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Vitiation of IPAB and Beyond – What changes under the Copyright Act now?
The President of India on fourth of April 2021 promulgated “The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021”. This Ordinance abolishes the various tribunals set up under the following acts:
- THE CINEMATOGRAPH ACT, 1952
- THE COPYRIGHT ACT, 1957
- THE CUSTOMS ACT, 1962
- THE PATENTS ACT, 1970
- THE AIRPORT AUTHORITY OF INDIA ACT, 1994
- THE TRADE MARKS ACT, 1999
- THE GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999
- THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 2001
- THE CONTROL OF NATIONAL HIGHWAYS (LAND AND TRAFFIC) ACT, 2002
- THE FINANCE ACT, 2017
Intellectual Property Appellate Board (IPAB) was constituted by a gazette notification of the Central government on 15 September 2003 to hear appeals against the decisions of Registrar under The Trademarks Act, 1999 and The Geographical Indications of Goods (Registration and Protection) Act, 1999. The 2007 notifications issued by the Ministry of Commerce & Industry with respect to The Patents Act, 1970 transferred the Appellate power from High Courts to the IPAB. Later in 2017, The Finance Act as per sec 160(a) & 160(c) conferred on the IPAB the Appellate jurisdiction over the matters covered under The Copyright Act, 1957. Similar transitional provision was also invoked under sec 59 of The Protection of Plant Varieties and Farmers Act 2001, conferring the IPAB to exercise jurisdiction on appeals as per section 56 of the Act.
Changes Brought out by the The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021 to the Copyright Act 1957.
- As per omitted Sections 2 (aa) and 11 of the Copyright Act, 1957, Appellate Board for the purposes of this act means IPAB. With the passing of The Tribunals Reforms (Rationalization and Conditions Of Service) Ordinance 2021, the IPAB stands abolished, and the powers of the IPAB under the Copyright Act, 1957 have been transferred to the High Courts and Commercial Courts. Sections 11 and 12 of the Act, which defined “Appellate Board” and “Powers and procedure of Appellate Board” have been omitted by the said ordinance. Commercial courts as per the new sec 2. (fa) brought out by the Tribunal reforms ordinance means a Commercial Court constituted under sec 3, or the Commercial Division of a High Court constituted under section 4 of the Commercial Courts Act, 2015. As per the Commercial Courts Act, 2015 a Commercial Court is a court constituted by the State Government after consultation with the concerned High Court and a Commercial Division of High Court is a court having one or more Benches consisting of a single Judge constituted by the Chief Justice of the concerned High Court for the purpose of exercising the jurisdiction and powers conferred on it under the Act.
Powers Conferred to the Commercial Court.
- To take a final decision on whether a work has been published or as to the date on which it was published for the purpose of determining the term of the Copyright.
- To take a final decision on whether the term of copyright for any work is shorter in any country than that provided in the Act.
- To revoke an assignment of copyright on the receipt of a complaint by the assignor.
- To decide over Disputes with respect to the assignment of the Copyright.
- Commercial Court should be satisfied of the identity of the author for determining the term of copyright in anonymous and pseudonymous works.
- To grant Compulsory Licences in works withheld from public.
- To grant Compulsory Licences in unpublished or published works.
- To grant Compulsory Licences for benefit of persons with disabilities.
- To grant Statutory Licences for Cover versions.
- To grant Statutory Licences for broadcasting of literary and musical works and sound recording.
- To grant License to produce and publish translations.
- To grant License to reproduce and publish such works which are not made available in India.
- To decide over disputes with regards to Tariff Schemes by Copyright Societies.
- To fix Resale share right in original copies of the first author if he was the first owner of copyright according to the Act.
1. Certain Disputes regarding term of copyright to be decided by the Commercial Court.
Powers conferred by Section 6 of the Copyright Act, 1957 on the Appellate Board have now been transferred to the Commercial Court. This includes the power to take a final decision on these questions:
- whether a work has been published or as to the date on which a work was published for the purpose of determining the term of Copyright.
- Whether the term of copyright for any work is shorter in any other country than that provided in respect of that work under the Act.
This section also gives power to the commercial court to have an opinion on the issues of copies or communication to the public referred to in section with regards to publication, as to whether the publication was of an insignificant nature or not, to be deemed to be a publication for the purposes of that section.
2. Commercial Court has been given authority over Disputes with respect to the assignment of the Copyright.
The Commercial Court can under section 19A revoke assignment of copyright, on the receipt of a complaint by the assignor, if an assignee fails to exercise his rights assigned to him, and such failure is not attributable to any act or omission of the assignor. It can pass such order only when it is satisfied that the terms of assignment are harsh to assignor in case the assignor is also the author. pending the disposal of an application for revocation of assignment under this section, the Commercial Court may pass such order, as it deems fit regarding implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned. Commercial Court shall not make an order of revocation of assignment under this section within a period of five years from the date of such assignment.
Commercial Court is also empowered to conduct inquiry when needed, and to pass an order including an order for the recovery of any royalty payable, with regards to any dispute arising out of the assignment on the receipt of a complaint by the aggrieved party. every such complaint received, shall be dealt with by the Commercial Court as far as possible and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the complaint and any delay in compliance of the same, the Commercial Court shall record the reasons thereof.
3. Power of Commercial Court in determining the term of copyright in anonymous and pseudonymous works.
For the purpose of determining the identity of the author, Commercial Court should be satisfied with the identity of the author, if the identity of the author is not disclosed publicly by both the author and the publisher, in determining the term of copyright in anonymous and pseudonymous works under Section 23.
4. Commercial Court has been given authority in cases of Compulsory Licences in works withheld from public.
According to the substituted Section 31, The Commercial Court may on payment of such fee as may be prescribed, grant compulsory License to a person who applies to it after being refused by the Copyright owner to republish or allow the republication or to allow the performance of such work in public and by reason of such refusal withheld the work from public or has refused to allow communication by broadcast of such work, or in terms of sound recording, the work recorded, on terms which are considered reasonable by the complainant.
The Commercial Court after hearing the Copyright owner and conducting enquiry if needed, is satisfied that grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Commercial Court may determine; and thereupon the Registrar of Copyrights shall grant the licence to such person or persons who, in the opinion of the Commercial Court, is or are qualified to do so in accordance with the directions of the Commercial Court, on payment of such fee as may be prescribed.
5. Commercial Court has been given authority over cases of Compulsory licence in unpublished or published works.
Where any work is unpublished or any work published or communicated to the public and the work is withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Commercial Court for a licence to publish or communicate to the public such work or a translation thereof in any language, According to the substituted Section 31A.
The Commercial Court after receiving such application shall after holding enquiry if necessary, direct the Registrar of Copyrights to grant to the applicant a license to publish the work or a translation in the language mentioned in the application subject to the payment of such royalty and other terms and conditions as the commercial court may determine, and thereupon the Registrar of Copyrights shall grant the license to the applicant with the direction of the Commercial Court.
6. Commercial Court has been given authority in cases of Compulsory Licences for benefit of persons with disabilities.
Commercial Court may under Section 31B grant Compulsory Licence to any person working for the benefit of persons with disability, to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of sub-section (1) of section 52 does not apply and the Commercial Court shall dispose of such application as expeditiously as possible and endeavour shall be made to dispose of such application within a period of two months from the date of receipt of the application. The commercial court shall give the copyright owner an opportunity of being heard, and after conducting inquiry, decide accordingly as it may deem fit.
7. Power of Commercial Court in Statutory Licences for Cover versions.
Commercial Court as per Section 31C has the power to fix rates of royalties to be paid in cover version made by any person being a sound recording in respect of any literary, dramatic or musical work, and such person shall give prior notice of his intention to make such work to the copyright owner owner and shall provide in advance copies of all covers or labels with which the sound recordings are to be sold. Commercial Court is also empowered to decide upon the disputes with regards to the rights of the owner and payment of the royalties, and may pass an order to cease from making further copies and for payment of royalty.
8. Power of Commercial Court in Statutory Licences for broadcasting of literary and musical works and sound recording.
As per Section 31D, Commercial Court has the power to fix rates of royalties to be paid in statutory licence for broadcasting by any broadcasting desirous of communicating to the public of a literary or musical work and sound recording which has already been published. Such broadcasting authority shall give prior notice of its such intention stating the duration and territorial coverage. the commercial court may even require the broadcasting organization to pay an advance amount to the owner of rights. the Commercial Court shall fix separate rates for radio broadcasting and television broadcasting.
9. Commercial Court may grant License to produce and publish translations.
On an application to it under Sec 32, by any person for a licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work. Commercial court can also grant a licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in general use in India if such translation is required for the purposes of teaching, scholarship or research to any person on application made by him, after a period of three years from the first publication of such work. commercial court may conduct inquiry for this manner and may fix royalties for such works.
10. Commercial Court may grant License to reproduce and publish works for certain purposes.
Where the commercial court is satisfied that, even after the expiration of the relevant period from the date of the first publication of a literary, scientific or artistic work, the copies of such work are not made available in India, or such copies have not been put on sale in India for a period of six months, and that the attempts of the applicant to obtain a licence from the owner for the same have been unsuccessful, it may grant a non-exclusive licence to produce and publish a reproduction of the work mentioned in the application, at the rate of royalties to fixed by it and subject to other conditions fixed by it.
11. Commercial Court to hear disputes with regards to Tariff Schemes by Copyright Societies.
Commercial Court may hold inquiries against the complaints received by it from any aggrieved party about the Tariff Schemes of the Copyright Societies and make such order to remove any unreasonable element, anomaly or inconsistency therein according to the revised Section 33A. Commercial Court may also fix and ask the aggrieved parties to make Interim payments accordingly pending the disposal of the appeal.
12. Commercial Court to fix Resale share right in original copies of the first author if he was the first owner of copyright according to the act.
According to revised Section 53A, In the case of a resale of the original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work, and when the resale amount exceeds ten thousand rupees, the author of such work If he was the first owner of the work according to section 17, notwithstanding an assignment of copyright in such works, have a right of share in the resale price. The share may be fixed by the Commercial Court. It may fix different shares for different classes of work. disputes with regards to the share shall be heard and decided finally by the Commercial Court.
Powers Conferred to the High Court.
- To Rectify the Register of Copyrights.
- To hear Appeals against the orders of Registrar of Copyrights.
1. Rectification of Register of Copyrights by High Court.
According to the substituted section 50, the High Court on an application by the Registrar of Copyrights or by any person aggrieved, shall order the rectification of the Register of Copyrights by entering anything that was wrongly omitted to be made in the register, by removing any entry wrongly made in, or remaining on, the register, or by the correction of any error or defect in the register.
2. Appeals against the orders of Registrar of Copyrights to be heard by the High Court.
Section 72 of the act has been substituted entirely with a new provision. According to the new provision, any person aggrieved by the order of the Registrar of Copyrights may appeal to the High Court within three months from the date of the order. Every such appeal shall be heard by a single Judge bench of the High Court, and any such judge may at any stage of the proceeding refer the appeal to a higher bench. Where an appeal is heard by a single judge, a further appeal shall lie to a bench of the High Court within three months from the date of order of the single judge.
Authored by Sayyid Qutub