Copyright Overlaps in IP

When Settled Canons of Law and Law of Precedents Go for a Toss: Issue of Interim Licence under Section 31D of Copyright Act, 1957 by Registrar of Copyrights – Part I


India is a Constitutional democracy. The principles of Constitutionalism pervade the Indian polity. Constitutionalism encompasses rule of law, independence of judiciary and separation of powers; the sacrosanct principles meant to ensure fairness and reasonableness in justice delivery system. Set in this background, the Judgments of the Punjab and Haryana High Court dated 21st October 2016 and 14 March 2017 directing the Copyright Registrar to exercise powers under Section 31D of Copyright Act, 1957 are blatantly erroneous. In this post, I shall submit my reasons for holding this view. My arguments address the nature of the power conferred, the person on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In my next post, I shall chronologically summarise the updates pertaining to Section 31D of Copyright Act, 1957.

Section 31D of Copyright Act, 1957

As per Section 31D, any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published, may do so subject to the provisions. The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the IPAB. The rates of royalties for radio broadcasting shall be different from television broadcasting and the IPAB shall fix separate rates for radio broadcasting and television broadcasting. In fixing the manner and the rate of royalty, IPAB may require the broadcasting organisation to pay an advance to the owners of rights. [SpicyIP had covered the news updates pertaining to online broadcasting here and here.]

IPAB and Registrar of Copyright are neither legal equals nor legal comparables

In the light of various judgments of Higher Judiciary (Supreme Court judgment in Union of India v  R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 and Madras High Court judgment in Shamnad Basheer v. Union of India, AIR 2015 Mad 250) IPAB is, unarguably, an independent tribunal and not an agency of the government.

The Supreme Court in R.K. Jain   Vs.   Union   of India,   ((1993)   4   SCC   119), pertaining to expectations from the members of a tribunal, held as follows: ”67. The Tribunals set up under Arts. 323A and 323B of the Constitution  or  under  an  Act   of  legislature  are  creatures  of the  Statute   and   in   no  case   claim  the  status   as   Judges   of   the High Court or parity or  as substitutes. However, the personnel appointed to hold those offices under the State are called upon to   discharge   judicial   or   quasi-judicial   powers.   So   they   must have   judicial   approach   and   also   knowledge   and   expertise   in that   particular   branch of   constitutional,   administrative   and   tax laws. The legal input would undeniably be more important and sacrificing the legal   input and  not  giving  it   sufficient weightage and teeth would definitely impair the efficacy and effectiveness of   the   judicial   adjudication.   It   is,   therefore,   necessary   that those   who   adjudicate   upon   these   matters   should   have   legal expertise, judicial experience and modicum of legal training as on many   an   occasion   different   and   complex   questions   of   law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision.” [re-affirmed in Madras Bar Association   Vs.   Union   of   India   ((2014)   10   SCC   1)]. Accordingly, the IPAB framework is expected to comply with certain peremptory norms laid down by the Higher Judiciary vis-à-vis its composition, qualifications of members etc. Similar (or say, identical) norms are not laid down in case of Registrar of Copyright considering that the role is different.

Ignoring the vital legal distinctions between the two authorities, the Punjab and Haryana High Court, at one stroke, equated IPAB with Registrar, when the latter is far from the status of a tribunal. The legal expectations vis-à-vis the Copyright Registrar is quite evident from the Copyright Act, 1957. As per Section 9 of the Act, the Copyright Office shall be under the immediate control of the Registrar of Copyrights who shall act under the superintendence and direction of the Central Government. Evidently, the Act itself doesn’t envisage independence of the Registrar. Further, the Act doesn’t envisage any adjudicatory role for the Registrar (in contrast to IPAB). Evidently, the Copyright Registar and IPAB are neither legal ‘equals’ or legal comparables. While the Copyright Registrar is part of the executive, IPAB is not. It can, therefore, be concluded that Section 31D envisages exercise of judicial power (and not executive power) vis-à-vis the determination of royalties. In other words, judicial application of mind is envisaged for determining the royalties (and rightly so).

As IPAB performs judicial functions, its functions under Section 31D cannot be one-sided or arbitrary. As reason must guide discretion and arbitrariness is anathema to Indian polity, the IPAB should perform its role based on cogent grounds, evidence and arguments adduced by parties etc. The licence fee must be judicially determined. The decision-making process should be just, fair and reasonable as the decision is likely to have far-reaching multiplier effects in the market. Further, any such determination will have significant ramifications upon the rights and liabilities of parties involved.

Conclusion

In the light of aforesaid arguments, the judgment of Punjab and Haryana High Court directing the Registrar of Copyrights to exercise powers under Section 31D is blatantly erroneous. If I may go one step further, it epitomizes egregious violation of accepted principles of law and law of precedents. I understand that petition(s) is/are already filed before the Delhi High Court challenging the grant of interim licence. The judgment of Punjab and Haryana High Court is not a binding precedent vis-à-vis another High Court. As far as general rule is concerned, in case of all-India statutes, the High Courts shall make all reasonable endeavours to give uniform interpretations. I am not sure as to how varying High Court Orders (which are quite plausible in this case) can be implemented when the concerned online broadcasting companies have pan-India presence. I think it is a fit case wherein the the attention of Apex Court is drawn. As you are aware of, the Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself.

[Image from here.]

Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his very second year in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property. Winner of almost a dozen essay competitions in his law school days, he was involved in various research and policy initiatives relating to intellectual property. His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property.

3 comments.

  1. Aditya Gupta

    Hi Mathews, I read the P&H order slightly differently. The Court never asked the Registrar to issue the license. It merely asked the Registrar to consider the application “strictly in accordance with law”. It was then for the Registrar to accept or reject the application, if he had the power and after following the prescribed procedure.

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  2. Aditya Gupta

    In other words, the Registrar of Copyright would have complied with the order if he had considered the application and found that he has no power to issue any license under Section 31D of the Act. The first part of the HC order indicates that the HC may have thought that the petition was premature since no representation had been made to any of the Respondent authorities before filing the petition. The words “in accordance with law” go a long way in showing the true intent of the HC order – it never intended to cloak the Registrar of Copyright with powers that he/she never had.

    Reply
  3. Mathews P. GeorgeMathews P. George Post author

    Hi Aditya, thanks for the comments. I am unable to agree with the Order and especially, the quality of its reasoning. The reasoning in the Order is akin to the idea of directing the Vice President / Prime Minister of India to decide the representation on mercy petition strictly in accordance with law, when the Vice President / Prime Minister of India has no role whatsoever in determining the mercy petition under Article 72 of the Constitution. Having said that, I also understand that, when two legal interpretations are plausible, the legally tenable interpretation ought to be chosen (even if it is based on puerile reasoning). I believe that the quality of legal discourse, especially at the levels of Higher Judiciary, can be much better …..in fact, ought to be much better.

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