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Introduction
Over the years copyright infringement litigation in India is on the rise. As a nation we are becoming more aware of our intellectual property rights. With growing demand for enforcing uniform intellectual property laws all over the world, international covenants serving as guidelines to countries to accordingly frame their IP laws have come into being. The Berne convention, TRIPS, the internet treaties WCT, WPPO are examples of conferences initiated for the same. India is a signatory to a few of these international conferences like the Berne convention, TRIPS, and has accordingly altered her laws to conform to those treaties as far as is possible. We have also through proactive representation from our own lyricists and composers amended our law to confer them with better rights and remunerations.
The Question
How are our courts dealing with copyright infringement cases? Are the Indian courts pro IP or are they inclined towards given creators limited rights so as to promote learning and creativity? In the US the guidance to the judges comes from a direct article to this regard given in their Constitution. But such direction being lacking to Indian judges from our Constitution, what are they relying on? Let us consider two recent judgments, one of the Delhi High Court in the case of Chancellors, Masters & Scholars of the University of Oxford & Ors. vs. Rameshwari Photocopy Services & Ors. and two, Supreme court's judgment in the case of IPRS vs Aditya Pande, by Judge Prafulla Pant. Both these judgements on the face of them appear to be indicating that Indian courts are not IP friendly. A detailed analysis however seems to give a different conclusion.
Cases in Point
In the case of Chancellors, Masters & Scholars of the University of Oxford & Ors. vs. Rameshwari Photocopy Services & Ors, what is famously referred to as the Delhi photocopy case, the issue at hand was whether course notes prepared by photocopying textbooks, to be used as teaching aid in universities violated the copyrights of the authors existing in those books, or did it come under the exception of fair use? Putting an end to the apprehensions of all student societies, who eagerly awaited the judgment, the single bench judge concluded it was fair use. His reasoning is noteworthy for two points. One, he said provisions under section 52 of the Copyright act were to be given liberal interpretation. And two he says if the end result is the same, the means used would not matter. To put it in his own words, “In my view, there is no difference in the two situations i.e. whether the photocopying machine is installed within the library or is installed outside the library. In my view it also does not make any difference whether the respondent no.2 University itself purchases the photocopy machine and / or allows the students to photocopy themselves or employs a person for doing photocopy. Once such a action is held to be not offending any provisions of the Copyright Act, merely because the photocopying is done not by the person desirous thereof himself but with the assistance of another human being, would not make the act offending.”
The above reasoning seems like a liberal interpretation given to fair use, and thus anti IP, but the fact is, it is in sync with the decisions given by foreign courts in the similar cases. (Cambridge University Press et al v. JL Albert et al)
The second case of IPRS vs Aditya Pande is being much criticised. Yes, the judgement has been passed with no acknowledgement to the problems that are created for copyright societies in India and other countries, with regard to collection of royalties, owing to an uniform Copyright laws, or rather royalty entitlement provisions of these laws that are not in sync. (Despite the fact that one such international society, International Confederation of Societies of Authors and Composers, CISAC, has joined the appellants as an interested party).
Yes, the judgment would be flawed if we try to interpret it in the light of Article 13 of the TRIPS agreement, by the WTO that India is a member of. Article 13 which provides for exceptions where a right holder's rights can be curtailed, strictly confines it to special cases which do not come in the way of the natural exploitation of the work and do not prejudice legitimate interests of the right holders .The case at hand was neither a special case, nor was something different from the natural exploitation of the work ( after all, communicating / broadcasting is the way a lyricist or composer gets better recognition) , nor was it concerned about the interests of the right holders.
The Debate
But, how do we conclude that the judgement is erroneous because of not falling in line with exceptions provided under the TRIPS agreement. Should the TRIPS agreement be given precedence over our domestic law? The learned judge had his limitations after all. According to law laid down by the Apex court in the case of Vishaka vs State of Rajasthan, 1997, international covenants to which India is a party are a part of domestic law unless they are contrary to a specific law in force in the country. In this case we had a statute, our Copyright law, prior to the 2012 amendment (given the fact that the case was instituted in 2006), which the judge was bound by.
As pointed out by the judge, it is up to our legislative bodies to take cognisance of the fact that certain laws of the country are not in sync with international agreements to which we are party, and accordingly take steps towards amending/ rectifying the same. Should the courts take proactive steps, if the legislature is blind to the problems created for various international Copyright societies? Are they empowered to do so? We know the court's limitations. However, this particular problem at hand has been specifically addressed by the 2012 Amendment to our Copyright Act.
The 2012 amendment has, by the introduction of section 19(10) that talks about royalties to be paid to the lyricist and the composer for 'utilisation of the work (sound recording) in any form' and proviso to Section 18 that restricts the authors of the underlying works from entering into any contracts by which such right to receive royalties can be waived, had made the position very clear. (The equitable remuneration principle inspired from civil law countries). But in the absence of these provisions, prior to the amendment did the statute leave the judge with much of a choice?
Epilogue
Rights provided to the lyricist and composer under section 14(a) and to the producer of the sound recording under section 14 (e) being disjoint sets should confer independent rights to both parties. Now, the question would be, would they still be disjoint after the lyricist and composer have given copyright to the producer to make a sound recording of their works? The answer should be yes, given that section 13(4) assertively states that none of the rights of underlying works in a sound recording is affected by grant of such copyright by the authors. Which means that both the producer and the authors of the underlying works shall have rights independent of each other to communicate their sound recording or lyrical and musical works respectively to the public. This is in contrast to assignment of copyright of other literary works whereby the assignor has to part with his rights and the assignee becomes wholly entitled to those rights during the subsistence of the copyright assignment. The author of the sound recording, holding an independent right, to communicate his work to the public (prior to 2012) should be the one to be paid.
These two judgments thereby do not indicate any bias on anti IP stand taken by our judges and our courts, but are sound judgments based on the interpretation of our own copyright statute and also are in line with the international fair use standards.