Subject: Delhi University Case – Delhi High Court Passes an Order of Injunction
We are delighted to advise that pursuant to a hearing earlier this afternoon before Hon’ble Mr. Justice Kailash Gambhir of the Delhi High Court, an interim injunction has been passed restraining Rameshwari Photostat (the concerned photocopying outlet), as also the Delhi University, from making substantial reproductions of the Plaintiffs’ (Cambridge University Press, Oxford University Press and Taylor & Francis) publications including in the form of course packs or book compilations. Earlier during the course of the hearing, we drew the attention of the Court to the double speak between the Delhi University on the one hand and Rameshwari Photostat on the other. While Delhi University took the stand that it was not responsible for the actions of Rameshwari Photostat, Rameshwari Photostat took the stand that it was operating under a license from Delhi School of Economics which was a Department of the Delhi University. Considering the fact that the Judge had repeatedly emphasized on earlier occasions that the activity complained of by the publishers was prima facie illegal, Delhi University argued that whatever it had done in the past was under the bonafide impression that such acts were legal and in accordance with the provisions of the Copyright Act, 1957.
During the course of the hearing today, the Court’s attention was drawn to Delhi University’s undertaking in its Written Statement filed in Court that it would not in the future indulge in the acts complained of by the publishers. We submitted to the Court that the statement made by Delhi University should be recorded and converted into a formal order of injunction so that the University is bound by an order of injunction passed by the court, for the future. The Court agreed with us and accordingly, passed a formal order of injunction directing that the Delhi University would remain bound by its statement. During the course of arguments advanced on behalf of the photocopying outlet, various ‘fair dealing’ defences available for educational purposes were highlighted by its Counsel. The Court agreed with our submission that the making of course packs by the photocopying outlet could not be covered under the defences of making copies/reproductions in the course of instructions or a fair dealing for purposes of private use/research. The Court therefore passed a formal order of injunction restraining Rameshwari Photostat as well.
Considering that the injunction order against the Delhi University was passed pursuant to a statement made by the University, the order passed by the Court against Delhi University would not be appealable. In legal parlance, this would construed as a consent order thereby rendering the order non-appealable by Delhi University. It was for this reason that we strategically requested the Court to pass a formal order of injunction in terms of the statement made by Delhi University so that the order so passed by the Court is not liable to be challenged in appeal by Delhi University. The photocopying outlet may still prefer an appeal, but in our considered view, its chances of success in such appeal proceedings are rather remote, considering the stand taken by the Delhi University.
As you all know, this case was filed as a test case, particularly to set a precedent from the point of view of IRRO. Considering that there was so much publicity and intense debate on the merits of this case, it proved to be a rather testing one!! Now that this has been achieved, the publishers involved in the institution of the proceedings may want to consider waiving damages and legal costs so that the suit could be decreed (subject of course to the Defendants agreeing) in terms of the interim injunction passed earlier this afternoon. Considering that this was a test case and the publishers have achieved what they want, it may not be worthwhile to subject this case to an expensive and time consuming trial.
We are also of the view that the passing of an order of injunction by the Court would now pave the way for the Delhi University to formally negotiate a license from the IRRO. Until now the reluctance on the part of Delhi University to negotiate a license was perhaps attributable to the intense opposition to the obtaining of a license, from some sections of the student and academic community. Now since there is a formal order of injunction, the Delhi University will hopefully utilize the opportunity presented by the Court’s order earlier today, to justify negotiation of a formal license from the IRRO. Time will of course tell. Having said that, we would urge that the IRRO takes full advantage of the Court’s Order and quickly proceeds to close a formal license arrangement with the Delhi University.
Thank you all for your patience and faith reposed in our team.
Saikrishna Rajagopal | Managing Partner | Saikrishna & Associates, A-2E, CMA Tower, 2nd Floor, Sector -24, NOIDA - 201301, National Capital Region, India | Tel: +91-120-4633900 (100 Lines) Fax: +91-120-4633999 | Handphone: +91-9910153099