necessary interventions

The Delhi University copyright case (University of Oxford v. Rameshwari Photocopy Services CS(OS) 2439/2012) demonstrates that litigation’s involving issues of intellectual property go beyond mere private adjudications and involve larger issues of access to knowledge and public interest. This court case arises from the alleged unauthorised copying of articles and scholarly literature prescribed in courses by the Delhi University. Here the Publishers who claim a copyright over this literature have alleged that the concerned photocopy shop made course packs of these copyrighted materials and then sold it to students at a fraction of the cost without paying them any royalties. The implications of this case are tremendous given that any determination in this case will have a precedential value impacting course-packs sold to students all over the country.

The litigation as was originally filed in the Delhi High Court only concerned the publishers as the plaintiffs and the Delhi University and the photocopy shop owner as the defendants. Even though the students who were the primary beneficiaries of such course packs being directly impacted by the result of the litigation were not made a party to the case either individually or through a group.

However this situation was sought to be remedied when an application for impleadment was filed by a group called the Association of Students for the Equitable Access to Knowledge. A copy of this impleadment application has been put up online by SpicyIP and can be accessed here.

Such an application is essentially a procedural requirement, which when successful allows the person making it to become a party to the case. It is broader relief and distinct from an application for intervention which only allows such person to make submissions on the applicability of the legal provisions and not on the facts in the matter. The application filed by the students also allows them to ask for independent reliefs not being limited to the ones which have been asked by the existing plaintiffs and defendants.

Predictably the publishers objected to this group of students impleading as parties in what they considered was essentially a private dispute. However, the Delhi High Court allowing this group to become a party to the case held that when injunctions as claimed by the Publishers are granted, a determination on public interest also needs to be made. Reasoning that since the group of students seeking impleadment represent the public interest and will be effected by the determination in the case the Court impleaded them as defendants.

A copy of the the Delhi High Court is extracted below:

1. The counsel for the plaintiffs appears on advance notice and though seeks time to file the reply to the application but considering the nature of the application, it is not deemed appropriate to keep the same pending.

2. The counsel for the plaintiffs, though initially left the matter of impleadment to this Court, but has subsequently argued that though the applicant may be allowed to intervene but not be impleaded as a party. He has also argued that University of Delhi is already a party in the present suit and the interest of the applicant, which is an association of students of the University, can well be looked after by the University.

3. The counsel for the applicant has argued that the purpose of the applicant will not be served by merely permitting intervention and in which they will be entitled to only make legal arguments. It is pointed out that another application has been filed for vacation of the ad- interim order in the suit as the same is affecting the members of the applicant.

4. The counsel for the plaintiff has also argued that the applicant itself is still under the process of registration and has been formed only after the institution of the present suit.

5. This suit is for injunction restraining photocopying by the defendant №1 in the University Campus of the books of which the plaintiffs have a copyright and from creating course packs from the said photocopy material.

6. Though traditionally the test for grant of interim relief was on the touchstone of three ingredients of prima facie case, irreparable loss and injury and balance of convenience but off late as noticed in Smt. Ishmali Devi Vs. Delhi Development Authority MANU/DE/1838/2009, the Courts have introduced the forth element of public interest and the injunctions, even where satisfies the three ingredients, have been refused on the touchstone of the test of public interest.

7. The applicant claims to represent the public interest and being the affected party, it is in the circumstances felt that the presence of the applicant is necessary and proper for adjudication of the present suit.

8. The application is accordingly allowed. The applicant is impleaded as defendant №3 to the suit.

This ruling is significant for it provides recognition that intellectual property litigations are no longer binary duels between the rights holder and the much demonised infringer. They often involve larger issues of public interest. Here it even appears that there is some relaxation in the legal requirements that permit a third party who agitates such public interest to become a party to the litigation. This example needs a wider application and recognition in intellectual property litigation.

The primary reason for this is that most intellectual property litigations succeed not through a completion of legal proceedings but through an interim order which entitled them to prevent the defendants from selling or distributing the goods and services which they claim to be infringing. This interim injunction which is granted often blocks a cheaper substitute sold by the Defendant from the market impacting the wider public. Hence, from the very beginning the public remains an invested party in such litigations.

Let us also factor in some ancillary concerns why a more liberalised system of permitting third parties to engage in intellectual property litigations should be preferred. Even though courts in India have been popular enjoying a positive public perception, structurally they are inherently undemocratic. There is recognition of this in judicial precedent which cautions against adjudication occupying the field of the legislature and entering a policy thicket. However such caution is often treated as a legal fiction in practice, when courts comment, negate and approve government policy. Even when such judicial ambition is absent, the line between policy and the interpretation of statute curves violently and is not drawn with a black felt pen. Hence, when such an undemocratic institution engages in an exercise of examination of public interest it becomes essential for more elements of a democratic practice to be infused in them. In many ways here the impleader becomes a votary and the petition becomes a ballot.

It would be a crass generalisation to suggest that such a system would only be to the benefit of the probable infringer. Such impleadments would allow a diversity of views to be presented before the Court when it has determined the existence of public interest in an adjudication.

An edited version of this post has been published in the Indian Express on May 18, 2013 and can be accessed here.