repealing
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In this article, Riya Kothari, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the repeal of the 1999 and 2012 Amendments to the Copyright Act by the new amendment and its effect on copyright law in India

Introduction

What is copyright?

Copyright is a set of rights conferred by law on creators of literary, dramatic, musical and artistic works, and producers of films and sound recordings. The rights provided by copyright law include the rights of reproduction of the work, communication of work to the public, adaptation of work and translation of work. The scope and duration of protection under the Copyright Law vary according to the nature of the work protected by copyright.

The Repealing and Amending Act (Second) of 2017

The Repealing and Amending Act (Second) of 2017 has no legislative effect. It is simply an editorial review aimed at removing dead matter from the law and reducing its volume. The Act had received assent by the President on 5 January 2018.

Section 2 of the Act states that the enactments set out in the First Schedule are repealed. The First Schedule contained legislative provisions of the Copyright Amendment Act, 1999 and the Copyright Amendment Act, 2012.

Section 4 of Act tells us that-

  • The repeal by this Law of any provision shall not affect any other provision in which the revoked law has been applied, incorporated or derived; and this Act does not affect the validity, invalidity, effect or results of anything that has already been done or suffered, or any right, title, duty or responsibility already acquired, accrued or incurred, or any other appeal or proceeding, or release or discharge of any debt, penalty, obligation, liability, claim or claim, or any adjudication already made, or evidence of an act or thing approved;
  • this Law does not affect any principle or rule of law, jurisdiction, form or appeal, practice or procedure, use, custom, privilege, restriction, exemption, position or existing appointment, without prejudice to the same, respectively, may have been in some way affirmed or recognized or derived by, in or from an act repealed;
  • the repeal of this Act will not restore or restore any jurisdiction, trade, custom, liability, right, title, privilege, restriction, exemption, use, practice, procedure or other thing or thing that does not exist or that is in force.

Now the question at hand is whether the amendments which came into being through the Copyright Amendment Acts of 1999 and 2012 are maintainable any longer?

The Copyrights Amendment Act, 1999

The Act was amended extensively in 1994, in which it took care of the challenges posed by digitisation of works and the Internet, although partially. Later, the Act only required minor changes to comply with the obligations under the Trade Related Aspects of Intellectual Property Rights (TRIPS) which was brought in by the 1999 amendment.

The Copyrights Amendment Act, 2012

Before 2012, the Copyright Act of 1957 was modified five times. Of these, the 1994 amendment is perhaps the most important, as it dealt in part with issues related to the digitization of works protected by copyright.

The Copyright (Amendment) Act (2012) is popularly favoured by progressive changes such as the “right to royalty” and exceptions for the disabled, which are widely publicized. However, there are also some regressive amendments that have not received much public attention.

The amendments introduced through Copyright (Amendment) Act 2012 can be categorized into:

  • Amendments to rights in artistic works, cinematograph films and sound recordings.
  • WCT and WPPT related amendment to rights
  • Author-friendly amendments on the mode of Assignment and Licenses
  • Amendments facilitating Access to Works
  • Strengthening enforcement and protecting against Internet piracy
  • Reform of Copyright Board and other minor amendments

The Copyright Amendment Act 2012 has added to the Indian Copyright Act certain provisions that have not yet been incorporated in a number of developed countries. This is an advantage for copyright writers as well as copyright users. Clarification of what constitutes an offence has eased those who have always advocated “fair use”, but feared allegations of violation.

Response to Amendments

Changes have not fallen well with the producers of the films and the major music companies in the country buying the music rights of the film. Therefore, a number of written petitions challenging the constitutional validity of the amendments have been filed before Delhi High Court.

Surprisingly, a category of songwriters and composers (whose favour changes are claimed to be) are not particularly happy with the changes and have challenged their constitutional nature. These songwriters and composers belonging to a regional linguistic brotherhood have challenged the second reservation in Section 33(1) which obligatorily requires that they operate licensing through a copyright society on the grounds that it limits their right to license their work and forces them to participate in a copyright society which, in view of the limited popularity of regional language music, harms their commercial interests, as they would not have anything to say in determining the distribution scheme for royalties collected by the Copyright Society. While these writs have not yet been decided, it has been widely reported that movie producers already devise genius ways to create instruments to maintain their broad interests.

The government had ensured that it would establish a permanent Copyright Board and also a Copyright Enforcement Agency Council to ensure compliance with the provisions of the act of amendment. Some concrete steps toward this goal have yet to be taken.

Effects of Repealing Amendment Acts of 1999 and 2012

An interpretation that is circulated is that the main act, which is the copyright law, 1957, survives as amended and only the amending Act is repealed. The other interpretation is, of course, that all the changes proposed in the 1999 and 2012 legislation also go out of the window and the law returns to its form since 1994 when it was last modified. Providing weightage to the first interpretation is Section 4of the statute, “The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to”. In other words, it may be possible to assert that when the main act has been changed, it takes a life by itself incorporating the changes into its text and continues to survive regardless of whether the legislation has been changed. This interpretation is supported by the fact that in a normal parliamentary convention when a law is changed, it is normal to change only the text of the main legislation and not the amendment legislation. The other opposite interpretation derives from simple logic. If the amending act is the source of power and it has been removed, it is not obvious that the changes to the main act lose their validity and are automatically cancelled? What is another point about repealing the amending act? It can certainly not be the case that status quo exists whether or not a law is repealed by Parliament. If there is no effect after Parliament repeals legislation, why even go through the decisions to repeal the law? What is the purpose of such an exercise? Parliament must have intended to take effect at the time it decided to repeal the law, and the intention is simply to junk these set of amendments.

Moving on to case laws to support the first interpretation.- in the Supreme Court case of Jethanand Betab v. The State of Delhi, which was decided in 1959. The Indian Wireless Telegraphy Act, 1933 had been amended in 1949 to introduce a particular penal provision. The amending act was eventually revoked by The Repealing and Amending Act, 1952. The question was whether the penal provision included in 1949 would continue to live or be omitted from the law. The court speaking through Justice Subba Rao held that the amendment introduced in 1949 would continue to exist even after the amending legislation was revoked because of Section 6A of the General Clauses Act and not Section 4 of the repealing act.

Conclusion

By applying the same logic to the law of 2017, it will be possible to safeguard the effectiveness of the 2012 Copyright (Amendment) Act on the main legislation even after the repeal of the amending legislation. These laws have no legislative effect but are designed for editorial review, with the sole purpose of eliminating dead materials from the law and reducing their volume. For the most part, they delete the Acts of Amendment because, having given the amendments to the main laws, these laws have served their purpose and have no other purpose. Sometimes, inconsistencies are also eliminated by repealing and amending laws.

In my opinion, it is clear, without a doubt, that the Repealing and Amending (second) Act, 2017, does not make the amendments introduced by the 1999 and 2012 amendments redundant. It is only an editorial exercise and will not have an effect.

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