What's with this Kolaveri about John Doe Injunctions?

What's with this Kolaveri about John Doe Injunctions?

- Abhik Majumdar

[This is a revised version of an article originally published in the Down to Earth website]

On 29 March 2012, at the instance of a firm called Copyright Labs, the Madras High Court issued an injunctionintended to prevent the illegal copying and distribution of the film "3", perhaps best known for it song "Why this kolaveri (killer rage)".  Those interested may read the order for themselves, (courtesy of the BGR blog); as injunctions go it was certainly a most unusual one. It was ex partein nature, that is, it has been issued by hearing only one side. Moreover, it was in the nature of a "John Doe injunction", that is, it applied to any and all persons, even unknown ones. The plaintiffs used this feature to persuade ISPs to altogether block access to both P2P sites and video sharing sites like Vimeo and Dailymotion, regardless of whether or not they actually contained or gave access to the concerned material. Predictably, this caused outrage and confusion in equal measure. Even to someone like me who can claim some connection with the law for the last seventeen years, the incident did not make sense. How could an ex parteJohn Doe injunction of such sweeping ambit be ever contemplated? And how can an injunction to prevent piracy apply to ISPs and video sharing sites anyway?

To understand the facts better, perhaps the quickest strategy is to fall back on beer, the law student's time-tested analytical tool. Consider a situation (needless to say, completely hypothetical), where United Breweries discovers some enthusiasts brewing, on a limited scale, a beer near-identical to Kingfisher Ultra. Its purveyors have no intention of passing it off as genuine KF. Neither is this fauxKF sold or transacted for material gain, but only "shared" amongst its (re)creators. At the same time, the purveyors are open about their product's resemblance to the genuine KF, and indeed their declared intention has been to recreate its taste and colour. Over time this community of enthusiasts starts cutting into UB's revenue, or at least UB claims so. The company tries to approach law courts, but it turns out  that the places where the sharing takes place lies beyond the the courts' jurisdiction. UB then takes out a court order forbidding anyoneto help these exchanges. 'Anyone' means literally just about anybody. It includes not only sharing venues, but also certain clubs or societies where microbrewery enthusiasts gather to discuss and sample (not consume) each other's products. Since these sampling clubs also lie outside the court's jurisdiction, the injunction does not help UB much. Now what does it do? It goes and informs bus and taxi companies that the terms of the court order are so wide as to cover them also. Hence they are prohibited from carrying passengers to the sharing venues and sampling clubs. This prohibition extends even to passengers who have no interest in KF, but want to go to a sampling club to taste brews that have nothing at all to do with UB.

The natural response to this admittedly absurd scenario is that beer (and likewise chocolate, toothpaste or shoe polish) are inherently different from films or audio recordings. Replicating beer entails a process not only skilful but also cumbersome and expensive, which tends to restrict such not-for-profit endeavours to "small beer", literally. This is one major flaw in our above example: it is very difficult to sustain volumes large enough to dent UB's profit margins unless one resorts to outright fakery and passing off. In contrast, films can be easily copied and distributed over the internet at little to no cost.

But should this difference alone justify such sweeping injunctions and render plausible in respect of films what we just acknowledged as absurd in the case of beer? In other words, can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? This means the matter pertains not so much to copyright as it does to civil procedure and how it is to be applied to enforce rights deriving from intellectual property laws. This is a vast issue, well beyond the scope of this article.  Here I shall only raise a few points that I consider germane.

Protecting intellectual property, and particularly copyrights, presents an unprecedented challenge to legal systems the world over. Advances in digital technology has made it possible to copy and distribute over the internet music recordings, films and even books with unprecedented speeds and reach. Despite many efforts, no satisfactory legal response has been devised so far. "Satisfactory" is a loaded term, so it is perhaps a good idea to specify what exactly I mean by it. First, it must bear strong connections with the idea of efficiency, that is, securing the objective with minimal wasted effort and "collateral damage". The last is particularly significant. Applied to the present context, it means simply that the measure must (a) be effective in restricting piracy, and (b) cannot be so broad in its ambit as to encroach upon individuals' legimitate interests. This includes the various fair use rights recognised under S. 52 of the Copyright Act; the right to access on Vimeo and Dailymotion videos that have been legally uploaded there; and even the right to distribute over BitTorrent material whose copyright status is not in dispute (I myself have used BitTorrent on several occasions to download software like Ubuntu Linux). Which means that expressed in simple terms, an effective remedy must also incorporate elements of balance - a balance between various differing, and at times mutually inconsistent, individual and social interests.

In this light, let us examine the nature of the present injunction. First, it was ex partein character. Since such orders override a fundamental principle of natural justice that all parties should be given a fair hearing, they are to be issued with much restraint, and only in exceptional situations (such as when the other party persistently fails to appear, or when any delay will lead to significant injustice).

Secondly, the only specific parties the order names (at p. 3-4) are some fifteen India-based ISPs, whom it proceeds to restrain "from in any manner infringing the applicant's copyright in the cinematographic film/motion picture '3' . . .." No mention is made of any P2P or even video sharing sites, whose direct involvement in infringing the plaintiffs' copyright is much more feasible and also likelier. As a Medianama report correctly points out, ISPs are only intermediaries, and cannot by themselves infringe an copyrights. (It also says the order makes ISPs responsiblefor infringing copyright. Admittedly it does refer to certain other suit documents which are not in my possession right now, and hence whose content cannot be verified. However, to my mind there is nothing in the order at least that holds ISPs responsible for copyright infringement. It is as absurd as holding taxi drivers responsible for infringing UB's intellectual property merely by driving passengers to beer sharing venues.)

But it is the third characteristic of the order that makes it so remarkable. Apart from the ISPs mentioned, it specifies five other parties all denoted by the fictitious name "Ashok Kumar", and then also "other unknown persons", against whom the injunction applies. In many legal systems, particularly western ones, this is known as a "John Doe" order. Its use in India is rare. Even in the west it remains something of a novelty, but its use there is certainly more frequent than in India. As a result some jurisprudence has developed around around it, mainly in the nature of safeguards preventing it from arbitrary application. The question that arises naturally here how the present injunction fares when evaluated against these safeguards.

The most frequent use of the John Doe concept is not really relevant to us. It is when fictitious names like John Doe or Jane Roe are used to mask the identity of parties who cannot be named for concerns of privacy or other legal factors: examples include victims of rape or other sexual offences, parties who are underage and so on. More applicable to our case are instances when an injunction or some other relief is sought in regard to a person or persons unknown. This is gaining popularity internationally in intellectual property cases. An interesting exampleconcerns Harry Potter books. The release of each volume in the series was greated with much public frenzy and, inevitably, media hype. This resulted in at least two separate cases of pre-publication copies being stolen with the intention of leaking to the tabloid press. On both occasions, an injunction was issued prohibiting person or persons unknown from "disclosing any information concerning the book or dealing in any way with any copies of the book or disclosing any part of any copies they might have to any third parties . . .." The first time it happened, before the launch of "Harry Potter and the Order of the Phoenix" (volume 5), the injunction pertained specifically to the unidentified individuals who had offered the illicit copy to the Sun, the Daily Mail and the Daily Mirror. When it happened again with the next volume "Half-Blood Prince", the resultant injunction covered "any person or persons who have or have had physical possession of a copy  . . . or any part thereof without the consent of the claimants." What is significant here is that such injunctions have always been issued with a great deal of caution. Even the second Potter injunction was very specific in its application (i.e.the content of "Half-Blood Prince"); entailed a clearly defined  timeframe (from 3 June 2005, when the threat of leakage was detected, till 12.01 AM on 16 July, when the book was released); and pertained to individuals, albeit unknown, whose actions amounted to a direct and tangible copyright breach.

Similarly, take John Doe subpoenas popular in US, which are designed to compel disclosure of parties' identities, and are popular in cases of online defamation as well as copyright infringement. Since the net provides considerable scope for anonymous libel, obtaining the perpetrator's identity is usually a complicated process that involves first securing a court order (specifically, a subpoena) directing the hosting website to disclose the IP address from which the defamatory statement was made, and then securing another order this time directing the ISP that owns the address to reveal which account used that address at the time the statement was made.

This process is not only cumbersome, but also potentially infringes the privacy of the unnamed person. Consequently, courts have always been careful about issuing such subpoenas, and in various judgments formulated different tests and criteria to ascertain if a subpoena is appropriate. In Sony Music Entertainment Inc. v. Does 1-40(326 F. Supp. 2d 556 (2004)), which in fact concerned copyright infringement through p2p networks, a New York district court held that a subpoena to disclose the identity of the file-sharers can be issued only if a prima facie case is made out against specific persons, no other means of obtaining their identity is possible and so on. This apporoach was followed in Doe v. Cahill(884 A.2d 451 (2005)), a Delaware Supreme Court concerning online defamation. Here the court ruled that no subpoena may be issued unless the plaintiff first demonstrates that the impugned comments can be "capable of a defamatory meaning". Subsequent cases have held that even after this prima facie test is satisfied, the plaintiff's interests must be balanced with those of the anonymous defendant. In Mobilisa, Inc. v. Doe(170 P. 3d 712 (2007)), the Arizona Appellate court followed Cahill and the older New Jersey decision of Dendrite International v. Doe No. 3 (A-2774-00T3 (2001)) to conclude that that even after the plaintiff establishes a prima facie case, a further set of five criteria must be fulfilled. For example, the plaintiff must make reasonable efforts to inform the anonymous party that a request to disclose anonymity exists; the intimation must be made through the same medium as the statement imputed to be defamatory, and so on.

All this serves to illustrate one crucial point: In jurisdictions where the law of copyright is much more matured as compared to India, John Doe injunctions are issued very judiciously, and by balancing the interests of all parties concerned - even the anonymous ones. Moreover, in most of the cases we saw, John Doe injunctions are issued subsequent to the commission of a legal wrong, not to pre-emptively restrain persons from committing them. In exceptions to this (such as the Harry Potter case), the terms of the injunction are tightly defined. These characteristics do not hold true for India. Once earlier also, the Delhi High Court had issued a similar John Doe injunction blocking the illegal distribution of the Reliance Big Pictures' film Singham before its official release (a copy of the order is available here). Since the injunction was not targetted at any specific individual, Reliance interpreted it to mean it could serve notices to anyone it wanted. So it went about serving cease and desist notices on both ISPs and torrent sites directly. The latter strategy did not work, since most of them lay outside the jurisdiction of Indian courts. The owner of BitSnoop, for example, made it clearthat he had every intention to ignore the notice. Hence, presumably, when Copyright Labs decided to obtain a John Doe injunction, it made specific mention only of ISPs, who at worst can only aid the infringement of copyrighted materials by allowing subscribers to access them.

To conclude, let us revert to the question posed much earlier: can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? While it is manifest that the differences between beer and cinema call for dissimilar treatment, our above exegesis makes it equally clear that regardless of the nature of the subject, a balance must be maintained between different legitimate interests. Harish Ram, CEO of Copyright Labs, has claimedthat ISPs had misinterpreted the order, and that the Labs' intention was only to block specific URLs. This explanation does not hold water. The ISPs acted not directly on the court order, but on the legal notice based on it that the Labs had sent them. It was therefore incumbent on the latter to be clear about what they were seeking.

Then again, perhaps questions like what the notice actually contained and whether or not the misunderstanding on the part of the ISPs was caused by ambiguities in the legal notice, do not really matter. Even if the wording of the notice contains no shortcomings, one grave issue still remains. It is respectfully submitted that by granting injunctions of such width, the Delhi and Madras High Courts have not taken due regard of this balance. To the extent that they have granted to the plaintiffs what amounts to a carte blancheto send cease and desist notices to anyone they fancy.  A strategy that upholds one interest to the exclusion of others is necessarily flawed. And that is why, given the way in which sites were blocked, the Kolaveri generated by the entire episode was perhaps inevitable.

Interesting Conflicts and the Basis for Bias: The Right Peg?

Two important IP developments in the recent past have thrown up interesting issues around the standards for judicial recusal and for determining conflict of interest.

Novartis Patent Dispute and Judicial Recusal

1. Justice Dalveer Bhandari recused himself from a controversial patent dispute involving Novartis' famed anti cancer drug, Glivec; a dispute that has dogged Indian courts for several years now. The allegation was that since he attended a conference organised by patent owners (Novartis was one amongst the many patent owners that formed part of the association organising the conference to which the judge was invited), there was a genuine apprehension of bias. It would appear that under rules pertaining to travel abroad by judges, he would first have had to take permission from the Chief Justice and that his trip would necessarily have to be paid for by the Government of India.

Justice Ruma Pal mentions this rule in her hard hitting Tarkunde memorial speech:

"At present no judge, whether of the Supreme Court or the High Courts can accept any invitation from any foreign person or organization or indeed even visit a foreign country out of his/her personal funds, unless an application is made to the State and Central Governments with the approval of the Chief Justice two months ahead of the date of departure and the application is vetted by different Ministries and ultimately allowed or disallowed by an executive order which may or may not be received before the date fixed for leaving!"

One might therefore infer that Justice Bhandari attended the conference only after getting the necessary government and CJI clearances. And that his trip was paid for by the government. Further, it bears noting that the judge did not speak on the Novartis case at the conference but made a general speech on intellectual property rights and asked that IP regimes be strengthened. Some months later, he refused to admit Roche's challenge in a big ticket patent case (and Roche was also a member of the very same association that organised the impugned conference). The key question is: given these facts, was there a genuine apprehension of bias? Or ought we to have strict rules preventing judges from attending such conferences? Where ought we to peg the standards in this regard? I reflect on this issue in two posts on SpicyIP here and here.

Sibal, Copyright Bill and Conflict

2. More recently, allegations of non declaration of a conflict of interest were levelled against HRD Minister, Kapil Sibal who sought to introduce the copyright amendment bill in Parliament. The claim was that since his son (Amit Sibal, a rising lawyer) appears for T series (a major sound recording company) in several cases, he ought to have declared this "interest" prior to moving the bill. The relevant rule (Rule 294(1)) in the Parliament’s Ethics Committee Report states as below:

“whenever a Member has a personal or specific pecuniary interest, direct or indirect, in a matter being considered by the Council or a Committee thereof, he shall declare the nature of such interest notwithstanding any registration of his interests in the Register, and shall not participate in any debate taking place in the Council or its Committees before making such a declaration.”

It must be noted that this rule appears less potent than our rules informing judicial recusal. An apprehension of bias leveled against a judge invariably means that the judge cannot adjudicate upon that case. However, a declaration of "interest" within our Parliamentary framework is simply nothing more than a mere "declaration". It does not prevent the person concerned from participating in the concerned Parliamentary debate (provided he/she makes such declaration before participating).

The following issues arise for consideration:

1. Firstly, does the fact that Amit Sibal (Minister Sibal's son) represent T series pose a personal or a pecuniary interest, direct or indirect? What if Amit Sibal had only acted once for T series? What if Mr Sibal had himself acted for T series during his career (and I recall he did appear for T series in a Supreme court case dealing with "version" recordings). Given that Mr Sibal was and continues to remain an illustrious lawyer, isn't it possible that he may have acted at one point or other for a whole range of clients with some kind of an "interest" in the present copyright bill?

Does this mean that he has to declare an "interest" in all such cases? And given that his son is a rising star in the litigation firmament, does he have to declare an interest in all cases where his son acts for some client with a copyright interest (given the pervasive nature of copyright today, is there any corporate entity that does not have a "stake" in copyright law today?)

The second issue is: even assuming that there is an indirect interest here, does this pose a serious apprehension of bias (or potential for corrupt practices)? The question may not be relevant to the issue of whether or not this is an "indirect" interest, but I deal with this nevertheless to study the nexus between "interest" and apprehensions of bias or the potential for corrupt practices.

T Series and the Copyright Bill

If one were to simply examine the text of the copyright amendment bill, one finds that not all provisions favour T series. In fact, some provisions are heavily loaded against it. The Bollywood mandatory royalty provisions are a glaring example of this, where T series cannot enjoy all music revenues by itself (even assuming it has contractually taken over all rights of underlying music composers and lyricists), but must necessarily share all its revenues with them, each time the work is exploited outside of the regular cinematographic medium.

On the other hand, the amendment to section 52 (1) (j) (dealing with version recordings) clearly favours T series.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics). The most recent copyright amendment bill (whose fate is expected to be decided this winter in Parliament) contains an amendment to this provision. Surprisingly, this amendment has received very little attention thus far. In fact, it is not even clear as to how the proposed amendment came about and at whose behest and one may need to file an RTI application to locate its genesis.

While section 52 (1) (j) provides that a cover version can be made anytime after the expiry of two years after the first recording is made (by a music major such as T series), the amendment seeks to extend this moratorium to 5 years: in other words, sound recording companies such as T series benefit immensely, since there are no cover versions for the first 5 years after their commercial release.

Given this mixed bag, where one set of amendments favours T series and the other goes against them, can one argue that there is still a genuine apprehension of bias? Or ought we to desist from asking this question and simply follow the "declaration" rule to its letter?

And lastly, what happens now? Assuming the rules are interpreted rather liberally (with "indirect" interest being read widely), does this mean that the bill can only be discussed in the absence of Mr Sibal, the prime mover of the Bill? Or does he only have to stay away from discussions involving provisions that impact T series (one might argue that almost all amended provisions will impact T series one way or the other).

Whatever the outcome, one can be sure that these thorny conflict issues will continue to accost us with increasing rapidity in the years to come. The time is therefore ripe for for an intense discussion and debate around these norms, the standards that they must be pegged at, their overall purpose and how best to enforce them.

In the meantime, for those interested, the PRS website has some excellent resources/discussion on conflict of interest rules and the Indian Parliament. And LAOT has had some excellent discussion around the rules relating to judical recusal in the past.

Bollywood Plagiarism: Some Thoughts

That Bollywood is often "inspired" by many a storyline of Hollywood or that its music composers routinely "borrow" tunes from across the world, without attribution to the original composer, is a well known fact.

I list some of my favourite "lifts" below:

1. The raunchy "Munni Badnam Hui" was copied from a 1992 Pakistani number. Umar Sherif, the original composer says he was more surprised than angry when he came to know of the copy. However, Lalit-ji refuses to acknowledge the copying, making this one painful badnaami that no Zandu balm can cure.

2. "Teri Meri Prem Kahani", from the latest Salman hit (Bodyguard), is a clear copy of a 15th century Romanian carol, made famous by an angelic rendition by Cleopatra Stratan, when she was all of 6 years old! The music producer, Himesh "nasal" Reshamiyya insists that there is no copying and that this is an original "raag" based melody.

3. Tamally Maak from Egyptian composer Sherif Tag and performed by Amar Diab, a leading Arabic rockstar. This was transformed by the inimitable copy cat, Anu Malik to a murderous "Kaho Na Kaho".

4. Pehli Nazar Mein (from the movie "Race") copied from a wonderful Korean song.

My all time favourite however is the Lambada tune made famous by the French band, Kaoma. This appears to have its origins in a Bolivian number and underwent several adaptations before it found its way into the creative consciousness of Jennifer Lopez who used it to hit the dance floor with a certain pit bull. And here again, Bollywood was not far behind: Bappi Lahiri cashed in on this famous tune in a 1990's Bollywood blockbuster, Ghayal starring Sunny Deol and Meenakshi Seshadri.

For those of you interested in uncovering more lifts, try the fabulous itwofs, a resource created with painstaking effort and diligence.

For the most part, such borrowings (particularly in the music sphere) have not been subject to any legal sanction under India's copyright norms. However, in a recent decision, the makers of the Malayalam movie, Urumi were restrained from exhibiting the movie (and performing the song in languages other than Malayalam) owing to the fact that one of the key songs in the movie copied the soulful tune of a Canadian celtic singer.

This order may perhaps signal the end of an era of unabashed copying by Pritam, Anu Mallik and the like. However, while such "borrowings" may technically amount to an infringement under India's copyright laws, we need to ask whether or not we ought to encourage such borrowings. I personally lean in favour of creating some legal space for them, subject to attribution and the payment of royalty in appropriate cases.

In a recent post at SpicyIP, I outline some tentative proposals in this regard:

1. Firstly, music composers ought to be provided an opportunity to check their tunes against previous similar sounding versions. In other words, we need a smart tech savvy person with an interest in music to come up with a product that enables such cross checks. Any such product will certainly not starve for want of a market. For not all copies are conscious copies, and conscientious composers may find themselves at the receiving end, simply because they have no idea that their tune is an unconscious copy or adaptation of something they heard earlier! Perhaps there already exists such a product that I am not aware of?

2. Secondly, my own view is that, irrespective of whether or not the copyright in a tune has expired, every borrowing be acknowledged and attributed. The challenge is to convert this to a specific legal obligation with definite bounds susceptible to easy enforcement. I am reminded of the patents regime, where every patent application has to necessarily disclose prior art that it draws from. Ought we to have a similar obligation to disclose musical borrowings (and make copyright protection contingent upon such disclosure)? Would this be feasible?

3. Thirdly, every composer be free to borrow or lift any copyrighted tune, provided royalties are paid to the original copyright owner. In short, we institute a compulsory licensing scheme! It bears noting that we already have such a scheme for straightforward copies, which go by the name of "version recordings". A scheme that made T series what it is today.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song (by making it afresh with a new set of performers) after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics).

I find it a bit paradoxical that when straightforward copying is encouraged under such a "version recording" scheme, adaptations (which involve more work) are not. This can be rectified with a simple stroke of the legislative pen. However would such a compulsory licensing scheme be desirable?

Should we encourage such copying, particularly where there is some creative adaptation. I find that many a time, it takes a copy to appreciate how much better the original version was. And more importantly, but for such copycats, one may never have discovered the original artist in question. Thanks to Deepak Dev, I found Loreena McKennitt, and have not stopped listening to her ever since. Lastly, as is the case with Urumi's "Aaro Nee Aaro", copies are capable of evoking a very different imagery than the original. One may perhaps argue that raw pieces of art or music often have little meaning outside of the cultural context in which they situate themselves.

Copyright, Parallel Imports and Access To Education

A piece titled the "The Death of Books" sparked off a fiery debate around a proposed amendment to the copyright act. Two of us (leading technology lawyer Rahul Mathan and me) initially countered this doomsday prediction largely centred around the prospect of a phenomenon interestingly referred to as "remaindering".

In a Mint opinion piece, I argued that this was nothing more than a protectionist scream and that the onus was on publishers to demonstrate why there should be a restriction on the right of free trade. And why the section 2(m) amendment would destroy their fragile industry, as claimed.

Colleagues of mine differed, pointing me to Thomas Abrahams' critical piece which stated thus:

“The ministry mandarins also seem to have the absurd belief that publishers don’t bring in current editions. Every single major book — whether a medical textbook or the latest blockbuster like a Harry Potter or Stephanie Meyer — is available the same day as its release worldwide and 35% cheaper, with textbooks being 80-90% cheaper.”

Working under the aegis of the recently formed P-PIL, we began the arduous task of empirical investigation on this count. Many weeks later, we came up with some interesting numbers which demonstrated that the claims of publishers on this count are empirically false, at least in so far as legal educational titles are concerned.

Based on these numbers, we drafted a report which was then sent to the Minister of HRD, Shri Kapil Sibal. Our report and all data (in Annexures) are available on the P-PIL website. This is the second public interest matter that P-PIL picked up, the first one being a constitutional challenge against an egregiously constituted IPAB.

A pithier account of this report is available in this opinion piece I did for the Economic Times, the key extracts of which I reproduce:

"If enacted, a proviso to section 2(m) of the Indian Copyright Act would permit the import of legitimate copies of copyright works that have been sold once anywhere in the world.

This amendment aims to foster enhanced competition amongst distributors and thereby enable Indian consumers and students to access a wider range of books at lower prices in a timely manner.

However, publishers vehemently oppose this provision, claiming that there is no 'access' issue in the country since most foreign titles boast equivalent low-priced Indian editions.

This is simply not true. Promoting Public Interest Lawyering (P-PIL), a public interest association of which I am part, unearthed data relating to the acquisition of foreign titles by leading law libraries in the country, and concluded in their representation to the HRD ministry, as follows:

Of the total 1,554 foreign titles acquired by two leading law libraries during 2009-11, there were hardly any titles with equivalent low-priced Indian editions. Even in rare cases where such editions were available, they were never the latest ones. The librarians that P-PIL spoke to categorically stated that they were not interested in purchasing outdated editions of foreign titles.

Almost all foreign titles were available for prices equal to or higher than rates prevailing in the West. These had to be imported through websites such as Amazon or procured through leading local distributors who would place orders directly with publishers abroad. The shipping charges escalated the costs for India, and in one case, the price differential between India and the US was as high as 165%.

Given this stark pricing scenario, the section 2(m) amendment is the need of the hour. For, it will foster a more diverse set of distributors keen on picking up cheaper copies from any part of the world, without seeking copyright owners' permission.

If the country's leading law schools (national law schools) are faced with this severe pricing and access issue, the vast majority of the other 913 law colleges can only be expected to be worse off, given that many of them are much poorer and do not have the necessary wherewithal to procure titles online or be serviced by the leading distributors."

Invalid Appointments and the De Facto Doctrine

A writ petition was filed recently challenging the legality of the appointment of the current chairman of the Copyright Board, Raghbir Singh. The writ came up before Justice Sikri of the Delhi High Court yesterday and notices have been issued.

I've been dealing with this controversial appointment in several earlier blog posts on SpicyIP. Since the case raises some interesting constitutional issues as well, I thought I would flag them up here on LAOT.

In one of the posts on SpicyIP, I had questioned the eligibility of the Chairman on the ground that he was 66 years old at the time of his appointment and therefore not suited to hold the office of Chairman of the Board. The Copyright act provides (interalia) that the chairman should be a person eligible to be appointed as a High Court judge.

Eligibility criteria for High Court judges find mention in Article 217 of the Constitution of India, under which a judge must necessarily retire at the age of 62. I took this to mean that no person above the age of 62 could be appointed a High Court judge. And since Mr Singh was 66 at the time of his appointment, he was not eligible to be a High Court judge. And therefore not eligible to be appointed as Chairman of the Copyright Board as well. Well, it now turns out that I was wrong.

Courts have consistently held that the retirement age of a High Court judge as stipulated in the Constitution cannot necessarily be construed as an "eligibility" criterion. I quote extracts from a recent ruling (State of Uttaranchal vs Balwant Singh), where the Supreme court approved of the ruling by a division bench of a high court as below:

"The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years" (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years).

The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor.

This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words "until he attains the age of sixty years". The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217."

and later:

"In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view."

and still later:

"The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office."

Mr Singh's appointment has been challenged on other grounds as well. Assuming that Singh's appointment is held invalid on such other grounds, how would this impact the legality and tenability of the Board proceedings and its order? Under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings. In other words, even assuming Mr Singh's appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board.

What if the copyright board order is appealed though? What impact will an irregular appointment have on the tenability of the order?

Would the appellate court hold that no "deference" be given to any fact finding done by the Board? Those in the know of administrative law norms may be familiar with the age old and time tested law vs fact distinction...one that I am still unable to comprehend: aren't all legal propositions really "facts", albeit of a certain specific kind. The distinction becomes particularly problematic when we consider "mixed questions of law and fact", a nebulous category ingeniously invented by lawyers to open up any factual issue that wouldn't warrant interference otherwise.

Anyway, standard admin law norms suggest that courts are to defer to agency expertise when it comes to issues of "fact, and cannot reopen them unless there is a manifest error on the face of the record. However, in so far as issues of law are concerned, courts are free to review them de novo. Given the flawed constitution of the copyright board, would the court decide to not grant any deference to issues of "fact" that have been determined at the first instance by the Board? If such facts could be reopened by counsel, would it lead to a re-enactment of the entire saga once again before the courts?

I believe there is a recent case where a TRAI order had been appealed to a court in the first instance. Since this was the first appeal, the court appears to have held that it could review both questions of law and fact afresh. I'm hunting around for this decision and will bring you more on this once I find it. Alternatively, if any of our readers are in the know of this decision, please do let us know.

As to whether or not an appellate court hearing this particular compulsory licensing matter will adopt the above ruling and reopen all issues of fact (and perhaps even remand the case to a freshly instituted copyright board for specific factual determinations) remains to be seen.

ps: many thanks to Vivek Reddy for pointers on the TRAI decision and the standard of review.

Infusing Fairness into Bollywood

Some of you may be aware of a recent move by the Indian government to amend the copyright act to inter-alia redress a historical injustice and compensate Bollywood artists more justly for their creative endeavours. For some background on this issue, please see here.

Most artists (mainly music composers, lyricists and script writers) have been at the receiving end of unjust contracts from film producers and sound recording companies who've taken away all their rights for a lowly lumpsum.

The Indian Express carried an editorial of mine on this issue today. I reproduce it below:

Sold for a Song

“Bhagwaan teri duniyaa mein insaan nahin hai”

Shakeel Badayuni’s memorable words set to a melancholy tune by Ghulam Mohammed (the music director of Pakeezah) — holds a foreshadowing of Ghulamji’s fate.

He died in penury, despite his works minting lakhs (in those days) for the film producer who commercialised and marketed his art. He was not alone in this predicament; the wife of the legendary music director Khemchand Prakash was found begging on the streets of Mumbai soon after his unfortunate demise.

The word “inequity” could not have found a better situational fit than this — to this day, Bollywood artists (music composers, lyricists and scriptwriters, whose works are incorporated into films ) are forced to sign away entire copyrights to film producers for a measly lumpsum, even as their works reap crores at the box office.

Sample this clause, extracted from one of the Bollywood contracts:

“the Lyricist expressly acknowledges and agrees that the Producer shall be considered the first author and owner of the Lyrics... without condition.. of any kind, and free and clear of any and all claims for royalty... The Lyricist irrevocably and unconditionally waives all rights in respect of the Lyrics to which he is now or in the future entitled to under the Copyright Act.”

Not content with snatching away all economic rights to future returns, this legal parchment goes on to strip creative minds of their very right to claim authorship. Little wonder then that the government is now attempting to redress this injustice through a set of statutory amendments to the copyright act.

Should these amendments come into force, artists would be considered as authors/first owners of their works and would, notwithstanding any assignment, retain the right to receive royalties from the commercial exploitation of their works. Even someone with no knowledge of copyright basics is likely to agree that this sounds just and fair.

And yet, if the proceedings of a recent parliamentary committee tasked with examining the desirability of these amendments are anything to go by, one finds that film producers are up in arms. They have threatened to shut down Bollywood. More worryingly, it has been hinted that artists may not get credit for their works in future.

India’s proposal to amend the copyright act to ensure better returns to artists is not without international precedent. Not only do European countries such as Germany and Austria prohibit copyright assignments by authors, they also stipulate that, notwithstanding contractual arrangements to the contrary, authors are to be “equitably” remunerated for the commercial exploitation of their works by third parties.

However, laudable as the present set of Indian amendments is, they do not go far enough. First, the amendments provide for a right to royalty only when the underlying works (lyrics and music compositions) are exploited separately from the film or sound recording. In line with international practice, a right to remuneration ought to accrue on every exploitation of the underlying work, whether as part of the film or sound recording or separately.

This is best done by simply prohibiting any assignment or exclusive licensing by the authors of such works in favour of any third party, except to their legal heirs and collecting societies. Such a bar would ensure that the author continues to retain ownership of her works that have been incorporated into a movie and can claim continuing royalties for its exploitation.

Secondly, as it stands now, the right to royalty applies only to lyrics and musical compositions. It should extend to all underlying works that are incorporated into a film, including the script, which may be treated as literary/dramatic work.

Thirdly, the amendments aim to incentivise authors to join collecting societies by stipulating that authors can assign their “right to royalty” to a collecting society. Such societies are likely to strengthen the negotiating power of authors to ensure fair returns for the exploitation of their creative genius. However, there is no need for an author to assign away her rights to such a collecting society. A mere license to administer such rights in favour of the society would suffice.

In short, if the real mischief sought to be remedied by the government is the contractual exploitation of artists, it should simply prohibit them from assigning away any of their copyrights. The concept of a separate “right to royalty”, as crafted under the present set of amendments, is jurisprudentially and practically problematic and needs to be done away with.

Although such a bar on assignment is likely to impact the freedom of contract, it is imperative from the vantage point of social justice. An excellent parallel is the Minimum Wages Act, where even if a destitute labourer wishes, she cannot contract to perform the labour at rates below statutorily prescribed levels. In a similar manner, authors too should be divested of their right to sign away rights for a measly lump-sum amount. Only such a revolutionary change in our copyright regime can help infuse some “insaniyat” into an industry given to rampant exploitation.

From the latest Frontline....

An update on the Supreme Court's judgment in the Jessica Lal case: The media missed the Supreme Court's indictment of High Court, even while upholding High Court's verdict. Supreme Court disagreed with High Court's strictures against Justice S.L.Bhayana, who as the trial judge had acquitted all the accused in the case. In fact, he was elevated to the High Court immediately after the acquittal judgment. Is the Supreme Court indirectly justifying its decision to appoint him to the High Court?

In Copyright Concerns, I am saying that the proposed amendment to the Copyright Act, 1957, suffers from a lack of empathy with the differently abled.

In this review article, I am reflecting on how changes in our theoretical approaches can bring about social and political changes. Books reviewed are Rajeev Bhargava's What is Political Theory and Why do we need it? and Decolonisation of Legal knowledge edited by Amita Dhanda and Archana Parashar.