Copyright

Compulsory Licensing by the Copyright Board: Whither Copyright Expertise?


SpicyIP just discovered that the mother of all compulsory licensing battles is being waged before the Indian Copyright Board, a statutory body entrusted with certain specific tasks under the Indian Copyright Act.

The warring factions involve radio stations (such as Radio City and Radio Mirchi) on the one hand who are seeking to gain compulsory licenses to broadcast music at low rates, and content owners (T Series) or administrators (PPL, IPRS) who wish to peg the rates as high as they possibly can. As noted in previous posts on this blog, this matter went right up to the Supreme Court and Justice Sinha categorically held that there is an automatic compulsory licensing right in favour of the radio stations i.e they could broadcast such music upon the payment of reasonable royalties. The key issue now is: what is a reasonable royalty?

Reasonable Royalty?

At the first instance, the copyright board opined that Rs 660 per needle hour was the royalty to be paid. However, this was challenged as an arbitrary figure, as the Board did not really give sufficient reasons for why it thought that Rs 660 represented a reasonable figure. The Supreme Court therefore quashed the Board’s arbitrary figure (order) and remanded the case back to the Board. In this second inning, one hopes that the Board will consider expert evidence and come up with a well reasoned “reasonable” royalty figure. Apparently a number of expert affidavits have been filed, including that of the noted economist, Bibek Debroy.

While the radio stations wish the rate to be even lower than Rs 600 (and some of them have suggested that it should be 2.5% of the advertising revenues), the recording industry wants to peg it at Rs 2400 per needle hour. However, till such time as the Copyright Board came up with its figure, parties to this dispute have privately agreed to follow the Rs 660 per needle hour figure.

Whither Copyright or Judicial Expertise: A Constitutional Challenge in the Offing

The substantive merits of this dispute notwithstanding, what really troubles one about this case is the fact that the Board consists of members with little or no copyright expertise. Leading to the question: is there a constitutional challenge in the offing?

Lets first take a look at the full list of Copyright Board members listed out on the Copyright Website. The Board shall consist of the following members:

1. Dr. Raghbir Singh (Chairman)

2. Joint Secretary to the Government of India, in charge of Copyrights, Ministry of Human Resources Development (Member)

3. Joint Secretary and Legislative Counsel, Ministry of Law & Justice (Member)

4. Law Secretaries to the Government of Haryana, Gujarat, Maharashtra. Kerala, Bihar and Uttaranchal (6 Members)

5. Directors of the various leading National laws in India (5 Members)

From the above list, a Board consisting of 3 members is normally constituted to hear specific matters under the Copyright Act, when the need arises. For the current compulsory licensing dispute, the Board consists of Dr Raghbir Singh (Chairman), Secretary to Union Law Ministry, and Law Secretary, Govt of Bihar. To the best of my knowledge, none of them have had any prior copyright expertise or experience.

Why is it that the Board does not include at least one person with decent copyright expertise? Its not that this country lacks folks with some experience in this area. What about some of our earlier copyright registrars? Two excellent names immediately come to mind: Zakir Thomas (author of the legendary “no copyright over fonts” decision and now advisor to the CSIR on its OSDD project) and Madhukar Sinha (now a professor with the Center for WTO Studies).

Given the lack of copyright expertise, can one question the constitutional validity of such a body? Perhaps the case concerning the constitutional challenge to the constitution of the Competition Commission might help in this regard?

For those interested in a quick overview of this case, in Brahm Dutt vs Union of India, the petitioner challenged the constitution of the Competition Commission on the ground that although it was vested with judicial functions, it was to be headed by a bureaucrat. This contravened the constitutional scheme of separation of powers. Although the Supreme Court agreed with the Petitioner, it refused to rule on the matter, since the government undertook to pass amendments to create a separate appellate body that would be vested with judicial functions. The resulting competition commission would then be a purely regulatory body.

How does all this apply to the case at hand? Sections 11 and 12 contemplate judicial functions for the Copyright Board. Cannot a similar argument be made here: that the Board must be presided over by a judicial officer to be appointed by the judiciary?

Qualifications of Chairman: Breach of Copyright Act?

Secondly, the Copyright Act clearly states that the Board shall have the powers of a civil court and that the proceedings shall be in the nature of judicial proceedings. But the composition of the Board outlined above does not appear to possess any judicial expertise (I could be mistaken in this assumption..so please feel free to correct me).

Thirdly, and perhaps most importantly, the Copyright Act (section 11.3) clearly states that the Chairman has to be a judge of the High Court, or an ex judge or qualified to be a judge of the High Court.

I’m not entirely sure if the present Chairman, Dr Raghbir Singh fulfills this requirement. But here again, I could be mistaken. What I do know is that Dr Singh was earlier with the IPAB. And prior to this, he appears to have been with the National Commission for Scheduled Castes . Google searches indicate that he possesses a bureaucratic and not a judicial pedigree. For those who have more information on this, please do share. For if the Chairman is not so qualified, it is a serious contravention of the Copyright Act. And all the proceedings of the Board so far will be null and void.

Conclusion

The Government of India ought to seriously review the constitutional implications of such a Board with no real copyright expertise. For it will be a criminal waste of time and resources, if it permitted the Board to continue with its proceedings only to find at the end that it suffered from serious constitutional infirmities.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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