1 Oct 2016

Some recent landmark decisions

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.


Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015] the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject. 
 
 
2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions. 
 
 3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.


Some other decisions, but not of constitution benches of Supreme Court


4.  This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".


5.  Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.


6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016] the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".


7. While this is not a decision, this nonetheless has severe ramifications for the future of Supreme Court. In V. Vasanthakumar v. H.C. Bhatia [Writ Petition (Civil) No. 36 of 2016 order dated 13.07.2016] three judges of the Supreme Court have referred to a larger bench adjudication of certain constitutional questions, which are as under;

  1. With access to justice being a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?
  2. Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?
  3. Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem?
  4. Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
  5. Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
  6. Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
  7. Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
  8. Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
  9. If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of ‘access to justice’ to all litigants from every part of the country?
  10. As any such proposal would need an amendment to the Constitution, would the theory of ‘basic structure’ of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
  11. In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5- 10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016] where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.


17 Sep 2016

Photocopying books for 'Education' not violation of Copyright law: Delhi High Court

This judgment pronounced yesterday has garnered significant media highlights and is said to be a pioneer in Intellectual Property Rights (IPR) laws. Deciding the suit filed by reputed international publishers, a Single Judge of the Delhi High Court in The Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services [CS(OS) 2439/2012][decision dated 16.09.2016] has returned significant findings on the nature and extant of copyright protection against photocopying.

The factual background leading to this dispute is recorded by the High Court in the following terms;
1. The five plaintiffs, namely i) Oxford University Press, ii) Cambridge University Press, United Kingdom (UK), iii) Cambridge University Press India Pvt. Ltd., iv) Taylor & Francis Group, U.K. and, v) Taylor & Francis Books India Pvt. Ltd., being the publishers, including of textbooks, instituted this suit for the relief of permanent injunction restraining the two defendants namely Rameshwari Photocopy Service (carrying on business from Delhi School of Economic (DSE), University of Delhi) and the University of Delhi from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs‘ publications on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from the plaintiffs‘ publications by compiling them into course packs / anthologies for sale.
2. The plaintiffs, in the plaint, have given particulars of at least four course packs being so sold containing photocopies of portions of plaintiffs‘ publication varying from 6 to 65 pages. It is further the case of the plaintiffs that the said course packs sold by the defendant No.1 are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs‘ publications. It is yet further the case of the plaintiffs that the libraries of the defendant No.2 University are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.

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4. The defendant No.1 has filed a written statement defending the suit inter alia (a) disputing the copyright of the plaintiffs and contending that the plaintiffs have not produced any document to establish their copyright; (b) denying any act of infringement of copyright and alternatively pleading that the activities carried on by it amount to fair use of the works within the meaning of Sections 52(1)(a) & (h) of the Copyright Act, 1957, and pleading (c) that it has been granted licence with respect to a small shop within the campus of DSE to provide photocopy services to students and faculty at nominal rate and as per the terms of licence, the defendant No.1 is required to provide 3000 photocopies per month to DSE, an institute of the University of Delhi, free of cost and to charge only the prescribed rate for the photocopy service meted out to others; (d) that the defendant No.2 University recommends the syllabi for each academic year along with suggested reading materials of a wide variety of authors and which material is contained in different books of different publishers sold at a high price, often beyond the reach of the students; (e) that the syllabi of the defendant No.2 University does not recommend the entire publication but only certain extracts from the same; (f) that the students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and / or suggested for reading; (g) that to ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 University which provides such expensive books for reference of students; (h) however owing to only limited copies of such books being available with the library, not enough to cater to the needs of all the students, the library allows the students to obtain copies of such books for their own reference and study; (i) that the services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only; (j) that in view of the limited number of original books stored in the library, the faculty of DSE has compiled various master copies of books, articles and journals, which are then used for photocopying by the defendant No.1 in order to save the original work from being damaged; (k) that such course packs are used by teachers and students in the course of academic instructions and for research purposes; (l) that in fact the Licence Deed executed between the defendant No.2 University and the defendant No.1 expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for xeroxing, saving the original document; (m) that the defendant No.1 is xeroxing the master copy at the instructions of and on the terms imposed by the defendant No.2 University; (n) that the defendant No.1 is not commercially exploiting the author‘s copyright but is giving copies to students at nominal rates of 40 paise per page to aid their education; (o) that even if the students were to bring the original work to get the same photocopied, the defendant No.1 would charge the same rate; (p) that the defendant No.1 has acted in good faith within the meaning of Section 76 of the Copyright Act."
In the aforesaid background, the High Court dismissed the suit. The judgment is a detailed one running into almost 100 pages. For the benefit of our readers, we have reproduced the key findings of the High Court which are as under;
25. The Copyright Act was enacted ―to amend and consolidate‖ the law relating to copyright. Copyright forms part of the bouquet of intellectual property rights and I have wondered whether copyright is also a natural right or a common law right which vests in the author or composer or producer of the work and thus whether in the absence of anything to the contrary contained in the Copyright Act, the attributes of ownership, as with respect to other forms of property, would enure to copyright also. Mention may be made of K.T. Plantation Pvt. Ltd. Vs. State of Karnataka (2011) 9 SCC 1 where a Constitution Bench of the Supreme Court held that Article 300A of the Constitution proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without any support of law made by a competent legislature and that the expression 'property' in Article 300A is not confined to land alone but also includes intangibles like copyright and other intellectual property and embraces every possible interest recognised by law.
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31. Copyright as a natural or common law right has thus been taken away by the Copyright Act. 
32. I conclude, there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Axiomatically if follows, unless the action of defendants No 1 and 2 amounts to infringement of copyright within the meaning of the Copyright Act, the plaintiffs or any other person in whom copyright vests cannot sue for infringement or damages or accounts, as have been claimed in the plaint.
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34. It is not in dispute that the works in question fall in the category of original literary work. Section 14(a)(i) and (ii), in respect of such works, vests the exclusive right ―to reproduce the work in any material form including the storing of it in any medium by electronic means‖ and the right ―to issue copies of the work to the public not being copies already in circulation‖ in the owner of the copyright. I have wondered, whether ―to reproduce the work‖ would include making photocopies thereof as the defendant No.2 University is doing. The word ―reproduce‖ has not been defined in Section 2 of the Act though i) Section 2 (hh) defines ―duplicating equipment‖ as any mechanical contrivance or device used or intended to be used for making copies of any work; ii) Section 2(s) defines ―photograph‖ as including photo-lithograph and any work produced by any process analogous to photography; and, iii) Section 2(x) defines ―reprography‖ as making copies of a work by photo-copying or similar means. On the basis thereof, I conclude that the words in Section 14(a)(i) ―to reproduce the work‖ would include making photocopy of the work in contravention of the provisions of the Act. I have in Continental Telepower Industries Ltd. Vs. Union of India MANU/DE/1691/2009 held that a photocopy is certainly a copy. Long back, in British Oxygen Company Ltd. Vs. Liquid Air Ltd. 1925 Ch. 383 also it was held that making photographic copy of literary work is reproduction thereof. I thus conclude that the right to make photocopies is the exclusive right of the author or composer of the literary work and a copyright within the meaning of Section 14. Axiomatically, the making of photocopies by the defendant No.2 University will constitute infringement of copyright within the meaning of Section 51 and the photocopies so made constitute infringing copy within the meaning of Section 2(m) unless such act is listed under Section 52 as an act not constituting infringement.
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37. The defendant No.2 University thus, though entitled to issue the books, published by the plaintiffs and purchased by it and kept by the defendant No.2 University in its library, to whosoever is entitled to issuance of the said books from the library, per Section 14(a)(i) and Section 51(a)(i) would not be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein.
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55. On consideration, I am of the view that the scope and ambit of Section 52(1)(i) cannot be so restricted. The settled principle of interpretation of statutes is that the legislature is to be deemed to have used the language in the context of the prevailing laws and societal situations to which the legislation is intended. Education in the country though at one time pursued in Guru-Shishya parampara (Teacher – disciple tradition) has for long now been institutionalised, both at school and post - school level, with imparting of education by a teacher individually having no recognition. There is no reason to interpret Section 52(1)(i) as providing for an individual teacher and an individual pupil and which, neither at the time of inclusion thereof in the statute nor now exists in the society. Supreme Court, in S.P. Gupta Vs. President of India 1981 Supp (1) SCC 87 held that interpretation of every statutory provision must keep pace with the changing concepts and it must, to the extent to which its language permits, or rather does not prohibit, suffer adjustments so as to accord with the requirements of fast growing society.
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 73. The matter can be looked at from another angle as well. Though I have held Section 52(1)(a) to be not applicable to the action of the defendant no.2 University of making photocopies of copyrighted works but the issuance by the defendant no.2 University of the books purchased by it and kept in its library to the students and reproduction thereof by the students for the purposes of their private or personal use, whether by way of photocopying or by way of copying the same by way of hand would indeed make the action of the student a fair dealing therewith and not constitute infringement of copyright. The counsel for the plaintiffs also on enquiry did not argue so. I have wondered that if the action of each of the students of having the book issued from the library of defendant No.2 University and copying pages thereof, whether by hand or by photocopy, is not infringement, whether the action of the defendant no.2 University impugned in this suit, guided by the reason of limited number of each book available in its library, the limited number of days of the academic session, large number of students requiring the said book, the fear of the costly precious books being damaged on being subjected to repeated photocopying, can be said to be infringement; particularly when the result/effect of both actions is the same. 
74. The answer, according to me, has to be in the negative. 
75. It cannot be lost sight of that Section 63 of the Copyright Act constitutes infringement of copyright an offence punishable with imprisonment for a term not less than six months and extendable to three years ―and‖ with fine. When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. That is what has happened in the present case. In the times when I was studying law, the facility available of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently either make carbon copies thereof or having the same photocopied. The photocopying machines then in vogue did not permit photocopying of voluminous books without dismembering the same.
76. However with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus the students are now not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.
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78. I may also mention another advancement. Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped.
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80. Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public. For this reason only, Section 14(a)(ii) as aforesaid, applies the principle of 'exhaustion‘ to literary works and which, this court in Warner Bros. Entertainment Inc. Vs. Mr. Santosh V.G. MANU/DE/0406/2009 has held, to be not applicable to copyright in an artistic work or in a sound recording or in a cinematographic film. Once it is found that the doctrine of exhaustion applies to literary work as the works with which we are concerned are, it has but to be held that it is permissible for the defendant No.2 University to on purchasing book(s) and stocking the same in its library, issue the same to different students each day or even several times in a day. It is not the case of the plaintiffs that the said students once have so got the books issued would not be entitled to, instead of laboriously copying the contents of the book or taking notes therefrom, photocopy the relevant pages thereof, so that they do not need the book again.
81. I thus conclude that the action of the defendant no.2 University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the defendant no.2 University and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act.

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86. 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. In this respect, I may again note that in our country, with abundance of labour force, the acts such as of photocopying which are done by those desirous thereof themselves in other countries are done by a person employed therefor. In countries with not so much labour force, photocopiers are found to have been installed in libraries for the benefit of the patrons of the library to themselves photocopy whatsoever passages of the publications in the library they are desirous of photocopying for their personal use. 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. It matters not whether such person is an employee of the defendant no.2 University or the defendant no.2 University avails the services of a contractor. The position of the defendant no.1 in the present case is found to be that of a contractor to whom the defendant no.2 University has outsourced its work of providing photocopying service for its students. For this reason, it matters not whether the photocopying machine is allowed by the defendant no.2 University to be kept within the library or at some other place outside the library.
87. It is not the case of the plaintiffs that the defendant no.2 University has permitted the defendant no.1 to or that the defendant no.1 is photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. The case of the plaintiffs before us is only of preparation of course packs i.e. compilations of photocopied portions of different books prescribed by the defendant no.2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs. Imparting of education by the defendant no.2 University is heavily subsidized with the students still being charged tuition fee only of Rs.400 to 1,200/- per month. The students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. If the facility of photocopying were to be not available, they would instead of sitting in the comforts of their respective homes and reading from the photocopies would be spending long hours in the library and making notes thereof. When modern technology is available for comfort, it would be unfair to say that the students should not avail thereof and continue to study as in ancient era. No law can be interpreted so as to result in any regression of the evolvement of the human being for the better. 
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89. All that is happening in the present case is that instead of the defendant No.2 University issuing the book which may be sought after by a large number of students, to each one of them individually for limited period or limited hours and enabling each student to photocopy the passages or the contents thereof required by him ―in the course of instruction‖ and thereby exposing the book to damage, the defendant No.2 University itself is supplying the said photocopies. It cannot be lost sight of that we are a country with a bulging population and where the pressure on all public resources and facilities is far beyond that in any other country or jurisdiction. While it may be possible for a student in a class of say 10 or 20 students to have the book issued from the library for a month and to laboriously take notes therefrom, the same is unworkable where the number of students run into hundreds if not thousands. According to me, what is permissible for a small number of students cannot be viewed differently, merely because the number of students is larger. Merely because instead of say 10 or 20 copies being made by students individually or by the librarian employed by the University, 100 or 1000 copies are being made, the same would not convert, what was not an infringement into an infringement.

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99. In accordance with the aforesaid international covenants, the legislators of some other member / privy countries in the context of their respective countries have worded the exceptions differently and on an interpretation of which legislation, the Courts of those countries have adjudicated and which judgments have been cited by the counsels. I am however of the opinion that the said judgments in the context of different legislations on the basis of perception by the legislators thereof of the purpose of teaching and unreasonable prejudice to the legitimate interest of the author cannot form the bedrock for this Court to interpret the Copyright Act of this country.
This may not, however, be the last word on the subject. The parties will surely take up the matter in appeal and it will take a while before the law on the subject attains finality. Nonetheless this is an interesting development in IPR laws.

On-Screen Credits in Sporting Events are 'Advertisements' - Supreme Court

Any Television Broadcasting Organisation is prohibited from carrying the live television broadcast of a sporting event of national importance on cable or Direct-to-Home (DTH) networks in India, unless it simultaneously shares the live broadcasting signals, without its advertisements, with the Prasar Bharati to enable it to retransmit the same on its terrestrial and DTH network. This is the legal position in terms of the 'Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007' enacted by the Parliament. Further, such television broadcaster is allowed to insert advertisements on its avenue and recoup its advertisements during a break in live play at various points during broadcast, such as, during breaks between overs in a cricket match, at the fall of a wicket, during drink breaks etc. However these advertisements are not to be included while sharing the live broadcasting signals with Prasar Bharati. In other words a clean feed of the live-event must be shared with Prasar Bharati.

In the aforesaid background a dispute went upto the Supreme Court. It was argued by Prasar Bharati that in the broadcast signal of a sporting event provided by an event organiser where the broadcast of the live play of the event as it happens on the field as also certain “features” which enhance a view's experience, such a Hawk-eye, ball delivery speed reference, umpire naming graphics, player statistics, score cards, match summary graphics, replay graphics etc., such features must not contain any 'logos' of any organization [commercially known as “On-Screen Credits”]. According to Prasar Bharati such On-Screen credits are advertisements and should not form part of such features. This position of Prasar Bharati was accepted by the High Court and the Supreme Court was concerned with the correctness of this position in appeal which formed its decision in Star Sports India Pvt. Ltd. v. Prasar Bharati [Civil Appeal No. 5252/2016][decision dated 27.05.2016].

Before the Supreme Court it was argued that "those logos embedded as it is and has no control over the same" and therefore "while sharing the signals with Prasar Bharati, there was no mechanism or methodology to remove these logos". It was alternatively argued that the Broadcasters were being "constrained to procure a separate feed at a considerable cost as it was not practically feasible for the appellant to remove the insertions of the event organizer while simultaneously sharing the same feed with Prasar Bharati".  

Rejecting these submissions and holding in favour of Prasar Bharati the Supreme Court observed as under;
27) First thing which we need to deliberate upon is as to whether the logos of the advertisers contained in the 'world feed' shared by the appellant with Prasar Bharati amounts to 'advertisement'. As noted above, the plea of the appellant in this behalf is that since the broadcast signal of the sporting event provided by the event organiser (ICC in the instant case) includes these logos and the appellant is supposed to share the same as it is with Prasar Bharati, it would not be treated as advertisements. It is also argued that these are not commercial advertisements as the appellant is not getting any revenue from the sponsors. To our mind, this is a specious argument to ward off the situation with which the appellant is confronted with. It is not denied by the appellant that these logos are of the event sponsors, known as 'On-Screen Credits' in industry parlance. The appellant has itself shown the photographs thereof which have been reproduced by us above. No doubt, such logos or On-Screen Credits may appear at the time of featuring replays like ball delivery speed and when a player gets out either when he is bowled, run out or caught or they are shown while depicting player statistics, scoreboard, match summary, graphs, etc. Nonetheless, these are the advertisements the sponsors like Pepsi, LG, Fly Emirates, Reliance, etc. These sponsors have entered into arrangement for showing their logo on the occasions referred to above. It is also not in dispute that these sponsors pay for such On-Screen Credits. Insofar as such sponsors are concerned, their motive in giving these logos to be shown on Television is crystal clear, viz. it is intended to advertise their company names for commercial motives in mind. These are, thus, commercials of the sponsors which would clearly be treated as not only advertisements but commercial advertisements. ...
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31) It becomes apparent from the aforesaid reading of the Preamble that purpose is to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance. This task is given to Prasar Bharati. Notwithstanding more popularity which the private channels have gained over a period of time, coverage of Prasar Bharati is far more reaching insofar as Indian population is concerned as it reaches almost every nook and corner of the country. Further the radio as well as television broadcasting of Prasar Bharat is free of cost. It is for this reason that the law in the form of Sports Act is enacted in order to ensure that such sporting events of national importance are made available to every citizen of this country, irrespective of his/her financial conditions.
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32)
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(b) ... when the signals are shared with Prasar Bharati enabling it to simultaneously retransmit the same on its terrestrial networks or DTH networks, the viewership/ audience gets multiplied as the reach is to much larger section of citizenry through Prasar Bharati. Therefore, Section 3(1), in the first instance, mandates that the sharing of live broadcasting signals with Prasar Bharati has to be 'without its advertisements'. Exception is, however, made in sub-section (2) of Section 3 which enables the broadcasting service provider to even share the contents along with advertisements, but subject to the condition that there has to be a sharing of revenue in the proportion prescribed in sub-section (2) of Section 3. As aforesaid, when live broadcasting signal is shared containing advertisements, those advertisements have much larger viewership because of its telecast/broadcast on Prasar Bharati. The benefit of advertisement in such a case would accrue to those who have booked the advertisements and the service provider, in such an eventuality would definitely be in a position to charge much more from the advertisers. It is a matter of common knowledge that rates of advertisement go up when circulation thereof is enhanced. When we keep in mind the aforesaid twin objectives of the Act, the answer to the issue raised becomes obvious. The application of rule of purposive interpretation would go against the appellant and in favour of the respondent.
On such count the Supreme Court held that it is obligatory on the part of the television broadcasters to share clean-feed of the sporting events and in the event of non-compliance to do so, they were obliged to even share the revenue from such credits.

28 Aug 2016

Moral Science as a mandatory subject: Supreme Court declines to direct

Recently a case came up before the Supreme Court. It was filed by a lady-lawyer requesting the Court to direct one and all to ensure that 'moral science' was made a mandatory subject in class-room education upto class XII. In the petition it was stated that "she is deeply distressed with the rapidly degrading moral values in the society touching every aspect of life where making money, anyhow has become the sole motto of society” and in her view "the present education system does not inculcate the true purpose of education, which is to produce a good human being". The lady-lawyer further submitted before the Supreme Court that the State is under "a constitutional obligation to endeavour to provide educational facilities which inculcate moral values in the course of primary and secondary education". She also stressed upon Article 25 and 51A(f) of the Constitution of India to submit before the Supreme Court that it should pass an order "for the inclusion of moral science as a compulsory subject in the syllabus of school education from classes I to XII in order to inculcate moral values and nurture national character in the national interest". The Supreme Court, however, refused.

In its order reported as Mrs. Santosh Singh v. Union of India [Writ Petition (Civil) No. 1028/2014] the Supreme Court took note of these and other submissions and also the response of CBSE and NCERT to opine that sufficient steps were being taken by the concerned authorities and in any case the subject brought before it was beyond judicial review. 

Some of the pertinent observations made by the Supreme Court while rejecting the petition as are under;
14 There can be no gain-saying the fact that moral values are an integral component of value based education. The purpose of education is to engender in the young, a spirit of enquiry, a desire for knowledge and a sense of values. Among those values are the fundamental values on which our constitutional core is founded: liberty, equality and the dignity of each individual. The purpose of education also includes the creation of responsible and informed citizens conscious both of their rights and of their duties to others.
15 Education is an important instrument towards the development of the individual as indeed, it is a vital instrument in nation building. Technology has effaced conventional barriers and the world has become a globally networked community of information ideas. The challenges which confront the system of education have evolved rapidly, perhaps too rapidly for our educational system to develop pragmatic solutions to meet them.
16 The issue before the Court is whether a mandamus of this nature can be issued by the Court in the exercise of its jurisdiction in the public interest.
17 While there can be no dispute about the need of providing value based education, what form this should take and the manner in which values should be inculcated ought not to be ordained by the court. The court singularly lacks the expertise to do so. The petitioner has a grouse about what she describes as the pervading culture of materialism in our society. The jurisdiction of this Court under Article 32 is not a panacea for all ills but a remedy for the violation of fundamental rights. The remedies for such perceived grievances as the petitioner has about the dominant presence of materialism must lie elsewhere and it is for those who have the competence and the constitutional duty to lay down and implement educational policies to deal with such problems.
18 There is a tendency on the part of public interest petitioners to assume that every good thing which society should aspire to achieve can be achieved through the instrumentality of the court. The judicial process provides remedies for constitutional or legal infractions. Public interest litigation allows a relaxation of the strict rules of locus standi. However, the court must necessarily abide the parameters which govern a nuanced exercise of judicial power. Hence, where an effort is made to bring issues of governance before the court, the basic touch stone on which the invocation of jurisdiction must rest is whether the issue can be addressed within the framework of law or the Constitution. Matters of policy are entrusted to the executive arm of the State. The court is concerned with the preservation of the rule of law.
19 This petition is illustrative of matters which lie beyond the province of judicial review. Whether children pursuing their education from classes I to XII should be saddled with a separate course of moral science is not for the court to decide. Whether a value based educational system would best be subserved by including a separate subject on moral science or whether value based teaching should traverse the entire gamut of a prescribed curriculum is a matter which cannot be resolved by applying settled norms of judicial review. These are matters which cannot be determined in the exercise of the jurisdiction of the court under Article 32
20 The argument on morality seems attractive to those - like the well meaning petitioner -who lament the decadence of civilisation. Combine morality with the need to redefine the values which a society wishes for its young and you have a seemingly persuasive argument in support. The difficulty in a court mandated acceptance of this argument is precisely its inability to unravel the complexities in the position and the answers which it proposes.
21 Morality is one and, however important it may sound to some, it still is only one element in the composition of values that a just society must pursue. There are other equally significant values which a democratic society may wish for education to impart to its young. Among those is the acceptance of a plurality and diversity of ideas, images and faiths which unfortunately faces global threats. Then again, equally important is the need to foster tolerance of those who hold radically differing views, empathy for those whom the economic and social milieu has cast away to the margins, a sense of compassion and a realisation of the innate humanity which dwells in each human being. Value based education must enable our young to be aware of the horrible consequences of prejudice, hate and discrimination that continue to threaten people and societies the world over. Morality as a defining concept of spreading values may run the risk of being dangerously one sided, exposing young citizens to the same dogma which those who decry the creed of materialism seek to change. Moreover, morality itself is a notion which has varying hues.
22 It is unrealistic for the court to assume that it can provide solutions to vexed issues which involve drawing balances between conflicting dimensions that travel beyond the legal plane. Courts are concerned with issues of constitutionality and legality. It is difficult to perceive how matters to which solutions may traverse the fields of ideology, social theory, policy making and experimentation can be regulated by this court such as by issuing a mandamus to enforce a scheme of instruction in a particular subject in school education. Should a subject be taught at all? Should a set of values or a line of enquiry and knowledge be incorporated as a separate subject of discourse in an educational system? Would a horizontal integration of a given set of values across existing subjects better achieve a desirable result? Is it at all desirable to impose another subject of study upon the already burdened school curriculum? 
23 These are vexed issues to which more than one solution may appear just. That is exactly the reason why a resolution of such matters must rest with those who have the responsibility to teach and govern over matters of education. Every good that is perceived to be in the interest of society cannot be mandated by the court. Nor is the judicial process an answer to every social ill which a public interest petitioner perceives. A matter such as the present to which a solution does not rest in a legal or constitutional framework is incapable of being dealt with in terms of judicially manageable standards.

Criminal Sentences - Concurrent or Consequentive ?

When a person commits more than one offences, should he be punished once or more than once is the question which came up before the Supreme Court recently. It was found that there was a difference of opinion arising from earlier decisions of the Court. Accordingly a larger bench of five judges of the Supreme Court recently took up the issue to decide it with finality. 

In its decision in Muthuramalingam v. State [Criminal Appeals No. 231-233/2009] the Supreme Court put the issue in perspective thus: "Whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial?" It is important to note the factual background in which this question arose. It was noted in the decision in the following terms;
"3. The appellants were tried for several offences including an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the IPC”) for several murders allegedly committed by them in a single incident. They were found guilty and sentenced to suffer varying sentences, including a sentence of imprisonment for life for each one of the murders committed by them. What is important is that the sentence of imprisonment for life for each one of the murders was directed to run consecutively. The result was that the appellants were to undergo consecutive life sentences ranging between two to eight such sentences depending upon the number of murders committed by them. Criminal appeals preferred against the conviction and the award of consecutive life sentences having failed, the appellants have filed the present appeals to assail the judgments and orders passed by the courts below."
The reason for this debate arises in view of the discretion cast upon the criminal court regarding sequencing the sentences under Section 31 of the Code of Criminal Procedure. The said provision, in as much as it formed the subject-matter of consideration by the Supreme Court, is reproduced for ease of reference;
“31. Sentences in cases of conviction of several offences at one trial.
(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: 

Provided that-
(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.” 
The five-judge bench of the Supreme Court delineated the legal position in the following terms;
"17. The legal position is, thus, fairly well settled that imprisonment for life is a sentence for the remainder of the life of the offender unless of course the remaining sentence is commuted or remitted by the competent authority. That being so, the provisions of Section 31 under Cr.P.C. must be so interpreted as to be consistent with the basic tenet that a life sentence requires the prisoner to spend the rest of his life in prison. Any direction that requires the offender to undergo imprisonment for life twice over would be anomalous and irrational for it will disregard the fact that humans like all other living beings have but one life to live. So understood Section 31 (1) would permit consecutive running of sentences only if such sentences do not happen to be life sentences. That is, in our opinion, the only way one can avoid an obvious impossibility of a prisoner serving two consecutive life sentences.
...
20. ... In the cases at hand, the appellants were not convicts undergoing life sentence at the time of commission of multiple murders by them. Their cases, therefore, fall more appropriately under Section 31 of the Code which deals with conviction of several offences at one trial. Section 31(1) deals with and empowers the Court to award, subject to the provisions of Section 71 of the IPC, several punishments prescribed for such offences and mandates that such punishments when consisting of imprisonment shall commence one after the expiration of the other in such order as the Court may direct unless the Court directs such punishments shall run concurrently. The power to award suitable sentences for several offences committed by the offenders is not and cannot be disputed. The order in which such sentences shall run can also be stipulated by the Court awarding such sentences. So also the Court is competent in its discretion to direct that punishment awarded shall run concurrently not consecutively. The question, however, is whether the provision admits of more than one life sentences running consecutively. That question can be answered on a logical basis only if one accepts the truism that humans have one life and the sentence of life imprisonment once awarded would require the prisoner to spend the remainder of his life in jail unless the sentence is commuted or remitted by the competent authority. That, in our opinion, happens to be the logic behind Section 427 (2) of the Cr.P.C. mandating that if a prisoner already undergoing life sentence is sentenced to another imprisonment for life for a subsequent offence committed by him, the two sentences so awarded shall run concurrently and not consecutively. Section 427 (2) in that way carves out an exception to the general rule recognised in Section 427 (1) that sentences awarded upon conviction for a subsequent offence shall run consecutively. The Parliament, it manifests from the provisions of Section 427 (2), was fully cognizant of the anomaly that would arise if a prisoner condemned to undergo life imprisonment is directed to do so twice over. It has, therefore, carved out an exception to the general rule to clearly recognise that in the case of life sentences for two distinct offences separately tried and held proved the sentences cannot be directed to run consecutively. The provisions of Section 427 (2) apart, in Ranjit Singh’s case (supra), this Court has in terms held that since life sentence implies imprisonment for the remainder of the life of the convict, consecutive life sentences cannot be awarded as humans have only one life. That logic, in our view, must extend to Section 31 of the Cr.P.C. also no matter Section 31 does not in terms make a provision analogous to Section 427 (2) of the Code. The provision must, in our opinion, be so interpreted as to prevent any anomaly or irrationality. So interpreted Section 31 (1) must mean that sentences awarded by the Court for several offences committed by the prisoner shall run consecutively (unless the Court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently. We are also inclined to hold that if more than one life sentences are awarded to the prisoner, the same would get super imposed over each other. This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.
...
25. While we have no doubt about the correctness of the proposition that two life sentences cannot be directed to run consecutively, we do not think that the reason for saying so lies in the proviso to Section 31 (2). Section 31(2) of the Cr.P.C. deals with situations where the Court awarding consecutive sentences is not competent to award the aggregate of the punishment for the several offences for which the prisoner is being sentenced upon conviction. A careful reading of sub-Section (2) would show that the same is concerned only with situations where the Courts awarding the sentence and directing the same to run consecutively is not competent to award the aggregate of the punishment upon conviction for a single offence. The proviso further stipulates that in cases falling under sub-section (2), the sentence shall in no case go beyond 14 years and the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to award. Now in cases tried by the Sessions Court, there is no limitation as to the Court’s power to award any punishment sanctioned by law including the capital punishment. Sub-section (2) will, therefore, have no application to a case tried by the Sessions Court nor would Sub-section (2) step in to forbid a direction for consecutive running of sentences awardable by the Court of Session."
Having undertaken the legal analysis as above, the five-judge bench of the Supreme Court concluded the legal position in the following terms;
"31. In conclusion our answer to the question is in the negative. We hold that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other
32. We may, while parting, deal with yet another dimension of this case argued before us namely whether the Court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The Trial Court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. Whether or not the direction of the Court below calls for any modification or alteration is a matter with which we are not concerned. The Regular Bench hearing the appeals would be free to deal with that aspect of the matter having regard to what we have said in the foregoing paragraphs."