Book Publisher, IRRO challenge Constitutionality of Copyright Amendments and Rules

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The Petitioners:

Anand Bhushan is the Joint MD of the second petitioner who is a book publisher (Pitambar Publishing. Mainly publishes educational books). The second petitioner is a member of the Indian Reprographic Rights Organization (a copyright society). The IRRO enables users of copyrighted works to obtain a license for photocopying works held by IRRO. The Indian Federation of Publishers, the apex body representing the Indian publishing industry, is the fourth petitioner.

The IRRO is currently involved in the Delhi University Copyright case (see here, here and here). This case is related to photocopying and creation of course packs by universities for educational instruction and other fair dealings.

The petitioners have challenged the constitutionality of various Rules of the Copyright Rules, 2013: Rules 3, 47, 57, 59, and 61.  They also challenge S. 11&12 and S. 31(a) of the Copyright Act after the 2012 amendments.

We have covered three other petitions here, here, here and here.

This petition was filed in May 2013 (W.P(c) 3143 of 2013). The petition was amended in August 2013. In September 2013, the court directed submission of counter affidavits and rejoinders.

1) Section 11 & 12 and Rule 3 (Copyright Board):

These challenges are similar to the ones raised in the Bharat Anand Petition. Prashant has covered these arguments here.

2) Rules 3(3)&(4) and 57 (Tariff Scheme):

i)              S. 33A (1) confers the Central Government with the power to make rules regarding the ‘manner of publication’ of tariffs. As contended, under S. 35 (which has not been changed by the amendment) copyright societies retain the right to decide their tariff rates. Given these two sections, the petitioners contend that Rule 3(3) goes beyond the Act and prescribes the actual structure and content of tariff.  According to the petitioners, the phrase ‘manner of publication’ used in S. 33A(1) is limited to prescribing the mode of publication i.e. on a website, on a notice board, booklet etc.

However, this contention is doubtful given that one of the reasons for the amendments was to enhance transparency in the administration and functioning of copyright societies, ‘manner’ cannot be restricted to mean ‘mode of publication’.

ii)              The petitioners further argue that the power conferred by S. 33A(2) is limited and allows the Board to remove only an ‘inconsistency, anomaly, or unreasonable element’ in the tariff scheme on appeal by an aggrieved person. However, Rule 3(4) goes beyond the Act and allows the Board to suo moto issue guidelines for tariff. This is in excess of the powers conferred by the Act because a) the Act allows an only a ‘person aggrieved’ to challenge the scheme and b) the word ‘guidelines’ is devoid of meaning.

It is also contended that if a wide interpretation is given to the words of the S. 33A, it will render this section arbitrary and unconstitutional.

Rule 57 has also been challenged on the basis that it exceeds the Act as it allows the Board to ‘determine the tariff scheme’. The Act only allows the Board to remove certain elements of the scheme but does not allow them to review the entire scheme.

However, though Rule 57 uses ‘determine the tariff scheme’ it should be read in context and it can reasonably mean the Board will ‘determine’ those parts of the scheme which have been challenged.

The Rules are therefore challenged as arbitrary and violating Art 19(1)(g).

3) Rule 47 (Registration of Copyright Societies):

i)              Rule 47 is ultra vires the S. 33(3A) as it states that existing societies must be re registered within 2 months of passing of the Act whereas the Act allows for a period of one year.

 This seems like a drafting error.

4) Rule 59 (6)&(7), 61 (Management of Copyright Societies):

i)              As noted, S. 35(4) prohibits any discrimination between ‘author owners’ and ‘other owners of copyright’ and ensures equal membership rights to both. The challenge is with regard to Rule 59(6). This rule is stated to be discriminatory as it requires equal representation of authors and owners in the Governing Council. It is contended that such equal representation is impossible given that 7 is the minimum number of members. Second, since membership is open to all, there can be no assurance of equal number of authors and owners joining the society.

It is also contended that such a stipulation has no rational nexus with the objective of the Act because there is no knowing which group will be discriminated against. The one in majority, the petitioners argue, will be discriminated against.

Also, as stated, the authors and owners are not in different positions and there is no rivalry between these groups.

ii)             The petitioners argue that S. 34(5) rightly allows societies to distribute fees in proportion to the actual use of the work. Therefore, even voting rights must be weighted according to the volume and popularity of the work. All members should not be given equal voting right and Rule 61(5) is challenged as discriminatory as it provides equal voting rights to all members regardless of their stake in society.

iii)            Rule 59(7) which lays down the rotation requirement of members of the Governing Council, is contested as arbitrary and serving no purpose. It is said that this rule creates confusion and will result in discontinuity of management.

It should be noted that S. 35(3) requires the Governing Council to consist of equal number of authors and owners. Therefore, the Rule in not beyond the Act. Also, S. 35(4) mandates all members to enjoy equal membership rights. These provisions should be read keeping in mind the mischief they seek to remedy. The requirement of equal representation as well as the provision on voting rights, was brought in to put authors back in control. Owner members were previously found to be abusing their position in copyright societies. To put things in perspective, it will be beneficial to read Prashant’s detailed article on the background to the Copyright Amendments here.

5) Section 31 (Compulsory Licensing):

This provision states that once the Board has issued a compulsory license after hearing the first application, it can suo moto, without further hearing, grant a compulsory license on the same terms to any number of people. This section is challenged as it violates the petitioners’ right to be heard and also confers excessive, unguided powers to the Board.

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