Some ten years ago, post Prof. Basheer’s intervention before the Supreme Court in the Novartis case, Prashant had commented “Academics in India are usually cloistered in their classrooms and conference rooms. I hope we have several more of such interventions, especially since we now have a breed of brilliant young academics in India”. And now almost a decade later, the Indian judiciary will be assisted by another academic in an IP dispute, this time in form of Prof. Arul George Scaria of National Law University, Delhi.
The Plaintiff (Phonographic Performance Limited) had filed a petition alleging that the Defendant (Lookpart Exhibitions and Events Private Ltd.) is infringing its copyright work by playing them at various social events at commercial venues. The Defendant on the other hand sought protection under Section 52 (1) (za) which is one of the exceptions to copyright infringement in form of performance of a literary, dramatic, or musical work in a bonafide religious ceremony, which includes marriage. While the order (pdf), authored by Justice Prathiba M. Singh, expressly stated that marriage here would mean aligned functions like sangeet, mehndi etc. (thus somewhat answering the question raised by Devika here), it observed that owing to the wider implication of the issue at hand appointment of an expert was essential for interpreting Section 52 (1) (za) of the Copyright Act, in the present case.
Appointment of Expert
One thing which I find interesting was that Prof. Scaria is appointed as an “expert” under Rule 31 of the Intellectual Property Rights Division Rules, 2022 which also prescribes that due remuneration shall be paid to the expert for its assistance as decided by the court and thus differs from the custom of appointment of “amicus” for whom no such remuneration is expressly mandated under any law.
As pointed out by Prashant, participation of Indian academics in the interpretation of laws is indeed restricted to classrooms and perhaps that’s why India has not witnessed a single academic appointment to the Supreme Court against a trend of judicial appointments of academics in the USA. (on the flip side here is a very interesting piece by Richard Posner addressing the issue of too many academic appointments.) In fact, recently Pinaki Mishra, a Member of Parliament from Puri constituency posed a somewhat similar question before the government on the sorry state of academic appointments to international organizations from India (see here (pdf) for the specific question posed by Mr. Mishra.) Keeping foregoing in mind, the appointment of Prof. Scaria by the Delhi High Court as an expert to interpret one of the key fair use provisions for sure is a whiff of fresh air and hopefully will kick starts a much-needed trend of such appointments. Readers can find blog posts authored by Prof. Scaria here, here, here, here, and here.
(Edit: In addition to lack of academic appointments to judicial and international organizations, Prof. Prabhash Ranjan has raised another adjoining issue here with regard to opacity in the matter of appointments to international organization. Considering this general problem with appointments of experts overall, transparency in appointment of Prof. Scaria by the Delhi High Court is another aspect of the order which deserves its due appreciation.)