Maharashtra's Copyright Policy Makes Education Unaffordable

The article was published in Asia Times on June 20, 2018.

The stated object of the policy is to prevent commercialization of Balbharati’s physical and digital material.

Balbharati is responsible for setting curriculum and content for Classes 1-10, which is followed by Maharashtra state board schools. It is estimated that that around 85,000 schools in Maharashtra follow Balbharati’s prescribed content and syllabus, and the policy is set to affect students’ access to affordable supplementary material in state board schools, especially – most of which belong to the vernacular-rural section of society.

The government faced a backlash from various groups after the policy was released last week.

Parents have expressed serious concerns about the impending increase in the prices of educational material; publisher groups have already declared that the burden will be passed on to students. Some booksellers have stopped selling material altogether until the issue is resolved.

Digital and print publishers, booksellers and coaching classes are the ones directly affected, apart from the students, some of whom have lodged appeals with the state education minister, Vinod Tawde, to roll back the policy. Faced with the ire of multiple groups, the state government released a revised policy with a new license-fee structure. The new structure is based on “Balbharati Specific Turnover” slabs (defined as turnover of an entity from Balbharati related content), which depends on the nature of content produced – physical, digital, or tuition classes content.

A license is required of any person involved in the business of developing educational material such as guides, reference books, questions or tests, chapter summaries, model practice question papers, interactive digital content and software, with fees chargeable on a per subject, per medium, per grade basis.

The revisions to the policy only allow for a reduction in licensing fees, and it is likely that the government is still in ignorance of serious legal defects in it. Drafted with support from global consulting firm KPMG, the policy uses copyright as an instrument to justify the collection of license fees by making two fallacious assumptions: first, that all material produced by Balbharati is copyrightable; and second, that any dealing in Balbharati’s material, directly or indirectly, amounts to copyright infringement.

For example, the English Kumarbharati for Class 10 uses Tagore’s historic poem “Where the mind is held without fear…,” which is a work in the public domain now, and then proceeds to provide certain academic exercises for the reader.

Similarly, for science and mathematics syllabi, where basic facts and fundamental principles are provided and explained, is the Maharashtra government trying to establish copyright over such material, implying that this is creative material that has been developed by Balbharati’s staff?

Much of the content in Balbharati books deals with subjects that have been known to mankind for hundreds of years. Copyright law protects only expression of ideas, and not the ideas per se. Any supplementary material developed by another publisher over Balbharati’s syllabi should not amount to infringement, provided it is not a substantial copy-paste of Balbharati’s own expression in the books – and this is a conservative view of the scenario.

Indian copyright law

In fact, the Indian Supreme Court in the Eastern Book Company vs Modak (2008) case held that, “to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. Selection and arrangement can be viewed as typical and at best result of the labor, skill and investment of capital lacking even minimal creativity, which does not as a whole display sufficient originality so as to amount to an original work of the author.

“To claim copyright, there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available and author selects one of them.”

Thus the policy fails to appreciate fundamental developments in Indian law and places a barrier to creation of all kinds of educational material – without distinguishing between various kinds of supplementary material and showing precisely as to what nature and quantum of use as per Balbharati would qualify as infringing.

Interestingly, the previous version of the policy contained an FAQ (frequently asked questions) section that elaborated principles of copyright law. However, this section has been removed in the latest version. In any case, the FAQs presented incomplete explanations of Indian copyright jurisprudence, making references to outdated case law.

As noted earlier, publishers and digital content development companies are already suffering from the ramifications. In places where the quality of classroom teaching and learning is sub-par, it is unacceptable to deprive students access to affordable guides, reference books, digital content, and so on by unreasonably deeming indirect usage of Balbharati’s content as infringing activity.

Given India’s socio-economic conditions, it would be fatal to implement policies that seek to create a self-serving market of educational licenses for the state, very much at the expense of ensuring quality and affordable education. At the very least, the Maharashtra government should have conducted a proper public-consultation exercise before arriving at such a policy that stands to affect students and other stakeholders in the education system adversely.