A huge debate is raging across the world on the meaning of “Fair use” of Copyright  in the context of “Education”. Chennai High Court is now in a position to contribute to this debate and make a mark in the history of evolution Copyright Laws in the global scenario when it takes up for debate the Oracle Corporation Vs Radiant Software case in the beginning of the New Year. Whether it will stand as a “Land Mark” judgement or not depends on how the legal fraternity in Chennai will be able to put across their viewpoints in the Court and their ability to draw the attention of the learned judges to substantive points of law involved in the case. 

Long before the current controversy in India, the following statement was made by  a group of Chief Executives of the California State University (CSU), the State University of New York (SUNY), and the City University of New York (CUNY) in an effort to protect the Educational system from the onslaught of overzealous Copyright protectors.

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” The fundamental mission of higher education is to advance and disseminate knowledge. This mission is realized through the use of various information formats, learning environments, and modes of delivery without unreasonable copyright restrictions.”

In defining the  objective of “Copyright Protection”, the US Constitution states

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[The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Thus the fundamental raison d’etre for the existence of “Copyright Laws” is the “Promotion of Progress  in Science”. It is in this context that the role of “Education” comes to the fore as the main tool of the society to promote the progress of science and arts. It is in recognition of this role of education that “Copyright Laws” have always treated “Education” as a special category of usage and provided for certain special provisions.

Some of these provisions are already enshrined in the statute itself while the “Doctrine of Fair Use” further adds to the explicit provisions.

Section 107 of the Copyright Act of 1976. (USA) explains the term of fair use thus:
 

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in 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 determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Emphasis added)

Indian Copyright Act 1957 states  under Sec 52 (1)(aa)  as follows:
 

(1) The following acts shall not constitute an infringement of copyright , namely:-

(aa) the making of copies  or adaptation of a computer programme by a lawful possessor of a copy of such computer programme, from such copy-
(i) in order to utilize the Computer programme  for the purpose it was supplied or
(ii) to make back up copies …

(ab)..
(ac) the observation, study or test of the functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied.

While referring to the use of Copyright material for the purpose of education, Indian Copyright Act 1957 states as under:
 

 Sec (1) [An Act doesnot constitute an infringement]
(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
(i) the performance in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and the students of the institution, or of a cinematography film or a record, if the audience is limited to such staff and the students, the parents and guardians of the students and persons directly connected with the activities of the institution..

It may be noted that the subsections (h) and (i) donot speak of software. Does it mean that this exemption is not available for software?.. This would be an unreasonable inference. What is more reasonable is that since the original act was not meant for “ Software” and the amendments were  introduced to include “Software”, some portions of the act may not be accurately reflecting the real intentions of the law in respect of software. 

It is also true that the main purpose of passing these amendments were to prevent “Duplication” of “Software” for  “Sale” to prevent “Piracy”. In view of this, other cases such as “Educational Use”  inter-alia involving “copying” was not specifically covered by the law.  

If we consider that by the nature of the amendments brought in, it was the intention of the law makers to include “Software” as one of the objects of “Copyright Protection”, (This is also corroborated by the sections such as 63B), the “Fair Dealing Concept” should be extended to software also.

Even if we consider that the provisions are vague or insufficient, the “Concept of Fair Dealing” is still applicable.

The Digital Millennium Act passed in  USA specifically to cover the Copyright issues of Software has also provided specific exemptions for educational institutions to some extent. It states as under:
 

(d) EXEMPTION FOR NONPROFIT LIBRARIES,  ARCHIVES, AND EDUCATIONAL INSTITUTIONS-

 (1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph--
(A) may not be retained longer than necessary to make such good faith determination; and
(B) may not be used for any other purpose.

In interpreting the above provisions we need to consider the following:

1. A Book may be used in teaching by the teacher. While doing so, he may reproduce the book in part or full to help him teach the contents. This is a “Fair Use”. It is only if the copy of the book is sold for a separate consideration that the case of “Infringement for commercial gain” arises.

2. If the teacher charges a fee for teaching a copyrighted work, the fees doesnot belong to the author of the work. It belongs to the teacher for the value addition that he brings. There cannot be a royalty on the income of the teacher.

3. In the case of use of software by educational institutions, we must recognize that the usage of the software is of two types. 

(a) The teacher or the educational institution may use the software for his/its own business. For example, they may use “Word” software for writing letters of the college. 

(b) On the other hand, the “Word” software may also be used to teach students of “How to Use Word”. 

In the Copyright world it is believed that infringement does not depend on whether the “Alleged Infringer” charged money  or distributed the copy freely. It is the purpose for which a copy was distributed and its effect on the original owner that should determine the infringement.

In the case of training of an application software, there is no distribution of software. If copies were  made during the training process, it would be to facilitate training since a software cannot be seen but has to be “Experienced” to understand how it works.  Sec 5(1) (i) of the Indian Copyright Act is clear that a piece of art can be performed in front of the students and related audience without constituting infringement. Since a software can only be made to “perform” by loading it on the Computer, it may be argued that the loading of copies of the software in different machines   in a training establishment doesnot constitute infringement. 

If the loaded software were to be used to keep the corporate information of the institution, then there may be a need for a license.

Another aspect we need to consider is that whether the Copyright owner has lost any remuneration by virtue of the training institution using the software. If a training institute is teaching say “Photoshop”, the trainees can make use of the software only on a machine where the software is “Licensed for use”. Hence the training doesnot affect the sale of the original software but actually promotes it.

The current argument of the software developers seems to indicate that they are not claiming the “Copyright” on the software. They are actually claiming a right of “Exclusive Training”. It is like an author stating that his book can be taught only by him or his licensee. If Newton had said that his principles can be taught only by him and any body else teaching his principles have to pay a royalty to him, imagine what would have been the progress of science which the Copyright vows to promote?

It is the greed of the software developers that has made them  claim the right to define a “user license” specifically for training purpose. No application software may be claimed to have been developed for the purpose of “Training”. It is developed for the purpose of  “Use in an application” and the Copyright can extend only to this basic purpose for which a software was created. If Copyright has to be extended to a “Training Software”, then it has to be exclusively developed for that purpose only. 

An example of such a software is  a multimedia tutor with in built functional demo module of the software. Such a software can be said to have been developed only for the purpose of training and  its usage for training can be copyrighted. In the case of any other software, the purpose for which it is developed and the obligation of the law to protect the legal rights of the author extends in principle only to its use as an “application” and  not its use for training.
A software developer however has the right to run his  own training institute and call it by any name including “Authorized Center”. But he can only determine the “Authorization” in respect of what is within his  own control say on recruiting the trained personnel or use of special training skills and tools. For example, one can say people trained in Microsoft approved colleges alone will be employed by Microsoft. Beyond this the  “Authorized Center” doesnot have a meaning. 
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The next question we can examine is  whether we need to distinguish an educational institution such as an “University” from companies such as “NIIT”. The “Non Commercial Exploitation Clause” in the Copyright act is some times wrongly applied to understand that the concessions meant for “Educational Institutions” are not applicable for corporate training institutes. However this appears to be a restricted view not in consonance with the spirit of the Copyright law. Today, there are no pure philanthropic educational institutions. Every institution charges a fee for imparting or selling education. Some may charge in thousands and some in lakhs. There are many higher learning institutions in India and abroad which charge upto Rs 10 lakh for a two year MBA programme. They donot become a commercial institution just for the reason of such fees.

Weighing all the aspects of the law as they exist and the principles behind them, it therefore appears that there is no “Copyright Infringement” when a software is used in training. There will be infringement only if  copies of the software are distributed as Course material. 
 
This opinion is open for debate and I invite views for and against the above view which can be published in a separate section at naavi.org for the benefit of the understanding of  the society.

Such views can be sent here.

Naavi
January 1, 2001