Adultery is an instance of Over-Criminalization in India

Abstract: Recently Supreme Court has agreed with the criticism of Section 497 of the Indian penal code which punishes a man alone for adultery for having consensual sex with a married woman and whereas it is provided expressly therein that the wife cannot be prosecuted against even as an abettor.

The two judge bench comprising of Justices AftabAlam and R M Lodhamade the criticism on the two grounds[1],

1. That the provision engulfed in section 497 makes or treats a married woman as a property of the husband, and
2. That provision for punishment is only against the maninvolved in the act of adultery in spite of the fact, that the woman with whom he has consensual sex was an equal partner in the alleged crime.

Another highly debated concern of some jurists and thinkers is that, whether the act of adultery is a Civil Wrong or a Criminal Offence? All these issues which are concerned with discrimination and the wrong categorization of an act of adultery as a criminal offence are the subject matter of this research article.

There are discussions on some prominent judgments of the Apex court relevant to adultery along with step by steparguments that why adultery shall be treated as civil wrong in the form of “Breach of Trust” rather than a criminal offence.

Introduction

Adultery is being criminalized in many countries of the world on the basis of moral beliefs.Adultery also known as philandery is a form of extramarital sex. It is sexual infidelity (disloyalty) to one’s spouse and originally it was referred only to sexual intercourse between a woman who is married and a person other than her spouse.

It is evident from the plain reading of the section 497[2] that only a man can be prosecuted and punished for the act of adultery while woman is not considered as an offender. The rationale considered is that a woman, even if she is involved in an illicit relationship, cannot be punished for adultery because she is treated as the victim and not as having her will to enter into such unfair relationshipor abettor under the law. But a question arises here that

“If the act of Adultery is not committed on account of her will or if she is a victim then why she is not given a fair chance to prosecute her adulterer on her own initiative?And “why only the husband of the so-called victim is only eligible to drag the offender in the court under Section 198 of ‘The Code of Criminal Procedure’?”

All these questions are worth noticeable because questions always arise in problems and problems arise in turn because of wrong classification of certain acts as criminal acts and imposing criminal liability on such acts.Good judgment comes from experience and experience comes from bad judgments and by looking on some recent judgments it seems that apex court is determined to rectify the existing law which ought to be changed with the changing scenario of the society.

Now before going into the gist there are some important questions which are very necessary to be dealt with.

1. What is the basic philosophy behind making the act of Adultery as a criminal offence?
2. If it is morality then what comes into the definition of morality?and
3. Does a so-called immoral act like adultery really deserve to be criminalized?

Jurisprudential Study:

Morality is a sense of behavioural conduct that differentiates intentions, decisions, and actions between those that are good or bad and right or wrong while immorality is an active opposition to morality, and amorality is variously defined as an unawareness of, indifference toward, or disbelief in any set of moral standards or principles.

Morality is a subjective phenomenon that can be meant as either descriptively referring to a code of conduct put forward by a particular society or some other group such as a religion, or as an accepted behaviour by an individual, or normatively refers to a code of conduct that when given specified conditions would be put forward by all rational people. Criminal laws are directed at the conduct society recognizes as inherently wrongful and in a sense, immoral. In the past these acts were wrongs in and of themselves (mala in se) such as murder, rape, and robbery but recently, criminal law expanded its reaches to address conduct that is wrongful and not because of its intrinsic nature but because of being a prohibited wrong (mala prohibitum) by the society itself and adultery is one such prohibited wrong.

Actually crimes against morality are usually victimless crimes and in that there is no true victim of the crime. Crimes against public decency and morality are termed as “victimless crimes” by virtue of the fact that they generally involve willing participants. Crimes against morality are those that may offend another’s sensibilities; in effect, another may be offended if a person engages in sexual activity for hire or as adultery or has multiple wives. But with these offenses, there is nothing inherently harmful to others or in other words it can be said that society in no way harmed by such offences. Thus, criminal law overreaches its authority by criminalizing conduct that poses no harm to others or conduct that is consensual. Again it can be said that if there is no victim in an act then how it can be seen or considered as a crime. In support of it, an example can be taken of a recent judgment given by the Supreme Court of India on 28^th April, 2010.

It said that in the present social milieu, some people view pre-marital sex as an attack on the centrality of marriage while a significant number see nothing wrong in it. Thus this conflict of opinion on morality did not make pre-marital sex an offence.

It said the courts attach a lot of importance to personal autonomy and a person indulging in an immoral act need not necessarily be a culprit in the eyes of law. “Morality and criminality are non-co-extensive,” said a Bench comprising of former Chief Justice of India Justice K G Balakrishnan and Justice Deepak Verma and Justice B S Chauhan. It also said that notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.

But a major setback came again when Justice Chauhan said, “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery’ as defined under Section 497 of the Indian Penal Code.” Now here comes an excessive logical self-contradiction. If the Supreme Court is of the view that morality and criminality are non-co-extensive then what is the basis for upholding Adultery as a crime!

Earlier the Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz and V. Revathi.

In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.

In the cases of V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband. The court also said that in between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court. They can either overlook the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce.

Now here occurs a paradox that court rejected its own view by saying that policies cannot be questioned whereas policies are subject of judicial review which is a basic feature of the constitution decided in several casesheld in Supreme Court per se.

Now if we accept the judgment of the Honourable Supreme Court then the question arises that, what harm has been inflicted on the society by an act of Adultery? Or does it create any kind of fear in the community? Or does it create any kind of Social Volatility? And above all does the provision engulfed in Section 497 contribute effectively in prevention of Adultery as an offence against the matrimonial home? All these are core questions to ascertain that whether an act is crime or not,and while answering to these we will get a big ‘No’.

In spite of the fact that there is no substantive harm afflicted to the society, legislative bodies, Judicial Courts and interest groups sometimes justify the criminalization of consensual activity which is against morality, because they feel it offends cultural norms, or because one of the parties to the activity is considered a “victim” despite their informed consent.Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unambiguous in their condemnation of adultery. However in most cultures both the man and the woman are equally punishable.

The Report of the Mali math Committee on Criminal Justice Reforms says that, “As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man. The object of Section 497 is to preserve the sanctity of marriage. Society dislikes marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man other than her husband,” the Committee said in its report submitted to the Centre”. It therefore suggested that “section 497 be suitably amended to the effect that whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.

Similarly the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery. The Central Government accordingly has sought the views of all the 30 states in the country regarding the implementation of the said recommendations.

However the National Commission for Women (NCW) has shot down proposals for amending Section 497 of the Indian Penal Code, which provides expressly that the wife cannot be punished even as an abettor based on the reasoning that the woman, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.

The commission, according to its sources, does not think that by merely prescribing punishment for women by amending Section 497, marriage can be protected or saved.

This view of NCW seems correct but it failed in giving a solution to the problem and unfortunately Commission has, however, recommended suitable amendments to Section 198(2) of the Criminal Procedure Code (CrPC), which disqualifies a woman from prosecuting her husband for his promiscuity.

It argued that as already the woman can take action against her husband under various other legal provisions such as Section 498A of the IPC, there is no reason that she should be barred from initiating prosecution under Section 198 of the CrPC. The wife, in such cases, ought to be the person aggrieved and competent to file a complaint under Section 198.

Thus the law of adultery in India has three unsettling aspects. The first is, apart from being a ground for divorce under the personal laws governing marriage adultery is a crime punishable with imprisonment. The second is, only the husband concerned can complain against such a crime. Third, the complaint can only be against the male concerned with whom the wife has sexual relations. The wife is specifically excluded from consideration as a participant.

Now the question is that “where does a woman stand in all this”? She cannot complain of adultery committed by her husband. She is not even treated as a consenting participant to the adultery. By shifting adultery to the realm of crime (rather than a personal issue concerning only the spouses), the law recognises a proprietorial interest of the husband in the wife, and adultery to be a violation of such a right by another man.

This law was unsuccessfully challenged in 1985 by a woman, Sowmitra Vishnu, on the ground that the law resulted in treating the woman as a property. She argued that the criminal law of adultery (Section 497, Indian Penal Code) conferred upon the husband the right to prosecute the adulterer but it did not confer any right upon the wife to prosecute her husband or the woman with whom her husband has committed adultery. She argued that the provision was a kind of `romantic paternalism’, which resulted from the assumption that women, like chattels, are the property of men.

The Supreme Court’s responses to these arguments were unfortunate. It ruled that the above arguments “have a strong emotional appeal but they have no valid legal basis to rest upon”. It said the offence of adultery, by its very nature, can be committed by a man and not by a woman. It is commonly accepted that it is the man who is the seducer (A man who takes advantage of women) and not the woman.Further, in completely excluding any participation of the woman in the extra-marital sexual relations, the Supreme Court said the wife, who is involved in a sexual relationship with another man, is a victim and not the author of the crime. The offence of adultery, in their opinion, is an offence against the sacredness of the matrimonial home. Therefore, men who overstep that sacredness are brought within the net of the law. Consequently, this law still remains in its original form.

Now the contradiction arises when the woman is indulged in committing adultery on her own will then why should consider her as a victim and innocent and if she is considered as victim then why not consider this act of the male as a rape! The inclusion of adultery as a crime in the IPC, drafted in 1860, was justified on the ground that it would deter immorality. But it seems that the rationale envisaged in section 497 is that only the male member of the society can commit immoral acts and not the female members or does the law makers was having a presumption the only the male members of the society can initiate and be the sole cause of such type of immoral act like adultery!

Now there are certain shortcomings of Supreme Court. Considering the limited question of Constitutional validity before it, the object of Section 497, was never brought before the Supreme Court. The decisions of the Court therefore have erred to the limited extent of holding adultery as an offence against the matrimonial home.

If adultery had been a matrimonial offence neither the husband would have had the freedom to indulge in extra-marital sexual relations with unmarried women nor the consent of the husband of the wife when she had sexual intercourse with other men would make any difference in its constitution. Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass. There is no doubt then that this section treats a woman like a man’s chattel.

It is true that our society dislikes marital infidelity and these laws have been passed to maintain and preserve the sanctity of marriage but by merely prescribing a punishment for women by amending Section 497, the marriage cannot be protected or saved. Moreover, most women in rural India are socially disempowered, open to exploitation and are even forced into adultery. Rather than making the woman culpable, adultery should not be treated as a criminal offence at all. Actually we need to do away with criminalising adultery. Adultery is socially harmful, but it is obsolete on the part of the IPC and the Malimath report to jail people and tarnish them forever for such an act and criminalising adultery will not achieve anything substantive.

Now the issue is that if adultery should be decriminalized then how to prevent this socially and morally act from happening!

Actually unlike other criminal acts adultery is a violation of the mutually agreed-upon rules or boundaries of an intimate relationship, which constitutes a significant to extreme breach, or outright default, on the good faith contract of a relationship, or a betrayal of core shared values with which the honesty and nature of the relationship is defined. In common use, it describes an act of unfaithfulness to one’s husband or wife and no doubt it is considered as heinous immorality but the issue of adultery should be viewed as a breach of trust and be treated as a civil wrong rather than as a criminal offence.

Breach of trust:

While the need for this law was not questioned in any case held by the Supreme Court, we need to consider if adultery needs to remain a `crime’? However, it is important to understand adultery as a problem only to the extent it actually is one.

There may be many instances in which the woman wants to save marriage and sees the adulterous relationship as an aberration. The issue of adultery should be viewed as a breach of trust and treated as a civil wrong rather than as a criminal offence.

The National Commission for woman in its recommendation has said that adultery should be treated as a civil wrong and not as criminal offence. It has, however, said this should be done only after a national consensus is formed on the issue.

Adultery is an issue and a matter of outrage for the spouses and the spouses alone. This law makes a crime of what is essentially a breach of trust between spouses, and shifts the obligation and penalty from the partners to marriage to a third party. While the disapproval for adultery is understood, recourse and remedy against the same should be available only to the parties to the relationship of marriage and against the spouse at fault.

There is no justification whatsoever for the Section 497 to exist, more particularly in its present form anymore.

Marriage is both, a sacrament and a civil contract and the society has certain notions about the same. Yet, it is not a standard form contract. The spouses are and should be at a liberty to choose their own terms of the contract. Therefore, whether they allow each other to have or maintain sexual relations with third parties should be at the sole discretion of the parties alone. The National Commission for women recommends that adultery should be made merely a civil wrong and the Supreme Court impliedly agrees that husband and a wife should not strike each other with the weapon of criminal law. Making provisions in Penal law to regulate civil contracts and particularly the contract of marriage, which is private and personal, is unwarranted.

Thus i feel that rather than making the woman culpable, adultery should not be considered as a criminal offence at all. In fact we need to do away with criminalising adultery.

Conclusion:

Traditionally crime is considered to be the commission or omission of an act by which a sort of harm is done to the community by spreading a widespread fear in it. It is also said that a criminal act is the root cause of social volatility which is considered as a sheer wrong against the community and commission of crime is itself an expressed violation of the values of the community and criminal law itself. But when an act like adultery is put into the category of the crime then all the aforesaid conditions or requisites of a crime are not fulfilled. In spite of this adultery is considered as a crime in section 497 of IPC on the basis of the morality. It is true that there is a deep connection between morality and law but Crime is a special sort of wrong and a person doing or refraining from any act can be made liable for civil wrong and not criminal wrong if such an act or omission is against morality.

Adultery cannot be committed without a woman’s consent and when a woman has voluntary sexual intercourse with a third person it cannot be considered as a crime at all. But the section makes man liable alone for the offence. It is highly improbable that even in such a situation the woman would always be the victim and not as the person who provokes the offender for the crime. Thus there is no doubt that the law, as it stands today, is totally inadequate.

Punishment to the person committing adultery is not and cannot be a remedy for a person aggrieved of adultery. The object of prosecution for adultery is more often to reach a settlement with the offender at the mercenary level and seldom to send the offender to jail. To this extent, the conditions are not appreciably different even today. The existence of Section 497 has no apparent effect on society. Acknowledging this most western countries have decriminalised adultery. It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most of our laws. In the United States, in those states where adultery is still on the statute books, offenders are rarely prosecuted.

BIBLIOGRAPHY:

1. Conceptions of over criminalization by:Andrew Ashworth.
2. The Crisis of over criminalization by: Sanford H. Kadish.
3. The Constitution of India, Universal law Publication, 2010.
4. The Indian Penal Code by Ratanlal and Dhirajlal.
5. What is crime? By: Grant lamond.
6. Code Of Criminal Procedure by: RATANLAL & DHIRAJLAL
7. Committee on Reforms of Criminal Justice SystemGovernment of India, Ministry of Home Affairs-: sourced from –

http://www.mha.nic.in/pdfs/criminal_justice_system.pdf

• http://www.indiaantivirus.com/downloadtrialversion.asp
• http://www.quickheal.com/downloads.asp
• http://www.symantec.com/en/in/global/downloads/
• http://home.mcafee.com/store/free-antivirus-trials
• http://www.kaspersky.com/downloads
• http://download.cnet.com/AVG-Anti-Virus-Free-Edition-2012/3000-2239_4-10320142.html?part=dl-10044820&subj=dl&tag=button&cdlPid=11014801
• http://www.avira.com/en/free-download-avira-free-antivirus
• http://www.avast.com/free-antivirus-download

Free antivirus download full version 2012…

Advocate Images, Photos, Logo, Mono, Symbol

2001 SCCL.COM 697(Case/Appeal No: Civil Appeal Nos. 6734-6745 of 2000 (with C.A. Nos. 6746/2000, 6750/2000, 6747/2000, 6748/2000 & 6749/2000))
Government of Andhra Pradesh and others Appellants Vs. V.S.R. Murthy and others Respondents, decided on 9/18/2001.
Name of the Judge: Hon’ble Mr. Justice S. Rajendra Babu and Hon’ble Mr. Justice D.P. Mohapatra.
Subject Index: Board of Industrial and Financial Reconstruction (bifr) — tendency of proceedings before — settlement reached — MOU signed agreeing arrangement for deployment elsewhere — High Power Committee appointed — recommendations of Committee accepted by Government — scheme sanctioned by bifr – later promulgation of ordinance prohibiting absorption of employees — held the scheme already having been sanctioned by the bifr, it must be taken that the employees in different establishments have been identified and their placement in the various Government Departments and the public sector undertakings is complete.

2003 SCCL.COM 390(Case/Appeal No: Transferred Case (C) No. 8 of 2000 (with T.C.(C) Nos. 2, 4, 3, 9, 10, 11, 12, 13, 15, 35/2000 and T.P.(C) No. 326 of 2002))
A.K. Bindal and another Petitioners Vs. Union of India and others Respondents, decided on 4/25/2003.
Name of the Judge: Hon’ble Mr. Justice S. Rajendra Babu and Hon’ble Mr. Justice G.P. Mathur.
Subject Index: Service — pay scale — issue of revision of pay-scales of officers of Fertilizer Corporation of India and Hindustan Fertilizer Corporation — the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves — the employees cannot legitimately claim that their pay scales should necessarily be revised and enhanced even though the organisations in which they are working are making continuous losses and are deeply in red — petitions dismissed.

2003 SCCL.COM 479(Case/Appeal No: Writ Petition (C) No. 488 of 2002)
Kapila Hingorani Petitioner Vs. State of Bihar Respondent, decided on 5/9/2003.
Name of the Judge: Hon’ble the Chief Justice, Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Companies Act — corporate veil — lifting of — if at all and to what extent the Government of the State of Bihar is vicariously liable for payment of arrears of salaries to the employees of the State owned corporations, public sector undertakings or the statutory bodies — the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason of non-payment of salary to the employees of Public Sector Undertaking for such a long time — committee be appointed.

2003 SCCL.COM 829(Case/Appeal No: Civil Appeal No. 14572 of 1996 (With W.P.(C) Nos. 34/88, 1073, 1074/89, T.P.(C) No. 289/88,  W.P.(C) Nos. 152/88, 214/89, 218, 44, 134, 211/88, 161/87, 579/89,  T.P.(C) No. 290 of 1988))
Chairman-cum-Managing Director, National Textiles Corporation Ltd. and others Appellants Vs. N.T.C. (WBAB & O) Ltd. Employees Union and others Respondents, decided on 10/14/2003.
Name of the Judge: Hon’ble Mr. Justice Brijesh Kumar and Hon’ble Mr. Justice Arun Kumar.
Subject Index: Equal Pay for equal work — the issue involved in these cases is regarding the claim of the staff/sub staff engaged by the various textile mills under the NTC for ‘equal pay for equal work’. The staff working in the mills is claiming pay equal to or in parity with the pay scales prevailing for the staff working in the corporate offices of the mills — over the years by disparity between the pay scales of the staff working in the corporate offices and staff working in the mills has become highly disproportionate — as per the provisions of Section 5(2)(c) of the Sick Textile Undertakings (Nationalisation) Act, 1974, the waves, salaries and other dues of the employees of the sick textile undertakings after the takeover of their managements by the Central Government are the responsibility of the Central Government. The Central Government has failed to discharge its responsibility for all these years by raising such specious pleas. The Central Government has to discharge its responsibility de hors the bifr schemes.

2004 SCCL.COM 1059(Case/Appeal No: Writ Petition (C) No.427 of 1999)
National Confederation of Officers Asson. of Central Public Sector Undertaking and Others Petitioner Vs. Union of India and Others Respondents, decided on 11/30/2004.
Name of the Judge: Hon’ble Mr. Justice Ashok Bhan and Hon’ble Dr. Justice AR. Lakshmanan.
Subject Index: Constitution of India — Article 32 — petition — concerning release of revised IDA pay scale in respect of the British India Corporation (a Government Undertaking) and its two units situated at Cawnpore Woollen Mills, Kanpur and New Egerton Woollen Mills, Dhariwal (Punjab) — the brief controversy involved in this matter is that by order dated 19.7.1995, the Central Government has denied the benefit of revised IDA pay scale to those sick public sector undertakings which are registered with the bifr – Court passed the order directing the implementation of the Scheme as sanctioned Scheme by the bifr in so far as the petitioners are concerned.

2005 SCCL.COM 382(Case/Appeal No: Civil Appeal No. 3271 of 2005 (with I.A. No.2 in CA. No. 3271/2005 @ SLP(C) No. 7405/05, C.A. Nos. 3272-73/2005, I.A. Nos. 7-11 in C.A. Nos. 3272-3273@ SLP(C) Nos. 7549-7550/2005, C.A. No. 3274/2005, I.A. No. 3 in C.A. No. 3274 @ SLP(C) No. 10511/2005, C.A. No. 3275/2005, I.A. No. 2 in C.A. No. 3275/2005@ SLP(C) No. 7453/2005, C.A. No. 3276/2005, I.A. No. 2-3 in C.A. No. 3276/2005@ SLP(C) No. 7451/2005, C.A. No. 3277/2005, I.A. No. 2 in C.A. No. 3277/2005@ SLP(C) No. 8362/2005 and C.A. No. 3278/2005, I.A. No. 2 in C.A. No. 3278/2005 @ SLP(C) No. 8378 of 2005))
Bombay Dyeing and Manufacturing Co. Ltd. Appellant Vs. Bombay Environmental Action Group and others Respondents, decided on5/11/2005.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Bombay Cotton Textile Mills Case — Development Control Regulations, 1991 — Regulation 58 — lands of Cotton Textile mills measuring about 600 acres — interest of justice would be sub-served if the National Textile Corporations are permitted to complete the transactions in terms of the scheme framed by the bifr but the same shall be subject to the conditions that in the event, the writ petition ultimately succeeds, the vacant land available from other mills, if necessary, shall be offered by way of adjustment — scheme, rules, regulations and byelaws, framed under the provisions of Maharashtra Regional & Town Planning Act, 1966 shall be strictly complied while granting permission — the committee appointed in terms of the regulation shall grant its approval only in accordance with the extant regulations — any further constructions and/ or creation of any third party rights by the mill owners will be at their own risk wherefor they would not claim any equity whatsoever and furthermore the same subject to the orders of the Court.

2005 SCCL.COM 608(Case/Appeal No: Civil Appeal Nos. 5199-5201 of 2004 (with C.A. Nos. 5202-5205 of 2004))
M/s. NGEF Ltd. Appellant Vs. M/s. Chandra Developers Pvt. Ltd. and another Respondents, decided on 9/29/2005.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice C.K. Thakker.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — Sections 20(4) and 32 — Companies Act, 1956 — Sections 433 and 536(2) — Companies (Court) Rules, 1959 — Rules 6 and 9 — winding up — powers of Company Court — company directed to execute sale deed by Company Court under provisions of the Companies Act — provisions of SICA prevails over provisions of the Companies Act — u/s 20(4) of SICA only bifr has jurisdiction as regard sale of assets till winding up order is passed — order of sale set aside — appeals allowed.

2006 SCCL.COM 341(Case/Appeal No: Civil Appeal No. 6217 of 1999 (With C.A. Nos. 6171-6172 of 1999, and C.A. No. 6176 of 1999))
State of U.P. & Anr. Appellants Vs. Uptron Emp. Union CMD.I & Ors. Respondents, decided on 4/26/2006.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — Section 15 — sick company a fully owned to subsidiary of a government company owned and controlled by State of U.P. — direction given by bifr to State of U.P. to make on account payment of wages to workers of the sick company on humanitarian grounds challenged — no provision in SICA which authorities bifr to pass such order — impugned orders set aside — appeals allowed.

2007 SCCL.COM 626(Case/Appeal No: Civil Appeal No. 1672 of 2006)
G.L. Sultania and another Appellants Vs. The Securities and Exchange Board of India and others Respondents, decided on 5/16/2007.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Securities and Exchange Board of India Act, 1992 — Section 15Z — appeal under — shares not valued in accordance with the parameters laid down under Regulation 20(5) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 1997 — as per the appellants — respondents contended that the valuation of shares was done having regard to the parameters laid down under Regulation 20(5) of the Takeover Code and the Board had taken all necessary precautions to safeguard the interest of the shareholders so as to ensure payment of best price for the shares to be sold by them — the question there arises as to who shall determine whether the valuation of shares is reasonable and acceptable — the valuer, Patni & Company have not committed any such error which may justify our interference. They have considered all the factors relevant under Regulation 20(5)) of the Takeover Code and have adopted a reasonable approach which does not call for interference — the Board has acted in a reasonable manner and made its best efforts to secure a reasonable price for the shares of the shareholders. It has exercised its discretion wisely and we find no reason to interfere.

2007 SCCL.COM 1036(Case/Appeal No: Civil Appeal No. 2805 of 2005)
Carona Ltd. Appellant Vs. M/s Parvathy Swaminathan & Sons Respondents, decided on 10/5/2007.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice P. Sathasivam.
Subject Index: Landlord and tenant — in spite of determination of tenancy, the tenant did not hand over vacant and peaceful possession of the suit premises to the landlord. The landlord, therefore, filed a suit in the Small Causes Court, Bombay on April 2, 2001. In a written statement, dated August 1, 2001, the tenant disputed the averments made and allegations levelled by the landlord and contended that it was not liable to be evicted. The Small Causes Court, Bombay, however, passed a decree of eviction against the tenant on December 16, 2002 which was confirmed by a Bench of that Court as also by the High Court. The said order is challenged in the present appeal — on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by bifr — the tenant has not paid ‘rent’/'mesne profits’ since more than ten years. Even after approaching this Court, it had made part payment pursuant to interim order made in April, 2005. But nothing was paid/deposited thereafter even though two years have passed — the appellant-tenant cannot ask for discretionary and equitable relief.

2007 SCCL.COM 1187(Case/Appeal No: Civil Appeal No. 5275 of 2007)
Bijli Cotton Mill (Unit of National Textile Corporation U.P. Limited) Appellant Vs. U.P. Power Corporation Limited & others Respondents,decided on 11/16/2007.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Lokeshwar Singh Panta.
Subject Index: Recovery proceedings — quashment requested — appellant involved in manufacture of cotton yarn — matter referred to bifr — electricity connection was disconnected — payment of surcharge — request for waiver — the High Court is requested to consider the matter within four months of the receipt of the order of bifr.

2007 SCCL.COM 1217(Case/Appeal No: Civil Appeal No. 5347 of 2007)
Zenith Steel Tubes & Industries Ltd & Another Appellants Vs. SICOM Limited Respondent, decided on 11/23/2007.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice B. Sudershan Reddy.
Subject Index: Sick Industrial Companies (Special Provision) Act, 1985 — section 22 — suit — meaning of — in view of the intention of the legislature to protect sick industrial companies where references were pending before the bifr. It is also evident from the decision in Paramjeet Singh Patheja’s case that the views expressed in Kailash Nath Agrawal’s case had not been brought to the notice of the learned Judges who decided the matter — fit and proper that the matter should be referred to a larger Bench to resolve the existing anomaly resulting from the different views expressed in the two above-mentioned cases.

2008 SCCL.COM 605(Case/Appeal No: Civil Appeal No. 573 of 2005)
Sajjan Textile Mills Ltd. Appellant Vs. ICICI Bank Ltd. & others Respondents, decided on 5/16/2008.
Name of the Judge: Hon’ble Mr. Justice Tarun Chatterjee and Hon’ble Mr. Justice Harjit Singh Bedi.
Subject Index: Loan to company — not paid — Recovery suit — court appointed Receiver — application before bifr filed for declaration of sick unit — the appellant had suffered serious prejudice on account of remaining unrepresented on being unaware of the proceedings — the litigation has had a chequered career in several forums including this Court — till such time the High Court takes its decision in the matter, the status quo order passed by this Court on 29th October 2004 will continue to operate — appeal allowed.

2008 SCCL.COM 831(Case/Appeal No: Civil Appeal No. 4324 of 2008)
Shivanand Gaurishankar Baswanti Appellant Vs. Laxmi Vishnu Textile Mills and others Respondents, decided on 7/11/2008.
Name of the Judge:  Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice D.K. Jain.
Subject Index: Constitution of India — Article 226 — petition under — summary dismissal — appeal — Laxmi Vishnu Textile Mills operating 2 cotton mills — there were large number of workers in the mill and there was considerable profit in the business. By the passage of time, however, the Company started incurring losses and things turned worse in later eighties. Proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 — the High Court dismissed the writ petition observing that it was not a fit case to interfere with by an order dated February 12, 2007 in exercise of extraordinary jurisdiction under Article 226 of the Constitution. The said order is challenged by the appellant in this appeal — the very width of the power under Article 136 is a warning against its `freewheeling exercise save in grave situations’. Circumspection and circumscription must, therefore, induce the Court to interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other recognized grounds are made out — no secured or unsecured creditor has come forward making grievance that though he was entitled to more amount, he has not been paid such amount. So far as workers are concerned, Court has already dealt with rights of Representative-Union in detail and have held that the Representative Union has preferential right to appear in the proceedings under the Act. Hence, taking any view of the matter, this is not a fit case to exercise discretionary and equitable jurisdiction under Article 136 of the Constitution.

2008 SCCL.COM 1101(Case/Appeal No: Civil Appeal No. 5225 of 2008)
KSL & Industries Ltd. Appellant Vs. M/s. Arihant Threads Ltd. and others Respondents, decided on 8/25/2008.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — section 22 — C.K. Thakker, J. and Altamas Kabir J. — in view of the difference of opinion on interpretation of Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Registry is directed to place the papers before the Hon’ble the Chief Justice of India for taking appropriate action in accordance with law — C.K. Thakker, J. — the present appeal raises a question of great public importance having far- reaching consequences. The appeal is filed by KSL & Industries Ltd. against final judgment and order passed by the Division Bench of High Court of Delhi on February 23, 2006 in Writ Petition (Civil) Nos. 2041-42 of 2006. By the said judgment, the High Court, set aside the order passed by the Debt Recovery Appellate Tribunal, Delhi and held that in view of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, no recovery proceedings could be effected against the first respondent-Company in the light of the bar contained therein — question is whether the High Court was right in holding that the proceedings were barred under Section 22 of SICA — the High Court has committed an error of law in invoking and applying provisions of Section 22 of SICA and in dropping proceedings against the Company — Altamas Kabir, J. — unable to travel the same path which my learned Brother has chosen to traverse.

2009 SCCL.COM 863(Case/Appeal No: Civil Appeal No. 3411 of 2009)
V.N. Devadoss Appellant Vs. Chief Revenue Control Officer-cum-Ins. and others Respondents, decided on 5/8/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat, Mr. Justice D.K. Jain and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Stamp Act, 1899 — section 47-A — appeal under — bifr & AIFR are mediators and the sale value could not be the market value — all deal was done to evade stamp duty. High Court affirmed the order of District Court. Supreme Court held — the judgment of High Court cannot be sustained and is set aside. The appeal is allowed helding no scope for exercising power under section 47-A of the Act.

2009 SCCL.COM 1014(Case/Appeal No: Civil Appeal No. 3603 of 2009)
M.D., Bhoruka Textiles Limited Appellant Vs. M/s. Kashmiri Rice Industries Respondent, decided on 5/15/2009.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — section 16 and section 22 — Board’s enquiry for determining sick industrial company and suspension of legal proceedings, contracts etc. — respondent’s firm entered into a contract for supply of paddy husk with the appellant — appellant neglected to pay the price — appellant raised contention that has become a sick industry under Section 22 and a reference having been made to the Board of Industrial and Financial Reconstruction — appeal — respondent aware that the appellant had made reference to the bifr in terms of the provisions of the Act — appellant is an industrial undertaking — a suit is barred when an enquiry under Section 16 is pending — prior to institution to the suit, respondent did not obtain consent of Board — a judgement and decree passed by a Court or tribunal lacking inherent jurisdiction would be a nullity — impugned judgement set aside — appeal allowed — appellant deposited 50% of the decretal amount — Civil Court shall transfer the said amount to bifr.

2010 SCCL.COM 33(Case/Appeal No: Civil Appeal No. 5181 of 2002)
State of Bihar and others Appellant(s) Vs. Kalyanpur Cements Ltd. Respondent(s), decided on 1/8/2010.
Name of the Judge: Hon’ble Mr. Justice Tarun Chatterjee and Hon’ble Mr. Justice Surinder Singh Nijjar.
Subject Index: Industrial Policy, 1995 — clause 24 — Sales Tax Exemption Notification — the Company applied to the State Government for grant of Sales Tax Exemption for 5 years — State Government consistently gave assurances to the Company that the necessary Sales Tax exemption notification will be issued — no such notification was issued even after 3 years — Company filed petition for issuance of the writ of mandamus directing the State to issue necessary Notification under Clause 24 of the 1995 Policy — High Court allowed the writ petition in favour of Company — appeal — whether the Company could have invoked the principle of `promissory estoppel’ in support of its claim — Yes — for more than 3 years, the Company and the financial institutions had been assured by the Government that the notification will be issued forthwith — held that mere claim of change of policy would not be sufficient to exonerate the Government from liability and thus, discontinuance of the Sales Tax Exemption could not have affected the rights of the Company under the Industrial Policy, 1995 — held the entire sequence of meetings considering the rehabilitation package of the Company and the two Committees recommended granting of exemption much before the policy lapsed — the amount of Rs. 60 crores collected by the Company from the consumer to offset the tax liability, thus, tax lawfully levied and realized cannot be refunded — no interference to the orders of the High Court — appeal filed by the State dismissed and directed that the amount deposited by the Company with accrued interest be released to the appellant.

2010 SCCL.COM 331(Case/Appeal No: Special Leave Petition (Civil) No. 33984 of 2009)
Kanpur Electricity Supply Co. Ltd. and another Petitioners Vs. M/s. L.M.L. Limited and others Respondents, decided on 5/7/2010.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir, Mr. Justice Cyriac Joseph and Hon’ble Mr. Justice C.K. Prasad.
Subject Index: U.P. Electricity Supply Code, 2005 — Clause 4.41 read with Clause 4.49 — the Respondent-Company applied for reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006 which was approved by the UPERC. However, the electricity bill for the month of May, 2006 based on 8 MVA load was presented to the Respondent — the respondent paid the bill on the basis of 1.25 MVA load and also invoked the provisions of the Sick Industrial Companies Act, 1985. The KESCO directed to the Respondent-Company for submitting a Bank Guarantee for the arrears of the amount as per Clause 4.49 of the U.P. Supply Code, 2005 so that action could be taken to reduce the load from 8 MVA to 1.25 MVA which was not done — thereafter, the Respondent-Company restarted its manufacturing activities and requested KESCO to increase the load from 1.25 MVA to 2.25 MVA that was rejected by the KESCO on the ground of non-submission of the Bank Guarantee by the Respondent-Company for the balance amount of the bill raised for the month of May, 2006. As the respondent was registered as a Sick Unit, thebifr directed KESCO to continue to accept Rs.5 lakhs per month against their arrears, besides payment of current electricity bills on actual consumption basis, and not to adopt coercive measures to disconnect the supply of electricity. However, a disconnection notice was issued by KESCO — the High Court concluded that the reduction of the load of the Respondent-Company stood approved on 19th April, 2006, and, accordingly, the effective date of such reduction would have to be reckoned from the first day of the following month, namely, from 1.5.2006, in terms of Clause 4.41(e) of the Code — appeal — this Court observed that instead of helping the Respondent-Company to come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon, thus, held that the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondent No.1-Company in respect of its outstanding dues, had the effect of negating the decisions to revive the Company — no interference to the impugned orders of the High Court — petition dismissed — no costs.

2011 SCCL.COM 381(Case/Appeal No:  Civil Appeal No. 3911 of 2011 With Civil Appeal No. 3912 of 2011)
Dunlop India Limited Appellant Vs. A.A. Rahna and another Respondent(s), decided on 5/4/2011.
Name of the Judge: Hon’ble Mr. Justice G.S. Singhvi and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Kerala Buildings (Lease & Rent Control) Act, 1965 — sections 11(2)(b), 11(3), 11(4)(i), 11(4)(v) — eviction petitions against the appellant — to vacate the leased suit premises — Sick Industrial Companies (Special Provisions) Act, 1985 — the Rent Control Court concluded that the appellant had ceased to occupy the suit premises since September, 2001 without any reasonable cause and, accordingly, directed it to vacate the premises. The Appellate Authority reiterated the finding recorded by the Rent Control Court — the High Court confirmed the said orders — hence, the appeals — whether pendency of the proceedings under the 1985 Act, which implies that the appellant was facing financial difficulty in conducting its business constituted reasonable cause for cessation of occupation of the premises — the appellant did not produce any evidence to prove physical occupation of the premises or any business transaction. It also failed to produce any evidence to show that there was reasonable cause for non occupation of the suit premises — the appellant neither pleaded nor any evidence was produced to show that financial stringency was due to the reasons beyond its control and on that account, the suit premises could not be used from September, 2001 onwards for the purpose specified in the lease deeds — the Supreme Court held that the evidence produced by the parties was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause — appeals dismissed.

2009 SCCL.COM 939(Case/Appeal No: Civil Appeal No. 4429 of 2009 With Civil Appeal No. 4433 of 2009)
Authorized Officer, Indian Overseas Bank and another Appellants Vs. M/s. Ashok Saw Mill Respondent, decided on 7/16/2009.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: sarfaesi Act — section 13(4) — the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT.

2009 SCCL.COM 475(Case/Appeal No: Civil Appeal No.5990 of 2010)
United Bank of India Appellant(s) Vs. Satyawati Tondon and others Respondent(s), decided on 7/26/2010.
Name of the Judge: Hon’ble Mr. Justice G. S. Singhvi and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — sections 13(2)&(4) — issuance of notice under — section 14 — application filed under — whether the Division Bench of the High Court was justified in restraining the appellant from proceeding under Section 13(4) against the property of respondent No.1 — the appellant sanctioned a term loan of Rs.22,50,000/- in favour of respondent no.2 and respondent no.1 executed agreement of guarantee making herself liable for repayment of the loan amount with interest — the respondent no.1 deposited Rs.50,000/- as outstanding dues and gave written undertaking to pay the balance amount in instalments. However, she did not fulfil her promise & offered to pay a sum of Rs.18 lakhs for settlement of the loan account — on the issuance of notice by the appellant, the respondent no.1 filed writ petition and prayed for restraining the appellant from taking coercive action in pursuance of the notices issued under Section 13(2) and (4) — the Division Bench did not even advert to the appellant’s plea that the writ petition should not be entertained because an effective alternative remedy was available to the writ petitioner under Section 17 of the sarfaesi Act and passed the impugned order restraining the appellant from taking action in furtherance of notice issued under Section 13(4) of the sarfaesi Act — appeal — the respondents no.1&2 did not bother to pay the outstanding dues and also the respondent no.1 did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted — impugned orders of the High Court set aside — appeal allowed.

2010 SCCL.COM 525(Case/Appeal No: Writ Petition (C) No.291 of 1998)
Common Cause (A Regd. Society) Petitioner Vs. Union of India & another Respondents, decided on 8/19/2010.
Name of the Judge: Hon’ble Mr. J.M. Panchal and Hon’ble Mr. Justice A.K. Patnaik.
Subject Index: Non-Performing Assets and bank frauds — increase of — substantial funds of banks not being available for development of the country’s economy — whether legislative and administrative measures taken by the Union Government have been effective or not is not for the Court but for the Union Government and Parliament to consider because reduction and control of NPAs are not within the domain of judiciary but within the domain of the Executive and Legislature under — constitution — this court found — that through various legislative measures such as the DRT Act, the sarfaesi Act, 2002, the Credit Information Companies (Regulation) Act, 2005 and through some administrative measures, the respondents are trying to reduce the number and amount of NPAs and to detect and check bank frauds in future — the Central Government has constituted a Committee of Experts under the Chairmanship of Ex-Deputy Governor of Reserve Bank of India to suggest effective measures, legislative or administrative, to ensure that bank frauds are prevented in future and the NPAs are kept to the minimum — petition and the application for impleadment /intervention disposed — no costs.

2010 SCCL.COM 866(Case/Appeal No:  SLP (Civil) No(s). 29421 of 2010 with Contempt Petition (Civil) No. 271 of 2010 In Special Leave Petition (Civil) No. 29421 of 2010)
M/s. Bharat Steel Tubes Ltd. Petitioner(s) Vs. IFCI Limited Respondent(s) with Mr. Manoranjan Sharma & another, decided on11/30/2010.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Debts Recovery Act, 1993 — section 17 — application filed under — Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — section 13(2) — the petitioner-Co. borrowed moneys from the Punjab National Bank which it was unable to repay in full. A One-Time Settlement was arrived at between the parties for a sum of Rs.26.16 crores. The Petitioner-Company paid a sum of Rs.13.80 crores and defaulted in payment of the rest. It entered into an agreement with ACE to pay off the entire dues of Punjab National Bank, which it did. The entire dues of the Bank, therefore, stood satisfied, but a new liability was created by the Petitioner-Company in favour of ACE which assigned its rights to IFCI Ltd — the Tribunal directed the Petitioner to deposit a sum of Rs.35 crores with the IFCI Ltd. without prejudice to its rights and contentions. The High Court directed that during the pendency of the writ petition, the writ petitioner would be free to proceed in pursuance of the Public Notice but the bid was not to be finalized — this Court stayed the operation of the order of the High Court. Despite such order of stay, the alleged contemnors continued with the auction process in violation of the order of stay passed by this Court — this Court found that the question regarding the auction of the assets of the Petitioner Company is still the subject matter of the proceedings pending before the Tribunal. The issues involved regarding steps taken under the sarfaesi Act are yet to be determined by the Tribunal — this Court gave direction to the Tribunal to dispose of the pending appeal and till the time, the auction proceedings being conducted under the sarfaesiAct shall remain stayed — petition disposed.

2011 SCCL.COM 288(Case/Appeal No:  Special Leave Petition (Civil) No(s). 9728-9729 of 2011)
M/s. Bharat Steel Tubes Ltd. Etc. Petitioner(s) Vs. IFCI Ltd. & others Respondent(s), decided on 4/4/2011.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Companies Act, 1956 — section 4A(2) — sarfaesi Act, 2002 — section 2(1)(m) — public financial institution — the High Court held that the Respondent, IFCI Ltd. is a ‘financial institution’ and as a consequence would be entitled to take recourse to the provisions of the sarfaesiAct in order to enforce a “security interest” which had accrued in its favour — impugned order in challenge — in view of Section 4 A(1)(ii) of the Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution’ for the purpose of the said Act — the Supreme Court held that the conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution — impugned judgment and order of the High Court not interfered — petition dismissed — no costs.

Arbitration Definition

Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts. Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all disputes to arbitration, without knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.

Conciliation Definition

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includesdispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process (formal litigation – court).

History, origins and meaning of Arbitration

Arbitration is generally defined to mean the determination of disputes between parties by a person appointed or chosen by them (arbiter). It is thus an informal method of dispute resolution with flexibility in procedures and rules.  As a method of dispensing justice, arbitration is not a modern phenomenon. The Western idea of private arbitration can be traced back to the Roman and Canon law. Arbitration as a dispute resolution mechanism was used in Common Law since the 14th Century.  However arbitration and other methods of dispute resolution have become of considerable significance after the 19th Century, with the advent of trans-national trade and commerce and with a view to have speedy and inexpensive means of resolving grievances. Thus there is a clause for arbitration in most modern day trading contracts.

History of panchayats dispensing justice

However in India, panchayats (both village and the notorious ‘khap’ caste panchayats) have been arbitrating on property disputes, torts and even criminal offences like murder and rape since time immemorial. Panchayat (literally five wise men) is a representative body of the members of a particular caste or village (usually headed by the elder most people or the most respected and experienced elder).  One of the most important functions of these panchayats is the dispensing of justice.

Index, Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation

We Provide international arbitration services, legal arbitration services, domestic arbitration services. The Arbitration process in India is based on the UNCITRAL Model Law on International Commercial Arbitration. The Indian Arbitration and Conciliation Act, 1996 is the governing arbitration statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.
Previous statutory provisions on arbitration were contained in three different enactments, namely, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 and also the Acts of 1937 and 1961.
India is a party to the following conventions:

• The Geneva Protocol on Arbitration Clauses of 1923
• The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927; and
• The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. It became a party to the 1958 Convention on 10th June, 1958 and ratified it on 13th July, 1961.

There are no bilateral Conventions between India and any other country concerning arbitration.

• Arbitration and Conciliation
• Arbitration Judgments, Orders by Supreme Court of India
• Arbitration lawyers
• Books on Arbitration and Conciliation
• CHAPTER I General provisions
• CHAPTER II Arbitration Agreement
• CHAPTER III Composition of Arbitral Tribunal
• CHAPTER IV Jurisdiction of Arbitral Tribunals
• CHAPTER IX Appeals
• CHAPTER V Conduct of Arbitral Proceedings
• CHAPTER VI Making of arbitral award and termination of proceedings
• CHAPTER VII Recourse against arbitral award
• CHAPTER VIII Finality and enforcement of arbitral awards
• CHAPTER X Miscellaneous
• CHAPTER XI New York Convention Awards
• CHAPTER XII Geneva Convention Awards
• CHAPTER XIII SUPPLEMENTARY PROVISIONS
• Development of Arbitration Law
• Geneva Convention, 1927
• Geneva Protocol, 1923
• How to Draft an Arbitration Agreement?
• International Conventions on Arbitration
• Model Arbitration Agreement
• National Thermal Power … vs Singer Company And Ors on 7 May, 1992
• Requirements of an Arbitration Agreement
• Schedule 1-Convention on the recognition and enforce
• Schedule 2-Protocol on arbitration clauses
• Schedule 3-Convention of the execution of foreign arbitral awards
• The Applicable Arbitration Law
• The Arbitration Act, 1940
• The Arbitration And Conciliation Act, 1996
• The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards
• The Types of Arbitrations
• Validity of an Arbitration Agreement

The Scope of Copyright Laws and the Potential for Copyright Infringement on the Internet

“The Internet is the first thing that humanity has built that humanity doesn’t understand, the largest experiment in anarchy that we have ever had”. - Eric Schmidt

The Internet and copyright, at the best of times have never been on the best of terms. This is mainly due to the fundamental dichotomy that lies between the Internet and copyright. The former, largely a free-for-all buffet which redefines anonymity, as opposed to the latter, a pay-per-view service, the purpose of which is to give credit wherever due.

Internet philosophy is freedom of information and freedom to information. In other words there is no restriction to information available on the Internet in any form, as a result of which one can access it and use it in any desirable manner. On the other hand, from the ideology of intellectual property protection, it can be reasonably concluded that acknowledgment of ownership gives all other rights arising thereof to the owner, as a result restricting (conditionally) the rights of other interested parties to the same. In other words, to state simplistically, it gives a certain monopolistic protection to the author. When these two ideologies are juxtaposed, the conflict becomes very clear.

 “The Internet isn’t free.  It just has an economy that makes no sense to capitalism.”

    – Brad Shapcott

Not only the economy, the entire phenomenon of the Internet sometimes appears to be a giant private joke understood only by those within the loop. It no longer remains simply a medium but has evolved into an economy of a unique kind. Thus, capitalism or any traditional economy finds it difficult to make sense of the Internet because of its continuous metamorphosis. This unique trend has been observed in the case of ‘copyleft software’. It is a novel concept wherein a user can change, alter, add or create support applications. The only caveat being that when the software is passed around, all contributing authors should be recognized. Nothing is protected under copyright laws. This radical experiment encouraged by GNU (GNU’s Not Unix) was started by Finnish programmer Richard Stallman who wrote the main code for an operating system that functioned the same as UNIX software but was completely free unlike UNIX which was very expensive. Post 25 years it has gone on to become one of the world’s most advanced and popular operating systems and with no input except free skills of willing programmers.

The free unconditional access to information wherein one can, by a mere right-click-save, retrieve information ranging from a photo to a document to a song; never mind that the person saving each of these never clicked, wrote or sang respectively, lies in direct contradiction to the statutory rights of a copyright owner. The veneer of anonymity, as the entire process takes place in the virtual world, further discourages accountability.

“National borders aren’t even speed bumps on the information superhighway.”

   – Tim May

In the offline world, disputes are largely resolved through the traditional process of litigation which is principally structured on a territorial basis. The internet is, by definition, global and can be accessed from almost any place on Earth, hence becoming multi-jurisdictional. What confounds lawmakers is, that while most laws have a territorial nexus, the internet defies the notion of territoriality. The internet makes traditional elements of jurisdiction such as – where the defendant resides, whether the defendant was present within the particular forum of law and whether the defendant had property in the forum, largely irrelevant.

Disputes of copyright infringement on the Internet have raised complex questions of multiple jurisdiction, instantaneous global presence and trade relations being no longer a matter of choice. For example, if a user inIndiawere to download a song, the copyright of which has been granted by the US Copyright Office from a site hosted by an operator inPakistan, the task of deciding accountability becomes very difficult.

Copyright and Internet interact during upload of data, transmission of data, access of data, usage of data and in computer software. This is because the aforementioned activities on the internet may result in infringement of the five exclusive rights of a copyright owner, as below:

1)      To store the copyright work in a tangible form: Transmission of data from one computer or network to another necessitates the system to make copies of the data in the RAM, thus involving temporary storage.

2)      To reproduce the copyright work: Unauthorized storage of data is a violation of the copyright owner’s exclusive right to make copies, i.e., to reproduce the copyright work

3)      To sell, rent, lease or otherwise distribute copies of the copyright work to the public: Any action such as downloading, saving etc. is a violation of the copyright owner’s exclusive distribution rights.

4)      To perform and display publicly the copyright work: An appearance of a    copyright image in a web browser infringes the copyright owner’s right to public display.

5)      To prepare derivative works based on the copyright work: To subsequently use the data; for example by inserting a clip art image in a presentation, is an infringement of the copyright owner’s exclusive right to prepare derivative works

To further upset the apple cart, there are certain aspects to activities on the Internet that lie in the grey zone of copyright infringement, as under:-

1)    RAM Copies: When a user goes online, a temporary copy of the software is spontaneously received in the memory of the user’s computer. This (reproduction) is done so as to make the work accessible to the computer. Thus, even if the user does not make a permanent copy, the question that arises is – by merely accessing the work online, is the right to reproduction held by the copyright holder violated? In Mai Systems Corp. v. Peak Computer, Inc. the Federal Court decided that “loading of copyrighted computer software from a storage medium into the memory of the computer causes a copy to be made.” In other words copies made into a computer’s RAM qualified as an infringement. But in Religious Technology v. Netcom, the US District Court held that temporary copying involved in browsing is the functional equivalent of reading and does not violate copyright laws. The latter decision seems to have taken a more practical view of the matter because if every instance of browsing is to be considered as copyright infringement, then it will be the same as if a person goes into a bookshop and looks at a book, it amounts to a copyright violation.

2)      Doctrine of Merger: First introduced by the court in Gates Rubber Co. v. Brando Chemicals Industries Ltd., it states that when all possible ways to express an idea are limited, the expression merges with the idea and is therefore, not subject to copyright law. In such a case, identical copying may be permitted, the rationale being that if one grants copyright protection in such a case, it would be equivalent to conferring monopoly to the holder

3)      Derivative Works: A derivative work means a patch or an update, made by an independent programmer or a programmer retained by the company that published the original software or by the combination of two or more programmes. In Midway Mfg. Co. v Artic Int’l, the court ruled that it amounted to an unauthorized adaptation of the plaintiff’s software and hence, was a violation of the plaintiff’s copyright. But, in Lewis Galoob Toys v. Nintendo of America, the court held that the usage of such software did not amount to a violation of the defendant’s copyright and thus derivative works created were not considered unauthorized. The question that remains is, what amount of change qualifies as a case of copyright infringement?

Even as ambiguities in rules and jurisdiction abound, for the standard user ordinary activities such as browsing the Internet, downloading a song, uploading a video of a movie trailer, embedding the link of a site onto a personal blog, taking a picture from the Internet and attaching it in a document  etc. have become a minefield for copyright violation.

“Ignorantia juris non excusat.”

– Latin maxim

However when it comes to the virtual world, a curious tendency is seen among users –a password protected user id or login id is mistaken for anonymity, anonymity in turn is mistaken for unaccountability and any odd disclaimer viewed as the ultimate security blanket from any copyright litigation. The infamous Napster and the fate of its creator Shawn Fanning effectively shredded ignorance as a ground for defense in case of acts of copyright violation on the Internet. However, instead of learning lessons, in its aftermath the companies that emerged to quickly fill the lacuna created in peer-to-peer file sharing market such as Kazaa and Morpheus (Limewire) have gone down the same road as Napster, but covered their tracks better, thus successfully evading litigation. As John Gilmore had said, “The Internet treats any kind of censorship as a defect and routes around it.”  That was way back in 1993 but it still rings true.

An ISP (Internet Service Protocol), taking advantage of the nature and expanse of its activities may take the twin defenses of ignorance (of copyright infringing activity in its bandwidth) and exercise of due diligence. But, for the individual, no such remedy is available. For him lies an extremely difficult road ahead, as ignorance is not a cogent argument in court and is accepted rarely and to a very limited degree. The other defense is the ‘De Minimum Rule’ – that damage caused was so insignificant that it should be disregarded. But it is advised to be used sparingly due to its lack of clarity. The defense of implied license works only in case of contributory liability such as cases of browsing and temporary storage in RAM as a result. The one real ground of defense that remains as held in Sega Enterprises, Inc. v. Maphia[1] and Religious Technology Centre v. Netcom[2] is ‘Fair Use’; i.e., work reproduced for the purpose of “criticism, comment, news reporting, teaching, scholarship or research” as elaborated in Campbell v. Acuff – Rose Music, Inc.[3]

“The Internet is an important cultural phenomenon, but that doesn’t excuse its failure to comply with basic economic laws.  The problem is that it was devised by a bunch of hippie anarchists.”

-Thomas Nolle

Thomas Nolle’s opinion notwithstanding, the internet has greatly shifted from its original purpose and vastly expanded in its scope and reach. A journey of a thousand sites now begins with a single click. The internet has changed the way we work, learn and communicate in real life and it is at the threshold of the virtual and non virtual that a common ground needs to be arrived at.

But till that happens, it needs to be admitted that copyright laws can never really keep up with the ever expanding extent of internet activities. For every case of copyright infringement that actually reaches court, there are countless others that go undetected; to say nothing of the cost of tedious litigation. The copyright laws manage to nab the guilty once in a while, but the odds lie heavily against them. Internet is the largest market ever, to have been invented – global in its scope and colossal in its activities. Like all markets, it also adheres to the universal rule of demand and supply and if copyright laws wish to make any headway, they must follow suit or end up becoming obsolete. Costs need to be brought down or there shall always be a cyber termite that slips in through the cracks, ineffective alone but en masse capable of bringing down the entire profit structure. Till better sense prevails, the copyright battles may continue to be won while the war hangs in balance.

[1] 948F.Supp.923(N.D.Cal.1996)

Table of Contents

1.)    Objective.

2.)     Research Methodology.

3.)    Introduction.

4.)    Task of defining performers.

5.)    Performers’ right in India: Scope and lacunae.

6.) Jurisprudence for protecting performers’ right: Whether the protection is in public interest or not.

7.) Whether performers rights covered under protection which is required to be given by  the State under Constitution?

8.)  Judicial Approach: Whether a mute observer or filing the gaps left by the legislature?

9.)  Remedies against infringement of the performers’ rights.

9.) The performing rights societies.

10.) Lacunae existing in the Indian Copyright Law.

12.) TRIPS, WIPPT and other international treaties.

13.) Performers’ right protection beyond India.

14.) Connecting the dots: Sui generis protection.

15.)  Conclusion and suggestions.

16.)  Bibliography.

1.)    Objective:

The author has  critically evaluated the Indian regime of protection of the performers’ right, and demonstrate that the performers protection regime in Indiais totally inadequate in context of what the performers’ right   purports to protect and accomplish. The author  begins with analysing and explaining the jurisprudence of the terminology performers’ rights in Indiaand beyond. This project critically evaluates this regime, and demonstrates that the performer protection regime in Indiatoday is inadequate in the context of what performers’ rights purport to protect and accomplish. The author forms a hypothesis that reform in the nature of sui generis protection is an indispensable condition for providing meaningful right to the performers inIndia

2.) Research Methodology:

The researchers have used the Law library and various legal e databases in researching, so, the research method is doctrinal.

3.) Introduction:

‘It is only in comparatively recent times that a

                             virtuoso, conductor, actor, lecturer, or preacher

                             could have any interest in the reproduction of his

                             performance. Until the phonographic record made

                             possible the preservation and reproduction of

                             sound, all audible renditions were of necessity

                            fugitive and transitory; once uttered they died; the

                            nearest approach to their reproduction was mimicry.

                             Of late, however, the power to reproduce the

                             exact quality and sequence of sounds had become

                             possible, and the right to do so, exceedingly

                             valuable . . ……’[1]

The invention of sound recording devices changed the paradigms under which performers had worked for centuries. Before, the under which performers had worked for centuries. Before, the artist’s only right was to ask for remuneration for her appearance. There was no other way to enjoy a performer’s art than by attending a personal performance.[2] In theory, the performer was able to exercise quasi-perfect control over her performance.

However, sound recording devices allowed the materialization of the performance, thus transforming the fugitive performance into a permanent object with its own economic value, and enabling a listener to enjoy a performance without having to be at a particular place at a particular time.[3]Thus, technological inventions eventually caused considerable social change but the technological advancement came with strings attached. It became very easy to record the performance and commercially exploit it without taking the consent of the performers.[4]

After copies of the records had been released, competitors bought copies and duplicated them without seeking authorization from either the artists or the “original” recording company, and offered them on the market at a price substantially below that which the “original” company was asking and this unauthorized recording had negative effects on the interest of the performers[5] : not only did a third party benefit from a performance without having compensated the performer, but the performer’s expectancy to be compensated through royalties, as well as the prospect of future contracts for the performer, were at risk.[6]

The national and international treaties law offer some guidance on who can be  a ‘performer’, existing definitions are open ended and there is large scope for interpretation and debate.[7] While identifying a performer on the basis of commonly used criteria of quality or quantity, the legislator runs the risk of ignoring the smaller performers or granting the rights which would vitiate the rights of the majority performers.[8]

Performers also need to be rewarded for their creativity and their efforts and because of dissemination of their performances via media, these performers fear unauthorized use of their performances. What the law seeks to protect is the residual value in a performance. There is an inherent value in live performing, as it is clear that members of the public are more than willing to congregate at a theatre or music venue to pay for a live performance.[9] However a performance may be enjoyed outside of that environment. The first time that this became apparent, was at the turn of the 20th century with the introduction of sound and film recording. During this period, due to the fact that a performance had extended beyond the music halls and theatres, and that is why these rights came into existence and which did go some way to give a very  limited or weak protection to performers under section 38 and 39  of the Act as compared to the protection given to the owners or authors the copyright work.

Even after so many years of harmonization of the law of copyright and  related rights have not produced a balanced, transparent, and consistent legal framework in which the knowledge economy of Indiacan truly prosper. Worse, the harmonisation agenda has largely failed to live up to its promise of creating sui generis  laws for the protection of performers inIndia.

4.) Task of defining performers:

“A performance is the transitory activity of a human individual that can be perceived without the aid of technology and that is intended as a form of communication to others for the purpose of entertainment, education or ritual.”[10]

Except the definitions mentioned in the various conventions and Copyright Act Performer should be defined in the most widest sense to include any one who performs or anyone who has been a part of the performance regardless of the duration, importance and distinctiveness of the performance.

The term performer’s right in context to copyright means the rights of performer in live performances or in concerts also includes performers rights in the movie or film if they are expressly not assigned to the producer in contractual terms.

The contractual status of performers and their relationship with employers are often more unclear than in the past, with subcontracting and the creation of shell companies to produce a film or other product being more common now. This makes it difficult for performers to know their rights, make claims for compensation or negotiate terms for exploitation of the product, especially after completion of production.

Performers’ rights are the rights which accrue to the performer by virtue of his performance. Performers; rights are a bundle of rights which are economic, moral and non-tangible in nature. These three pronged understanding of the performers’ rights ensures that complete value of the performers’ right is protected; its commercial worth through economic right, its moral worth through moral right, and its creative worth though non-tangible right.

5.) Performers’ right in India: Scope and lacunae.

An examination of the matrix of the performers’ right jurisprudence makes it clear that the rights have been recognised and protected in a weak and very limited manner under section 38 and 39 of the Indian Copyright Act, 1957.

While a right accrues to the performer when he engages in  any performance as per the basis of the Indian Protection Law, any kind vocal, visual can be communicated, broadcasted or recorded only with the consent of the performer but this right ceases  once it is fixed i.e. the performance is communicated to the public. All the rights vest in the owner/director/author of the broadcast, communication or recording.

These rights last for fifty years but if the performance is a part of the cinematograph film then the protection accorded by these rights are available.

A summary reading of the provisions shows that very sparse protection is afforded by these sections to the performers. Once fixed the performer has no right independent of the owner of the copyright.

In many essential respects the performer’s right bear close resemblance to copyright. Under Section 39A  the following provision of the Act with necessary adaptation and modification apply to performer’s right as they apply to copyright in a work.[11]

Acts which don’t constitute infringement:

Under Section 39, the following acts do not constitute infringement of a performer’s right:

(a) Making of any sound recording of or visual recording for private use of the person making such recording or society for the purpose of bonafide teaching or research

(b) Fair dealing of excerpts of a performance in reporting of current events or for bonafide review, teaching or research or (c) Other acts with any necessary adaptations and modifications which do not constitute infringement of copyright under Section 52. These acts are reproduction for the use of judicial proceeding —Section 52(1) (c), reproduction for the use of members of a legislature—Section 52(1) (d),

and the use in a certified copy in accordance with any law in force—Section 52(1) (e).

(d) Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students, and parents and guardians of the students and person directly connected with the activities of the institution—Section 52 (1) (i). The aforesaid can be done only with the sound recording or visual recording of the performance. Accordingly the making of a sound recording or visual recording for the aforesaid purposes cannot also be an infringement. Where copyright or performer’s right subsists in respect of any work or performance that has been broadcast, a license to reproduce such broadcast will require the consent of the owner of rights or performer, as the case may be, or both of them.[12]

Lacunae

The copyright Act, 1957 fails to grant performers those moral rights that they are granted under the WPPT The importance of moral rights cannot be ignored, particularly in a fast-changing environment which allows – notably through digital networks – very large, fast and easy use of copyright protected works and performances .Although moral rights were not examined in the framework of this study, a number of those organizations scrutinized expressed some regrets that moral rights are not included in the national laws of the nations. The Copyright Amendment Bill, 2010 intends to bring the Indian Copyright Act, 1957 in line with the WIPO WPPT.  We therefore recommend the adoption of the wording used in the WPPT (but not limited to commercial phonograms).

2.) Where a performer has transferred or assigned the exclusive right provided for in par. 1, that performer shall retain the right to obtain an equitable remuneration to be paid by the user for the making available to the public of his fixed performance. The right of the performer to obtain an equitable remuneration for the making  available to the public of his performance cannot be waived. This remuneration is collected and administered by a performers’ collecting society.

3.) The Indian Copyright Act gives protection to the rights of the performers which are themselves not copyrightable. The protection regime inIndiais less developed in comparison toUSAand U.K a sportsman’s right over his performance is an example of this.

So, the questions which come before us are:

What is the subject matter of such protection? If it is the “performance,” should protection be limited to the recorded performance, excluding the unfixed one? Should protection be granted within the established system of copyright or is it appropriate to create a new neighbouring category for performers as a related right to copyright? If we opt for the latter alternative, what rights do we grant and when should they expire? Should we limit the protection to economic interests only, or are performers’ non economic interests worthy of protection as well?[13]These questions would be subsequently answered in the paper.

6.) Jurisprudence for protecting performers’ right: Whether the protection is in public interest or not.

With the introduction of sound recording devices, audio performances could exist detached from a performer’s personality, as is the case with an author’s work. In

both situations, the possibility of reproduction by third parties demonstrated the limits of contractual protection. A contract binds only the author’s or the performer’s contracting partner. If there were no absolute right to his work, neither the author, the performer, nor his intermediary, could successfully claim protection against a third party’s acts. Hence,  the rationale for performer protection is clear. Because copyright offers incentives to authors to encourage them to create new works and distribute them to the public, it is certainly logical to protect performers’ activity and the record companies’ investment as a copyright. Following this line of reasoning, the court in Fonotipia Ltd. v. Bradley, in an obiter dictum held that the singer’s recorded performance was eligible for federal copyright protection.[14]Lower German courts in similar situations granted decisions that were even more favourable than Fonotipia to the original performers and companies. The courts held that the unauthorized copying and dissemination of those copies infringed a performer’s personality expressed in the “original” recording and protected within the copyright statute.[15]

The protection of the performers’ right is justified both in law and policy. The performers’ right give control to the performer not only on the elements ancillary to the performance but also to his input i.e. his performance. The protection accorded is n larger public interest also as it serves as an incentive to the performers’ to perform better and render their best to the public. Nonetheless, the approaches to protecting the “capital and labour” invested to produce a sound recording, or the performer’s personality, through copyright and authors’ rights, started a long discussion that continued throughout the twentieth century regarding the protections of performers and their performances.[16]

There are three main legal theories proffered as justifications for the copyright system. The first is the incentive rationale, according to which copyright is a means to achieve a further end. This end is seen as benefiting either the aggregate social welfare[17]

(a utilitarian justification[18]), or as an instrumentalist approach to maximize public access and increase expression.[19] The second theory is that authors and performers deserve the exclusive rights to the fruits of their labour. [20] Finally, it is claimed that a performer’s work and performance are expressions of the performer’s personality, providing an entitlement to their exclusive use.

7.) Whether performers rights covered under protection which is required to be given by  the State under Constitution?

It is clear that the performers should have a right in their performance so that the society always strive towards excellence and render their best. It is the societal interest which is force behind granting copyright and other related rights, the individual interest of the performers is not of that weight. So, the question which comes before us is whether the (constitutional) law itself requires protecting performers in general if there were no protection established already i.e whether the Constitution not only allows the legislature to enact protections for performers but also requires it to do so. In U.S,  the Congress’ discretion[21] to exercise whether to protect copyrightable subject matters is a second reason why the United States Constitution does not function as an enforceable legal justification of performers’ rights.

In contrast, German constitutional law recognizes the negative and positive function of fundamental rights. This understanding affects the constitutional anchorage of copyright and performers’ rights. As explained in Part III, under German constitutional law the state has an obligation to protect performers’ economic interests in the exploitation of their performance.

“Conscious of their responsibility before God and men, animated by the purpose to serve world peace as an equal part in a unified Europe, the German People have adopted, by virtue of their constituent power, this Basic Law. The Germans in the States of Baden-Wurttemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law is thus valid for the entire German People.”[22]

The property clause in the Basic Law requires protection for performers. From a normative point of view, the constitutional foundation of an intellectual property right should be embraced. Although it seems to strengthen the position of already well-protected right holders, the German conception allows and requires considering the public interest as the guiding principle in determining the scope of protection not in only the German Constitution provides protection to the performers but also other countries such as Portugal where Copyright law is embedded in the constitutional guarantee of the freedom of intellectual, artistic and scientific expression (Art. 42 Portuguese Constitution), is related to the freedom of expressing one’s ideas, and protects the moral and commercial rights ensuing there from.[23]

While inIndiait is not clear whether the performers are protected through the extension of article 19 of the Constitution because only a very limited right is conferred on the performers and moral rights have been granted under the Law.

8.) Judicial Approach: Whether a mute observer or filing the gaps left by the legislature?

There has been dearth of litigation on this point, thus preventing the judiciary from filing the loopholes.

In Music Broadcast vs. Phonographic Performance[24], the plaintiff had been granted permission to start an FM Radio Station, for which it had obtained licenses from various organisations including the Indian Performing Right Society (IPRS). The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the Copyright Board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.

When sections 38 and 39 were not in corporated in the Act then the Supreme Court in Fortune Film International v. Dev Anand [25]refused to recognise the performers’ rights saying that it does not fall within five categories of artistic work protected under the Copyright Act. The court said that the copyright protection is available only to film including the soundtrack, the cine artists who act in the film is not protected by copyright law for their acting

In Super Cassettes Industry v. Bathla Cassettes Industry[26] the Supreme Court held that the performers’ right are essentially different from copyright and any re recording of the performance without the consent of the performer would constitute infringement of the performers’ right. The court for the first time laid down the foundation stone of the performers’ right jurisprudence inIndia.

In another case of  Neha Bhasin vs. Anand Raj Anand and Anr[27] where the Plaintiff was a singer who claimed that her voice was used by the defendants for three versions of song in Hindi film produced by defendant. The plaintiff alleged that defendant no. 2 in connivance with defendant no. 1 who was the music director, had shown herself to be the singer alongwith defendant No. 2 whereas plaintiff was shown as backup vocalist in all three versions of song.The plaintiff alleged that this is an infringement of the performers’ right and prayed that instead of defendant No. 2’s name, her name must appear as lead singer. Present suit was filed for seeking decree of permanent injunction against the defendants from using, selling, distributing, exhibiting the motion picture as well as audio cassettes, compact discs, promos of the film containing the song without displaying name of the plaintiff as lead singer. It was alleged by the respondent that the right subsists only in live performances and thus no right exists here as the song is a recorded one. But the Court observed:

‘It is essentially the reproduction of the performance through sound or visual recordings without the permission of the performer that is prohibited. Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed. So, as regards the performers’ rights, the plaintiff definitely has a serious triable case’.[28]

Though Indiais not a member of the Rome Convention, 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention, 1961 provisions. Being a party to TRIPS Indiaamended its copyright law in 1994, to incorporate the rights of performers, going beyond the requirements of TRIPS to cover audio visual performances. Berneconvention’s Article 6bis on moral rights is specifically excluded in the TRIPS language, as it does not concern trade by virtue of the moral right’s inalienable nature. However, there is no substantial law in Indiabe applied in the present circumstance.

So, in the present case, by the strict adherence to the statute, the plaintiff ought not to have any rights to be enforced, as raised by the defendants. But this position accepted, justice would have been denied. The court, in order to overcome the shortcoming of the statute to provide relief, opines that the plaintiff has a right in equity for being given proper credit for the song sung by her. It could be argued that, the court, when no remedy subsisted, created its own, but such is in the interest of justice, and within the inherent power of the court.[29]

Court has applied the decision of Suresh Jindal[30] in the present case to ascertain that she has a right to be given due credit. However, the case dealt with right of a co-producer of a cinematographic film, who has the claim be the owner of copyright, and had statutory rights which could be enforced. But in the present case the singer, could not claim any such copyrights. In spite of which a similar remedy was granted to her.

India is not a party to the WIPO Performances and Phonograms Treaty, 1996.There are provisions in WPPPT for dealing with circumstances of the present case. Article 5 of WPPT stipulates Moral Rights of Performers, by which even after the transfer of economic rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. It would be ideal if such provision is incorporated in Indian law too, to address circumstances arising due to technological advancement. The court has relied on the essence of this article, though no express mention is made in the judgment. It is under judicial propriety, to read provisions of international treaties into law, even if not specifically incorporated in domestic law.

Hence, the  Courts have expanded the scope of Section 57 or ‘moral rights’ i.e. the right to claim authorship in Section 57(a) has been extended in equity to creative assistants, singers, and the like, who may not strictly fall within the definition of ‘author’ but make valuable contributions to the creative process.[31]

But in  a recent case, Mathrubhumi Printing And. v. The Indian Performing Rights[32], the Court made it very clear that the neighbouring rights are not absolute and there exists no moral rights with performers. Hence, the broadcasters or lyricist’s rights cease to exist if there is no contrary between him and the producer. The Court held:

“In a cinematograph film which takes in sound recording as well, the owner or the producer of the film becomes the absolute owner unless there is a contract to the contrary with a composer or lyricist and there remains no right with the composer or lyricist for assignment and therefore even if an assignment is taken, it will not confer a right on IPRS. There is no case for the party that there is a contract to the contrary in the agreement. Therefore, I find that the decisions rendered by the trial court in both the cases are not in order and the prayer of injunction refused to the plaintiffs are not in order which are liable to be set aside and the prayer for injunction are allowed and the injunction.”

Whether the performers are entitled to any moral rights is a controversy which has not been settled by the Judicial Courts in Indiaand its ambiguous position is due to any specific provision lacking in the Copyright Act. Hence, the Legislature should include the moral rights of the performers specifically in the Act or grand a sui generis protection to them through a new Legislation finally settling the controversy.

9.)  Remedies against infringement of the performers’ rights.

The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act.[33]

1.)    Civil Remedies.

2.)    Criminal Remedies.

3.)    Anton Pillar Order.

10.) The  Performing rights society.

The IPRS[34] is a representative body of Owners of Music, viz. The Composers, Lyricists (or Authors) and the Publishers of Music and is also the sole Authorized Body to issue Licenses for usage of Musical Works & Literary Music within India by any person. Composers are those who are better known as Music Directors, Authors are better known as Lyricists, Publishers of Music are the Music Companies, or those who hold Publishing Rights of the Musical & Literary Works.[35]

Copyright Act, 1957, s. 33 provides for the establishment of copyright society under which IPRS is established. The IPRS is a company limited by guarantee and registered under the Companies Act, 1956. It is a non-profit making body. The society is registered as the copyright society under Copyright Act, 1957, s. 33(3) and is permitted to commence and carry on the copyright business in musical works and/or any words or any action intended to be sung, spoken or performed with the Music., but also amongst the owners themselves. IPRS thus waged its way through these difficult times and managed to keep the fight for a better copyright environment.

IPRS has been instrumental in clarifying the ownership of musical rights inIndiathrough continuous dialogue with related industry associations.

In Music Broadcast vs. Phonographic Performance[36], the plaintiff had been granted permission to start an FM Radio Station, for which it had obtained licenses from various organisations including the IPRS. The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the copyright board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.

One of the recent case in which the Society represented the interest of the copyright holder was Phonographic Performance Limited and Ors v Cri Events Private Limited [37], it was held that:

In the first case it was held that in case the Defendants wish to perform the sound recording in public, i.e. play them, a license from PPRS is essential; in case the musical works are to be communicated or performed in the public, independently, through an artiste, the license of IPRS is essential. In case the Defendant wishes to hold an event involving performances or communication of works of both kinds to the public, the license or authorization of both IPRS and PPRS are necessary. The Defendant is accordingly restrained from communicating any of such works to the public, or performing them, in the public, without such appropriate authorization, or licensing pending adjudication of the suit.

11.) Lacunae existing in the Indian Copyright Law:

The Copyright protects only expression of the ideas in whatever form it is fixed and not the idea itself. The Indian Copyright Act gives protection to the economic rights of the performers but it is difficult to categorize the persona, identity, style of the performer as his or her copyrightable work. The performers seek protection in their performance which are not inherently copyrightable. The system of protection fails to accord protection to the performers as many rights fall outside the scope of the performers’ rights.

The Copyright (Amendment) Bill, 2010 has been introduced to extend moral right to the performers. This would give right to the performers irrespective of the prior assignment of the right and any mutilation, modification and alteration would amount to infringement of the copyright. The Bill protects performer’s rights, including, allowing them to make sound or visual recordings of their performances and reproduce them in any medium, issue copies to the public or sell or rent a copy of the recording.

• The Bill amends the Copyright Act, 1957, which consolidates the law relating to copyrights inIndia. The Bill seeks to make the provisions of the law in conformity with the World Intellectual Property Organisation’s WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. The treaties deal with protection of authors of literary and artistic works and rights of performers and producers of phonograms.
• It excludes a person from the definition of “performer” in a film if his role was incidental and in the normal course of practice is not acknowledged in the credits of a film.
• The Bill protects performer’s right by allowing him to make sound or visual recording of the performance and allow its reproduction in any medium, issuing copies to the public or selling or renting a copy of the recording. It also recognises the right of the performer to be identified as the performer or restrain any distortion of the performance even if he has a written agreement to include his performance in a cinematograph film.

• The existing performers’ rights are proposed to be further enhanced by introducing a new section to provide exclusive rights compatible with WPPT (WIPO Performances and Phonograms Treaty) and WCT (WIPO Copyright Treaty) which have set the international standards in these spheres. The bill also refers to non-assignable rights such as ‘moral rights’ and ‘the right of integrity’. The right of integrity goes towards ensuring that the reputation of an artist does not get tainted by giving him the right to prevent others from doing something to his work that can damage his reputation and name, thus preventing distortion and mutilation of work.
• A performer can authorize or regulate certain acts with respect to his performance such as visual recording, reproduction, issuing of copies of work which are not in circulation, public communication of his performance, broadcasting rights etc.

• Removal of portion of work can only be for editing purposes, limit the duration of the work or other technical reasons and under no other circumstances can modification of the work be done.
• The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.

12.) Protection in international framework:

The dangers for the record industry arising from unauthorized copying and dissemination of records led to efforts in the first half of the twentieth century to protect both producers of such records and performers  within the framework of the Berne Convention. [38]

It became clear during the Brussels Conference in 1948 that the problem would not be resolved through the Berne Convention.[39] Eventually, an international agreement was drafted. This agreement was concerned with the protection of performers, producers of phonograms and broadcasting organizations and was doctrinally separate from authors’ rights.[40] Henceforth these two sets of rights have been referred to as “neighbouring rights” or “related rights.”

The Rome Convention of 1961 was the first international treaty dealing exclusively with these rights. The Convention applies only to international situations; the regulation of domestic situations is reserved for individual country’s domestic legislations. Thus, the Convention applies only if a performer claims protection in a country different from that to which the performance, sound fixation, or broadcast can be attached.[41]

The Rome Convention, [42]TRIPS and the WPPT have established an international framework for performers’ protection rights of performers are built on four principles: (1) copyright safeguard, (2) national treatment, (3) minimum protection, and (4) independence from the rights of other possible right holders, including authors.

No one international treaty capsulates the total protection of the performers’ right, the regime of protection can be found in the harmonized reading of the Rome Convention, WIPPT and the TRIPS. These treaties have laid down the foundation on which the individual countries have framed laws.

The subject matter of a performer’s protection is her performance. The treaties guarantee the performer economic rights in both the unfixed and the fixed performance. The scope of these rights is comparable to authors’ rights protection with the addition of the important restriction regarding the secondary use of fixed performances. Performers were not awarded an exclusive right but a remuneration right instead. The WPPT has recently introduced protection for performers’ moral rights of integrity and attribution with regard to a specific performance. The impressive scope of protection on the international level does not determine its national level. Its existence does not itself justify why a state chooses to join international treaties.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS)[43] Agreement contains provisions in respect of the rights of performers in their unfixed performances. Specifically, Art. 14(1) provides as follows:

‘In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance…. Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation; the broadcasting by wireless means and the communication to the public of their live performance’.

It is to be noted, however, that Art. 14(1) of the Agreement itself contains a very important limitation, since it grants performers a right of fixation only against a fixation in a phonogram. The TRIPS Agreement does not protect performers against unauthorized fixation of their live performances if an audiovisual fixation is involved. Pursuant to all these agreements and relevant provisions, almost all the countries who are signatories to the agreements including India and United Kingdom provides for the protection of the performer’s right in their copyright protection.

In the post TRIPS period, new issues have arisen out of the advancement of digital technologies. Performers are equally vulnerable to the misappropriation of their rights due to communication or reproduction through the Internet. Negotiations were held and a treaty concluded that is, WIPO Performances and Phonograms Treaty (WPPT) 1996. This treaty replaces the Rome Convention, 1961 in respect of the performers rights.

WPPT[44], 1996:

This  Treaty provides for improved protection for performers, producers of [45]phonograms and broadcasters; however, an area of major concern is that its general application to audiovisual performances is excluded. Now, for the first time rights of the performers included moral rights .

WIPO’s activity in the field of intellectual property rights since the Rome Convention has led to the adoption of a number of related instruments: The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (1971); the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974); the Agreement between WIPO and WTO on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1995) and the WIPO Performances and Phonograms Treaty (WPPT, 1996). This latter Treaty provides for improved protection for performers, producers of phonograms and broadcasters; however, an area of major concern is that its general application to audiovisual performances is excluded.

The WTO’s Agreement [46]covers copyright and related rights (rights of performers. producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new plant varieties; the layout designs of integrated circuits; and undisclosed information including trade secrets and test data. Its general goals include the reduction of distortions and impediments to international trade and promotion of effective and adequate protection of intellectual property rights.[47]

It is not completely accurate to state that the Rome Convention, TRIPS, and the WPPT grant “rights” to performers. The basis of protection differs substantially between Romeand TRIPS on the one hand and the WPPT on the other. Strictly speaking, performers do not have rights under Romeand TRIPS; they have only a legal position. Romeand TRIPS require that performer protection shall include “the possibility of preventing” certain specified acts,[48]although these same agreements require the “right to authorize” for producers of phonograms[49] and broadcasting organizations. [50]Thus, the producers are guaranteed exclusive property rights[51] while performers are not. The treaties impose a duty upon member states with regard to the ends, but allow them to choose the means.[52] Member states have a broad range of rights at their disposal, from protection under criminal law[53]to exclusive rights for performers. That performers and producers are treated differently has been severely criticized and can only be explained historically.[54] The legal analysis changes under the WPPT. For the first time in a multilateral treaty,[55] the economic interests of performers are protected as “exclusive rights.”[56] Performers now have an absolute right in their performance and the sole power to authorize or prohibit certain acts with respect to their summary judgment motions that plaintiffs’ ultimate ownership of the underlying copyrights in issue is not in doubt, for the agreements provide that total and complete ownership passes to the plaintiffs, either as works made for hire or if such status is denied, by assignment.

13.) Performers’ right protection beyond India:

The law recognising and protecting performers’ right inIndiais under developed but it is more developed, older and elaborate in countries likeU.K.,U.S.A.It is therefore useful to study their laws from both points i.e. to study their approach and second to learn from their shortcomings.

i.)                  United Kingdom

The Performer Protection Act, 1925 is the oldest law protecting the performers’ right in India and this Act has been repealed and replaced many times, each time bringing better protection which a changed technology.[57] Today performers’ right is a part of Patent, Design and Protection Act, 1988. Part II of this Act specifically deals with rights in performances, performers’ economic rights and infringement on non consensual use, this part is similar to Indian protection.[58]The lacunae in the British system is same as that ofIndia i.e. it does not accord moral and intangible right protection.

In Rickless v. United Artists[59], the Queen’s bench deliberated on the nature of the performer’s rights and whether it impacted a filmaker’s copyright. A mildly confused conclusion resulted. Honhouse J said the performer rights are of the same species as of the copyright, as both sought to protect the economic concern of the performer. He held that the performers right does not impact the filmaker’s copyright.

ii.)                The United States of America.

U.S.A.does not have a different set of laws for the protection of the performers’ right but the Courts protect it by applying torts doctrine such as unjust enrichment, defamation e.t.c. The Courts have developed different doctrines to protect the performers rights inUSAand this makes this system different from which prevails inIndiaandU.K.The Digital Millennium copyright Act, 1998 has provided for the most stringent copyright  protection regime.

There is no separate legislation which protects the performers right. The publicity doctrine protects the rights of the performers. It is a tortuous doctrine which is a direct response of the courts to the infringement of copyright. The publicity doctrine is defined as “ to own, protect, profit from the commercial value of his or her name, activities, likeness.”[60]

Initially, publicity was narrowly defined as protection of likeness and name of the performers and actors. However, over time the court have defined it more widely in many states of America, the test is identification i.e irrespective of the means use to identify an individual[61]. Identification means identification of a performer by some distinctive trait in subsequent work.

When likeness, persona, publicity of a person is used by some other person for commercial purpose then its the right of the performer to enforce his rights. For example in Midler v. Ford Motor Co.[62] and Lahr v. Adell Chemical Co[63], performers were protected against the imitation of their voices, which had copied their distinctive style of copying and intonations, as the defendants in both the cases were using the imitations to sell their products..

The courts in many other cases have given the decisions in the favour of the performers to protect their identity, likeness and activities.

iii.) The Dutch neighbouring rights Act ( Wet op de Naburige Rechten), grants exclusive exploitation rights of exploitation to the performing artists, such as, musicians, actors, recording companies and broadcasters. Performing artists are also granted moral rights, there are no formalities to be undergone in acquiring neighbouring rights. The rights are acquired by the act of performing, acting and recording.[64]

iv.) In Canada, the same is accomplished through the Neighbouring rights collective of Canada(NRCC) that collects a percentage of advertising revenue( as mandated by the copyright board), from commercial radio stations acrossCanada. It is the body designated by the copyright board to administer equitable remuneration.

14.) Connecting the dots: Sui generis protection.

The existing protection accorded by the copyright and tortious doctrines have proved insufficient. Hence, there is need to refashion the  legal regime to give a foolproof protection.

i.) There is a need to recognise the rights as separate category of Intellectual property rights and to limit the access of the public to it in an unauthorised manner. The sui generis  protection would require first to delinate the boundary and second to clearly demarcate the benefits arising out of the protection given to the rights i.e whether it would serve the public interest or not. The peformers’ right have to recognised as a separate category of intellectaul rights, and granting sui generis protection. Performer protection forms a coherent and integral part of any legal system that recognises individual’s rights over life and property. Practicla justifications for protecting the performers right are the benefits which arise from the greater protection Sui generis protection also requires delineating the boundary of the performers rights.

Economic rights already exist inIndia, moral rights can be adopted from WPPT. The challenge lies in protecting the intangible rights in unscripted performances.

The performer rights protection model must be based on the following premises:

1.) Performers rights are given sui generic protection, and all economic, moral and intangible rights are protected.

2.) These rights even protect the non commercial, community interest of the performers, hence, folk culture is preserved.

3.) Performers rights are granted only over that part of the performance in which a performer has uniquely and distinctly contributed something, thus preventing any conflict with copyright laws.

ii.)Granting Moral rights to performers like authors: Adopting the amendments in the Canadian Copyright Law.

The Canadian government tabled Bill C-32, which will substantially change copyright as we know it today.  A large number of industries, beginning with cultural industries, will be affected by this bill.

One of the purposes of the amendments made to the Copyright Act (the “Act”) is forCanada to ratify two treaties of the World Intellectual Property Organization (WIPO) dating back to 1996. The treaties aimed mainly to address new challenges created by the explosion of new digital technologies (the “WIPO Treaties”).

Proposed Amendments under Bill C-32 .

Bill C-32 does more than just meet the minimum standards of these international treaties. The multitude of amendments often affect other aspects so that overall, and as stated in the preamble of Bill C-32, the Act will strike a balance between the expectations of users and those who exploit works and other content protected by copyright (“protected content”). The several public consultations held since the treaties were signed in 1996, the most recent of which took place in 2009, brought to light quite a broad range of concerns from each of these groups.

Bill C-32 would extend to performers moral rights in their performances currently only recognized for authors. These rights would include the right to the integrity of the performance and the right, when it is reasonable in the circumstances, to be associated with the performance as its performer and the right to remain anonymous. This new right would only apply to performances made after the entry into force of the Bill.

The Indian Copyright(Amendment) Bill, 2010 incorporates the amendment as it grants  Independent of owning the copyright, authors have the right to claim damages when their work, while under copyright, is used in ways which adversely affects their reputation. Under the Bill, this ‘moral’ right will persist forever. The Bill extends ‘moral’ rights to performers, rather than just authors as is the case now.

iii.) European legislator does not totally ignore the effects of contractual arrangements on the actual protection of right-holders. In certain cases, it even gives clear rules for better regulation in this field: in the case of rental of phonograms, for instance, not only does it envisage that if the performer has to transfer or assign his exclusive rental right, this performer shall retain the right to obtain an equitable remuneration. The European Legislation specifies that this right to obtain equitable remuneration.

• firstly, cannot be waived by authors or performers, and
• Secondly, may be entrusted to collecting societies, with the possibility of Member States making the collective management of this unwaivable right to equitable remuneration by relevant collecting society(ies) compulsory.

These provisions under article 4 of Directive 92/100/EEC are explained under Recital 15 of this directive stating that “it is necessary to introduce arrangements ensuring that an unwaivable equitable remuneration is obtained by authors and performers who must retain the possibility to entrust the administration of this right to collecting societies representing them”.

The European legislator goes into greater detail as regards contractual practices in the subsequent Recital, stating that “the equitable remuneration may be paid on the basis of one or several payments at any time on or after the conclusion of the contract”.[65]

Such kind of protection should be given to performers inIndiaby way of incorporation under the Indian Copyright(Amendment) Bill, 2010.

16.) Conclusion and suggestions.

The purpose of copyright legislation is to increase the supply of copyright works. In an economic framework, copyright protection is intended to provide economic returns to producers because the resulting increase in output is in the long-run interests of society. Contrary to this approach that considers the well-being of all performers, the Copyright Law follows an approach that explicitly fails to consider the economic issues related with the performers.[66]

I have argued that only national law, specifically national constitutions, can furnish compelling legal—not political—reasons whether and to what extent to establish protection for performers. In particular, I have analyzed whether the national law requires protection of performers by giving them exclusive rights in their performances.

The legal landscapes in Indiahave proved inadequate in protecting the myriad rights which the performers have in their performances. Today, rapid technological change, inter connected entertainment market and quantum of unprotected folklore have made the need of this protection more imminent. Sui generis protection is preferable to the alternatives of protecting performers rights through torts and copyright law. Sui generis protection is a first stronger and all encompassing performer protection regime inIndia.

United Statescopyright law differs fundamentally from its Continental counterpart. U.S.copyright doctrine applies traditional property principles to the field of copyright, and treats authors’ works as the subject of proprietary, quasi-ownership rights. In contrast, Continental copyright law and doctrine focuses on the author and his personal relationship to his work. Continental doctrine views copyright essentially as the protection of the author’s individual character and spirit as expressed in his literary or artistic creation. Although a work may be commercially exploited, it is not simply a commodity—and many commentators would say that it is not a commodity at all. Instead, the work is seen, partially or wholly, as an extension of the author’s personality, the means by which she seeks to communicate to the public. “When an artist creates, . . .he does more than bring into the world a unique object having only exploitive possibilities; he projects into the world part of his personality and subjects it to the ravages of public use.”[67]

Finally, I contend that because the arguments both in favour of expanding and limiting the scope of protection are based on principles and not on policies, they can be successfully argued in courts to safeguard the public’s interest, the interest of new creators building on existing works, and the interests of performers against their intermediaries.[68]

Copyright protection and protection of performers is not an end in itself, but is an instrument to achieve distinct aims.[69]It is contrary to international law,[70] national constitutions and respective guarantees of fundamental freedoms that clearly if the vice versa is assumed. This instrumental character requires lawmakers, courts and academics to define such goals and to tailor performers rights in a way that they accommodate their purposes under the circumstances given at a certain time and place. In doing so, negative effects of exclusive rights have to be taken into account. If this teleological approach is abandoned, one may even impair public respect for the idea that knowledge can and should be exclusively owned because an excessive protection regime will–and this has already happened–trigger fundamental resistance.[71]

16.) Bibliography.

I.) Primary sources.

1.) Statues.

i.) The Indian Copyright Act, 1957.

ii.) The Performers’ Rights Act, 1925.

iii.) The Patent, design and copyright Act.

iv.) The Competition (Amendment) Bill, 2010.

v.) The U.S Constitution.

vi.) The German Constitution.

2.) Treaties and Conventions.

i.)              International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations(Rome Convention) 1961.

ii.)            The WIPO performances and phonograms treaty.

iii.)          Trade related aspects of Intellectual Copyrights.

II.) Secondary sources.

1.)    Books.

i.)                  Narayanan, P. , Intellectual Property Law, 3^rd edition, Eastern Book House.

ii.)                Chattejee, Sumitra Kumar. Law of copyright: An overview. In Law of Intellectual Property Rights, edited by Dr Sukanta K.Nanda. Orissa Law Reviews , Cuttak, 2003, p.136.

iii.)              Wadhera, B. L. Law relating to patents, trademarks, copyright, designs and geographical indications, 2nd Ed., Universal Law Publishing Co. Pvt Ltd., Delhi, 2000, p.393.

iv.)              Narayanan, P. Intellectual property law, 3rd Ed. Eastern Law House, Kolkata, p.270.

v.)                Annual Survey of Indian Law, Vol.XXV. 1989, p.196.

2.)    Legal E Databases.

i.)                  Westlaw.

ii.)                LexisNexis.

iii.)              Manupatra.

iv.)              Jstor.

3.)    Websites.

i.)                  www.juris.nic.in

ii.)                www.wipo.org.

4.)    Articles

1.                                 i.            Protecting Performers’ Right: Does India need Law reform  http://nopr.niscair.res.in/bitstream/123456789/2432/1/JIPR%2013(6)%20574-582.pdf retrieved on 20/ 02/2011.
2.                               ii.            Taubman Anthony, nobility in interpretation : Equity, collectivity and retrospectivity  in implementing norms for the protection of the performers right, Journal of Intellectual Property Rights 12 ( 2005) 35-41.
3.                             iii.            OWEN MORGAN, INTERNATIONAL PROTECTION OF PERFORMERS’ RIGHTS 6-7.( 2002).
4.                             iv.            W. MAK, RIGHTS AFFECTING THE MANUFACTURE AND USE OF GRAMOPHONE RECORDS 99 (1952).
5.                               v.            Eduardo Piola-Caselli, Die Regelung der Konflikte zwischen dem Urheberrecht und manchen benachbarten oder ähnlichen Rechten, 11 UFITA 1-8, 71-82 (1938).
6.                             vi.            BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 75 (1966).
7.                           vii.            Paul Katzenberger, TRIPS and Copyright Law.
8.                         viii.            Sofia P.Filgueiras ‘Portugal: copyright law – “Double Remuneration’, International Review of Intellectual Property and Competition Law http://login.westlawindia.com/maf/wlin/app/document?&src=rl&srguid=ia744d064000001338329ce4e6f5c5b1c&docguid=IDF31E181CBA711E0B1DFC8466875AC87&hitguid=IDF31E181CBA711E0B1DFC8466875AC87&spos=70&epos=70&td=1118&crumb-action=append&context=9&resolvein=true accessed on 21/10/2011.
9.                             ix.            MICHAEL GRUENBERGER, ‘A DUTY TO PROTECT THE RIGHTS OF PERFORMERS?CONSTITUTIONAL FOUNDATIONS OF AN INTELLECTUAL PROPERTY RIGHT’ http://www.cardozoaelj.net/issues/07/Gruenberger.pdf accessed on 20/10/2011.
10.                               x.            Shweta S. Deshpande, Copyright Protection of Performers Rights, DESIDOC Journal of Library & Information Technology, Vol. 28, No. 3, May 2008, pp. 66-68.