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2018 Supreme(Del) 2677
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Radio Next Webcastion Pvt. Ltd. - Petitioner
Versus
Union of India And Anr. - Respondents
W.P.(C) 5893 of 2018 & C.M. No. 22982 of 2018, 32754 of 2018
Decided On : 27-09-2018
For the Petitioners: Mr. Sagar Chandra, Adv.
For the Respondents: Ms. Shiva Lakshmi, CGSC with Mr. Siddharth Singh & Mr. Ruchir Ranjan Rai, Advs.
The central legal point established is that the Appellate Board constituted under Section 83 of the Trade Marks Act has jurisdiction to perform functions under the Copyright Act.
Headnote:
Copyright Act - Jurisdiction of Appellate Board - Section 11 of the Copyright Act 1957, Section 83 and 84 of the Trade Marks Act - Copyright Act 1957, Trade Marks Act 1999 - Summary: The court examined the jurisdiction of the Appellate Board in relation to matters under the Copyright Act. It was found that the Appellate Board constituted under Section 83 of the Trade Marks Act also had jurisdiction to perform functions under the Copyright Act. The impugned order declining to place the petitioner's application before the Appellate Board was set aside, directing the Appellate Board to examine the application in accordance with the law.
Fact of the Case:
The petitioner challenged an Administrative Order declining to place the petitioner's application under Section 31D of the Copyright Act before the Appellate Board, citing the absence of a technical member (copyright) as the reason.
Finding of the Court:
The impugned order was found to be unsustainable and was set aside. The Appellate Board was directed to examine the petitioner's application in accordance with the law.
Issues: The main issue was whether the Appellate Board, as presently constituted, had the jurisdiction to examine matters relating to the Copyright Act.
Ratio Decidendi: The court found that the Appellate Board constituted under Section 83 of the Trade Marks Act also had jurisdiction to perform functions under the Copyright Act.
Final Decision: The impugned order was set aside, and the Appellate Board was directed to examine the petitioner's application in accordance with the law.
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition, inter alia, impugning an Administrative Order dated 16.05.2018 (impugned order) passed by the Registry of Intellectual Property Appellate Board (hereafter ‘the Appellate Board’) declining to place the petitioner‘s application filed under Section 31D of the Copyright Act, 1957 (hereafter ‘the Copyright Act’) before the Appellate Board. The impugned order indicates that the petitioner‘s application is declined on the ground that there is no technical member (copyright) to place the application before the Appellate Board and, therefore, till such time that a technical member (copyright) is appointed, the matters relating to Copyright Act would not be listed before the Appellate Board.
2. Ms. Shiva Lakshmi, counsel appearing for the respondents states that steps are being taken for appointing a technical member (copyright) in terms of Rule 3 of the Copyright Rules, 2013 and states that advertisement for such posts have been issued and is it expected that such appointment would be made shortly.
3. Although, a technical member (copyright) has not been appointed as yet, it is not disputed that the Appellate Board is functional and is hearing the matters with regard to the Trademarks Act, 1999 as well as the Patent Act, 1970.
4. The only question that falls for consideration of this Court is whether the Appellate Board, as presently constituted, has the jurisdiction to examine matters relating to the Copyright Act.
5. Section 11 of the Copyright Act 1957, as existed prior to 26.05.2017, read as under:
“11. Copyright Board. (1) As soon as may be after the commencement of this Act, the Central Government shall constitute a Board to be called the Copyright Board which shall consist of a Chairman and two other members.
(2) The salaries and allowances payable to and the other terms and conditions of service of the Chairman and other members of the Copyright Board shall be such as may be prescribed: Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman or any other member shall be varied to his disadvantage after appointment.
(3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of a High Court or is qualified for appointment as a Judge of a High Court.
(4) The Central Government may after consultation with the Chairman of the Copyrights Board, appoint a Secretary to the Copyright Board and such other officers and employees as may be considered necessary for the efficient discharge of the functions of the Copyright Board.”
6. Copyright Rules, 2013, which came into effect on 14.03.2013, also expressly contained rules for constitution of the Copyright Board. Rule 3(1) of the said Rules is set out below:
“3. Terms and conditions of the office of the Chairman or members of the Board.— (1) The Chairman and other members of the Board shall be appointed for such period not exceeding five years as the Central Government may in each case deems fit:
Provided that the Chairman and the other member shall not hold office as such after he has attained,-
(a) In the case of Chairman, the age of sixty-five years; and
(b) In the case of any other Member, the age of sixty-two years.”
7. However, by virtue of the Finance Act, 2017, Section 11 of the Copyright Act was amended and provisions for constitution of a Copyright Board were substituted. Therefore, with effect from 26.05.2017, there was no statutory provision for constitution of a Copyright Board. Section 11 of the Copyright Act, as substituted with effect from 26.05.2017, reads as under:
“11. Appellate Board.—The Appellate Board established under section 83 of the Trade Marks Act, 1999 shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be the Appellate Board for the purposes of this Act and the said Appellate Board shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.”
8. It is apparen
