(Download the complete article: Time-Shifting Audio-Visual Recordings and the Broadcast Reproduction Right)
There are times when the use of ‘and/or’ can be annoying. In a blog post, speaking of contracts, Ken Adams suggests that you ‘steer clear of ‘and/or’ unless using it would spare you some verbiage’. The ‘and/or’ alternative certainly is more compact but it stinks of legalese and isn’t especially pleasing to the eye (or ear), which is one reason why I love the fact that I’ve never once seen it used in a statute. There are, however, times when one might wish that legislators bowed to expediency.
Consider the Indian Copyright Act, 1957.
Section 37(3)(c) which speaks of the broadcast reproduction right says:
Ideally, to my mind, the phrase “any sound recording or visual recording” should have been “any audio-visual recording, sound recording or visual recording”, or at the very least, have said “any sound recording and/or visual recording”.
The problem with the phrase “any sound recording or visual recording” in the current law appears to be that while a conjoined reading of the two Sections along with the proviso to Section 39A allows for a recording of a broadcast to be made for private use, it does not clearly allow for an audio-visual recording to be made.
With regard to the interpretation of the words ‘and’ and ‘or’ in statutes, the judiciary has held, “Depending on the context ‘or’ may be read as ‘and’ but the Court would not do so unless it is so obliged because ‘or’ does not generally mean ‘and’ and ‘and’ does not generally mean ‘or’.” [R. S. Nayak v. A. R. Antulay; (1984) 2 SCC 183]
“You do sometimes read ‘or’ for ‘and’ and ‘and’ for ‘or’ in a statute. But you do not do it unless you are obliged to do so, because ordinarily, ‘or’ does not mean ‘and’ and vice versa. Such a reading for one for the other is permissible only when the clear import of the language requires it.” [(a) Gopalan v. State of Madras AIR 1950 SC 27; (b) Shambhu Nath Sarkar v. State of West Bengal (1973) 1 SCC 856; (c) Manmohan Das Shah v. Bishun Das AIR 1967 SC 643; (d) Gopinder Singh v. Forest Department of H.P. 1990 Supp SCC 272]
Somehow, it is not inconceivable to imagine it being argued that making a recording of an episode of a TV serial for private use is not allowed by the law because the exception to the broadcast reproduction right in Section 39(a) does not speak of an audio-visual recording; it speaks of ‘sound recordings’ or ‘visual recordings’.
However, the broadcast reproduction right itself ‘defines’ the right and the manner in which it would be deemed to be infringed in exactly the same terms in Section 37(3)(c), and it is difficult to imagine that anyone would argue that the broadcast reproduction right does not apply to audio-visual broadcasts (of, for example, TV programmes), or that making a copy of an audio-visual broadcast which copy does not fall within the scope of Section 39(a) would not be an infringement of the broadcast reproduction right.
As such, and considering the fact that Section 39(a) effectively culls out an exception to Section 37(3)(c), it would be hard to argue that the two Sections should be interpreted in an entirely different manner. Perhaps this is a case in which it would actually have been a good idea to use ‘and/or’ in the phrase “any sound recording or visual recording”, as annoying as it may be.
Alternatively, this is probably a case where the word ‘and’ should be read in place of the word ‘or’ in the phrase “any sound recording or visual recording”. Case law clearly says that this may be done in circumstances where it is necessary to do so, and, in this case, it should be possible to argue that not doing so would, in fact, lead to an anomalous situation. Surely, the legislature must have intended for audio-visual recordings to be included within the scope of the broadcast reproduction right. After all, excluding them would seem to be entirely incongruous with the concept of the broadcast reproduction right itself.
All one can hope is that substituting ‘or’ with ‘and’ does not lead someone to argue saying, “Yes, you can make both audio and visual recordings, but not simultaneously, as in the case of an audio-visual recording.”
Reference:
Case law taken from ‘Interpretation of Statutes’ by Vepa Sarathi [EBC]
Download the complete article: Time-Shifting Audio-Visual Recordings and the Broadcast Reproduction Right.
Consider the Indian Copyright Act, 1957.
Section 37(3)(c) which speaks of the broadcast reproduction right says:
[During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,—]And Section 39(a) which speaks of acts not infringing the broadcast reproduction right says:
(c) makes any sound recording or visual recording of the broadcast; or
[shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right.]
“[No broadcast reproduction right or performer’s right shall be deemed to be infringed by—]Both Sections 37(3)(c) and 39(a) use the phrase “any sound recording or visual recording”. Clearly, this works perfectly in the context of, say, radio broadcasts, which comprise only sound. However, it doesn’t work brilliantly in the case of, say, Cable TV which comprises audio-visual broadcasts.
(a) the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research.”
Ideally, to my mind, the phrase “any sound recording or visual recording” should have been “any audio-visual recording, sound recording or visual recording”, or at the very least, have said “any sound recording and/or visual recording”.
The problem with the phrase “any sound recording or visual recording” in the current law appears to be that while a conjoined reading of the two Sections along with the proviso to Section 39A allows for a recording of a broadcast to be made for private use, it does not clearly allow for an audio-visual recording to be made.
With regard to the interpretation of the words ‘and’ and ‘or’ in statutes, the judiciary has held, “Depending on the context ‘or’ may be read as ‘and’ but the Court would not do so unless it is so obliged because ‘or’ does not generally mean ‘and’ and ‘and’ does not generally mean ‘or’.” [R. S. Nayak v. A. R. Antulay; (1984) 2 SCC 183]
“You do sometimes read ‘or’ for ‘and’ and ‘and’ for ‘or’ in a statute. But you do not do it unless you are obliged to do so, because ordinarily, ‘or’ does not mean ‘and’ and vice versa. Such a reading for one for the other is permissible only when the clear import of the language requires it.” [(a) Gopalan v. State of Madras AIR 1950 SC 27; (b) Shambhu Nath Sarkar v. State of West Bengal (1973) 1 SCC 856; (c) Manmohan Das Shah v. Bishun Das AIR 1967 SC 643; (d) Gopinder Singh v. Forest Department of H.P. 1990 Supp SCC 272]
Somehow, it is not inconceivable to imagine it being argued that making a recording of an episode of a TV serial for private use is not allowed by the law because the exception to the broadcast reproduction right in Section 39(a) does not speak of an audio-visual recording; it speaks of ‘sound recordings’ or ‘visual recordings’.
However, the broadcast reproduction right itself ‘defines’ the right and the manner in which it would be deemed to be infringed in exactly the same terms in Section 37(3)(c), and it is difficult to imagine that anyone would argue that the broadcast reproduction right does not apply to audio-visual broadcasts (of, for example, TV programmes), or that making a copy of an audio-visual broadcast which copy does not fall within the scope of Section 39(a) would not be an infringement of the broadcast reproduction right.
As such, and considering the fact that Section 39(a) effectively culls out an exception to Section 37(3)(c), it would be hard to argue that the two Sections should be interpreted in an entirely different manner. Perhaps this is a case in which it would actually have been a good idea to use ‘and/or’ in the phrase “any sound recording or visual recording”, as annoying as it may be.
Alternatively, this is probably a case where the word ‘and’ should be read in place of the word ‘or’ in the phrase “any sound recording or visual recording”. Case law clearly says that this may be done in circumstances where it is necessary to do so, and, in this case, it should be possible to argue that not doing so would, in fact, lead to an anomalous situation. Surely, the legislature must have intended for audio-visual recordings to be included within the scope of the broadcast reproduction right. After all, excluding them would seem to be entirely incongruous with the concept of the broadcast reproduction right itself.
All one can hope is that substituting ‘or’ with ‘and’ does not lead someone to argue saying, “Yes, you can make both audio and visual recordings, but not simultaneously, as in the case of an audio-visual recording.”
Reference:
Case law taken from ‘Interpretation of Statutes’ by Vepa Sarathi [EBC]
Download the complete article: Time-Shifting Audio-Visual Recordings and the Broadcast Reproduction Right.