As we all know that education is foundation of any nation. It is said that “knowledge is the light of the nation”. This concept has been also been recognized by Universal Declaration On Human Rights, that education is the only key which can make an individual active in the society[i]. In the words of Chief Justice Waite of the Supreme Court of America “the very plea of a government, republican in form, implies a right on the part of citizens to meet peaceably for consultation in respect of public affairs” and “the purpose of public meetings being the education of the public[ii]”. It creates awareness in the society and also changes the perception of an individual. Education moulds and shapes the overall behavior of an individual; the basic aim of education is to develop a valuable personality in an individual. The definition of education differs from age to age, from person to person because every person has different educational practices, as one emphasized on one aspect while other emphasized on the other aspects.
Right to education is a fundamental right according to the Constitution of India.
Earlier, the right to education was stated under Directive Principle of State Policy but know it has been enshrined as a fundament right under Article 21 Right to life. According, to this article right to life means that every faculty through life is enjoyed are protected even; the feeling and thinking of an individual are also protected under this article. This article covers all the basic necessities of which are required for the survival of an individual like “adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse form”.
Judicial interpretation has observed Education as a fundamental right.
In Mohini Jain v State of Karnataka[iii] the court held that although right to education is not specifically mention under Article 21 of the constitution. But there are several provisions in the constitution like article 38, 39(a), (f), 41 and 45 which make an obligation for the state to provide education for its citizen. As article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law” which automatically implies some other rights which are required for the survival and development of an individual, and a citizen simply cannot be denied for education by charging higher fee known as the capitation fee, the right to education flows directly from right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education.
In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others[iv] the court held that right to education is also fundamental right which comes under the ambit of article 21(right to life). The court’s list not clearly mentions education as a right under article 21 but the above expression clearly suggests education as a fundamental right. The language i.e. education as fundamental right was further qualified by the Supreme Court in the subsequent case Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others[v] where the court specifically held that right to education for the children of the age 6 to 14 years is a fundamental right.
Supreme Court also held that admission to all recognized private educational institutions particularly medical or engineering shall be based on merit, but 50% of the seats in all professional colleges be filled by candidates prepared to pay a higher fee. The Court held that imparting of education is not and cannot be allowed to become commerce. Citizens have the right to establish educational institutions but not to own them as commercial institutions.
And, finally the Indian parliament passed the bill i.e. The Right of Children to free and Compulsory Education Act (2009). The amendment was inspired by the Directive Principal contained in the article 45 of the Indian constitution which provided that the “state shall provide childhood care and education for all children until they complete the age of 6 years”. This amendment was 1st introduced in 1997. It was scrutinized by the Parliamentary Standing Committee on Human Resources Development and this subject was also dealt with the Law Commission of India (165th Report) .The motive of this act was to provide free compulsory education to the children, between the age group 6 to 14 years. This act came into existence after the 86th amendment (2002) which incorporated article 21A i.e. to provide free education to every child. Basically this amendment specified the need to draft a separate education bill. These constitutional legal provisions have enabled the public to realize their new fold rights. But the implementations of these rights are unsuccessful because of insufficient funds.
EDUCATION POLICY OF INDIA
In today’s world ICT (information and communication technologies) is developing very fast and creating a wealth of opportunities to disseminate education. It is becoming the most promising way to disseminate learning materials and allowing collaboration for the production of learning materials. The National Mission on Education through Information and Communication Technology[vi] (NMEICT) has identified internet as a platform to disseminate education and the motive of the mission is to enhance the enrollment rate in higher education by providing the effective knowledge to every Indian learner. The mission highlighted the use of ICT to address some of the basic problem like absence of learning material, geographical limitation and infrastructure. It reduces the cost of learning and allows cross border interactions through several distance learning programs. The mission recognized in two-fold (a) to strengthen the internet connectivity which is the backbone of the program and (b) to spread education in the areas where there is no access to high quality of education materials and infrastructures[vii] through digitalization.
Generally instructions can be given in a library, classroom, or a computer lab of a college, university or a school. But, now it can be given live through multimedia, text, videos or a combination of the above[viii]. NMEICT is a platform which provides free e-books and e-journal to its learners; it empowers the knowledge of teachers through digital learning. The program encourages and welcome every intellectual person or agency whether government or non-government to contribute their knowledge for the growth and development of portal. It has developed a mechanism which ensures the authenticity and quality of the material before placing it on the portal.
It provides financial assistance to institutions of higher education for procurement or replacement of any out dated hardware device and also spends money on research project with a motive to enhance the teaching and learning process by developing new innovate ICT tools. As the objective of this mission to enhance the quality of e-content and to circulate it at a large scale, the price of the educational textbooks must also decrease so that such educational material can also be digitized easily. And the copyright law must not be limited to text but should also include digital and visual material including sound and video recordings for greater reach and to prevent misuse. Some educational institutions have made their work accessible[ix] and in such case number legal hindrance can arise unless, it can be shown that the use of such material fall under the ambit of Indian copyright act’s permitted exceptions which basically ensures the correct utilization of such material.
RELATION BETWEEN COPYRIGHT LAW AND EDUCATION
The relation between education and copyright law is an old one, disseminate knowledge at a larger prospective has always been a normative sprit of copyright law but misuse of such context i.e. digital & textbook piracy[x]has always been into question. And secondly, the rising prices of educational material and the widespread of piracy, the importance of copyright law is relevant. “India is in a need to reform and structure its copyright law in such a way which can maximize the availability of low price learning material and the institutions for higher education would be able to provide learning materials to distance education learners without paying high royalties”.
The Statue of Anne (chapter 19), 1710 was the first copyright act in the world. This act was titled as “Encouragement of learning”. This approach emphasized on the public interest of circulation of knowledge i.e. to grant limited exclusive rights to authors. Today, this public interest has been reorganized by all major international institutions and they have clearly articulated all the major instruments with the global regulation of copyright.
A developed country like United States is also facing problem i.e. with increased copyright requirements in the Higher Education Opportunity Act (HEOA) of 2008 and Digital Millennium Copyright Act (DMCA) of 1998, the American universities and colleges are continuously facing problem regarding the fair dissemination of copyrighted material. This frequent amendment in the copyright law has developed thinking that copyright law is a hindrance, which is basically unsuitable to resolve the copyright problem in the global and digital environment.
Alexandrine Policar (University of Massachusetts, Boston, IT, Department Member) recommends for the creation of an “Independent National Copyright Consortium on Awareness and Formation (INCCAF)”. This will be a centralized body consisting of professors, academic scholars and users of copyright material who will lead the initiative and it will the responsibility of stake holders to review and reform the current copyright legislation for the fair dissemination of copyright materials. To accomplish its mission it will conduct surveys at national level to collect data from institutions of higher education, in order to prevent copyright violation and to promote fair use of copyright materials and that survey will be forward to policymakers with a prescribed plan. For better implementation of any initiative or program and aiming to promote the theme of “fair use of copyright materials”. This might be possible through campaigning accompany with social media or other medium which can raise awareness on the need for the amendments required in the copyright law. To strength this initiative INFCCAF will collaborate with US Copyright Office and WIPO (World Intellectual Property Organization) which will first it help them to propose the changes directly to Congress, both the parties will sign an agreement through which copyright office will propose the INCCAF recommendation to the policy makers in Capitol Hill who have the jurisdiction over the amendments regarding copyright law and secondly collaborating with WIPO will help them to deal with international users in relation to digital copyright infringement.
If we consider section 107 of Copyright Act 1976, helps determine the fair use of material in any particular case by considering four factors:-
- The first is the purpose and the character of using material commercially or for nonprofit education, it has been held that every commercial use is presumptively unfair[xi]. However in Consumer Union Inc v General Signal Corp[xii] the commercial use found to be fair while in Marcus v Bowley[xiii], a nonprofit educational use was found to infringe.
- The third is the amount of the portion used by the defendant in his work. It limits the power of the person utilizing the work of the real owner i.e. using the core element of copyright material is not fair[xiv].
In a recent study by Amy Kapczynski, has been discovered that college students, AIDS activists, software engineers and farmers have led to street demonstrations, lobbying campaigns and have form organizations to challenge the scope of copyright law, seed patents and software patents. And some of these groups have sought to join for a common cause under the header of “access to knowledge” a campaign to press WIPO to adopt a “development agenda”. This social a2k mobilization has been able to achieve its basic goals i.e. access to medicine campaigners have helped to bring down the prices of AIDS medicines more than 95% in the developing countries it has also limited the scope of new Indian Patent Act, and the prices of medicines in India are also reduced. It has been contented that framing policies, debates on intellectual property (IP) is essential for the advancement of the society[xv]. But, from past two decades, the laws have been framed from the perception .i.e. to provide exclusive rights to authors. This concept of public interest regarding copyright law has focused on only one aspect, to provide exclusive rights to authors. The other aspect of public interest is to disseminate education and other learning material is left in the hands of State and major institutions which has created an imbalanced system, thus the institutions is trying maintain a parallel distance between copyright limitations and exceptions.
It is essential to draft IP laws in such a way that it redirects the similar historical purpose, to protect the human interest. Recently a new branch has been discovered, of drafting IP laws in human right context. The movements like access to medicines and education reflects the growth in this field. Even, the agreement on Trade-Related Aspects of International Property Rights (TRIPS) is a trade agreement and the objective agreement is to promote social and economic welfare. The preamble of the agreement states “protection of intellectual property rights including developmental and technological objectives[xvi]”.
- Article 7[xvii] states that the copyright law has been enacted to achieve social and economic welfare.
- Article 8(1)[xviii] (2)[xix] provides power to member state to amend their laws for the protection of human nutrition and health, to promote public interest in the technological development field, and further to prevent the misuse of intellectual property rights or to prevent the unfair practices which restrains trade or affect the international transfer of technologies.
The agenda to develop and dissimilate education has been adopted by World Intellectual Property Organization which is beneficial for the developing countries. The agenda further seek the goals of United Nation Millennium Declaration, 2000. The declaration ensures that “the benefits of new technologies especially ICT will be available to all[xx]”. The central agenda of the Millennium Declaration is the development of primary education .i.e. “every girl and boy will able to complete full course of primary schooling and both will have equal access to all level of education[xxi]”.
The declaration has found education as an essential component for development so, it is important that IP laws must be guided by the educational goals. The WIPO has given an opportunity to its all Member State to discuss the exception and limitations to IP laws. The discussion is done with the motive to advance development agenda.
DIGITAL & DISTANCE EDUCATION AND INDIAN COPYRIGHT LAW
The best way to dissimilate education is that the copyright right law must have strong exceptions and limitation which enables the fair use of educational materials. These exceptions and limitations can be in the form of compulsory license, or they can be incorporated through fair dealing provisions or can be in the form of statutory provision and in India it is available in both the forms but the paper focus on the legal provisions incorporated in the Indian copyright law. It was enacted in the year 1957, (Copyright Act 1957) and came into effect in January 1958. Section 52 sub-section (1) of the act lists several provisions which do not constitute the infringement of copyright. Section 52(1) (g), (h) and (i) particularly deals with education purposes and as we know that some of the provision have been altered as per the requirement of education in the offline world. But to dissimilate education at larger perspective the policymakers must consider on several aspects such as:-
- To examine the scope of section 52(1) (g), (h), (i) and (p) of Indian copyright act and how it is effective in dealing with educational need, particularly set out in the National Policy on Education and National Mission.
- To examine whether the permissible exception and limitation provision under Indian copyright law are able to meet the scope of obligatory treaties .i.e. Berne Convention and the TRIPS agreement.
- New provisions required to facilitate greater access of education.
Fair dealing is recognized as an exception and limitation by the many common law jurisdictions of Common Wealth Nations which have granted exclusive rights to the author of creative work. Generally there are four kinds of constraints on copyright exception context, action, actor and purpose and fair dealing exception to education must flexible to cover both digital and distance education, and this is only possible by reducing restrictions posed by four kinds of constraints. While at the same time it enables to comply with the conditions of Article 10(2) of Berne Convention[xxii] and while analyzing the terms incorporated in the article and applying the rules from Vienna Convention on law of treaties it aims to disseminate education at both primary and secondary, face to face at a institution or through distance learning. The exceptions for educational purpose must cover all type of media and forms of copyright as education is not bound to a single classroom, digital and distance education are the new innovative development and it is essential to cover these innovation by new copyright exceptions. The provisions must grant derivative rights to change learning material into other media for the purpose of distance education. Considering this prospective the policy makers must make flexible provisions with respect of distance learning and others educational policies.
The 1st relevant provision which can be taken into consideration is section 52 (g)[xxiii] . The provision does not affect the digital education but, it seems to hinder distance education and might create complication in the preparation of “course packs”. The section does not make any exception for the cases where the publication has been made regarding courses or has been selected by an educational body for publication. The publication of such material depends on suitability not on the licensing terms. To accomplish the National Mission, it requires modifying the course packs and collection of copyright materials (educational learning materials). The exception can be made on the behalf of universities which provide distance learning programs, or in a form of fair dealing.
The 2nd relevant provision which can be taken into consideration for the educational purpose is section 52 (h)[xxiv]. The ambit of this provision is quite wide; it does not lay any restrictions. But, this concept is new many countries have drafted their educational exceptions policies regarding copyright in a broader sense[xxv]. In Australia the inclusion works in collections to be used by places of education shall not be regarded as acts constituting infringement of copyright in works[xxvi]. In Canada educational institutions and persons acting under their authority may make copies and give performances of works for educational purposes, with restrictions where such works are commercially available[xxvii]. In USA, the fair use doctrine allows a person to use copyright material in a reasonable manner without the copyright owner’s consent and irrespective of the monopoly granted to the owner[xxviii].
Taking this exception into a broader aspect of education .i.e. distance education
- First, the sub-section states “reproduction” of education materials. The educator must be given some rights to communicate it with the learners.
- By replacing the term “reproduction” with “utilization”, this would cover all communication through reproduction as well as digital media.
- In the second phrase it covers literary, dramatic, musical or artistic work. It should cover cinematographic films and sound recordings related to educational purpose. This would prevent misuse of educational materials.
- The phrase “course of instruction” is vague regarding the distance and digital education purposes. This would work as hindrance for illiterate people and its concept mismatch the concept of education policy[xxix].
The 3rd exception for educational purposes is, section 52 (i)[xxx]. This provision creates a little obstruction in distance learning programs, as the phrase convey a territorial understanding of the use of sound and video recordings. These must be expanded to cover all distance learning educational programs. Secondly, the phrase “directly connected” with institution creates some kind of confusion for the students who are connected with the institution through part-time courses, adult learning programs and etc. This type of language creates complications, that whether these sound and cinematographic recordings should be used in other educational institutions to enhance the knowledge of the students.
And, the final relevant exception for educational purposes is section 52 (p)[xxxi] . In this provision the phrase “sixty years from the date of the death of the author” is a narrow exception. This provision hinders to enhance the research work because it requires the material stored in public libraries. Indeed, these provisions are inflexible to support the education policy of India. It frustrates the distance and digital education which promises to fill the educational gaps and lead the country into new stages of development.
It is clear from this paper that education is essence of the society. Importance of education was emphasized in the Neethi Shatamakam by Bharthiaritirsh Secretary in the following order (transaction) “Education is the special ministration of a man. Education is the treasure which can be preserved without the fear of loss. Education secures material pleasure, happiness and fame. Education is God in carnate. Education secures honor of the hands of the state, not money”[xxxii]. The inferences which are mentioned regarding the copyright policy are very essential for the interest of the general public. The amendment should be made to disseminate education at a large prospective which will help India to reduce illiteracy. The copyright law and education are co-existence and it is required to maintain the balance between the both.
[i] Universal Declaration Of Human Rights, Article 26, at https://www.un.org/en/documents/udhr/(Last visited on 19th November 15:00 hrs)
[ii] Logan v. U.S., 144 U.S. 263 (1892)
[iii] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 746  SCR (2) Page 511-518 (emphasis added)
[iv] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 746  SCR (2) Page 511-518 (emphasis added)
[v] Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others AIR  SC Page 2178
[vi] Ministry of Human Recourse Development, at https://mhrd.gov.in/nme_icthindi (last visited on 13th June 2014 at 16: 45 hrs)
[vii] The Ministry of Human Resource Development, to enhance education stated an education helpline Sakshat it takes care of the learning materials. Under this helpline they evaluate the quality of e-content, creating interactive educational video tapes, labs and laboratories for the benefit of the students making use of distance learning programs. They basically provide education to the poor people in the remote areas through internet. At (https://www.sakshat.ac.in/) last visited ( 16th October 2014 at 18:30 hrs)
[viii] The National Mission Enhanced Learning (NPTEL), phase II and III will also help to enhance the e-content. Now phase II has proposed 1016 new courses in engineering and science and humanities.
[ix] The project name “Ekalavya” by IIT Bombay, which provide video tapes of classes of IIT Bombay, to student outside IIT’s. And the videos of these lectures are also available on NEPTEL website
[x] In a survey conducted by HRD ministry on the piracy of educational materials it has been observed that piracy of book depends on two factor (i) price and (ii) its popularity. And the types of books which are generally pirated are medical, law engineering and other professional books. But, it has been discovered that NCERT books are also pirated at a large scale; even the prices of these books are low
[xi] Sony Corporation v. Universal City Studious 464 US 417(1984)
[xii] Consumer Union Inc v General Signal Corporation 724 F 2d.104414
[xiii] Marcus v Bowley 695 f. 2d 1429
[xiv] New Era Publication Int’l Inc v Carol Publishing Group F 2d 152, 158
[xv] A. Kapczynsk (Yale university), on Access to Knowledge Mobilization and the New Politics of Intellectual Property
[xvi] TRIPS Preamble
[xvii] The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge, and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. (https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm) (Last Visited 16 September 2014 at 17:45 hrs)
[xviii] Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. (https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm) (Last Visited 16 September 2014 at 17:00 hrs)
[xix] Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.( https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm) (Last Visited 16 September 2014 at 18: 00 hrs)
[xx] Para 20
[xxi] Para 19
[xxii] India was 1st signatory at the Berne Convention. Article 10(2) has been recognized as teaching exception, incorporated in TRIPS agreement as Article 9(1) 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 utilization, 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 utilization is compatible with fair practice.
[xxiii] The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.
[xxiv] (h) the reproduction of a literary, dramatic, musical or artistic work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;
[xxv] For eg. The Royal Commission suggested the UK government should work with government of other countries and with the British publishers for the establishment of new system which provide free use of copyright materials (learning materials) for the public interests activities like public health, non-profit educational research and etc.
[xxvi] Copyright Act, Section 44
[xxvii] Copyright Act, Section 32.2(1) (e)
[xxviii] Ieuan G Mahol, Copyright infringement in the USA, in Copyright Infringement, 437 (dennis Campbell & susan cotter, eds, Kluwer Law International 1997)
[xxix] For eg. A educational institute which provide distance learning programs through cinematographic and sound clips through their website and asks enrollment number to login. And a person rather than of that program or course want access that video to learn something will not able to access due to “course of instruction” i.e. enrollment number.
[xxx] The performance in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a record, if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution
[xxxi] The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access:
Provided that where the identity of the author of any such work or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more authors than one is known from the death of such of those authors who dies last.
[xxxii] Dr. Panday J.N , Constitution Law Of India, Page 317, 51st Edition