Recently, the Finance Act, 2017,
the Annual Money Bill for the Financial Proposals by the Revenue Department,
Ministry of Finance, Government of India was passed by the Parliament and came
into force on April 01, 2017. The Finance Act as a part of its stride to reduce
the number of Tribunals, merged the Copyright Board (“the Board”) with the
Intellectual Property Appellate Board (“IPAB” or “Appellate Board”). Thence,
the process of transferring the same to the IPAB has begun with the latest news
on July 21, 2017 that the office was currently fast-tracking the approvals for
Copyright approvals before the merger takes shape.
This sudden amendment begs
discussion on the original idea behind setting up a Copyright Board in the
first place and an insight into what the Copyright Board exactly is, or rather
soon to be, was.
As per the Statement of Objects and
Reasons of the Copyright Act, 1957, Copyright Board was set up with an object
to determine reasonableness of rates or royalties, consider applications for
general licenses and assessment of compensation. Section 11 of the Copyright
Act, until amended by the Finance Act 2017, provided for the constitution of
the Copyright Board with a Chairman and prescribed number of members. As per
pre-amendment Section 11, the Central Government was to appoint a Secretary and
other officers ‘as may be considered
necessary for the efficient discharge of the functions of the Copyright Board’.
Section 72(1) of the Copyright Act, provided for an appeal against any
order/decision of Registrar of Copyrights to be preferred before the Copyright
Board.
The Copyright Amendment Act of 2012
brought in amendments to Section 11 of the Copyright Act as well. After the
2012 amendment, the Copyright Board was to consist of a Chairman and 2 members
as against a range of 2 to 14 members prescribed prior to the amendment. Although
the provision for constitution of a Copyright Board has been since the
enactment of the 1957 statute, a permanent constitution of the Board was only
announced
in February 2014.
In fact, the constitution of the Board
and other formalities was seeing commendable progress as the Copyright Board
Salaries and Allowances and other terms and conditions of service of the
Chairman and other Members Rules, 2014 were notified on March 24, 2014 pursuant
to Section 11(2) of the Copyright Act, 1957. As per the said rules, allowance
payable to the Board members were fixed along with other employment benefits.
Following this, an advertisement
for the posts of Members of the Copyright Board was published in ‘Employment
News’ in the 20-26 September, 2014 edition which was later cancelled by another
advertisement
for the same posts. Yet the constitution of the Board remained far from
reality. Further on November 21, 2016, Press Information Bureau of Government
of India released
a
statement by the Hon’ble Commerce Minister that the Copyright Board was likely
to be established by the financial year 2017-18.
However, with the recent amendment
to the Copyright Act by the Finance Act and the merger of the Board with IPAB
underway, it can be said that the Copyright Board has died without its ultimate
actual constitution.
Anomalies created by the Amendment
The IPAB is the Appellate Authority
for matters arising out of the Trade Marks Act, Patents Act and the Geographical
Indications Act (“GI Act”). The other statutes governing different IP namely
Copyright (until Finance Act, 2017), Industrial Design, Plant Variety and Semiconductor
Integrated Circuit Layout-Design, have their own respective Appellate
authorities prescribed in the respective Acts. The IPAB is constituted under
the Trade Marks Act, 1999 under Section 83. The GI Act originally conferred the
Appellate
jurisdiction with the IPAB. The Amendment of 2002 to the Patent Act, 1970
brought the patent matters under the jurisdiction of the IPAB while providing
for additional provisions regarding the IPAB as per the objects of Patents Act,
although the same was made effective only in 2007.
As per the objects and reasons of
the Trade Marks Act, the Appellate Board was constituted for speedy disposal of
appeals and rectification applications which prior to the Act lied before the
High Courts. Further, when the Appellate Jurisdiction for matters arising out
of the Patents Act was transferred from High Courts to the IPAB vide the 2002
Amendment, it was a change made along with provisions to address the peculiar
needs the specific legislation could require. In other words, it was not an
absolute transfer of jurisdiction without keeping in view the specific
requirements of the differing subject matter of Patents from Trade Marks.
Whereas, the transfer of
jurisdiction over Patent matters was done through a legislative amendment to the
Patents Act keeping it backed with additional provisions regarding the
functioning of the Appellate Board independent of the parent Act i.e. the Trade
Marks Act, the transfer of jurisdiction of Copyright Board to IPAB has been
done by the Finance Act, 2017 which is nothing but a money bill, and hence does
not require consideration of the Upper House of Parliament i.e. the Rajya
Sabha. The same has come into challenge on the said ground before the Bombay
High Court in a Public Interest Litigation filed by Tax Friends Association on
July 12, 2017
which was listed before the Hon’ble Chief Justice Dr. Manjula Chellur and
Hon’ble J. N.M. Jamdar The merger is not only ultra vires the Money Bill, it is
weak in the sense that it does not take (at least not yet) into account the
peculiar needs of the specialized legislation of Copyright Act, as opposed to
the efficient transfer of jurisdiction of Patent matters discussed above.
Section 160 of the Finance Act reads as under:-
“160. In the Copy Right Act, 1957,—
(a) for the words "Copyright Board", wherever they occur, the
words "Appellate Board" shall be substituted;
(b) in section 2, after
clause (a), the following clause shall be inserted, namely:—
'(aa) "Appellate Board" means the Appellate Board referred to
in section 11';
(c) for section 11, the following section
shall be substituted, namely:—
"11. The Appellate Board established under section 83 of the Trade
Marks Act, 1999 shall, on and from the commencement of Part XIV of Chapter VI
of the Finance Act, 2017, be the Appellate Board for the purposes of this Act
and the said Appellate Board shall exercise the jurisdiction, powers and
authority conferred on it by or under this Act.";
(d) in section 12, sub-sections (3) and (4)
shall be omitted;
(e) in section 78, in sub-section (2),
clause (a) shall be omitted.”
Thus, it
substitutes the existing Section 11, which, as discussed earlier, provided for
the appointment of officers as required by the specialized legislation, the
Copyright Act. Hence, it appears that the Finance Act transferred the Appellate
Jurisdiction of Copyright matters to IPAB without gauging the competence that
may be required in adjudging such matters which was cautiously done in the
amendment to the Patents Act as discussed above.
In addition to the
above amendment through Section 160, the Finance Act, 2017 vide Section 161
amends Section 83 of the Trade Marks Act, 1999 making the relevant part to read
as under:-
“the
Intellectual Property Appellate Board to exercise the jurisdiction, powers and
authority conferred upon it by or under this Act and under the Copyright Act, 1957”.
Another anomaly is presented by the said
amendment to the Copyright Act:-
“Section 72: Appeals against order of Registrar of Copyrights and Copyright Board.
(2)Any
person aggrieved by the final decision or order of the Copyright Board, not
being a decision or order made in an appeal under sub-section (1), may,…appeal
to the High Court within whose jurisdiction the appellant actually and
voluntarily resides or carries on business or personally works for gain. ”
The Copyright
Act, 1957 under Section 72(2) provided for an appeal against an order by the
Copyright Board to lie before the High Court, whereas no such appellate
jurisdiction against orders by the IPAB has been granted in the Trade Marks
Act. However, as the term “Copyright Board” in Copyright Act has now been
substituted with “Appellate Board”, Section 72(2) of Copyright Act now confers
Appellate jurisdiction on High Courts against the orders of IPAB, which is otherwise
not provided under the Trade Marks Act (which is the statute constituting the IPAB).
It is pertinent to note here that High Courts do take up cases against orders
by IPAB, but that is under the Writ Jurisdiction of High Courts and not
Appellate Jurisdiction.
After a long
period of stagnancy, all the steps as discussed above clearly show the much
required forward movement with regard to establishment of an Appellate
Authority for Copyright matters. The proposal of consolidation of tribunals for
increasing efficiency and reducing the financial burden of having different
set-ups is a welcome move and it is hoped that the anomalies identified will be
corrected, given that these questions have already been raised before the High
Court of Bombay
and the High Court of Madras
.
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S. No.
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Date
|
Event
|
|
1.
|
February 17, 2014
|
Announcement for Permanent Copyright Office and permanent Copyright
Board
|
|
2.
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March 24, 2014
|
Rules regarding terms of service of Board Members notified
|
|
3.
|
September 20, 2014
|
Advertisement for appointments to the posts of Members of Copyright
Board
|
|
4.
|
Early 2015
|
The September 2014 advertisement cancelled and the posts re-advertised
for appointments
|
|
5.
|
August 10, 2016
|
Term of office for members of Board changed vide Copyright Amendment
Rules, 2016
|
|
6.
|
November 05, 2016
|
Advertisement for Appointment to the posts of members of Board
|
|
7.
|
April 01, 2017
|
Merger of Copyright Board with the IPAB vide the Finance Act, 2017
(Union Budget 2017-18)
|
|
8.
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May 26, 2017
|
Sections 156-189 Finance Act came into force
|
|
9.
|
July 21, 2017
|
Statement by CGPDTM about the process of merger of Copyright Board with
the IPAB under process
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