Government’s clean-up drive continues; repeals several legislations including the Preventive Detention Act, 1950 and Copyright Amendment Acts
The Repealing and Amending (Second) Act, 2017, received presidential assent on 05.01.2018, thereby repealing several legislations including British era legislations such as Prevention of Seditious Meeting Act, 1911, the Preventive Detention Act, 1950 and several amending acts including the Copyright (Amendment) Act, 1999 and the Copyright (Amendment) Act, 2012. The repeal of obsolete laws was one of the promises made by the BJP during the 2014 electoral campaign. As reported by India Today, the Government had already scrapped 1200 obsolete laws by 2017. It seems the clean up still continues.
The curious case of the repeal of Copyright (Amendment) Acts
The Repealing and Amending (Second) Act, 2017, however also repeals several amending acts including the Copyright (Amendment) Act, 1999 and the Copyright (Amendment) Act, 2012 which gave effect to rental rights and brought in sweeping changes to the existing Copyright Act, 1957. These changes include the mandatory royalty sharing provisions, statutory licensing regime for broadcasters, a new scheme for copyright societies, a safe harbor provision for internet intermediaries etc.
Now, questions arise regarding the effect of the repeal of the amendment acts. One interpretation being circulated is that the principal act, which is the Copyright Act, 1957 survives as amended and only the amending act is repealed. The other interpretation of course is that the all of the amendments proposed by the legislation of 1999 and 2012 also go out of the window and the law reverts to the form it had as of 1994 when it was last amended.
Prashant Reddy, in his post on Spicy IP, tries to decode the issue. He refers to the judgment of the Supreme Court in Jethanand Betab v. The State of Delhi AIR 1960 SC 89, wherein similar issue arose with respect to the Indian Wireless Telegraphy Act, 1933 which was amended in 1949 to introduced a particular penal provision. The amending act was subsequently repealed by The Repealing and Amending Act, 1952. The question was whether the penal provision inserted in 1949 would survive or be deleted from the law. The Court speaking through Justice Subba Rao held that the amendment introduced in 1949 would survive even after the amending legislation was repealed because of Section 6A of the General Clauses Act and not Section 4 of the repealing act. Justice Subba Rao, in his judgment, noted,
“The text of an enactment, the argument proceeds, is the phraseology or the terminology used in the Act, but not the content of that Act. This argument, if we may say so, is more subtle than sound. The word “text”, in its dictionary meaning, means “subject or theme”. When an enactment amends the text of another, it amends the subject or theme of it, though sometimes it may expunge unnecessary words without altering the subject. We must, therefore, hold that the word “text” is comprehensive enough to take in the subject as well as the terminology used in a statute.”
However, in his article, Prashant Reddy, raises doubts regarding the interpretation, and concludes,
“Applying the same logic to the Repealing and Amending (Second) Act, 2017 it will be possible to save the effect of the Copyright (Amendment) Act, 2012 on the principal legislation even after the amending legislation has been repealed. I am not too convinced though by Justice Rao’s expansive interpretation of the phrase “text” in Section 6A of the General Clauses Act – I think the appellants had a valid point when they distinguished between an amendment that changed only phraseology and terminology and one that brought in substantial amendments. Justice Rao’s interpretation renders the phrase “text” otiose. There must be some specific reason for the legislature to introduce the phrase “text” because it must be aware that all amendments would in any case happen to the “text” as interpreted by Justice Rao.
In any event, we need to see how the music industry decides to tackle this issue – it could keep quiet and accept the futility of a legal challenge or it could start using the repealing legislation to start redrafting contracts and agreements and then wait for litigation to deliver a conclusive verdict. All of this is extremely unfortunate in my view – presuming the government had only the most benign of intentions behind this move, I fail to understand the aim of this exercise? What has it achieved for the government?.”
Read the Act below: