Public performance or not.!!

 Author : Shweta Khurana, 2nd Year student of RGSOIPL, IIT Law School.

Is the evolution and interpretation of laws lagging behind the technological advancements? The recent Supreme Court judgment in the case of American Broadcasting Companies Inc. v. Aereo Inc. 573 US 2014 implies so. The ruling observes that the retransmission of programs to the paid subscribers without the copyright owner’s authorisation or license is violative of the copyright law. The case raises the question of liability of the companies that offer the subscribers the ability to watch and record local broadcast television over the internet on payment at monthly basis. The US Supreme Court rejecting the respondent’s contentions as to their retransmission activity not coming within the meaning of “public performance” pointed out that such service was a tool or way to avoid being held liable for copyright infringement.

Analysing the judgement, if we look into the technology to get a clearer view as to the service in dispute being within the meaning of “public performance” the said service allows all the paid subscribers to watch programs airing on network television or record programs that will air in the future over the Internet.  The service provides three-in-one function as that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. This is enabled by use of thousands of antennas that are distinct for each subscriber and function to capture the local broadcast signals i.e. thus the service bears similarity to modern day cable systems. Pointing to the definition of the public performance under the US Copyright Act, 1976^[1], 17 U.S. Code § 101 states that:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Interpreting the words of the definition and applying it to the dispute under question, it is noted that Aereo sent each of its subscribers an individualized/ private transmission of a performance from a unique copy of each copyrighted program captured and transmitted through different antennas. Also the servers are subscriber specific and does not involve transmission of performances “to the public,” but rather a number of "private" performances to paying subscribers.

Referring to two similar cases of Fortnightly Corp. v. United Artist Television Inc.^[2] and Teleprompter Corp. v. Columbia Broadcasting System Inc.^[3] where the community antenna television (CATV) systems were considered to be outside the purview of ‘public performers’ and these systems were said to be like a viewer rather than a broadcaster as these systems only perform the function of carrying the programs which have already been released to the public by private channels to individual viewers.

Drawing a comparison with the Indian Copyright Act, 1957 as amended in 2012 that gives an expanded definition of “communication to public” under Section 2 (ff)^[4]  so as to include both works and performances (instead of just works as was the case prior to the coming into effect of the 2012 amendments i.e. 'earlier'). Also, the definition now explicitly states that it does not matter whether the communication is ‘simultaneous or at places and times chosen individually’. As such, it appears to include multicasting, narrowcasting and unicasting. The explanation to the aforementioned section helps in understanding the intricacies of the copyrighted works transmitted through satellite or cable transmission so as to be considered within the definition of ‘public performance’. This makes it clear that such a dispute under Indian Jurisdiction would have suffered the same fate, preserving and protecting the broadcaster’s rights ruling out copyright violation on part of the service provider.  

Looking a bit deeper into the issue, one can see the economic and technological implications of this judgment on the new and upcoming technologies like Apple’s iCloud and Dropbox and other cloud computing tools that provide easy online access to stored data, music, pictures and other information via an online platform. It also raises concern as to the affordability issue as the service enabled the viewers or subscribers to watch and record local programs from various electronic devices on a very cheap subscription monthly payment.

So, instead of leaving the judiciary to interpret the law on their own, there is a need to find out such loopholes within the legislation and improvise or evolve the law to keep pace with the leaping technological breakthroughs as a 1976 legislation is not an appropriate legal proposition to be applied in the era of Internet, digital video recorders and smart phones.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://www.law.cornell.edu/uscode/text/17

[2] 392 U.S. 390 (1968)

[3] 415 U.S. 394 (1974)

[4] "communication to the public" means making any work available for being seen or heard or

otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing

copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause, communication through satellite or cable or any other

means of simultaneous communication to more than one household or place of residence including

residential rooms of any hotel or hostel shall be deemed to be communication to the public;

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Transfer of a Judge

Author :  Pulkit Gopalkrishan Popli, 1st Year student of IIT Kharagpur Law School.

Often the judgments delivered by various courts receive various responses on the basis of credibility, justice served, equitable grounds etc. But recently a judgment delivered by Chief Justice of Kerala High Court sparked a controversy. The reason of the controversy was that Hon'ble Judge Manjula Chellur has been transferred to the Kolkata High Court where she assumed the charge on 5th of August. The transfer warrant was signed by the Honorable President on July 21 while the verdict on case was delivered on July 25. The verdict declared the 2007 eviction-drive in Munnar as illegal. The question arises, could a judge still deliver judgments after a transfer warrant was issued?

As per Article 222(1) the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. According to the Delhi High court rules,

“Every District Judge or Sub-Judge proceeding on leave or transfer, must, before making over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor.[1]”

This article along with article 217 has been the center of controversies. Article 217 states that 

“Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that-

              (a) a Judge may, by writing under his hand addressed to the President, resign his office;

             (b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;

           (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India”

In the Landmark Judgment of, S.P.Gupta v. Union of India case^[2] which is the last judgment of judge’s case trilogy, could be used to answer various queries regarding the transfer of judges.

In paragraph-900 at page 543 it was discussed whether how court views the transfer of judges? It was said that it is a transaction that takes place in two parts, the first is termination from the original high court and the second is the simultaneous appointment in the other high court.

This view is supported by the circumstance that the power of transfer is vested in the President. It is significant in this connection that the President is also the appointing authority in the case of appointment made under Clause (1) of Article 217 and is also vested with the power of removal in cases falling under Article 218 read with Clause (4) of Article 124. Therefore, it was necessary that the authority who has been otherwise vested with the power to appoint a Judge and to terminate his appointment should also be the authority to transfer him. It may be added that inasmuch as the transfer constitutes an appointment of the Judge to the other High Court. Article 219 comes into play and, therefore, the transferred Judge must, before he enters upon his office in that High Court, make or subscribe an oath or affirmation according to the prescribed Form.

Now the question that arises that the article stated that the office of the judge will be vacated by him while being transferred by the President to other high courts. So can we say that the judge that has been issued the transfer warrant can no longer work as a judge until he has joined the new high court? One of such questions arose in a case M.K. Sasidharan, Advocate Supreme Court and President v. The Hon'ble Chief Justice of India, Supreme Court of India and Ors.^[3]The Petitioner, an advocate practicing in the Supreme Court filed the Original Petition praying for the issue of a writ of Quo Warranto calling upon the 5th Respondent, a Judge of this High Court who has been transferred to the High Court of Gujarat, under what authority he has been discharging the functions as an Additional Judge of the High Court of Kerala. The 5th Respondent was appointed as an Additional Judge of the High Court of Kerala under Article 217 of the Constitution of India. He had sworn as a Judge of this Court on 11th April 1996. By virtue of powers vested in the President of India under Article 222 of the Constitution, the 5th Respondent was transferred to the High Court of Gujarat. He was given time till 9th May 1996 to assume charge as Judge of the Gujarat High Court. Later the President of India in consultation with the Chief Justice of India had granted extension of time from time to time up to 22nd July 1996. In the meanwhile the 5th Respondent was functioning as a Judge of this Court, hearing and disposing of cases. It was contended by the Petitioner that on his transfer to the Gujarat High Court, the 5th Respondent was ceased to be a Judge of this High Court and that he has no right or authority to discharge the duties of a Judge of this Court

In the judgement to this case, the court also said in paragraph 18:

“The prayer of the petitioner to issue a writ of quo warranto is not maintainable as the 5th respondent was appointed as an Additional Judge of the High Court of Kerala by the President of India in consultation with the Chief Justice of India and the warrant of appointment still holds good and he had been given time to assume office till 22-7-1996. He continues to be a Judge of this Court for all practical purposes.”

Thus from this case we can easily conclude that a judge continues to remain judge until she/he gets relieved from the previous court, not when she gets the transfer warrant but in order to maintain the spirit of the constitution it is preferred that they vacate it as soon as possible. So applying same standards in the case of Judge Manjula Chellur, it was duteous of her to deliver the judgment which and her authority of deliverance is not dubitable under law and complies with the spirit of constitution.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_AF9J1IE4.PDF

[2](AIR 1982 SC 149)

[3]AIR1997Ker35

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PILs IN DISTRICT COURTS !!

In a very interesting development, the Chief Justice of the Andhra Pradesh High Court has raised a very interesting point about filing PIL in District Court!
What is at the heart of Constitutional Law is that a PIL can only be filed in the High Court or Supreme Court and only these courts have jurisdiction to entertain the same.

Any public spirited person does not have any other forum for redressal, as he has no locus standi for the matter. Well, soon this concept may find itself way back only in the annals of history. A new kind of Jurisprudence is now emerging where PIL in district courts can actually be envisaged. I freely admit, I myself was a part of the “ignorant society” that nodded and believed that only Constitutional Courts have the Jurisdiction to entertain a PIL. But kudos the innovativeness of the Indian Judiciary for envisaging a concept which may possibly help many public spirited persons in the future.

First, let us highlight what the Hon’ble Chief Justice Kalyan Sengupta said while delivering the C. Padmanabha Reddy Memorial Lecture organised by the Indian Association of Lawyers (IAL) in Hyderabad observed: (the report can be found here )

“A PIL could be filed in district courts or other subordinate courts also but not necessarily in the Supreme Court or High Courts. Judicial activism should be welcomed wherever the executive and legislative branches fall short of their goals and when a PIL comes against them, it should not be treated as an adversarial litigation but as a reminder of their Constitutional duties”

The idea itself isn’t bad. The vision of justice to the common man would be complete. The search and reach for justice has always eluded the common man, having to spend a lot of time and money to travel to long places, file for PIL in the HC or SC and represent their case. It’s not uncommon to make more than one appearance to get the desired relief. If PILs in District Court could make headway into the Judicial System, it would eliminate the need for the long wait of justice for people even in the remotest corner of India.

But is such an idea really feasible? District Courts always have the problem of pendency of cases with over 3 crore cases pending in courts. It would mean that district courts would also have to deal with the additional burden of PILs from persons who have no locus standi. This is specially a big problem because as it is the effective rate of disposal of cases is slow and time consuming. Unless additional resources are pumped in to expedite the process, it would be very difficult for the courts to carry this additional burden.

The competiveness of the District Court in handling PIL petitions is still uncertain. While on one hand, it may be especially good as District Court looks into matters of fact, hence it may examine evidence on a fact and decide on a petition, but there would not be an expeditious remedy. On the flipside, with regard to examining matters on PIL where effective, quick, correct and adequate remedy is the need of the hour, District Courts may, at some point, lack competence.

The Jurisdiction of the Court is also another aspect under consideration. The jurisdiction of the District Court is limited to the district only. This helps litigants save time and money and the Court may understand the problems of the district better than any of the Higher Courts. Yet its Jurisdiction being limited, it is very difficult for the court to give a judgment within the rigidity of jurisdiction it is bound in.

Another aspect is that, the courts are bound by procedural laws, making it very difficult to get quick remedies. So, it is very uncertain whether a District Court can be given wide amplitude of powers to bypass procedural laws which is required when a PIL petition is being heard.

In my opinion, considering many problems, and not to mention procedural aspects the District Courts may face, unless radical changes are proposed, it would be very difficult to actually put the vision of Hon’ble Chief Justice into practice. However all is not lost for the common man as he grapples with the administration, the government and the law in his quest to seek justice. The Code of Civil Procedure and Code of Criminal Procedure do provide sections for public to seek justice.

1. An important section provided by the CPC is to invoke section 91 of CPC which empowers any two public persons to raise any matter of public interest with the permission of the court in case of any public nuisance. The relief granted by the Court includes a suit of declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.

2. Order I Rule 8 permits the filing of Representative Suit. Where any interested person may sue on behalf of all persons interested in the suit and a decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. This section can be used as a powerful tool to file a suit in the District Court, as the language of Order I Rule 8 is so wide so as to permit filing of a civil suit and asking for civil damages as a result of redressing any public injury, enforcing public duty and claiming public rights.

3. Though PIL generally creates civil liability only, even criminal courts can entertain a complaint from a member of the public. Section 190 of CrPC gives wide powers to a Magistrate based on information received by him to take cognizance of any crime which may have been committed and to direct the Police to investigate the same. This is particularly helpful when the public injury committed by person or persons alike may attract criminal liability. The investigations may proceed say, under sections 268 of IPC for public nuisance, section 133 of CrPC empowering magistrate to take action against public nuisance.

PILs have revolutionised our justice system. Indian Judiciary has always upheld the cause of justice to common man and has addressed the same. In this regard, PIL in District Courts would give the much needed impetus in the process of restoring faith of the common man in the judiciary. But, the process is long drawn and a tough one. Its implementation would be difficult. Let us hope the vision, the path and the cause that the Hon’ble Chief Justice envisaged is taken up by others and the issues are addressed.

Author: Suraj Badrayan

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