Copyright Board to be constituted soon……or not so soon?

The Copyright Board, a quasi-judicial body, is constituted under the provisions of the Copyright (Amendment)Act, 2012 and Copyright Rules , where applicable. The jurisdiction of the Copyright Board extends to the whole of India. The Board under the Act is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of licenses in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes, determination of rate of royalties payable and other miscellaneous matters instituted before it under the Copyright (Amendment) Act, 2012. The Copyright Act, with respect to constitution of a full time Copyright Board under Section 11 provides that it shall consist of a Chairman and not less than two members or more than fourteen members. The Act read with Copyright rules, further specifically provides that the person who is to be appointed as a Chairman should be a person who is, or has been, a judge of High Court or is qualified for appointment as a Judge of a High Court. Thus placing a high importance on judicial representation in the Board.

This article pertains to the recent order by the Delhi High Court directing the Ministry of Human Resource Development, Department of Higher Education and the Secretary to take necessary steps to reconstitute Copyright Board with appointment of the Chairman of Copyright Board within a period of twelve weeks from the date of the order, in accordance with Section 11(1) of the Copyright (Amendment) Act, 2012 r/w Rules 3 of the Copyright Rules, 2013.

It is pertinent to state that the Copyright Board has been under judicial scrutiny for some time now. The matter involving the lack of judicial representation contrary to the provisions of the Copyright Act was first brought before the Court by a Writ Petition filed in 2010 by South Indian Music Companies Association before the Madras High Court seeking a declaration, declaring Sections 11 and 12 of the Copyright Act, 1957, and Rule 3 of the Copyright Rules, 1958, as ultra vires Articles 14, 19(1)(g), 21, 50, 245, and 300-A of the Constitution of India and in violation of the basic structure of the Constitution. In other words, the petition challenged the procedure of appointment and qualification of the members of the Copyright Board. The High Court of Madras passed an interim order directing Ministry of H.R.D. (Department of Higher Education) to fill up the post of Chairman or the Members following the consultative mechanism and procedure as laid down in Shamnad Basheer vs UOI (WP No. 1256/2011) and insisted the petitioners to withdraw the petition in the light of the fact that the Copyright Act was to be amended to the present Copyright (Amendment) Act, 2012.

But the Hon’ble Court,in its recent order noted that there have been no affirmative steps following the interim order passed in the Writ Petition filed by South Indian Music Companies Association before the Madras High Court, post Copyright (Amendment) Act, 2012. In light of which the Hon’ble High Court of Delhi directed the Ministry of Human Resource Development, Department of Higher Education and the Secretary through the present order to take steps in reconstituting the Copyright Board with immediate effect.

It has to be noted that, the absence of this special adjudicatory authority places a burden on the judicial system with the aggrieved parties approaching the High Courts to adjudicate the matters falling with the jurisdiction of this special adjudicatory authority. The Hon’ble High Courts in number of cases have in turn refused to intervene owing to the fact of existence of a statutory provision providing for establishment of specialized adjudicating bodies to decide on these matters. Copyright office website flashes a message that a new, full time Copyright Board is expected to be reconstituted shortly. Further developments on this matter shall follow.

Authored by Bhuvana S. Babu.

Sources- 1 and 2

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