Copyright Trap Purchases: Publisher Rights, Photocopying Defences & Commercial Suits

The Hundred-Rupee Copy: Publishers, Photocopy Shops and What a Trap Purchase Can and Cannot Prove under the Copyright Act

Summary: This article examines copyright infringement suits brought by textbook publishers against small photocopy shops on the basis of a single test purchase. It considers whether the publisher has proved ownership of copyright through a valid written assignment or exclusive licence, rather than relying solely on its imprint or an assertion in the plaint. It distinguishes evidence that a shop was willing to make a copy on request from proof of repeated commercial copying, wider piracy, electronic storage or quantifiable losses. The article also discusses the evidentiary limits of a UPI payment screenshot and the certificate requirements for electronic records. It then examines the educational exceptions under Section 52 of the Copyright Act, including the Delhi University photocopy litigation, without treating those exceptions as blanket permission to reproduce entire textbooks. On procedure, it addresses specified-value jurisdiction, pre-institution mediation, documentary disclosure, the Statement of Truth, strict written-statement deadlines and territorial jurisdiction. Finally, it considers proportionate injunctions, damages, delivery-up of equipment and criminal exposure. The central argument is that copyright protection against proven wholesale copying is justified, but a publisher must establish its title, the particular infringement alleged and a proportionate evidentiary basis for the remedies sought.

Brief

A publisher of university textbooks hears that a photocopy counter outside a college is copying its books for students. It sends two members of its staff to the counter, posing as ordinary customers. They ask for a copy of one of its titles, take the copy, pay about a hundred rupees through a UPI app and keep the screenshot. A legal notice follows, demanding a few lakh rupees. When the shopkeeper denies the allegation, the publisher files a commercial suit under the Copyright Act. It asks for a declaration, a permanent injunction covering its entire catalogue of more than a hundred titles, delivery-up of the shop’s “storage devices”, rendition of accounts, damages with interest and costs. It also obtains an exemption from pre-institution mediation on the ground that it needs urgent interim relief.

Suits of this kind are now common in the commercial courts, and they usually end in a quiet settlement. This article examines them on their merits, from both sides. It asks who owns the copyright in a textbook written by a panel of college teachers. It asks what a single trap purchase proves, how far Section 52 protects the photocopier, and how the procedural discipline of the Commercial Courts Act, 2015 applies to a claim worth, on its own evidence, the price of one book. It closes with what the shopkeeper, the publisher and the practitioner should actually do.

Introduction

Much of the Indian writing on photocopying and copyright begins and ends with the Delhi University photocopy case. That case decided an important question, whether the preparation of course packs for students is protected by Section 52(1)(i), and decided it in favour of access to education. But it was fought between large international publishers and a licensed photocopy shop inside a university campus, over course packs compiled from excerpts. The suits now reaching the commercial courts are different in almost every respect. The plaintiff is usually a regional publisher of syllabus textbooks. The defendant is a small counter in a taluka town. The allegation is not of course packs but of whole-book copying. And the evidence is not a seizure or a survey, but a single purchase arranged by the plaintiff itself.

Those differences change the questions that matter. The fair-dealing debate, on which most commentary concentrates, is often the weakest part of the shopkeeper’s case, because copying an entire textbook for a customer who is not a student is hard to fit within Section 52. The stronger questions lie elsewhere. The first is whether the publisher has shown that it owns what it sues on. The second is whether a copy that the plaintiff’s own agent asked for and paid for proves the infringement pleaded, as distinct from the infringement the plaintiff has manufactured. The third is whether a plaint built on one transaction satisfies the disclosure and verification requirements that the Commercial Courts Act imposes on every commercial suit.

The author’s own view is that publishers are entitled to protection against wholesale photocopying of their textbooks, and that courts are right to take such piracy seriously. The argument of this article is narrower. A publisher who wants the court’s protection must first prove its title from the authors. It must plead and prove the infringement it alleges rather than infer it from one engineered visit. And it must not expect a claim worth a few hundred rupees on its own evidence to carry an injunction over its entire catalogue and the seizure of a small trader’s computers.

Part I — Who owns the copyright in a textbook?

The starting point is Section 17 of the Copyright Act, 1957. Subject to its provisos, the author of a work is the first owner of the copyright in it. The provisos that displace the author are narrow. They cover works made under a contract of service or apprenticeship, works made for a newspaper or periodical by an author employed by its proprietor, and works made at the instance of the Government or certain public bodies. A textbook written by teachers of different colleges, who are not employees of the publisher, falls under none of them. The Supreme Court explained the scheme of first ownership under Section 17 in Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association, (1977) 2 SCC 820. On the plain words of the section, the copyright in such a book begins with its authors, not with the house that prints it.

A publisher acquires copyright only by assignment, and Section 19(1) is strict about form. No assignment is valid unless it is in writing and signed by the assignor or his duly authorised agent. Section 19 then fills in the terms the parties leave out, and those terms are frequently overlooked in litigation. Under Section 19(5), if the period of assignment is not stated, it is deemed to be five years from the date of assignment. Under Section 19(6), if the territorial extent is not stated, it is presumed to extend to India. Under Section 19(4), if the assignee does not exercise the rights assigned within one year from the date of assignment, the assignment of those rights is deemed to lapse after that period, unless the assignment provides otherwise. A publisher relying on a short-form author agreement executed some years earlier may therefore find that the instrument, on its own terms, no longer gives it what it claims.

Many publishing arrangements are not assignments at all but licences, and that matters for the frame of the suit. Section 54 includes an exclusive licensee within “owner of copyright” for the purposes of the civil remedies chapter. So an exclusive licensee can sue. But Section 61(1) then requires that, in every suit for infringement instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant. The owner so joined has the right to dispute the licensee’s claim. A publisher who is in truth only a licensee, and who sues without joining the authors and without seeking the court’s direction, has filed a suit with a defect that Section 61 itself identifies.

Publishers often answer the question of title by pointing to the book: their name is on the cover and the imprint page says “All rights reserved with the publishers”. Section 55(2) does give that printed name some evidentiary weight, but the weight is precise. Where a name purporting to be that of the author or the publisher appears on copies of the work as published, the person so named is presumed, unless the contrary is proved, to be “the author or the publisher of the work, as the case may be”. The presumption is of authorship or of publication. It is not a presumption of ownership of copyright. A publisher named as such on the imprint page is presumed to be the publisher, which nobody disputes. Where the same title page names a panel of authors, the presumption under Section 55(2) works the other way: those authors are presumed to be the authors, and therefore, under Section 17, the first owners.

Registration does not cure the gap, because in most of these cases there is none, and it is not compulsory in any event. Section 45 makes registration optional. Under Section 48, entries in the Register of Copyrights are prima facie evidence of the particulars entered, which is why registration is worth having. But a plaintiff that has neither a registration nor a written assignment is left with its own assertion in the plaint that “the plaintiff has the copyright”. That is a conclusion, not a pleading of the facts from which title follows.

At the interim stage, courts sometimes accept a publisher’s prima facie claim where the authors are not disputing it. That is a pragmatic view, and a publisher can usually cure the defect by producing its author agreements. In a commercial suit, however, the time for producing them is the date of the plaint, as Part IV explains, and a plaintiff that has not done so cannot assume that the court will overlook the gap.

Part II — What a trap purchase proves, and what it does not

Test purchases are an established method of gathering evidence in intellectual property cases, and courts do not treat them with suspicion merely because they were arranged by the plaintiff. A trap purchase can legitimately show that the defendant was willing to make an infringing copy on request, and that is often the inference the plaintiff asks the court to draw about the defendant’s general course of business. The shopkeeper should not expect a court to disregard such evidence altogether. But the evidentiary value of a trap purchase is limited by what it actually establishes, and three limits deserve attention.

The first concerns the copy itself. Section 51(a)(i) treats copyright as infringed when a person, “without a licence granted by the owner of the copyright”, does anything that the owner has the exclusive right to do. Where the only copy proved was requested and paid for by the plaintiff’s own agent, acting on the plaintiff’s instructions, there is a respectable argument that this particular reproduction was made with the owner’s consent. It is difficult for the owner to say that the act it procured caused it any loss, since the copy it bought would never have been a sale of the original book. The argument has its own difficulty. Section 30 requires a licence to be in writing, and a publisher will say that it gave no licence but only gathered evidence. The better way to put the point, therefore, is not as a complete defence but as a limit on what the plaintiff can claim. A trap copy may be evidence of willingness. It is not, by itself, evidence of past copies sold to real customers. And it is no measure of damage, because the plaintiff lost nothing by it.

The second limit concerns the method of copying, which is often pleaded with more confidence than the evidence allows. A plaint in these cases will typically allege that the defendant printed the book from an electronic copy stored on his computer, because that allegation supports the more drastic reliefs: delivery-up of storage devices and an inference of continuous, repeated reproduction. Storing a work in any medium by electronic means is itself a reproduction under Section 14(a)(i), so the allegation, if proved, matters. But it has to be proved. It is not unusual for the copy annexed to such a plaint to bear the marks of the physical book it was taken from, such as a library stamp or a return-date slip. Those marks show that the photocopy was made from a printed book carried to the counter, not printed from a stored file. When the plaintiff’s own annexure contradicts its pleading on this point, the contradiction goes to the core of the case for seizure and to the credibility of the verification.

The third limit concerns the evidence of payment. The usual proof is a screenshot of a UPI transaction. A payment record proves that a sum was paid to the shop at a particular time. It does not prove what was copied, from what source, or how much of the work. And a screenshot is secondary electronic evidence. Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 65B of the Indian Evidence Act, requires the certificate prescribed by that section for the admissibility of such evidence. The Supreme Court held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, that the certificate is a condition of admissibility of secondary electronic evidence under the corresponding provision of the old law. A plaintiff that files only a printout of a phone screen will have to cure the defect before the document can be read in evidence.

None of this means that a trap purchase is worthless. If the plaintiff proves title, and proves through its witnesses that a whole book was copied on request for a price, a court is likely to restrain the defendant from doing it again. Where infringement is made out, the grant of an injunction usually follows, as the Supreme Court indicated in Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90. The limits matter at the next step. They prevent one engineered transaction from being treated as proof of a business of piracy across a catalogue of a hundred titles, and from being converted into a large award of damages.

Part III — Section 52 and the photocopier

Two clauses of Section 52(1) are relevant to a photocopy shop near a college. Clause (a)(i), as amended in 2012, protects fair dealing with any work, other than a computer programme, for the purpose of “private or personal use, including research”. Clause (i) protects the reproduction of any work “by a teacher or a pupil in the course of instruction”. Clause (i), unlike clause (a), is not expressly conditioned on fair dealing.

The Division Bench of the Delhi High Court considered both clauses in The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services, RFA(OS) 81/2016, decided on 09.12.2016 (2016:DHC:7940-DB). It read “in the course of instruction” as covering the entire process of instruction during a semester, not merely the lecture in a classroom. It held that the clause could be invoked even though the photocopying was done by a shop rather than by the teacher or pupil personally. As the Court put it, teachers and students are not expected to install photocopiers of their own. What mattered was whether the material reproduced was justified by the purpose of instruction, and the Court sent that question back for trial. The publishers in that case later withdrew their suit.

The decision is often cited as if it settled that a photocopy shop serving students can never infringe. It does not go that far, and a practitioner defending a whole-book suit should not present it that way. The Division Bench was concerned with course packs compiled from portions of many works for a defined course. It left open the separate question of copying whole books, which the plaintiffs had been allowed to raise by amendment. And the protection under clause (i) is tied to instruction, so its natural beneficiary is a student or teacher, or a shop acting for one. Where the only customer proved is the plaintiff’s own employee posing as a student, the person for whom the copy was made was not a pupil and was not in the course of instruction. The same difficulty arises under clause (a)(i): copying an entire current textbook for a stranger is not readily described as fair dealing for that stranger’s private use.

Section 52 nonetheless has a real role in these suits. It answers the plaintiff’s attempt to treat the shop’s location as evidence of wrongdoing. A plaint that says the defendant’s business “is situated at a location where he would have numerous students as customers” is pleading the context in which the statute expressly permits copying, not a reason to infer infringement. And Section 52 bears on the scope of any injunction. An order that restrains a photocopy counter outside a college from photocopying anything from the plaintiff’s publications would prohibit acts that Section 52 allows. Any restraint should be confined to the reproduction of complete books, or of substantial portions, of identified titles that the plaintiff has shown it owns.

Part IV — The commercial suit: mediation, valuation and disclosure

A suit relating to intellectual property rights is a commercial dispute under Section 2(1)(c)(xvii) of the Commercial Courts Act, 2015. It goes to the Commercial Court if it is of the specified value, which since 2018 has been not less than three lakh rupees. For a suit in which the relief relates to an intangible right, Section 12(1)(d) provides that “the market value of the said rights as estimated by the plaintiff” is to be taken into account in determining the specified value. The plaintiff’s own estimate therefore largely determines the forum. That may explain why claims for damages in these suits tend to settle at a figure a little above the threshold, whatever the evidence of loss. A defendant can point out that the claimed figure bears no relation to the only transaction proved. But he should not expect the court to reject the plaintiff’s estimate of value merely because it is generous.

The more significant procedural question is pre-institution mediation. Section 12-A makes it mandatory for a suit that does not contemplate urgent interim relief, and the Supreme Court held in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1, that a suit filed in breach of it is liable to be rejected. In Yamini Manohar v. T.K.D. Keerthi, (2024) 5 SCC 815, the Court added that a plaintiff cannot avoid mediation merely by praying for urgent relief. The commercial court may examine whether the prayer is a disguise to get over Section 12-A, though it is not to deny the exemption merely because interim relief is ultimately refused. In Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd., 2025 INSC 1256, the Court then held that where infringement of an intellectual property right is continuing, delay in filing the suit does not by itself negate urgency.

After Novenco, a defendant who argues only that the publisher waited two or three months before suing is unlikely to succeed. The better argument is that the plaint does not disclose any continuing infringement at all. Where the only act alleged is one trap visit, where the plaintiff itself gave a notice inviting a reply and then waited, and where no ex parte relief was pressed when the suit was filed, the plea of urgency rests on an assumption of continuing piracy that the plaint does not support. Even so, practitioners should treat a Section 12-A objection in these cases as a supporting point. It is not one on which the defence should stand.

Disclosure is where the commercial suit is least forgiving to the plaintiff. Order VI Rule 15A, as applicable to commercial disputes, requires every pleading to be verified by a Statement of Truth in the form set out in the Appendix to the Schedule to the Act. A pleading not so verified may be struck out, and the party cannot rely on it as evidence. Order XI Rule 1, as applicable to commercial disputes, requires the plaintiff to file with the plaint a list of all documents in its power, possession, control or custody pertaining to the suit, with a declaration on oath that all such documents have been disclosed. Order XI Rule 1(5) then provides that a plaintiff shall not be allowed to rely on documents in its power, possession, control or custody that were not disclosed with the plaint, save with the leave of the court on establishing reasonable cause for the non-disclosure.

In a copyright suit by a publisher, the most important documents in its possession are its agreements with the authors. If the plaint is accompanied only by a payment screenshot, the photocopy, the legal notice and the reply, the plaintiff has not disclosed the documents on which its title depends. It will need leave, on reasonable cause, to produce them later. A defendant should therefore make the absence of title documents his first point in the written statement, and should resist any later attempt to introduce them without a proper explanation.

The same discipline applies to the defendant. Under the proviso to Order VIII Rule 1, as applicable to commercial disputes, the written statement must be filed within thirty days of service of summons. The court may extend the time for reasons recorded and on payment of costs, but on expiry of one hundred and twenty days from the date of service the defendant forfeits the right to file it. The Supreme Court held in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210, that this limit is mandatory and cannot be extended. Order VIII Rules 3A and 5, as applicable to commercial disputes, require the defendant to deal with each allegation specifically, to state his own version of events and to give reasons for every denial. Allegations not specifically denied are deemed admitted. A shopkeeper whose written statement simply calls the plaint “false and baseless” may lose a defence that the facts would have supported.

Part V — Where must the publisher sue?

Section 62(2) of the Copyright Act allows a suit for infringement to be instituted in the district court within whose local limits the plaintiff “actually and voluntarily resides or carries on business or personally works for gain”. A publisher at a State capital can therefore ordinarily sue a shopkeeper several hundred kilometres away, in the court where the publisher is based, even though the whole cause of action arose at the shopkeeper’s town.

The Supreme Court qualified that right in Indian Performing Right Society Ltd. v. Sanjay Dalia, (2015) 10 SCC 161. It held that Section 62(2) is meant to enable the plaintiff to sue where it is located, not to allow it to inconvenience the defendant. Where the plaintiff has a principal office at one place and a subordinate or branch office at the place where the cause of action arose, it must sue at the place of the branch office. Regional textbook publishers frequently maintain sales offices, depots or representatives in the university towns they serve. If the plaintiff carries on business at or near the place where the alleged copying happened, the defendant has a real objection to territorial jurisdiction, and the plaint is liable to be returned under Order VII Rule 10. The objection depends entirely on facts, and the defendant should verify them before he pleads it.

Part VI — Damages, delivery-up and the shopkeeper’s computer

Section 55(1) entitles the owner of a copyright that has been infringed to all remedies by way of injunction, damages, accounts and otherwise. Its proviso limits the remedies against a defendant who proves that, at the date of infringement, he was not aware and had no reasonable ground for believing that copyright subsisted in the work. Against such a defendant, the plaintiff gets only an injunction and a decree for the whole or part of the profits made by the sale of infringing copies. The proviso will rarely help a photocopier of textbooks, since textbooks carry a copyright notice on the imprint page. Its value lies in showing how the statute measures liability: by profits and loss, not by an arbitrary figure.

On that measure, the claim in a typical trap-purchase suit is very small. The plaintiff proves one copy, made for its own agent, for a sum of about a hundred rupees, of a book whose printed price is a few hundred rupees. Unless it leads evidence of other copies, of lost sales or of the defendant’s profits, the compensatory claim cannot exceed that order of magnitude. Exemplary or punitive damages are an exceptional remedy, reserved for flagrant and large-scale infringement. They are not a substitute for proof of loss in a case where the only transaction was arranged by the plaintiff. And interest on unliquidated damages from the date of the suit has no basis, because nothing is due until the court has assessed the damages.

The relief most likely to cause real harm is delivery-up of “storage devices”. For a photocopy counter, its computers and printers are the business. An order directing their delivery, or the appointment of a local commissioner to seize them, would shut a lawful trade, most of which consists of copying documents that raise no copyright question at all. Courts considering interim relief apply the familiar tests of prima facie case, balance of convenience and irreparable injury, and exercise their discretion as Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, requires. On those tests, an order of that kind is disproportionate unless there is evidence that infringing files are in fact stored on the machines. If the plaintiff’s own annexure shows that the copy was taken from a printed book, the case for such an order is weak.

Shopkeepers should also understand that the civil suit is not the only exposure. Section 63 makes knowing infringement an offence punishable with imprisonment of not less than six months, which may extend to three years, and a fine of not less than fifty thousand rupees, which may extend to two lakh rupees. Section 64 empowers a police officer to seize infringing copies without a warrant. Legal notices in these matters often mention Section 63 for its effect on the reader. Even when the civil claim is weak, a shopkeeper should not ignore the risk of a criminal complaint, and he should take advice as soon as he receives a notice that refers to it.

What is to be done

For the photocopy shopkeeper, the first step is to stop copying complete textbooks for anyone, including strangers who ask, and to say so plainly at the counter. That step costs a legitimate business very little, and it denies the publisher further evidence. Once a suit is filed, the second step is to preserve everything and destroy nothing: files, devices, CCTV footage and payment records. Deleting material while a suit is pending invites an inference far more damaging than the material itself. The written statement should be filed well within thirty days of service. It should deal with every paragraph of the plaint, admit what cannot honestly be denied, such as the receipt of a UPI payment, and deny only what the defendant can stand by. It should take the points of title, disclosure, jurisdiction and damages first. Where the shopkeeper does not in fact copy whole books, a statement to that effect at the interim stage, made without prejudice and without admission, often disposes of the injunction application and narrows the suit to the questions on which the plaintiff is weakest.

For the publisher, the lesson is that a commercial suit is won on documents filed with the plaint. Before suing, it should collect the written agreements with every author whose work it relies on, and check them against the default rules in Section 19 on duration, territory and lapse. It should consider whether it is an assignee or only a licensee, and if a licensee, join the authors under Section 61. It should file the agreements, the original book and a properly certified copy of the electronic evidence with the plaint, together with a Statement of Truth and the declaration required by Order XI. It should confine the suit to the titles it can prove were copied. And a publisher seriously concerned about photocopying near colleges may find that collective licensing through the Indian Reprographic Rights Organisation, which offers licences to institutions and copying establishments, protects its revenue more reliably than a series of suits against individual shops.

For the practitioner on either side, the useful discipline is to separate the questions. Title, the act of copying, the defence under Section 52, the procedural requirements of the Commercial Courts Act and the measure of damages are distinct issues, and the evidence on each is different. Suits of this kind tend to be argued as a single contest between piracy and access to education. They are usually decided on the narrower points.

Closing

The photocopy counter outside a college is a necessary part of student life, and it is also an easy place for piracy. The law tries to hold both truths together. Section 52 protects copying in the course of instruction and for private study. The rest of the Act protects authors and their publishers against the wholesale reproduction of their books. A trap purchase sits uneasily between the two, because it shows what a shop was willing to do for one customer who was not a student, not what it did for the students it actually serves. Courts are right to stop piracy when it is proved. They are equally entitled to ask the publisher to show, with documents and not assertions, that it owns the copyright it sues on, and that it has proved the infringement it alleges rather than the one its own staff arranged. The hundred-rupee copy may justify an injunction. It does not, by itself, justify a claim for a few lakh rupees or the seizure of a shopkeeper’s computers.

The author is an advocate practising at Ahmedabad. Views are personal. Nothing in this article is legal advice on any particular set of facts, and readers are requested to verify the current position of the statutory provisions and of the case law before acting on any proposition stated here.

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About the Author & Disclaimer: Mihirkumar V. Patel is an independent Advocate practising before the Gujarat High Court, DRT, DRAT and City Civil Court, specialising in tax, commercial, banking, RERA, arbitration and recovery disputes. Email: [email protected]. Views expressed are personal and do not constitute legal advice. Readers should verify applicable laws and judicial precedents before relying on this article.