SpicyIP’s good friend K.V. Dhananjay, a practising Advocate, at the Supreme Court of India recently brought to our attention the news that the State of Karnataka was planning to enact a legislation to allow for the preventive detention of ‘Video Pirates’ i.e. people who have been charged with copyright infringement under the Copyright Act, 1957 atleast once. The trend of putting away ‘video pirates’ under preventive detention statutes has picked up with atleast three states already having enacted such legislations or contemplating such legislations – Maharashtra, Tamil Nadu and Karnataka.
Some of our readers may remember that a few months ago I had carried a post on a similar such legislation that was passed in Maharashtra. The entire post was based on a ToI newsreport. According to that ToI report the Mahrashtra legislation would make it an offence to even buy a pirated DVD. I was doubtful of the veracity of the report at that time and it was only recently that I managed to access an online version of the said legislation. As was obvious from a reading of the legislation buying a pirated DVD is not an offence. Only the persons distributing and preparing the pirated DVDs can be charged under this proposed legislation
The Ordinance can be accessed here.
As it turns out the ‘legislation’ was not a legislation but an ordinance promulgated by the Governor since the Maharashtra legislature was not in session. This Ordinance was promulgated on July 14th, 2009 which means that it should lapse in 6 months time i.e. by January 14th, 2010 unless it is extended or the legislature passes it through a majority. This Ordinance re-names the the title of the previous legislation to read – Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act. The ordinance defines ‘Video Pirates’ as a “person against whom at least one chargesheet has already been filed under the Copyrights Act, 1957 for infringement of copyrights relating to cinematograph film or sound recording and the Court has taken cognizance of such offence; and who commits or attempts to commit or abets the commission of offence of infringement of copyrights in relation to cinematograph film or sound recording or any part of sound track associated with the film or sound recording, punishable under the said Act.”
Once a person is charged (not convicted!) as a ‘video pirate’ under the Act the State Government may pass an order of detention against the ‘video pirate’. The detention order can place the pirate in detention for a period of 3 months which can be extended for a maximum of 12 months. Once the video pirate is placed under detention his case has to be referred to an Advisory Board consisting of either sitting or retired High Court judges. The legislation specifically states that the video pirate shall not have a right to legal representation before the Advisory Board i.e. no lawyers. If the Advisory Board is satisfied that there is reasonable cause for the Government to hold the person in detention then in that case the detention order is valid. The detainee has no right to approach a local court for bail. At the most the detainee or his representative may challenge, through a habeas corpus petition in the High Court, the manner in which the detention order has been passed. High Courts are usually located only in the capitals of the State and are not as accesible as the local district courts which are present in each and every district of the country. While there are only 21 High Courts in the country, there are over 400 district courts in the Country. The first effect of such preventive detention courts is that it makes it more difficult for those in tier II cities to access justice.
However the most ridiculous feature of these prevention detention legislations is that these detention orders are passed after the mere charging of a person with a crime and not after the trial and conviction of the person! The State Government has lost all sense of proportionality when it come to video piracy.
In the Statement of Objects and Reasons released by the Governor along with the Ordinance the Government of Maharashtra has stated that the reason for introducing such an Ordinance was the fact that the piracy was causing a public order problem and also that the film industry was in ‘severe crisis’ because of the large volumes of ‘video piracy’. More interestingly the Statement reveals that this Ordinance was inspired by a similar legislation passed by the State of Tamil Nadu in 2005.
The inspiring Tamil Nadu legislation goes by the name of ‘The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers & Video Pirates Act’.
This legislation was amended in the year 2004 to include the term ‘video pirate’ and operates on almost the same lines as the proposed Maharashtra legislation. The detention orders of several video pirates have been upheld by the Madras High Court, which has reportedly shared the government’s concern that video piracy posed a public order problem.
ARE THE ‘VIDEO PIRATE’ LEGISLATIONS CONSTITUTIONAL?
In an earlier post we had questioned whether State Governments had the power to pass a legislation pertaining to copyright law. We had noted that “India has a federal setup with the Central and State Government sharing powers. The scheme for sharing of powers between the State and Union government is laid down in the Seventh Schedule to the Constitution of India read along with Article 245 and 246 of the Constitution. This Schedule has 3 lists: The Union List which lays out the subjects on which only the Parliament can legislate, The State List with respect to which only the State Government can legislate and the Concurrent List with respect to which both the State and Central Government can legislate. However if in case there is already a Central Legislation in place then in that case the State Government can still legislate on the subject provided that it receives Presidential assent for the same.”
The problem over here is that the law related to copyright and other intellectual property is a subject of the Union List which means that only Parliament is competent to pass such a legislation in regards video piracy.
In fact the Governor of Karnataka has refused to assent to a similar ‘video pirate’ legislation in Karnataka on these very grounds i.e. ‘video piracy’ related to infringement of copyright which fell within the purview of only the Union Government and not the State Government.
The inclusion of the term ‘video pirate’ in the Tamil Nadu legislation had been unsucessfully challenged once in the Madras High Court. In the case of J. Ameergani, W/O. Jaheer Hussai vs State Of Tamil Nadu And Anr. the ‘video pirate’ detained under this legislation challenged the inclusion on the gounds that the State of Tamil Nadu lacked the legislative competence to pass such a law.
When it comes to determining legislative competence most Indian Courts follows the test of pith and substance i.e. if the true nature and character of the legislation falls within the field of powers of the legislature in question then in that case an incidental encroachment onto the field of another legislature will not matter and the presumption shall be in favour of the constitutionality of the statute.
In this case the Madras High Court was of the opinion that the pith and substance of the impugned legislation was with respect to preventive detention and the fact that it related to copyright infringement was merely incidental. The Court concluded by holding that since preventive detention was a subject on the concurrent list the State Government was well within its rights to pass such a legislation.
The decision of the Madras High Court can be accessed here.
The question that remains is whether or not this decision will be of persuasive value in other High Courts?
I doubt whether the decision of the Madras HC will be followed by other High Courts. While assessing the true nature and character of the impuged legislation it is necessary to look at the entire legislation, its object and to the scope and effects of its provisions. In the case of atleast the Maharasthra Ordinance the statement and object of the Ordinance clearly states that the amendment is required to combat piracy and copyright infringement. Moreover the Ordinance draw a direct link to the Copyright Act, 1957 and defines a ‘video pirate’ in terms of a person who has been charged atleast once under the Copyright Act, 1957. The true nature and character of the Ordinance therefore is related to the law of copyright, which squarely falls within the domain of the Union Government. In regards the Tamil Nadu legislation I am yet to find a copy of the legislation online and will therefore not be able to comment on it until I am able to read the text.