It appears that my last post on the repeal of the Copyright (Amendment) Act, 1999 and Copyright (Amendment) Act, 2012 really stirred the copyright pot. The outpouring of outrage against the content of the post and me, without even bothering to read the post is in keeping with the generally short attention spans of the internet audience.
One of the editors of a new age digital news outlet recently shared with me the fact that the number of visits to their website for viral stories, rarely co-relates to the number of times the same has been shared on social media – in other words people share and react to news solely on the basis of the headline without even reading the report – these are the headline skimmers who react on the basis of the headlines.
The reaction and outrage to my previous post is a reflection of the phenomenon of the headline skimmers because if these geniuses had bothered to read the headlines they would have realized that it ended with a ‘question mark’ and if they had bothered to read the post till ‘the end’ they would have noted the fact that I had come to the following conclusion based on Justice Subba Rao’s judgment in Jethanand Betab v. The State of Delhi:
“Applying the same logic to the Repealing and Amending (Second) Act, 2017 it will be possible to save the effect of the Copyright (Amendment) Act, 2012 on the principal legislation even after the amending legislation has been repealed.”. I also pointed out that it would be “futile” for the music industry to try and argue that the amendments lose all force. I don’t quite agree with Justice Rao’s logic and that is my prerogative.
While I am quite used to the outrage police on the internet looking for a reason to vent their spleen, what surprised me is the number of lawyers and bureaucrats who aren’t able to comprehend simple English. I’m told a former official from the Copyright Office circulated the following message on a Whatsapp group: “Please ignore SpicyIP trash on the above topic which is a product of complete ignorance” and shared a note dated May 16, 2016 from the Law Ministry on this issue. I’m not naming the official in question because I don’t want to embarrass him but point out this comment for a couple of reasons. First, the language is rather crass for a senior bureaucrat and second, I am surprised that this man does not seem to have understood a rather simple post written in simple English. Third, the note that he has shared doesn’t cite the most relevant case law which is the Jethanand Betab case. The key to citing a precedent in a legal memo is to get your hands on a case with a fact situation that is the most similar to the case at hand and Jethanand Betab is certainly more relevant than the precedent cited in the Law Ministry’s memo, which is the Collector of Customs, Madras and Nathella Sampathu Chetty & Another, which although dealing with similar legal issues involves a different fact situation where entirely different legislation were involved.
While the Betab case should suffice to stall any potential challenge from the music companies – let us not forget we live in strange times where strange things happen in the High Courts and Supreme Court. Whoever thought the Aditya Pandey case would be decided in a manner to basically destroy the rights of copyright owners in underlying works? But it happened. If the music labels wants to create trouble, there are enough avenues to do so now because Section 6A of the General Clauses Act is a strange provision that inserts an important qualifier when it says “unless a different intention appears”.
It is rare to see a provision like this in the law where Parliament demands that its intention be determined. This qualification has been made in context of determining whether the repeal of an amending legislation has any effect on the principal legislation. Section 6A states that in normal cases the repeal of an amending legislation will not have any effect on the continuance of the law that has so been amended except if Parliament has a different intention. That qualification is enough to open the door to litigation because legislative intent is a tricky beast that needs to be discerned from seemingly disparate factors. It gives a lot of room for the lawyer’s imagination and that isn’t necessarily a good thing. If the music labels want to start a war of attrition through lawsuits, they will probably win it.
One last comment and this for the Law Ministry – why repeal amending legislation? What’s the damn point? It is not like the Ministry actually publishes a physical copy of all statutes. What has it achieved by repealing an amending legislation?