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The Case for Keeping the IPAB Open – Part II


Image from here

I am compelled to draft a reply to Prashant’s response to my post (which in turn was a response to the initial post by him and Prannv arguing for the shutdown of IPAB).

The bulk of my ire is against the allegation that I have written my last post only because I make a living off the IPAB. I must state that the courts, especially the High Courts are substantially the means of my daily subsistence. Therefore, my views against transferring matters to the High Courts are strictly personal. Such manner of personal imputation towards other authors is entirely uncalled for and not in keeping with the spirit of this website.

Prashant relies on an article by Hon’ble Justice Prabha Sridevan which laments the lack of due process in appointments, which is a grievance espoused by all stakeholders. This is a rather old article written in 2011, subsequent to which the trend of specialized tribunals stands advanced irrevocably. This is best confirmed in an interview given by Hon’ble Justice Prabha Sridevan herself to this website in 2018, in which she says “I have said before and I say it to you now the IPAB is the most important tribunal from a global perspective”. The issue with appointments cannot be a cause to scrap an institution of such considerable international standing. In any event, the thrust of my earlier article was only to point out that the faults in appointments cannot be laid on the IPAB, which has been a victim of methodical bureaucratic red-tapism.

As for Prashant’s views on first generation lawyers and lawyers from Mumbai being in favor of scrapping the IPAB, such views apart from being unsubstantiated and unnamed, cannot be the basis to wish away an institution that has become a part of the IP jurisprudence framework. As for Prashant’s views on how the IPAB “mucked” up the Novartis order, it is rather futile to reiterate that any judgment subject to international scrutiny will have hard-hitting criticisms, and that is inevitable in an adversarial system.

As for allegations on me trying to score brownie points with the IPAB or the Chairperson, these are again entirely misplaced. The point I made was that transferring matters back to High Courts from the IPAB which is headed by former Judges of the High Court does not make sense. The 2015 judgment of the Madras High Court has confirmed the primacy of the judiciary in heading the IPAB Benches. The burden on High Courts is undoubted, and the delay in disposing matters is also undoubted. To suggest that transferring matters to the High Courts would alleviate all issues with the IPAB is to simplistically view a rather complex issue with rose-tinted glasses. Whilst I do agree with Prashant that a High Court would never be non-functional due to the lack of judges, I fail to see why such a moving roster of judges and members cannot be created for the IPAB as well. This has been done with considerable success in Tribunals such as the NCLT, which sees numerous appointments pan-India as per requirements. My grouse is with the step-motherly treatment extended to the IPAB which is one of the few central Tribunals outside of Delhi.

The demand to scrap the IPAB would also create very complex issues, as the statutory framework and numerous decisions of the Supreme Court are predicated on the existence of the IPAB. Also, it must be remembered that the natural forum for IP disputes are District Courts, with only a few High Courts having original jurisdiction. To expect the district judiciary to deal with the issues before the IPAB seems contrarian to general prevailing consensus on having Benches with specialized IP knowledge.

As for the IPAB operating out of a “ramshackle” government building, the basis of comparison is rather unfair. The new block of the Delhi High Court is an ideal representation of the standards of judicial buildings. I do hope the IPAB does one day have premises of such standard, but for now, we can rest easy due to the new premises earmarked at Chennai. While it may not be a sparkling “T3” as demanded by Prashant, it would at least be a nicely functional T1.

As with all endeavors of the members of this website, I wish Prashant good luck with his proposed petition, and of course relish the opportunity to comment on it. I feel the primacy of efforts needs to advance appointments at the earliest, with Judges having commercial law exposure and technical members who will bring specialized knowledge to the table. This is an entirely plausible and immediate solution, which would put to rest this controversy. I am also not going to be commenting any further on this issue, as the efforts on this issue clearly need to be expended elsewhere.

On a side note, I must highlight something Shamnad said in one of my earlier posts:

At this point, I should mention – despite differences of opinion on the matter, it’s extremely refreshing to see pleasant, polite and mature communication from all sides, leading towards an active debate on the matter rather than attempts to silence or censor like we’ve had in the past

Let’s never lose that spirit.

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Arun C Mohan

Arun C Mohan

Arun is a graduate of the London School of Economics and has experience in working on intellectual property and commercial matters, in India and internationally. He has appeared in various landmark litigation including the Novartis and TVS/Bajaj cases. He was a consulting editor of the Manupatra Intellectual Property Reports (MIPR), and has lectured in various colleges with an emphasis on intellectual property litigation.

10 comments.

  1. AvatarJagdish Sagar

    In this discussion, nobody seems to care about what would happen to its copyright functions if the IPAB were to be abolished. Resurrecting the Copyright Board doesn’t look like an answer: the Copyright Board was worse than the worst that Prashant has to say about the IPAB.
    The IPAB has five kinds of functions under the Copyright Act: (i) the grant of compulsory licences of different kinds and the fixation of licence fees where it grants a compulsory licence; (ii) the fixation of statutory licence fees: (iii) its powers under section 19A of the Copyright Act–these are alternative remedies overlapping with the remedies available from the High Court except for the power to rescind an assignment on the ground that it is or has become “harsh”–a special power enjoyed only by the IPAB, which it would be interesting to try to interpret; (iv) adjudicating complaints against the licensing tariff of a copyright society; (v) rectification of the Register of Copyrights.
    The last, I suggest, is a waste of time since copyright registration has no legal significance; it continues to baffle me why the registration provisions should not be deleted altogether: the only major common law jurisdiction where registration is provided for is the US and (for reasons that I don’t propose to labour here) the U.S. model has no possible relevance for us.
    None of the powers relating to the grant of compulsory licences or those pertaining to licence fees is suited to the High Court: these are regulatory functions. Section 19A is meant to be an alternative and effective remedy, but to make it so, the IPAB should be functional at all times or, alternatively, these powers should revert to the High Court.
    In sum, if Prashant wants to abolish the IPAB he should suggest what to do about its functions under the Copyright Act.

    Reply
  2. AvatarArun C Mohan

    Hi Jagdish

    Your views are very interesting and would definitely reduce regulatory burden. Will be great if you can put up a detailed post with your views

    Reply
    1. AvatarJagdish Sagar

      Thanks, Arun. In fact a guest post on the copyright registration issue has been on my back burner for quite some time. I expect I shall get round it now that the lockdown looks like continuing forever. Two other possible guests posts would be on section 19A and competence to fix tariffs.

      Reply
  3. AvatarVishnumohan Rethinam

    Arun,

    Glad that you kept your rejoinder cordial, clean and courteous.

    Prashant – saying Arun has a vested interest because his firm files many cases at the IPAB is simply discourteous and stands against all that spicy IP stands for. I hope this is not the flavour of things to come from you. The adversarial profession of law sees merit in enrichment and not belittlement.

    Cheers

    Vishnu

    Reply
    1. AvatarJagdish Sagar

      Even a motivated argument (which I am not accusing Arun of making) needs to be considered on its merits. Secondly I don’t know how far Spicy IP influences such decisions: I would be surprised if it did at all.

      Reply
  4. Prashant ReddyPrashant Reddy

    Hi Arun,

    I am baffled by your “ire”. Is it not a fact that your firm is one of the biggest filing firms before the IPAB in Chennai? Would it not be in your interest to defend the continuance of the IPAB – especially when you continue to appear before it? In fact, it is only ethical for you to be defending the interests of your current clientele. I fail to see any reason for outrage. You cannot be so thin-skinned if you are engaging in a public debate on SpicyIP.

    Regards,
    Prashant

    Reply
    1. AvatarArun C Mohan

      Hi Prashant

      Like I said in my post, I will not be commenting on this any further. I feel we have both had our say in this matter and there is no point in making this personal. Good luck with pursuing your petition.

      Reply
  5. AvatarSpicy IP

    This is a poorly argued piece, where the learned attorney (and his followers) has simply sidestepped the main contentions in favour of emotive arguments. Such tactics are common in courts not on intellectual forums.

    Reply
    1. SpicyIPSpicyIP

      This is to clarify that this comment has not been posted by SpicyIP. It’s an impersonation attempt by someone and was approved by mistake.

      Reply

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