Copyright Board / Appellate Board (Pre-2021)

For more than six decades, Sections 11 and 12 of the Copyright Act, 1957 housed a specialised adjudicatory body — first the Copyright Board and, after 2017, the Intellectual Property Appellate Board (IPAB) — that was meant to keep technical copyright disputes out of the over-burdened civil courts. The body decided rectification petitions, fixed compulsory licensing royalties, settled term and assignment quarrels, and after 2012 cleared the licensing of broadcasting under Section 31D. The Tribunals Reforms Act, 2021 dissolved that architecture overnight and shifted every pending case to the commercial divisions of the High Courts. This chapter traces the rise, the merger and the fall — and explains why the doctrine that the Board built remains examinable even though the Board itself has gone.

Three statutory landmarks frame the journey. The Copyright Act, 1957 created the Copyright Board as a quasi-judicial body answerable to the Central Government. The Finance Act, 2017 abolished the Copyright Board and transferred its functions to IPAB, the umbrella tribunal that already heard appeals under the Trade Marks Act, 1999, the Patents Act, 1970 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. The Tribunals Reforms Act, 2021 then abolished IPAB itself and routed appellate jurisdiction to the commercial courts and the High Courts. Each step was driven by a different political economy — efficiency in 1957, rationalisation in 2017, judicial scepticism in 2021 — but each is still tested in the judicial-services papers as a discrete event.

The original constitution — Sections 11 and 12 (pre-2017)

Section 11 of the Copyright Act directed the Central Government to constitute a Copyright Board consisting of a Chairman and two to fourteen other members. The Chairman had to be a person who was, or was qualified to be, a Judge of a High Court. Members were drawn from the legal profession, the entertainment industry, academia and the bureaucracy. The Board sat in benches; a single member could exercise certain powers but the substantive contests were heard by benches of three or more.

Section 12 set out the procedure. The Board was empowered to regulate its own procedure, sit at any place in India, and exercise the powers of a civil court under the Code of Civil Procedure, 1908 in respect of summoning witnesses, requiring discovery and production of documents, receiving evidence on affidavit and issuing commissions. Proceedings before the Board were treated as judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860. The Board was therefore a tribunal in the strict sense — quasi-judicial, statutory and final-fact-finding — even though appeals lay to the High Court on substantial questions of law.

The five buckets of jurisdiction

The Board's docket can be organised, with very little loss of nuance, into five buckets:

1. Rectification of the Register of Copyrights — Sections 50 and 50A. Any person aggrieved by a wrongful entry, omission or error in the register filed an application before the Board, which then directed the Registrar to make the necessary correction. The doctrine of locus standi here mirrored the trade-mark rectification jurisdiction familiar from the parallel registration scheme under Sections 44 to 50A.
2. Disputes over assignment — Section 19A. A complaint that the assignee was not exercising the rights assigned, or that the terms of assignment were harsh on the author, was filed with the Board, which could revoke the assignment after a hearing. The 2012 amendment expressly tied this jurisdiction to the protections that authors of primary works received under the new Sections 18 and 19.
3. Compulsory licensing — Sections 31, 31A, 31B and 31C. Where a copyright owner refused to republish or to communicate to the public a work that had already been published, the Board could grant a compulsory licence on terms it considered reasonable. Section 31A covered unpublished works of unknown authors; Section 31B covered works for the disabled; Section 31C, the cover-version statutory licence.
4. Statutory licensing for broadcasting — Section 31D, inserted by the Copyright (Amendment) Act, 2012. The Board fixed the royalty rate that radio and television broadcasters had to pay copyright owners for the communication of literary, musical and sound-recording works.
5. Determination of term and ownership disputes — Sections 6, 22 to 29 and 17. Where the duration of copyright in a particular work, or the question of who was the first owner, was in genuine doubt, the Board could decide. The substantive law of term under Sections 22 to 29 and the rules of authorship and first ownership under Sections 17 to 19A formed the doctrinal background.

Compulsory licensing — the core docket

The largest body of reported Board decisions concerns Section 31. The owner's refusal had to be unreasonable, the work had to have been previously published, and the complainant had to be a person who had already approached the owner for a licence on reasonable terms. The Board, after giving the owner an opportunity to be heard, could direct the Registrar to grant a compulsory licence on terms that the Board considered reasonable, including terms as to royalty.

The 2012 amendment broadened the language of Section 31 — earlier the section spoke of the owner's refusal in respect of "the Indian public"; the amended language drops the geographical qualifier and applies to any "work which has been published". The amendment is recurring exam material because it widened the door: any aggrieved licensee, not just an Indian one, could now move the Board.

The standard test, drawn from Entertainment Network (India) Ltd. v. Super Cassettes Industries Ltd., (2008) 13 SCC 30, was whether the refusal struck a fair balance between the public's right to access creative work and the owner's right to extract reasonable consideration. The Board could not be moved as an alternative price-fixing mechanism whenever a licensee felt the rate was too high — the threshold was unreasonable refusal, not high price. ENIL, decided by the Supreme Court before the 2012 amendment, remains good law and is the leading authority that the Commercial Courts now apply when sitting in the Board's place.

Section 31A, the orphan-works provision, is structurally similar but applies where the author is dead, unknown or untraceable. The applicant must publish a notice in a national newspaper inviting the owner to come forward; if no claim is received within the time stipulated by the Board, a compulsory licence is granted. The provision was rarely invoked before 2021 and the Delhi Commercial Court has so far reserved the post-abolition jurisprudence on its operation. Section 31B, inserted by the 2012 amendment, lets organisations working for the benefit of persons with disabilities obtain a compulsory licence to publish accessible-format copies of works — the mechanism implements the World Intellectual Property Organisation's Marrakesh Treaty, which India ratified in 2014.

Section 31C deals with the cover-version licence — the right to make a sound recording of a literary, dramatic or musical work where two conditions stand satisfied: a sound recording of the work has already been made by or with the licence of the owner, and the cover-version producer has given prior notice and paid the royalty fixed by the Board. The provision codifies the practice that the older Section 52(1)(j) of the unamended Act had recognised. The 2012 amendment moved the cover-version mechanism from the fair-dealing chapter to a standalone licensing section, and tightened the conditions — the cover producer cannot package the recording in a way likely to mislead the public into believing it is the original.

The Section 31D experiment — statutory radio licensing

Section 31D introduced a different model — a statutory rather than a compulsory licence. Any broadcasting organisation desirous of communicating to the public, by way of broadcast or by way of performance, any literary or musical work and sound recording which had already been published was entitled to do so by simply giving prior notice to the owner and paying royalties at the rate fixed by the Board. The Board's role was therefore not to grant or refuse the licence — that was statutory — but to fix the rate.

The leading decision is Music Broadcast Pvt. Ltd. v. Indian Performing Right Society Ltd., where the Bombay High Court (and later the Board on remand) had to grapple with whether the IPRS owned the underlying literary and musical works in the post-1977 cinematograph-film context. The decision had to be read alongside Indian Performing Right Society v. Eastern India Motion Pictures Association, (1977) 2 SCC 820, which held that once a literary or musical work was incorporated into a cinematograph film made for valuable consideration, the producer became the first owner of copyright in that film and the composer's separate rights were displaced — a holding that the 2012 amendment specifically reversed by adding the third proviso to Section 17.

The next round was South Indian Music Companies Association v. Union of India, where the Madras High Court engaged with the scope of statutory licensing and the rate-fixation power. The Board's rate-fixation orders under Section 31D were repeatedly challenged on the ground that internet streaming was not "broadcasting" within the section. The DIPP Office Memorandum of 5 September 2016 took the view that Section 31D extended to internet streaming; the Tips Industries Ltd. v. Wynk Music Ltd., 2019 SCC OnLine Bom 1023, decision of the Bombay High Court held the contrary — that statutory licensing was confined to radio and television broadcasting. The judgment relied on the legislative history of the 2012 amendment and on the policy choice that on-demand streaming services, where the listener picks the track, are economically distinct from passive broadcast. This split is still the leading authority on the scope of Section 31D and survives the abolition of the Board. The cover-version doctrine in Section 52 fair-dealing analyses often interacts with Section 31D rate-fixation, since a broadcaster claiming a statutory licence cannot simultaneously claim that the use was a fair dealing exception.

The rate-fixation power was not a token. The Board, in its 2010 and 2013 tariff orders, fixed royalties for FM radio at 2 per cent of net advertising revenue, a number that copyright owners characterised as confiscatory and broadcasters argued was generous. The methodology — comparable-market analysis, willing-buyer-willing-seller benchmarking, and a cost-of-creation overlay — was challenged in Music Choice India Pvt. Ltd. v. Phonographic Performance Ltd. and in subsequent IPAB hearings, with rate-fixation directly affecting the bundle of rights enumerated under Section 14 (the meaning of copyright). The post-2021 forum, the Delhi Commercial Court, has signalled that it will follow the Board's methodology subject to fresh evidence, which preserves the Board-era jurisprudence almost intact.

The 2017 merger — Finance Act and IPAB

The Finance Act, 2017 was an unusual vehicle for an institutional change. Part XIV of the Finance Act amended the Copyright Act, 1957, the Trade Marks Act, 1999 and several other statutes to abolish a long list of standalone tribunals and merge their functions into the Intellectual Property Appellate Board (IPAB), the National Company Law Appellate Tribunal and other surviving bodies. From 26 May 2017, every reference to the Copyright Board in the Act was deemed to be a reference to the Appellate Board. IPAB inherited the entire pre-merger docket — pending compulsory-licensing applications, rate-fixation petitions and rectification proceedings.

The merger was challenged on multiple fronts. The Supreme Court in Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, struck down the Tribunal Rules of 2017 as ultra vires for handing too much control over appointments and service conditions to the Executive. Madras Bar Association v. Union of India, (2021) 7 SCC 369, then struck down the Tribunal Rules of 2020 on the same ground, insisting on a four-year minimum tenure and on a search-cum-selection committee with a judicial majority. By the time those rulings came down, the Government had already decided to dispense with the tribunal altogether.

The 2021 abolition — Tribunals Reforms Act

The Tribunals Reforms Act, 2021, brought into force from 4 April 2021 by way of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (later re-enacted as the Act), abolished the IPAB. The Act amended the Copyright Act, 1957 by deleting Sections 11 and 12 and substituting references to the Appellate Board with references to the "Commercial Court" or "High Court" as the case may be. Pending matters were transferred — rectification petitions and Section 31 / 31D references to the Commercial Court within whose territorial jurisdiction the office of the Registrar of Copyrights was situate, and appeals to the High Court within whose jurisdiction the impugned order was passed.

The constitutional validity of the 2021 Act was tested almost at once. In Madras Bar Association v. Union of India, (2022) 12 SCC 455, a three-judge bench upheld the abolition in principle but struck down the provisions that restored the very service conditions the Court had earlier rejected. The combined effect of the two Madras Bar Association decisions is therefore that Parliament has the legislative competence to abolish a tribunal, but cannot, by legislative override, revive service conditions that the Court has already declared inconsistent with the basic-structure principle of judicial independence.

The current dispensation — commercial courts and the Registrar

Post-2021, the work that the Board used to do is split between three forums:

• The Registrar of Copyrights retains the administrative tasks — entering, varying and removing entries on the register on the application of the owner, recording assignments and licences, and certifying extracts. The Registrar's quasi-judicial functions under Sections 6 and 50 (deciding doubts about the date of publication or whether copyright subsists) survive.
• Commercial Courts and Commercial Divisions of the High Courts, established under the Commercial Courts Act, 2015, hear original disputes including civil suits for infringement under Sections 55 to 62, applications for compulsory licensing under Sections 31 to 31D and applications for rectification of the register. The Delhi High Court's IP Division, constituted in 2022 after the abolition, has been the most active forum — hearing the bulk of post-IPAB rectification and statutory-licensing disputes.
• High Courts on the appellate side hear appeals from the Registrar and from the Commercial Courts on substantial questions of law. The pre-2021 mechanism of a direct appeal from the Board to the High Court survives in altered form.

One practical consequence is the loss of pan-India sittings. The Board sat at different places in India to make access easier; the Commercial Court has fixed territorial jurisdiction tied to where the Registrar's office is. For the moment the Registrar of Copyrights sits at New Delhi alone, which means that all Section 31 / 31D matters are heard by the Delhi Commercial Court — a practical concentration that the Bombay and Madras Bars have flagged as inconvenient.

Why the Board still matters in the syllabus

Examiners continue to test the pre-2021 architecture for three reasons. First, much of the substantive copyright doctrine — what counts as "unreasonable refusal" under Section 31, when a statutory licence under Section 31D crystallises, what is the test for a wrongful entry under Section 50 — was settled in Board decisions that remain good law. Second, the Board's procedure under Section 12, modelled on the Code of Civil Procedure, supplies the working procedure that the Commercial Court now follows for post-2021 matters. Third, the constitutional doctrine that emerged from the abolition story — the two Madras Bar Association decisions, Rojer Mathew, the L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 anchor on judicial review of tribunal orders — is itself examinable across the administrative-law and IP-law papers.

A concrete way to organise the doctrine for revision is to map every Board-era authority to its post-2021 forum. Music Broadcast on Section 31D is now a Delhi Commercial Court matter. The IPRS v. Eastern India Motion Pictures ownership rule — reversed in part by the 2012 third proviso to Section 17 — is litigated in the High Court directly, given the constitutional flavour. The Mariyappan v. Sembian Film Co. line of cover-version cases under Section 31C is still followed but now framed as a defence to an infringement action. Compulsory licensing applications under Sections 31 and 31A continue to use the Board-era ratio decidendi.

The exam-angle distinctions

Three distinctions repeatedly appear in objective and short-answer questions on this chapter:

1. Compulsory licence (Section 31) versus statutory licence (Section 31D). The first requires an application, a hearing and a Board / Court order; the second is automatic once the broadcaster gives prior notice and pays the fixed rate. Compulsory licence is granted where the owner refuses unreasonably; statutory licence is a standing entitlement that does not depend on any refusal at all. The Supreme Court in ENIL warned that the two are not interchangeable — invoking Section 31 against a high rate is not the same as invoking Section 31D for non-broadcast use.
2. Rectification (Section 50) versus appeal (former Section 72). Rectification corrects a wrongful entry on the register; appeal challenges an order of the Registrar or the Board. The two remedies are not interchangeable — an aggrieved party who wants the entry expunged must file a rectification petition, not an appeal. After 2021, both remedies are heard by the Commercial Court but the procedural form remains distinct.
3. The 2017 merger versus the 2021 abolition. The Finance Act, 2017 did not abolish the work — it transferred it to a different tribunal. The Tribunals Reforms Act, 2021 abolished the tribunal altogether and transferred the work to ordinary courts. For exam purposes, the dates of the two events, and the fact that case law from the IPAB era remains authoritative, are the standard test points.

Students preparing for judicial-services prelims should also note the procedural overlay. Even though the tribunal is gone, the legal architecture for foreign works under Section 40 and the International Copyright Order, 1999, the copyright-society jurisdiction under Sections 33 to 36A and the performers' and broadcasters' rights under Sections 37 to 39A — all of which were subject to Board oversight before 2021 — continues to operate, only the forum has changed. Knowing the substance of those provisions, plus the post-2021 forum, is the complete answer the examiner expects.

The institutional history of the Copyright Board is therefore not a museum piece. It supplies the doctrine that the Commercial Courts now apply, the procedural model they follow, and the constitutional framework within which any future legislative restoration of a specialised IP tribunal must operate. That, more than anything else, is why the chapter remains a fixed feature of the IP-law syllabus despite the Board's disappearance.

Frequently asked questions

Is the Copyright Board still functional after 2021?

No. The Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board (which had absorbed the Copyright Board in 2017) with effect from 4 April 2021. All pending matters were transferred to the Commercial Courts and to the High Courts. References to the Appellate Board in the Copyright Act, 1957 were substituted with references to the Commercial Court or the High Court as the context requires. The Registrar of Copyrights retains the administrative and limited quasi-judicial functions under Sections 6 and 50.

What was the Finance Act, 2017's effect on the Copyright Board?

Part XIV of the Finance Act, 2017 abolished the Copyright Board as a separate body and merged its functions into the Intellectual Property Appellate Board (IPAB) with effect from 26 May 2017. From that date, every reference in the Copyright Act, 1957 to the Copyright Board was read as a reference to the Appellate Board. The same merger consolidated the appellate work under the Trade Marks Act, 1999, the Patents Act, 1970 and the Geographical Indications Act, 1999 into IPAB.

What is the difference between a compulsory licence under Section 31 and a statutory licence under Section 31D?

A compulsory licence under Section 31 requires an application, a hearing, and an order of the Board or now the Commercial Court. It is granted only when the copyright owner has unreasonably refused to allow republication or communication to the public of an already-published work. A statutory licence under Section 31D, by contrast, operates automatically — a broadcaster gives prior notice and pays the rate fixed by the rate-fixing authority, and the licence crystallises without any adjudicative refusal-of-licence step.

Does Section 31D extend to internet streaming?

The Bombay High Court in Tips Industries Ltd. v. Wynk Music Ltd. (2019) held that Section 31D applies only to radio and television broadcasting and not to internet streaming. The Department of Industrial Policy and Promotion's 2016 office memorandum had taken the contrary position. The Tips Industries view is currently the leading authority but the issue is not finally settled by the Supreme Court.

Where are pending compulsory-licensing applications now heard?

After the abolition of IPAB, all pending applications under Sections 31, 31A, 31B, 31C and 31D were transferred to the Commercial Court within whose territorial jurisdiction the Registrar of Copyrights' office is situate. As the Registrar's office sits in New Delhi, this concentrates all post-2021 compulsory-licensing matters before the Delhi Commercial Court. Appeals from such orders lie to the Delhi High Court on substantial questions of law.

Did the Madras Bar Association rulings strike down the abolition itself?

No. In Madras Bar Association v. Union of India, (2022) 12 SCC 455, the Supreme Court upheld Parliament's competence to abolish IPAB but struck down portions of the Tribunals Reforms Act, 2021 that revived service conditions previously declared unconstitutional. The earlier Madras Bar Association v. Union of India, (2021) 7 SCC 369 had set out the four-year tenure and search-committee requirements that the new Act tried to override.