Fair to whom?

Controlling the means of publication- An opposition to the Marxist appropriation of

intellect for Education and introduction of GIP.

Rohan Roy
1216355
VIII BBA LLB A

Fair to whom?
Controlling the means of publication- An opposition to the Marxist appropriation of
intellect for Education and introduction of GIP.
The copyright regime has continually been a constant balancing act between the rights of
authors with variance to the rights of society to access those works. The Indian copyright
Act confers a multitude of economic and moral rights based on the nature of their
respective works and through the courts, the endeavor to preserve the same has been
adequately extended.However, as is the case with several other subjects of law, the
education sector has been an exception to the above rule and has been afforded a certain
quantum of deviance to the laws applying to infringements of copyrights for the purposes
of furthering the educationist regime.
There have been several arguments for and against this exception, however, mostly
surrounding the need to legally subsidize access to works to public universities and other
education institutions due to the inherent lack of generic resources to ordinarily access
such works which in turn would restrain the ability to expand knowledge through the
student populous. The need to educate is one that need not be reiterated in this paper, as
the significance of literacy at several levels, both primary, secondary or specialized has
been recognized in every civilized society and the need to be treated by the state as a
priority has been well established.
In 2007 Then Prime minister Manmohan Singh dealt with the importance of the
foundation of the education system and the contribution of it to a progressive, prosperous
society. Qualifying the same to be quality-centric.1Further emphasis on the constititional
right to education.2In order to improve access to copyrighted works and achieve their
goals for education and knowledge transfer, developing countries should adopt procompetitive measures under copyright laws 3
The implementation of international copyright standards in the developing world must be
undertaken with a proper appreciation of the continuing high level of need for improving
1

Prime Minister Manmohan Singh of India, The Prime Ministers Independence Day Speech (New Delhi, August,
2007) available at: <http://pmindia.nic.in/speech/content.asp?id=570>.
2
AIR 1992 SC 1858, JT 1992 (4) SC 292, 1992 (2) SCALE 90, (1992) 3 SCC 666
3
A.Rens, A. Prabhala and D. Kawooya, supra note 23; see also W.W. Fisher and W. McGeveran, The Digital Learning
Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age: A Foundational White Paper
(2006), available at: <http://cyber.law.harvard.edu/home/>.

the availability of these works, and their crucial importance for social and economic
development.4
This paper seeks to explore the revolutionization of the education sector into a profit
making industry and therefore taking the shape of a commercial enterprise, therefore
defeating the initial rationale to grant fair use for educational purposes. On a secondary
level, I seek to establish the inherent fallacies in classifying study or research to be
public or private as there exists no clear water tight compartmentalization of the two,
and therefore utilizing the above as a ground for fair use is inherently problematic.
While the fair use provision for education exists in Indian law, Precedent in American and
Australian courts, as part of a First world outlook, has identified the issues that I seek to
highlight. Therefore, this study would be lopsided in that context.
Education
The roots of the fair use provision are grounded in the Berne convention, specifically
Article 10(2). Some of the terms and phrases used therein have been subject to scrutiny in
past deliberations. However, in context to this paper, the definition of Teaching:
contained therein is important.
...the imparting of instruction or knowledge. This definition places no limits on where
the imparting of knowledge takes place. Therefore, the term can be read as referring to
education at public and private institutions, at the primary as well as secondary level, and
to face-to-face instructions at a formal institution or through digital distance learning. As
long as the other criteria of the article are satisfied, there is no reason why teaching
should be defined strictly in terms of actual classroom instruction. ..
There has been blatant misuse of this definition where commercial entities carrying out
instruction for profit has used the guise of education and teaching to use the exception
of fair use whereas they are solely preaching a commercial enterprise.
The preamble of the world intellectual property organization copyright treaty (WCT)
5
refers to the need to maintain a balance between the rights of the authors and the larger
public interest, particularly education, research and access to information, as reflected in
the Berne convention.6
Ricketson and Ginsburg have been skeptical of the application of this exception to course
packs consisting of chapters taken from various books, to fall within the ambit of 10(2). It
would be a distortion of language. They critically note that such usages are well
developed forms of exploitation in many countries , subject to voluntary licensing or
4

Commission on Intellectual Property Rights, Copyright, Software and the Internet in Integrating Intellectual
Property Rights and Development Policy: Report of the Commission on Intellectual Property Right (London, 2002),
ch. 5, available at: <http://www.iprcommission.org/graphic/documents/final_report.htm>. 45
5
Open for signature on December 20th, 1996 ATS 26.
6
Article 10 (2)

compulsory licensing schemes.7

There has been a large amount of jurisprudence on this matter in Australia to further
establish my case. Skepticism of the application of the education instruction exception
being applicable in todays universities due to the digital activities undertaken and the
migration from systems operated by or on behalf of the university to cloud based
systems.8 The nature has been categorized to be non consumptive.
It has also been noted that with respect to the availability of the aforementioned data on
the cyber fora, the control of copying has ceased to be an effective proxy for control use.9
With respect to freely available material, the qualification uniformly is contained to non
commercial educational purposes.10

Commercialization of the Non-Profit Sector-Information Brokers?

The principal issue under consideration is the commercialization of educational
institutions into businesses with the advent of private institutions in the global outline, the
privileges that were afforded to public universities come under scrutiny. Firstly, the
charging of monumental fees for the service once considered very noble. This fees, as
opposed to the private stance, is not utilized solely for the benefit of the students or the
institution but the transformation of universities into profit making centres. Therefore
defeating the Non-Commercial qualification in the fair use provision which will be
discussed later in this paper in depth.
Secondly, the mushrooming of private tutorials which have been operating under this fair
use provision for generation of the material they use to make coursepacks for students,
supplied at a cost, much above the cost of preparing the packs. Therefore, also being
deemed to be commerical and profitable in nature.
In determining whether a particular activity is permitted as a fair use under Section 10711
exemption, one must distinguish between the different types of for-profit institutions . On
one hand are copy shops which generate income from making copies . Similar to them
are document delivery institutions which charge for the service.These do not fall under
the Fair use exemption.
In Basic Books Inc v. Kinkos Graphics corpn12, the landmark decision on the subject
explores that photocopies of copyrighted articles and portions of books and prepared
course-packs, They maintained that the copying was educational Because it was done
7

S Ricketson and J Ginsburg, International Copyright and neighboring rights: The Berne convention and beyond (2 nd
ed, 2006) Vol. I, 791.
8
Universities Australia, Submission 246
9
C Reed, making Laws for cyberspace (2012), 154.
10
D Browne, Educational Use and the Internet -Does Australian Copyright Law work in the Web Environment?
(2009) 6 (2) SCRIPT - ed 450, 461.
11
U.S. Copyright Act, 17 U.S.C. 107 (1976)
12
758 F.Supp 1522 (S.D.N.Y. 1991)

for students and at the request of their instructors. A principal question that wasnt dealt
with in the judgment, but I find pertinent to the discussion, is whether these tutorials
come Within scope of teaching/Right/Freedom to teach?)
Federal district court maintained that the copying was non educational and commercial,
both defeating the basic premises of the fair use exception.
Further, In Princeton University press v. Michigan Document services13 The kinkos
decision was over ruled by a three-judge panel and the preparation of course was held to
be within the ambit of educational and that it constituted fair use.
This is deeply problematic. Even though this was however overturned by the entire court
holding the copying to be premeditated and infringing, the question raised is where the d
line is drawn between ancillary educational services like FITJEE/T.I.M.E etc which run
on the sole purpose of providing these course-packs in a systematic fashion along with
systematic assistance and guidance classes to those course packs, both from which they
receive revenue. The concept of Potential market harm is of important deliberation and
will be discussed shortly hereinafter.
Abstaining from extending any disrespect to the privatized machinery of imparting
education or the teachers thereof, who have taken the states burden to do the same,
especially in the Indian context, can todays institutions be called information brokers?
West publication co, a publisher of law books, sued several for-profit information brokers
for infringement. Subsequently, one defendant settled to not copy and distribute
proprietary material from their reporters.
( What about the RND that goes into medical research? With potential industrial
application? )
(Cancer drugs and medical education)
For the benefit of the readers, Section 107 states
...Including such use by reproduction in copies or phonerecords or by any other means
specified by that section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship or research, is not an
infringement of copyright..
In the determination of whether the use of work is fair or not, the following
considerations are to be taken into account:
A) The purpose and character of the use- Whether it is commercial or for non-profit
educational purposes
B) The nature of the copyrighted work
C) The amount and substantiality of the work used in relation to the whole
D) Effect upon the potential market value of the work
13

99 F.3 1381 (6th Cir. 1996)

American Geophysical Union v. Texaco focused on one scientist who copied eight
articles and had placed them in is files. This was not held to be fair use by the federal
district court.This was upheld by the US court of appeals 2 years subsequently
Reliance was placed on Campbell v. Acuff-Rose Music14 where the supreme court held
that when the purpose of the use is being looked into,it must determine whether this use is
commercial or non-profit educational.
Secondly, when they look into the character of the use, the nature and quantum of the
transformation of the work is to be considered. Quite obviously, the more the
transformative nature of the derivative work, the higher the chances of being granted fair
use.
The four factors aforementioned to establish fair use have been deliberated and explained
well in the above judgment. However, the most important discussion with respect to the
context of this paper is the question of the market harm which might effect the
copyrighted work.The SCOTUS has deemed this to be the most important element.15
Simplistically, a court is more likely to find fair use to be lacking if tangible financial or
market harm can be seemed to be attracted by the utilization of the work in a way that is
inconsistent with its market presence, either rendering the original work redundant or
ordinarily reducing the sales of the work.
There are 3 levels to this line of argumentation.
Firstly, The court should consider whether the market lost was one which was
contemplated by the owner of the work.
Secondly, Consider whether unrestricted and widespread conduct of the sort engaged in
the defendant would result in a substantially adverse impact on the potential impact on
the potential market
Thirdly, The question raised has been with respect to whom the burden in favour of
proving the market harm lies In Campbell, it was held that the defendant had the onus of
proving the fact that no market harm had been accrued when there has been verbatim
copying for commercial uses When the defendant loses the argumentation of fair use
on the Purpose and Character of the copying, this burden to obviate harm is inherent on
the defendant.
Market Harm
It is herein further submitted that the distinction for establishing Market Harm is not
14
15

510 U.S 569 (1994)

Harper & Row, Publishers v. Nation Enterprises 471 U.S 539, 566 (1985)

whether the sole motive of the use is monetary gain but whether the user stands to profit
from exploitation of the copyrighted material without paying the customary price.16
In the context of non-commercial usesuch as non-profit scholarshipthe Court has
held that a challenge [of a use]requires proof either that the particular use is harmful,
or that if it should become widespread, it would adversely affect the potential market for
the copyrighted work.17 Though the Supreme Court has retreated from its one-time
position that the fourth factor was undoubtedly the single most important element of fair
use,18 other courts continue to heavily emphasize commercial impact, often defined
broadly.19
In perfect support of my stance,Garnett has claimed that
..Just because education is a worthy cause doesnt mean that some form of blanket
exception to copyright should be allowed. It must be remembered that it is works made
for educational purposes that will often be copied in educational institutions. A wide
exception would therefore undermine the market for such works, so that a publisher
would be unlikely to invest in its production...20
We do know that, in general, noncommercial uses are treated with special solicitude.
But the fact that educational activities may be conducted without a profit motive does not
make them non-commercial in the sense that that term occurs in copyright discourse; as
an influential 1984 decision put it, the distinction is not whether the sole motive of the
use is monetary gain but whether the user stands to profit from exploitation of the
copyrighted material without paying the customary price.21Self-evidently, private
schools and most institutions of higher education charge tuition and feesto say nothing
of selling course materials. Perhaps even more to the point, all schools are a market for
ever increasing kinds and numbers of firms trading in knowledge goods. Educators
choices about what to buy or license, and what to use without payment, obviously can
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1984). See also A&M Records v.
Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (representing an extreme example of equating potential
but un-actualized profit with commercial use). Many academic critics of assessment of harm caused by lost
licensing fees complain that this analysis, as it applies to fair use, is circular, insofar as publishersin cases
determining whether academics must pay licensing fees for use of workscan show harm by noting that
they did not receive licensing fees.
17
Sony Corp. of America v. Universal City Studios Inc., 464 U.S. 417 (1984).
18
Harper & Row, 511 U.S. at 569; Campbell, 510 U.S. at 594.
19
Greenberg v. National Geographic Society, 1999 U.S. Dist LEXIS 13874, Case No. 97-3924-CIV (S.D.
Fl. 1999), is a typically complicated application of this commercial/non-commercial distinction. A
photographer successfully sued National Geographic for having without authorization incorporatedvia
verbatim and near-verbatim sketcheshis underwater photographs into an educational game. Rejecting
National Geographics defense of fair use, the court noted that the product, albeit educational, was
marketed not as a classroom tool but a toy, which used without transforming the heart of plaintiffs
photographs within what the court considered a potential market for the photographs.
16

20

21

K Garnett, G Davies and G Harbottle, Copinger and Skone James on Copyright (16th ed, 2011) [9-96]

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1984), and see 4-13 Nimmer on Copyright Sec.
13.05 (Commercial uses are extremely broad). For an unusual example in which the non-commercial nature of a
scholarly use did figure prominently in fair use analysis, see Sundeman v. Seejay Socy, Inc., 142 F.3d 194 (4th Cir.
1998).

affect these businesses bottom line. 22This problem is only likely to increase as new
business models for selling copyrighted material to schools proliferate.
In Educational Testing Services v. Simon,23 a court rejected the fair use defense for a test
preparation company that compiled questions from the MSAT exam as a study aid for
students in a private tutoring course. The court determined that the compilation interfered
with a purpose of copyright to prohibit use of questions as teaching aids (without
discussing its derivation for this extension of copyright law).

Section 108-The Library exemption

Permits libraries to make copies for their patrons under certain circumstances. There have
been several conditions which have been imposed by the same, contingent on which this
library exemption can be deemed to operate.
One of the primary conditions is the non-profitability, either directly or indirectly from
this copying to the library.
The further caveat imposed is that the only cot that is imposed is the cost of copying and
nothing more. Can an educational institution, for the purposes of provisions similar to
this, be deemed to be a library? And in which context, where there is a profit which is
accrued, the library exemption would cease to operate? Does College fees operate as
charging for more than the cost of copying?
The need for a differentia
It would be ridiculous to claim that the fair use provision should be blanketly removed or
be held to be too leftist. There are different categories of copyrighted works which are
published/created solely to cater to student needs, in contradistinction to books which are
used by corporates or have other industrial application, which constitutes a bulk of its
sales.
Therefore, if fair use is to be protected, this differentia between works of solely academic
purpose and industrial use should be made, so as to afford stricter protection to industrial
works as opposed to a possibly lenient stance on student oriented works. This paper
caters to the utilization and appropriation of these industrial works whereby they are
commercially exploited.

22

See Cambridge Univ. Press, at 10 n.2 (N.D. Ga. Sept. 30, 2010) (The CCC is financing 50 % of this copyright
litigation) (unpublished order granting in part and denying in part defendants motion for summary judgment, and
denying plaintiffs cross-motion for summary judgment) http://www.scribd.com/doc/38583528/Cambridge-UniversityPress-v-Becker-N-D-GaSept-30-2010 (last accessed January 11, 2012).
23

95 F. Supp. 2d 1081 (C.D. Cal. 1999).

What are Educational Purposes inherently then?

-Non Commercial Instruction or curriculum based teaching at non profit institutions
-Planned non commercial study or investigation planned towards a specific field
- Presentation of research findings at non commercial peer conferences.24
The Guidelines for Classroom Copying have received the most scholarly and judicial
attention. While recognizing that some photocopying of copyrighted material for
classroom distribution is fair use, the Guidelines require that such copying, in addition to
having clear copyright notice on each copy, fall within three specifically described limits:
brevity,25 spontaneity,26 and cumulative effect.27
Macmillan Co v king28 Where an economics tutor had prepared study sheets from
borrowed contents. Even though no economic harm had been shown to the author,the
court refused to decline the activity even though it was educational in nature29
In Encyclopedia Britannica Educational Corpn v. Crooks (1978), where a public school
system had created a co-operative project to record educational Tv and make them
available to instructors, the court ruled that it wasnt fair use. The amount of copying and
possible impact on the market for education film tips outweighs the schools purposes.30

24

Public Counsel, Copyright & Fair use Basics for non profits.

Allowing copying of complete works only if they are under 2500 words and allowing copying of portions
of longer works limited to the lesser of 1,000 words or 10%. Copying of up to 500 words is always
permissible.
26
The photocopying must be at the instance and inspiration of the individual teacher, with a time span
between the decision to use a work and the actual use to be so close in time that it would be unreasonable
to expect a timely reply to a request for permission.
27
With the exception of works contained in newspapers and news periodicals, a single teacher may only
engage in up to nine instances of non-authorized copying per course. Further limitations restrict repeated
reliance on one volume or authors work.
25

28

223 F. 862 (D. Mass 1914)

L Ashley Hull the costs of privilege : Defining Price in the Market for educational Copyright use, Minnesota
Journal of Law,Science & Technology 9 (2008) : 573.
30
447 F. Supp 243, 253 (W.D.N.Y 1978)
29

[F]ueled largely by the threat of legal action by publishers groups, as well as

published decisions against for-profit copy shops making coursepacks without
authorization31, more than 80 percent of American universities now adhere to internal
policies derived from the Classroom Guidelines32 that university lobbying groups has
rejected.33 Some enforce even stricter guidelines, all but prohibiting reliance upon fair
use.34 At least one commentator has predicted that, in this environment, current
trendswill eventually eliminate fair use for schools, colleges and universities.35
The Anti Marxian Rhetoric:
Marxism began with a bottom up approach; that is to say, the needs of a society should
begin with economic need at the base, then build upwards to construct the economic
climate that will provide for those needs. Is the bottom up approach due to the fear of
revolution by the proletariat a rationale enough in the academic sphere for the means of
production ( In this case, the means of publication) to be controlled by the law?
The paradigm shift from an industrially motivated society to a digitized liberal
democracy, has been noted by linear Marxists to have also created a shift from labour and
orthodox resource to information as a primary value determinant. They have heavily
criticized the post-industrialist advocates for failing to take account of the fact that
information is the product of human labour, and that it substitutes primary resource in the
modern post-industrialist era. The position of information as a predominant source of
productivity as opposed to a mere by-product of production, is one that should be noted.
It has also be appreciated by the Marxian school that information has always existed as an
integral means of production, the only difference in the modern scenario is the
commodification and assignment of a market value to the same. The major shift that is
applicable in the context of this paper is the change from information as a means to
information being an end.
See infra, discussion of Princeton University Press v. Michigan Document Services and Basic Books v.
Kinkos.
32
Bernard Zidar, Fair Use and the Code of the Schoolyard: Can Copyshops Compile Coursepacks
Consistent with Copyright? 46 Emory L.J. 1363, 1386 (Summer 1997). For a discussion of a hypothetical
case, such as NYU, and how it would be actually treated in a court, see Samuel E. Trosow, When is a Use
a Fair Use? University Liability for Educational Copying, I Libraries and the Academy 47-57 (2001).
33
Marc Lindsey, Copyright Law on Campus 27 (2003).
34
See Joann Stevens, The Multimedia Guidelines, Journal of the American Society for Information
Science 50(14): 1324-27 (noting that Howard County Community College does not allow an educator to
convert one media format into another without permission, or transmit any audiovisual works without a
license).
35
Carol M. Silberberg, Preserving Educational Fair Use in the Twenty-First Century, 74 Southern
California L. Rev. 617, 618. See also Judith L. Marley, Guidelines Favoring Fair Use: An Analysis of
Legal Interpretations Affecting Higher Education, 25 Journal of Academic Librarianship 5:367 at 371;
Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 Ohio State L.J. 599,
611 (2001).
31

The argument that skilled workers and intellectual authors of the modern society are
members of the same class, is not a novel argument and is something that has been
viewed often in the copyleft movement. However I draw a distinction from the
aforementioned and derive that, in context of fair use afforded to the educational
institutions, the basic resource and product is being socialized, and by that metric,
causing dis-incentivization to the owner classes.
How is this problematic?
Whereby the application of controlling the means of production was based on a
proletariat beneficial stance, where resources were in abundance and the bourgeois
merely controlled its harvesting, the intellectual fora differs on 2 levels. One, the scarcity
of information as a primary resource and secondly the rare ability of only certain owners
to be able to transform this available media into something of industrial or academic
application and relevance. This is where the extension of the Marxian argument of
controlling the means of publication to benefit the masses, which in the context of this
paper, are the educationists (both public and private) is an invalid parallel as the variables
are inconsistent to one another.
Blanket Fair use in the educational sector has stifled the income by various streams of
publishers, the means of research and resources being invested into furthering the GIP is
lowered, thereby restricting the owners from engaging in publication of new copyrighted
work.
"Our argument is that this gathering of skill/knowledge/information, hitherto most
apparent in the capitalist labour process, is now entering a new and more pervasive
stage ... We are talking about a process of social deskilling, the depredation of knowledge
and skills, which are then sold back in the form of commodities [...]"
The argument that absolution of freedom of publication would vest extreme power in the
hands of the intellectually empowered bourgeois, by the utilization of information as a
tool to shape public opinion and enhance capitalist control is beyond the ambit of this
discussion and is not entertained.
At the pinnacle of contemporary production, information and communication are the
very commodities produced; the network itself is the site of both production and
circulation"
"Just as the processes of industrialization transformed agriculture and made it more
productive, so too the informational revolution will transform industry by redefining and
rejuvenating manufacturing processes"
Another issue highlighted in the Marxian perspective is the correspondence they seek in
the enclosure of public land and privatization of cultural expression.

Given this parameter, that sect of information which is created and protected by the
deemed ownership by virtue of either the labour or the skill and judgment exercised on
freely available media to create this composite socially applicable and valuable work, is
one which should be regarded as precious to the furthering of the Gross Intellectual
Product (GIP)36. This is inherently where I draw the horizontal between the means of
production and the means of publication, the latter as a progressive reflection of the
former.
GIP & The tragedy of Commons
The growth and the infrastructural development and well being of a state can be measured by the establishing of a
Gross domestic product, taking into account the sum total of goods and services within a geographic area in a specified
time. In my opinion, the same can be done on a global scale with respect to the gross productive information or material
intellect available and being circulated via the means of copyrighted and protected works.
The average contribution is the calculated by the sum total of productive information

contributed by an
ideal educated populous in the public sphere contributing to discourse and intellectual
development-inter alia economically, socially, politically,technically and legally. This can
be contrasted with the value of the work contributing to the afore-stated pool of
productive data being varied by the availability of the said work. Though some might
argue that this is a calculation of intangibles, it is inevitable that the greater quality and
corresponding quantity above a minimum threshold would lead to healthier nature of
discourse, furthering better research and improved models of industrial and academic
theoretical advances.
The crux of the argument is based on basic economics. By the easier availability of this
work in the public sphere, the value of it decreases, thereby effecting the income
generated by its sales, and on a secondary premise, the sales in itself, by virtue of its
decreased demand. This drop in gross revenue,makes the effort into production of
original works redundant and thereby causing fewer works to contribute to the GIP. The
GIP is also adversely effected by the drop in public discourse by the restricted
deployment of information into the public sphere. Thereby doubly harmful to both the
stakeholders.
This is also known as the tragedy of commons. The easier availability of information due
to the education exemption would lower qualitatively and quantitatively the average
intellectual contribution to the pool and would inherently be detrimental to both the
consumers and the producers of the copyrighted works.
Maintenance of Quality of discourse and public rhetoric as opposed to the quantity of
productive material information disseminated.

36

The average contribution of individuals in an ideal educated populous to the total information in the public sphere as
opposed to those restrained by private control over intellectual works and the resultant productive discourse in society
leading to both economic, political and intellectual growth.