner, it has been argued that in developing countries, the interpretation of Berne exceptions must be made to the fullest expansion possible. This, therefore, does not limit ‘teaching’ to its traditional classroom sense but could even be construed to include digital learning. Therefore, the role of IA in facilitating access to resources holds the potential to be interpreted under the said exception.

Moreover, even Article 13 of the agreement provides for exceptions to copyright infringement in certain instances where, firstly, it is a case of special stature. Secondly, it does not conflict with the normal exploitation of the work; thirdly, it does not unnecessarily prejudice the legitimate interests of the rights holder. Moreover, Article 7, titled ‘Objectives’, states that copyright protection stands justified as long as it is in congruence with and achieves the aim of socio-economic welfare.

While it is debatable how much of a digital library’s work grants a special stature, the court could reasonably find that its operations do not conflict with the normal exploitation of the copyrighted work due to its strong predisposition towards public interests at large. As noted earlier, both the digital library and the traditional commercial market serve distinct, albeit intersecting, audience markets, and that could be enough of a rationale for the court to base its decision in favour of the Internet Archive.

CONCLUSION

In conclusion, the decision in Hachette Book Group v. Internet Archive has significant implications for the future of digital lending and copyright law, particularly in India, where similar issues remain unresolved. While American courts emphasised market harm and rejected the transformative nature of digital lending, Indian courts have historically favoured a more flexible interpretation of fair use, balancing copyright ownership with public interest. Indian jurisprudence, shaped by Section 52 of the Copyright Act and guided by constitutional and international obligations, could potentially adopt a more lenient approach prioritising access to knowledge and public welfare, therefore diverging to form a unique interpretation of the issue in and of itself.

Author: Meraj Ahmad, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

REFERENCES

• https://spicyip.com/2024/10/hachette-book-group-v-internet-archive-archiving-access-to-information-or-strengthening-copyright-laws.html
• https://spicyip.com/2020/12/copyright-and-the-scihub-libgen-case-a-constitutional-query.html
• https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1092&context=ijlt
• https://spicyip.com/resources-links/du-photocopy-case
• https://spicyip.com/2020/12/sci-hub-and-libgen-up-against-academic-publishers-a-death-knell-for-access-to-research-part-ii.html

[i] Capitol Records LLC v. ReDigi Inc, 934 F. Supp. 2d 640.

[ii] The Indian Act uses the term ‘fair dealing’, which has been used interchangeably with ‘fair use’ throughout this piece.

[iii] University of Oxford v. Rameshwari Photocopy Services, (2016) SCC OnLine Del 6229.

[iv] University of Oxford v. Rameshwari Photocopy Services, (2016) SCC OnLine Del 6229, ¶ 33

[v] University of Oxford v. Rameshwari Photocopy Services, (2016) SCC OnLine Del 6229, ¶ 36.

[vi] M/s Blackwood & Sons v A N Parasuram,  (1958) AIR 1959 Madras 410.

[vii] V Ramaiah v. K. Lakshmaiah, (1989)(9) PTC 137.

[viii] Rupendra Kashyap v. Jiwan Publishing House, (1996) (38) DRJ 81 ¶24.

[ix] Supra note 4.

[x]Syndicate of the Press of the University of Cambridge v.  B D Bhandari and Others, (2011)MIPR 2009 (2) 60  ¶8

[xi]Chancellor, Masters and Scholars of University of Oxford v. Narender Publishing House, (2008) (38) PTC 385.

[xii] Wiley Eastern Ltd. and Ors. vs. Indian Institute of Management, (1995) MANU/DE/0694/1995.

[xiii] ESPN Star Sports v. Global Broadcast News, (2008) LawSuit(Del) 2504