Proposed Copyright Board likely to be held unconstitutional

The new scheme of the Copyright Board as proposed in the recent draft of the Copyright Rules, 2012 (Amlan has blogged on the draft rules over here) is most likely to be held unconstitutional by a Court of Law. As most of our readers may already be aware the reason the government amended the law in this respect was because the South Indian Music Companies Association (SIMCA) had challenged the constitutionality of the Copyright Board as originally conceptualized under the Copyright Act, 1957. You can read more about that case over here. 

One of the main grounds of challenge in SIMCA’s petition was the fact that the provisions providing for the constitution of the old copyright board were in violation of the principles of judicial independence which were laid down by the Supreme Court in the R.Gandhi v. Union of India case where the Supreme Court had struck down large portions of the proposed NCLT as unconstitutional. In addition, the Supreme Court had also held that all citizens had a fundamental right under Article 14 to have their legal disputes heard by persons qualified in the law. Given that the R. Gandhi judgment formed the basis of SIMCA’s petition, one would have expected the Copyright Office to ensure that the rules for the new Copyright Board were in compliance with the SC’s dicta. 

Sadly, that is not the case. Instead, we see yet another classic example of how the Indian bureaucracy refuses to let go of its grip over powerful judicial tribunals. As is always the case, the bureaucracy will retreat only after a judicial whipping from the Supreme Court. 

My main grouse with the present rules remains the qualification criteria, the process of appointment and terms of service. 

(a) Qualifications: The draft rules welcome with open arms both present and ‘have been’ bureaucrats of the ILS and other civil servants who have experience in copyright matters. In past experience, we have seen such provisions being misused to pack tribunals with only bureaucrats despite other options being open.

In the NCLT case, the SC had very clearly stated that only judges or advocates with experience can be appointed to tribunals as judicial members. The judgment very clearly barred the appointment of former bureaucrats, including members of the Indian Legal Service cadre, to any tribunals except in a narrow sliver of cases where the tribunal had the post of a technical member and even in those cases the Supreme Court had held that the number of technical members cannot outnumber the number of judicial members. A part of the reason for barring the appointment of former bureaucrats as judicial members was the SC’s apprehension that such bureaucrats who lacked experience in the practice of law in the courtroom would lack the judicial temperament to adjudicate cases in an adversarial case.

The draft rules proposed by the Copyright Office, do not distinguish between judicial members and technical members, the presumption therefore being that all these members are judicial members. 

The most certain indication that the drafters of these rules intend to pack the Copyright Board with bureaucrats is the fact that these rules consciously omit to allow practicing advocates to be appointed to this position. After all, if advocates can be appointed as High Court judges, what is the rationale for the Rules excluding Advocates from applying to the Copyright Board? 

(b) Appointment method: In the NCLT case, the SC had insisted on judicial consultation for all appointments made to any tribunal. The draft Copyright Rules, 2012, however require judicial consultation only for the appointment of the Chairperson and not the remaining members. This would mean that the Central Government would control the entire appointment process for the other two members and in effect control the tribunal. And who are the people likely to be appointed to these other two positions? With such a cosy arrangement in place, rest assured that the remaining members on the Copyright Board will be bureaucrats who are in favour with the ruling regime. 

(c) Terms of service: One of the main features of judicial independence is the terms and conditions of service. Although the amendment to the main statute and even the new draft rules state that terms of service of a member appointed to a tribunal cannot be varied to his disadvantage after the appointment, the fact remains that the Government can exercise significant influence over a tribunal by simply not applying pay-hikes that members of the tribunals are entitled to. As evidenced by Justice Sridevan’s report on the IPAB, the Central Govt. delayed the application of the full gamut of benefits that IPAB members were entitled to under the 6th Pay Commission. The present draft rules do not lay down the specific terms and conditions and instead state that such terms and conditions will be laid down separately in another set of rules. The nature of the problem however remains the same. In an ideal world, only Parliament should have the powers to fix the terms and conditions of any member sitting on a tribunal. 

(d) Method removal: The draft rules allows the President to remove the Chairperson and the members from office after an inquiry conducted by a Judge of the Supreme Court. Strangely the procedure for removal is as laid down for bureaucrats of the Central Government i.e. Central Civil Services (Classification, Control and Appeal) Rules, 1965. An inquiry into the affairs of a judicial officer cannot be placed on par with those of an executive officer. I understand that currently most tribunals fails to lay down any detailed procedure to conduct such enquiries and this attempt in the draft rules are probably the first such attempt. 

Here’s why the music companies should once again mount a constitutional challenge against these rules pertaining to the Copyright Board:- In the last round of amendments to the Copyright Act, the one industry which got bashed from all sides was the music label industry. They got bashed by the authors & composers on one side and by the radio & television industry on the other side. A lot of the bashing happened because both these lobbies had considerable influence over the government of the day. Given that the Copyright Board is going to be fixing the licencing rates for statutory licences, it only follows that the music industry does not want the Copyright Board to be staffed by members who are under control of the present government. Hopefully these companies should challenge the new dispensation.