BREAKING: IPAB APPOINTMENTS OF TECHNICAL MEMBERS FOR COPYRIGHT, TRADEMARK AND PATENTS APPROVED BY DPIIT

The Department for Promotion of Industry and Internal Trade (DPIIT) has vide notification dated July 21, 2020 approved the following proposals for appointment to the posts of Technical member (Patents), Technical Member (Trademarks) and Technical Member (Copyrights) in IPAB for a period of four years.

Read notification:  here

The appointment of the above members was placed on record by the Union of India before the Delhi High Court in the matter -Indian Drug Manufacturers Association vs Union of India.

Read order here.

The current Chairman Shri. Justice Manmohan Singh is due to retire on September 22, 2020. As per the information here, the process for appointment of new chairman has already been initiated as per the Tribunal Rules, 2020.

Significance: The IPAB has been dysfunctional since a long period of time. As regards copyright matters, the appointment of the Technical Member-Copyright is significant as the appointment comes just in time before the expiry of the Copyright Board Order of 2010 which is due to expire on September 30, 2020. The CRB order of 2010 fixed the royalty rate for the broadcast of sound recording on FM radio by providing a revenue-sharing model as 2% of net advertisement earnings of each FM radio station to be distributed on a pro-rata basis.

The music label industry has been at loggerheads with the radio broadcasters over this CRB order of 2010. Moreover, the compulsory and statutory licensing provisions under Section 31, 31A, 31B, 31C, 31D which have not seen the light of the day since the Copyright Amendment of 2012 coming into effect may now be tested and royalty rates may be fixed. Experts however state that it may be difficult for the IPAB to fix the royalty rates in such a short span of time and there could be a possibility of the radio broadcasters seeking an extension of the CRB Order of 2010.

The statutory licensing provisions under Section 31D have been challenged before several courts out of which the challenge by Lahari Music is pending in the Supreme Court and by Eskay Video before Calcutta High Court.

The IPAB website has not yet updated the list of these new technical members and further information on the Board hearing the matters is awaited.

The Intellectual Property Appellate Board (IPAB) was established on 15th September, 2003 in Chennai under Section 83 of the Trade Marks Act, 1999 to hear appeals against the decisions of the Registrar of Trade Marks and Geographical Indications and Controller of Patents. The IPAB consists of Chairman, Vice-Chairman and Five Technical Members IPAB and One Technical Member from Plant Varieties Protection Appellate Tribunal (PVPAT) by invoking ‘Transitional Provision’ under Section 59 of the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act 2001, to hear appeals against the decision of Registrars of Copyrights, Trade Marks, Geographical Indication Registry, and controller of Patents. Besides Principal Bench at Chennai, the Circuit Bench sits at Mumbai, Kolkata, Delhi and Ahmedabad also.

The main objectives of the establishment of the Appellate Board are:-

• to provide a mechanism for quick disposal of cases;
• to develop sound precedents and practices;
• to ensure that appeal from the Registrar’s decision is dealt with by judicial and technical experts promptly, and
• to avoid conflicting decisions which have been given by various High Courts in the past.

The Delhi High Court vide its order dated September 27, 2018 in the matter of Radio Next Webcastion Pvt. Ltd vs Union of India had held that the vacancy in the IPAB with respect to a member technical (copyright) does not in any manner impinge upon the jurisdiction of the Appellate Board as constituted under Section 83 of the Trademark Act. Ideally, IPAB should have been fully  functional even in the absence of the technical members. [Read order here].

Insightful read: Prashant Reddy’s post on Spicy IP on Controller General’s office agreeing with his petition for scrapping IPAB.

Image source: here