Copyright

Specialised IP Courts (IV): Correcting the Copyright Board


simca

In a series of posts, I reflected on the desirability or otherwise of specialised IP adjudication in India. Previous posts dealt with the woeful history of the IPAB and the new kid on the specialised block (the commercial courts). Though, on a closer investigation, one might argue that the concept of a commercial court/bench predates this New Act, having  existed informally at some of the high courts, at the discretion and pleasure of the reigning Chief justice who simply allocated certain kinds of disputes to certain kinds of judges, rendering them as specialised adjudicators over a period of time.

Apart from the IPAB, India is also blessed with a specialised copyright tribunal. Unfortunately, it has fared much worse than the IPAB, and has not been functional for the last 4 years or so! Under the scheme of the Copyright Act, 1957 (as amended by the 2012 amendments), the Copyright Board (tribunal) is tasked with adjudicating issues pertaining to:

  • Registration and assignment of copyright.
  • Grant of compulsory and statutory licences over certain kinds of copyrighted works (works withheld from the public, unpublished Indian works, adaptation of works to enable access to people with disabilities).
  • Tariff schemes fixed by copyright societies.

Much like the IPAB, this tribunal has been mired in constitutional challenges, given its regulatory control by the government and the lack of adequate judicial competence of adjudicators selected. In 2010, the South Indian Music Companies’ Association, a body of music producers, filed a writ petition in the Madras High Court, challenging §§11 and 12 of the Copyright Act 1957, and Rule 3 of the Copyright Rules, 1958, as being ultra vires the Constitution of India.

The petitioners alleged that members of the Copyright Board do not possess the requisite judicial experience. In addition, the government (executive) exercised a disproportionate amount of control in fixing the salaries and terms of employment of the Board members. All of this, the petitioners argued would lead to unbridled executive interference and contravene the separation of powers between the executive and the judiciary, a cardinal principle that lies at the heart of the Indian Constitution. Owing to amendments to the Copyright Act in the year 2012, the earlier Public Interest Litigation (PIL) by the South Indian Music Companies’ Association (SIMCA) was withdrawn at the insistence of the court and a new one filed (W.P. No. 6604/2015, High Court of Madras.

Last year, the Madras High Court passed an order stating that all appointments to the Copyright Board must be made in terms of the norms laid down for the IPAB in Shamnad Basheer v. Union of India. However, as of the date of writing this paper, Right to Information (RTI) requests filed by the petitioner (SIMCA) reveal that the various advertisements for posts to the Copyright Board and the processes attendant thereto fell foul of the norms laid down by the Court.

Non Functional Copyright Board

Given that various vacancies at the copyright board are yet to be filled up, the body remains a non functional at the moment, causing tremendous consternation to several radio stations and other parties keen on having this body adjudicate appropriate royalty rates for their usage of copyrighted content. I am given to believe that in at least two legal proceedings, parties have directly petitioned courts to set such royalty rates. One of them involves the famed controversy around the “Annihilation of Caste” a potent indictment of the caste system by Dr BR Ambedkar, made popular by Arundhati Roy who reintroduced the work to readers. Having failed to locate the rightful heirs to this copyrighted work, Roy and Navjeevan trust approached the court directly to set the royalty rates (if any). Unfortunately, the court refused to intervene. A saga that I reflect on in this op-ed for First post here.

In any case, the adjudicative competence of this tribunal in the past has not inspired much confidence. Illustratively, in Entertainment Network v. Super Cassettes Ltd, one of the most significant disputes to have come before the Board, the Supreme court quashed the determination of royalty rates by the Board, finding them to be arbitrary and remanding the same for a fresh determination. Further, various other courts have in the past found serious egregious errors with orders passed by the Board. See here and here for two such illustrative cases.

Given the nature of the judicial process and the relative lack of precision in the law, one expects some rate of reversal by higher courts or adjudication fora. However, if a majority of decisions rendered by a lower tribunal are called into question by higher courts (as seems to be the case with the copyright board in its short sordid history), it points to a larger systemic malaise with the tribunal and its composition.

Further, the functioning of the copyright tribunal in the earlier years (when it was allegedly functional) gives us serious cause for concern, with board members failing to turn up at the last minute, rendering the board without the requisite quorum to hold hearings etc, prompting IP associations such as APAA to take the matter to court.

Much like the IPAB, unless the Copyright board is resuscitated and placed on firmer constitutional and legal moorings, it will be difficult to subject it to a fair assessment in order to answer the larger issue of whether or not specialised tribunals confer more advantages than disadvantages for India.

ps: image from here.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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