The Calcutta High Court has held that compliance with Rule 70(9) of the Copyright Rules, 2013 is mandatory, and failure by an applicant to give notice to every person claiming or having an interest in the subject-matter of the copyright vitiates the registration process. Further, under Rule 70(10) read with Rule 70(11), the Registrar’s duty is not exhausted merely because no objection is received within 30 days; the Registrar must independently satisfy himself as to the correctness of the particulars in the application and may conduct an inquiry if such satisfaction is absent.
Therefore, where the applicant fails to comply with Rule 70(9) and the Registrar grants registration without undertaking the required substantive scrutiny, the resulting registration is liable to be set aside as being contrary to the mandatory statutory scheme.
A Single Judge Bench of Justice Arindam Mukherjee observed that the provisions of Rule 70(6) and Rule 70(9) of the Copyright Rules, 2013 have statutory force and are mandatory in nature, since rules framed under statutory authority carry “statutory flavour” and must be read conjointly with the Act. Referring to the principle in Nazir Ahmed v. Emperor [1936 Privy Council 253], the Bench observed that where a statute prescribes that a thing must be done in a particular manner, it must be done in that manner or not at all. Applying that principle, the Court found not only a violation of Rule 70(9) by respondent no. 1, but also a procedural irregularity by the Registrar in granting registration without ensuring compliance with the statutory scheme.
On interpretation of Rule 70(10) and Rule 70(11), the Bench rejected the Registrar’s submission that absence of objection automatically compelled registration. The Bench held that Rule 70(10) contains two distinct parts: first, absence of objection within 30 days; and second, the independent requirement that the Registrar must be satisfied about the correctness of the particulars given in the application. Rule 70(11) was read similarly as permitting inquiry not only where objections are received, but also where the Registrar is not satisfied about the correctness of the particulars.
The Bench observed that if Rule 70(9) notice is not given, a person adversely affected may never become aware of the application and therefore may not object within 30 days, which makes the Registrar’s independent duty of substantive satisfaction essential.
The Bench found that the Registrar had not even checked the existing register to verify the correctness of the application and, had such an exercise been undertaken, the Registrar would have noticed the petitioner’s prior registration and could have called for comments or held an inquiry. The Bench described the legislative intention behind Rules 70(9), 70(10) and 70(11) as creating a “two-tier check valve,” which failed in the present case because of both the applicant’s non-compliance and the Registrar’s failure to perform the required scrutiny.
Accordingly, the Bench set aside the copyright registration granted in favour of respondent no. 1, directed the Registrar to remove the particulars of that registered copyright from the database and register, and rejected the underlying application for registration for non-compliance with the mandatory provisions. However, the Bench clarified that cancellation of the registration would not prevent respondent no. 1 from applying afresh after complying with all statutory formalities and requirements.
Briefly, the dispute arises from an application for rectification of a copyright registration granted in favour of respondent no. 1, on the ground that the mandatory requirements under Rule 70(6) and Rule 70(9) of the Copyright Rules, 2013 were not complied with at the time of seeking registration. The petitioner contended that respondent no. 1 was aware of the petitioner’s earlier registered copyright, had previously sought rectification against the petitioner’s registration in 2009, and yet proceeded to apply for registration without issuing notice to the petitioner, despite Rule 70(9) requiring notice to every person claiming or having an interest in the subject-matter or disputing the applicant’s rights.
The petitioner further argued that because no notice was given, he could not object within the 30-day period contemplated under Rule 70(10), and that the Registrar also failed to satisfy himself about the correctness of the particulars before entering the registration in the Register of Copyrights.
The Registrar of Copyright accepted that compliance with Rule 70(6) and Rule 70(9) was the obligation of the applicant and submitted that respondent no. 1 had failed to comply with those mandatory requirements. At the same time, the Registrar argued that if no objection is received within 30 days, Rule 70(10) leaves the Registrar with no option but to enter the particulars in the register, and that this procedure had been followed.
Appearances:
Sayantan Basu, Sr. Adv., Tanmoy Roy, Adv., for Applicant
Sunil Kr. Singhania, Adv., Asit De, Adv., for Respondent
