3.3 TWO CASE STUDIES
We will now study two case studies with great contemporary relevance. Through these studies we hope you will gain a clearer picture of the lacunae in our copyright laws. We hope you will understand the myriad ways in which copyright comes in the way of access to information and acts more as a tool for censorship than one to nurture creative output. Finally, these case studies will set the stage for the alternatives we hope you will gain a holistic understanding of.
3.3.1 The Photocopy Case – Need for a Commons
Consider a reprographics (or photocopy as it is colloquially called) shop in a university campus. Now, students of this university are studying medicine and need to refer to the best textbooks in order to be competent in their craft. The best textbooks are published by the world’s most famous publishing houses and cost exorbitant amounts. This not only places these textbooks beyond the realm of affordability for the students but also means that the library itself can procure just two copies of the textbook. Obviously, these are an inadequate number for students as they need to refer to these textbooks on a near continuous basis. Therefore, the university found a solution to this crisis of access by requesting the reprographics shop (that is a part of the university system) to put together modules that contain excerpts of multiple textbooks that the students need to refer to over the course of their study. These modules are, of course, meant only for the students and are not sold to anybody else. This has irked the publishing houses in question who feel that for every such module produced, they lose revenue. In order to recover this purportedly lost revenue and to make an example of the reprographics shop in an effort to curb the rampant practice of photocopying by students, they sue the shop for copyright infringement. Keeping aside the technicalities of copyright law that this scenario invokes (something we will return to), consider the legitimacy of the practice of photocopying. Further, try and think of arguments both in favour of and against the reprographics shop. A brief overview of the arguments advanced in this case will help in contextualizing what we want to glean from it. The publishers argue that the act of photocopying infringes their copyright over the material and causes economic loss. They extend this argument further by stating that this also harms the academics whose works are being photocopied for a fraction of the price that would have otherwise been paid for the actual book. The defendants respond to both these arguments. First, they state that the current system of copyright benefits the publishing house more than the author as the author gives up his right over the work to the company in return for a one-time royalty of sorts. Even if authors do benefit, a group of more than 300 academics from across the world, including some named in the lawsuit, have come out strongly in favour of the defendant. They have asked for the lawsuit to be dropped as they are in favour of their work being accessible to a wider audience. In a Third World country, like the one this shop is located in, the prices that publishing houses demand for their books are often beyond the means of all but the elite. Authors argue that in instances like this pecuniary interests must give way to the overwhelming public interest in greater access. Second, the defendants have argued that the ostensible economic loss that publishers claim is only an imaginary spectre of loss. The books that are photocopied are often too expensive for students (or even libraries in some instances) to procure for themselves. Photocopying is the only way to obtain access and prohibiting photocopying for the purposes of research would leave the students in the book-less shadows of copyright. We understand from this that even the authors of the copyrighted works are in favour of a more relaxed regime. They understand that the extant regime is one that would, in the long term, diminish the quality of public discourse for the sake of greater profits. They certainly see a modicum of incentive in protecting the idea of copyright but excessively strict regimes also mean that access acquires the status of an incentive.
3.3.2 An Act of Subversion – Copyright and a Police State
At times, excessively strict laws take on a sinister design when coupled with the draconian powers of an overzealous state. Consider the case of a bright young programmer- a child prodigy of sorts who was coding, hacking and programming in his pre-teens. He is not only a bright programmer but also uncannily aware of the larger political climate in which he was operating. This political maturity helped his understand the implications of his work and the change he could effect. He was deeply disturbed by the gravitation towards the privatization of knowledge that he was witnessing in the information economy. On one afternoon, he tapped into the silos of a social science journal database and downloaded millions of articles. He intended to then make these articles accessible on open access sources on the internet. These articles that he downloaded were already to be released to the public domain. This act of resistance and subversion earned the ire of not only the publishers but of his Government which charged him with multiple counts of felony that could have landed him in jail. Copyright protection had never been this sinister. To the government, the fact that these articles were going to be released anyway was a mere inconvenience. They were intent on dealing with the activities of troublesome hackers with a firm hand. The government pursued this case with uncanny efficiency- an efficiency that it reserved not for matters of administration or law making but for cases like this one. Consider the legitimacy of this act. More importantly, think about the broader implications of what this subversion means. Draw historical equivalents with similar watershed moments in history if you so wish to. It establishes a compelling need to move away from the restrictive regimes of copyright that we have today into one that gives more room to breathe to the creators and consumers (with the line between the two slowly blurring) of the digital realm.