Copyright

Govt. repeats same mistakes with new Copyright Board


The Ministry of HRD has issued a press release on the PIB website stating that the Copyright Board has been reconstituted with retired Justice Ramesh Chandra Chopra as the Chairman of the Copyright Board along with 2 Joint-Secretaries of the Central Government, seven Law Secretaries of State Governments and three Directors/Vice Chancellors of National Law Institutes and Directors of Indian Law Institute and Indian Society of International Law, New Delhi.

The term of the previous Copyright Board headed by Dr. Raghbir Singh, had expired in April this year. The new Board will have a term for another 5 years. The possible reason for this announcement on Monday is the fact that the Delhi High Court will be hearing a writ petition pertaining to the functioning of the Copyright Board tomorrow i.e. the 19th of July, 2011. This writ petition bearing number W.P. 2516 of 2010 was instituted by the Delhi High Court on its own motion. The Division Bench was so shocked by the state of affairs at the Copyright Board that it suo moto issued notice to the Central Government and appointed noted IP lawyer Ms. Prathiba Singh as amicus curiae to advise the Court on the matter. Apparently the High Court described the state of affairs at the copyright board as ‘deplorable’. Apparently even the bare minimum, like fully equipped computers were unavailable to the Board.

Interestingly on the 15th of December, 2010 the govt. counsel had informed the Delhi High Court that steps were being taken to amend Sections 11 and 12 of the Copyright Act i.e. the provisions creating the Copyright Board. In January, 2011 SIMCA filed a PIL before the Madras High Court challenging the constitutionality of Sections 11 and 12 that create the Copyright Board along with the pertinent provisions of the rules. Given the fact that the Govt. has already introduced a Bill to amend the Copyright Act, 1957 and that it had also given an under-taking to the Delhi High Court that it would amend the law, it would have made perfect sense for the Central Govt. to file a counter-affidavit to SIMCA’s PIL stating that they would try to amend the law in Parliament in the monsoon session. This has been done before in regards the CCI and the PMLA tribunals. However last month, the Copyright Office filed a counter-affidavit through Deputy Registrar V.K. Saxena in reply to SIMCA’s PIL informing the Madras High Court that they intended to defend the constitutionality of the Copyright Board.

The newly constituted Copyright Board as is obvious from above is staffed with bureaucrats, mainly law secretaries. This was expressly barred by the Supreme Court in the NCLT case. The Supreme Court had made it amply clear that even retired bureaucrats could not be made members of tribunals. In the present case the Central Government has appointed sitting bureaucrats as members of the Copyright Board! This is a blatant breach of the ‘separation of powers’ enshrined in the Indian Constitution. I’m not sure about this but I think SIMCA or for that matter any other body could move a contempt petition against the Central Govt. on the grounds that the babus have wilfully violated the law as laid down by the Supreme Court and as explained to them by SIMCA in its PIL.

In any case I foresee a delay in the effective operationalization of the new amendments even if the amendment Bill is passed by Parliament this monsoon session. What use is having rights, if you don’t have an adjudicatory body to enforce those rights? The Copyright Board will most certainly be struck down by the Madras High Court by the end of the year and when that happens the Central Government will take atleast a year to move another amendment to the Act. The end result being that what could have been done right away, will be delayed by atleast two years. Hopeless! Only god can save the Copyright Law in this country.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

9 comments.

  1. AvatarIPvocal

    Dear Prashasnt,

    kudos for bringing this issue in this blog, as you know government babus one way or other had been getting post retirement benefits as plum posts for working for the government as in earlier times rajas and later Britishers used to grant alms to their faithful servants, so the same thing government does now give reward through these post retirements placments in the tribunals.

    Though it will be out of context a issue which i want to discuss in this post that what has happened in IPAB, though interview for the both technical member posts were conducted on same day i.e. on 29th of November 2010 but the DIPP part of the government conveniently, selectively had issued one appointment notification of Patent member in IPAB and whereas no notification of appointment has been issued so far in the case of technical member (trademark), even though it is going to be almost a year now and no member technical of trademark has been appointed. in IPAB so far. The chairman and vice chairman are hearing cases in absence of technical member trademark as stop gap arrangement.

    I feel the government babus do only the job, which they find convenient to them and if their own person name is involved for appointment then they clear files with in no time and with extra efforts . All tribunals appointment are being done like this.

    I would like to bring to your notice that please raise this particular issue of non appointment of member technical( trademark) in IPAB so far in your blog seperately, as central government is appointing or filling this tribunal post on selective charter basis not in fair manner.

    Reply
  2. AvatarMahendra Singh

    Dear Prashant,

    State Govt. law secretaries cannot be considered as bureaucrats. They don’t belong to the IAS but are members of the state judicial service i.e. judges of subordinate courts. They work as Law Secretary purely on deputation. Usually, one of the seniormost ADJs is appointed as Law Secretary and is assisted by one or more other judicial service officers who also work on deputation. After completing their tenure, they revert to judicial work. Often they get elevated to the High Court also. I’m aware of at least two sitting Delhi High Court judges who were earlier Law Secretaries in Govt. of Delhi – Justice G C Mittal and Justice M L Mehta. In fact, Justice Mehta was Law Secretary immediately before he became Judge. Therefore, appointment of state govt. law secretaries (7 of the new Copyright Board members are law secretaries of various state govts.) cannot be objected to on the ground that they have no judicial experience and that their appointment to the Board amounts to violation of the Constitution or a contempt of the SC order.

    In so far as the Central Govt. Law Secretary (and his subordinates) is concerned, well they CAN be considered as bureaucrats, being members of Indian Legal Service (“ILS”), recruitment to which takes place through the UPSC. But even here, it needs to be appreciated that they are not generalists like IAS officers but are people qualified, experienced and trained in law. The work of ILS officers is similar to that of transactional lawyers working in law firms – they render legal advice to govt. departments on all types of legal matters, including contractual and commercial matters. Their job description is identical to that of non-litigation lawyers working in law firms. It is mandatory for every govt. department to consult the law department on all issues specified in the “Transaction of Business Rules”. Therefore, I think it would be unfair to bracket ILS people with the average IAS bureaucrat who is a generalist without legal background.

    Regards,

    Mahendra Singh

    Reply
  3. AvatarPrashant Reddy

    Dear Mahendra,

    Thank you for that informative comment.

    I was under the assumption that even State Law Secretaries were members of the ILS cadre. I find it very odd that judges of the subordinate judiciary are deputed to the Executive. Could you please point me to any literature laying out the qualifying criteria for law secretaries.

    In any case, even presuming that state law secretaries are members of the subordinate judiciary, the very fact that they are members of the Executive is more than enough to raise the ‘separation of powers’ flag. How can members of the Executive be allowed to sit on a purely judicial body? Its one thing for them to resign from the service and get appointed but in this case they are being appointed in their capacity as ‘law secretaries’.

    As for the second point on ‘ILS’ cadre being appointed as members of tribunals there is a very sane reason for the Supreme Court disallowing them from sitting on tribunals. As described by you the ILS cadre does not practice before the Courts. They are like transactional lawyers with no practical experience before the Court. However if you see the basic criteria for appointments for High Court Judges or even District Court judges a minimum degree of judicial experience is required. As a result the ‘judicial experience’ was held to be one of the fundamental requirements for a person to be appointed to the bench. A mere academic knowledge of the law is not enough. ILS officers therefore cannot be appointed to the bench.

    Best,
    Prashant

    Reply
  4. AvatarPrashant Reddy

    Dear IP Vocal,

    I was under the impression that Mr. Ravi’s names was under active contemplation for appointment as technical member. Was he not appointed?

    Best,
    Prashant

    Reply
  5. AvatarIPvocal

    Dear prashant,

    Thanks for ur reply if Mr. Ravi name is under consideration then why he has not been appointed so far, are DIPP is waiting for his retirement and after his retirement DIPP will appoint him as member technical in IPAB.

    How Could DIPP release the sole appointment notification of patent member in may 2011 only and why the file of member trademark was not cleared so far, almost a year is going to complete though there are more matters/ appeals/ rectification are pending then patent matters.

    Then why DIPP took priority in clearing the file of patent member singly and keeping TM member file pending, this does not show favoritism by DIPP people, so please throw some light on the reasons of delay in appointment of member trademark IPAB, as we are suffering for non appointment of technical member in IPAB

    Reply
  6. AvatarMahendra Singh

    Dear Prashant,

    I’m afraid, I don’t have any literature readily available regarding the qualifying criteria for state govt. law secretaries. Perhaps you could search on the Internet. In case I find something, I’ll let you know. The post is usually designated as “Legal Remembrancer-cum-Secretary Law” but then the practice also varies from state to state. In Delhi (technically a UT), the post is simply called “Principal Secretary”.

    While I fully support the idea of separating the judiciary from the executive, the point I was trying to make is that it’s unfair to club all the bureaucrats together, ignoring the fact that ILS people specialise in the legal discipline while the IAS guys do not. I would regard the appointment of an ILS guy in a tribunal as a lesser evil than the appointment of an IAS!

    Also, if appointment of executive people in the judiciary is objectionable on the ground that it violates the doctrine of separation of powers then the converse practice of appointment of judiciary people in the executive also ought to be objected to.

    In this context, I would also like to have your views regarding Article 124(3)(c) of the Constitution that allows for the appointment of a “distinguished jurist” as a Supreme Court judge. The person may be having zero judicial experience and may not necessarily be an expert in procedural law. Interestingly, while a distinguished jurist can become a SC judge, he/she cannot become a HC judge. One could also argue that if appointment of a distinguished jurist to the country’s highest court is constitutionally valid, then, by the same logic, the appointment of academics to the Copyright Board is also valid – there seem to be quite a few academics in the new Board, as per the press release you had referred to. However, I’m not sure if they are indeed academics since sometimes IAS guys also head universaties!

    Regards,

    Mahendra

    Reply
  7. AvatarPrashant Reddy

    Dear Mahendra,

    Your point on the ‘distinguished jurist’ clause is well taken but then again you must note that this clause exists only for the Supreme Court and not the lower Courts. The reason for this in my opinion is that the nature of dispute at the level of Supreme Court is supposed to decide only questions of law unlike trial Courts where a Court is required to carry out an entire trial. The nature of the job before the Copyright Board is that of a trial court. It’s interesting to note that the first time the Supreme Court set aside the decision of the Copyright Board in the radio licensing matter it passed stinging remarks against the manner in which the Copyright Board acted arbitrarily.

    While I agree that ILS officers may be specialists in the sense that they know the law in an academic sense, I’m sure you’ll agree with me that most the law is learnt in the Court-Room and this is exactly why the Constitution requires only persons with some practical experience before a Court of law to be appointed as judges.

    Best,
    Prashant

    Coming to

    Reply

Leave a Reply

Your email address will not be published.