Mr. G.R. Raghavender is currently serving as the Joint Secretary, Department of Justice, Ministry of Law and Justice, Government of India and has been witnessing the changing landscape of copyright law in India.

All views and opinions by Mr. G. R. Raghavender represented in this blog are personal and do not represent the Ministry of Law & Justice and Government of India.

The Government of India began the process of rationalisation of tribunals in 2015. By the Finance Act, 2017, seven tribunals were abolished or merged based on functional similarity and their total number was reduced to 19 from 26.

In an engaging chat with Mr. Ameet Datta, Partner, Saikrishna & Associates, Joint Secretary Mr. Raghavender spoke about the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (“Ordinance”). This was originally introduced as a Bill in Parliament on February 13, 2021, during the 2021 budget session. Since the Bill could not be passed into a law, the President of India issued it in the form of an Ordinance on April 4, 2021.

The Ordinance seeks to dissolve or transfer the functions of key appellate tribunals to either Commercial Courts or High Courts.

During the conversation, Mr. Raghavender called attention to issues that plagued the working of various tribunals which ultimately led to the abolishment of several tribunals, including the Intellectual Property Appellate Board (IPAB). According to Mr. Raghavender, a tribunal is not an ordinary court, but an adjudicating body constituted by the State and it is vested with some judicial functions. He clarified that these tribunals were not bound by procedural laws of the country; instead, they were to formulate their own procedural rules so as to speed up the process of adjudication. However, instead of doing so, the tribunals proceeded to rely on the existing procedural laws, and this increased the time of adjudication, leading to delays and pendency of matters. He also pointed out that tribunal members, though deemed experts in their field, did not possess the requisite qualifications to deal with complicated matters.

Mr. Raghavender explained that since appeals from tribunals lie directly in the Supreme Court, it deprives High Court judges from getting the necessary exposure to adjudicate nuanced issues of law. He also commented that tribunals are not as accessible as High Courts. The Ordinance solves these issues by making it possible for litigants to access twenty-five High courts as compared to, for instance, the three benches of the IPAB.

However, Mr. Raghavender expressed concerns about the impact that the transfer of IPAB’s powers to various High Courts would have, on involuntary licensing under the Copyright Act, 1957. While the IPAB was a centralised body invested with the power of granting involuntary licenses and fixing tariffs for the same, the Ordinance transfers these powers to Single Judges of the various concerned High Courts of each state. Now, it is unclear whether an involuntary licence granted/ tariffs set by a Single Judge of one High Court, for example Delhi High Court, will be applicable to other states across the country as the High courts of different states will be similarly authorized to issue involuntary licenses and fix tariffs as well.

According to him, there is a need to further amend the recently notified Copyright (Amendment) Rules 2021 in light of the Ordinance, as the Rules continue to refer to the IPAB. These amendments may clarify which court(s) can grant involuntary licenses.

Given that the Ordinance authorises transfer of matters to either a single judge of a High Courts or to a Commercial Court, Mr. Raghavender cautioned that there may be some confusion regarding which Court a matter should be transferred to. He referred to an amendment to the Commercial Courts Act, 2015 which brought down the pecuniary jurisdiction of Commercial Courts from INR 1 crore to INR 3 lakh, in light of a World Bank Ease of Business Report. Now, whether a  commercial intellectual property (IP) matter of INR 3 lakh would go to a Single Judge of a High Court or to a Commercial Court, may need to be clarified through an amendment to the Commercial Court Rules, 2018. Mr. Raghavender suggested that if it is a matter relating to compulsory license, statutory license, registration, etc., it would go to a Single Judge bench in a High Court; on the other hand, if it is a dispute matter (for example, a matter relating to patent, copyright, trademarks infringement, etc.), it would go to a Commercial Court.

He noted positive aspects of commercial courts over a tribunal such as the IPAB. As per the Commercial Courts, Act 2015, any commercial court proceeding is to be initiated only after a pre-suit mediation which attempts to aid the parties in reaching a settlement. The settlement arrived at in these proceedings has a binding authority as it is equivalent to an  Arbitration Award. There is a mandatory case management hearing wherein parties on a fixed date meet and gather requisite information such as list of witnesses, list of evidence of other parties etc. This saves time. Parties may opt for a summary trial under the Commercial Courts Act, 2015. The entire process has to be completed within the span of one year. There is also a provision which entitles the winning party to get the entire court fees from the court.

To conclude, Mr. Raghavender endorsed the view that the Ordinance is a step forward towards creating specialised IP Courts in India.