Copyright

An Update on the challenge against the Copyright Board


16638657367_725e7bbdf5_bIn the ongoing drive to make tribunals more efficient in this country, even the Copyright Board has not been spared. Like we had posted earlier, the South Indian Music Companies Association (SIMCA) had filed a writ before the High Court of Madras, challenging the vires of sections 11 and 12 of the Copyright Act, 1957 and Rule 3 of the Copyright Rules, 1958.

Simplistically speaking, the quarrel was with regards to the qualifications of the members that were being appointed to the Copyright Boards and a stark lack of judicial or legal experience amongst these members. As most readers would be aware a similar challenge was made to the IPAB by Prof. Shamnad in Shamnad Basheer v. Union of India (read our posts on this here, here and here) where the Madras High Court had passed some strict guidelines on the appointment process including requiring legal/ judicial expertise for the technical member and a disqualification on appointing members of the Indian Legal System to the IPAB.

Coming back to the writ filed by the SIMCA, the Madras High Court had passed an order earlier this year requiring all appointments to the Copyright Board to be made in accordance with the procedure laid down in Shamnaad Basheer v. Union of India. The High Court however requested the petitioners to withdraw the writ and to refile it to account for the new amendments in the Copyright Act in 2012 that granted larger powers to the Copyright Board. The 2012 Amending Act granted additional powers to the Copyright Board in S. 31-D to grant a statutory license in copyrighted works for certain specific purposes. As this affidavit notes here, the powers of the Board under S.31-D (and even for that matter all the subsequent statutory license sections introduced by the 2012 Amendment) require a judicial assessment of various factors such as the amount of royalty payable, industry conditions etc. This is too broad a power that is granted to the Board without having a judicial member on board. The section also does not require the Board to be satisfied that the work has not been adequately communicated to the public and also has carte blanche powers in determining the terms of the license. Clearly this sort of a determination requires the presence of a judicial mind on the Board. There are more examples of this, such as in the case of S.72 of the Copyright Act where the Copyright Board acts as an appellate authority in instances where the Registrar has denied registration. This determination of copyrightability clearly is a mixed question of fact and law and especially in the appellate stage does require a judicial consideration which again the Board will not be equipped to do if the present trend in the Copyright Board continued.

The South Indian Music Companies Association refiled this writ challenging in addition to the two sections in the previous writ, the powers of the Copyright Board in Ss.31 and 31-D. Meanwhile, in order to follow up on the compliance with the orders passed earlier this year, the petitioners had filed RTI applications attempting to know what procedure was being followed for the appointment of members to the Copyright Board and quite surprisingly (or is it predictably these days?) the orders of the Court to follow the procedure in Shamnad Basheer v Union of India were not followed making a clear case for contempt. For instance, the selection committee that was constituted to select the Copyright Board, had three secretaries from various departments, an IP expert and the Chairman of the Copyright Board. This is clearly in contempt of the orders of the Supreme Court not just in Shamnad Basheer v. Union of India, but also in the case of Union of India v. R. Gandhi, President of Madras Bar Association, which clearly states that the selection committee of the a judicial body such as a Tribunal should consist of adequate number of judges, so as to act as a check against the Executive abuse in the process of appointments. This affidavit here has more details on the questions asked and the answers received. This indicates such a clear contempt on the part of the Government against not one, but two judgements of the Supreme Court that it is slightly terrifying.

It is heartening to note that causes such as these have been taken up by well-meaning private bodies and advocates in public interest. Our appreciation goes out to Mr. Swaroop Mamidipudi, their advocate on this for his wonderful efforts in this petition.

The centre is yet to file its counter in the writ proceedings before the High Court of Madras, but however the case turns out, it will definitely be interesting to observe.

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Thomas J. Vallianeth

Thomas is a final year law student at the National Law University, Jodhpur pursuing a B.Sc. LL.B. (IP Hons.) course. His first exposure to IP law was at a workshop that he attended in High School and ever since then, he has pursued a keen interest in the field. However, his real interests lie in the interfaces between Technology Law and IP, with an active interest in the Open Source movement.

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