IMPORTANT POINT
Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.

Headnote:(a) Copyright Act, 1957 – Section 17 – An artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property – So highly is it prized by all civilized nations that it is thought worthy of protection by national laws and international conventions relating to copyright. (Para 64)
        (1984) 2 SCC 534 – Relied upon.
        (b) Copyright Act, 1957 – Section 31 – The right of an author/society is highly pervasive, from the ‘Radio Stations’ to a small ‘Hairdressing Salon’ – Therefore it is necessary to construe the provisions u/s 31 having regard to the International Covenants and the laws operating in the other countries. (Para 76)
        (c) Interpretation of Statutes – Copyright Act, 1957 – Interpretation of a statute cannot remain static – India being signatory to International conventions the law ought to have been amended – Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated – If the ground realities changed, the interpretation should also change. (Para 76)
        (d) Interpretation of Statutes – International law can be made use of in various ways in interpreting domestic/ municipal laws – There would be no inconsistency in the use of international norms to the domestic legislation, if by reason thereof the tenor of domestic law is not breached – In case of any such inconsistency, the domestic legislation should prevail – However, use of the international law could not mean restricting the jurisdiction of the Indian High Courts to interpret the domestic legislation strictly according to the judge made law. (Paras 78, 79 and 86)
        (1973) 4 SCC 225; (1980) 2 SCC 768; (2003)7 SCC 589 : 2003(6) Supreme 439; (1984)1 SCC 222; (1986)3 SCC 385; (1990)1 SCC 109; (2004) 9 SCC 512 : 2004(1) Supreme 365; 1993 Supp. (2) SCC 433; (2004)10 SCC201; (2005)3 SCC 551: 2005(1) Supreme 775; (2006) 11 SCC 245; 2006 (7) SCALE 587; (2004) 11 SCC 26: 2004(4) Supreme 537; (2008)3 SCC 1 – Relied upon.
        (e) Interpretation of Statutes – Use of International Conventions – If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized – Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible – Furthermore, where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions. (Paras 88, 89 and 91)
        (1997)3 SCC 433: 1997(2) Supreme 429; (2003)6 SCC 611: 2003(5) Supreme 229; (1996)5 SCC 125: 1996(4) Supreme 192; (1990)1 SCC 568; (1996)2 SCC 549; (1996)8 SCC 525: 1996(2) Supreme 720; (1999)1 SCC 759: 1999(1) Supreme 110; (2003)6 SCC 1: 2003(4) Supreme 1; 2003 (10) SCALE 202; 2003 (10) SCALE 1 – Relied upon.
        (f) Copyright Act, 1957 – Section 14 – The owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses – But this right is not absolute – It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted. (Para 105)
        (g) Copyright Act, 1957 – Section 31 – The word ‘or’ used between clause (i) and (ii) must be read disjunctively and not conjunctively. (Para 119)
        (h) Words and Phrases – Refusal – When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary it may amount to a refusal on the part of the owner of a copyright. (Para 122)
        (i) Copyright Act, 1957 – Section 31 – Publication and republication of a work in general may be different from communication of a work recording in sound recording – If voluntary licenses has been provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act. (Para 127)
        (j) Copyright Act, 1957 – Section 31(2) – It is not correct to contend that having regard to the provisions of sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. (Para 129)
        (k) Copyright Act, 1957 – Section 16 r/w Article 300A, Constitution of India – An owner of a copyright has a right akin to the right of property – It is also a human right – Any right has now to be read consonance with human rights – However, right to property is not a fundamental right and will be subject to reasonable restrictions. (Paras 134 and 137)
        2005 EWHC 817(Ch.); (2002) 3 ALL ER 865; (2007) 6 SCC 59; [2006] EWCA Civ 242 – Relied upon.
        (l) Copyright Ac, 1957 – Section 31 – Withholding of a property from the public to which the public should have access may amount to unfair trade practice – An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large. (Para 140)
        1959 Supp (2) SCR 406; AIR 2008 SC 261 – Relied upon.
        (m) Words and Phrases – Royalty and Compensation – In the context of the Copyright Act, royalty is a genus and compensation is a species – Where a licence has to be granted, it has to be for a period – A ‘compensation’ may be held to be payable on a periodical basis and must be directed to be paid with certain other terms and conditions which may be imposed. (Para 143)
        (n) Interpretation of Statutes – Reference to the marginal notes to a provision is permissible for construction of a provision – It is also however well settled that where the statute is clear, marginal note may not have any role to play. (Para 144)
        (1981) 4 SCC 173; 1959 Supp. (2) SCR 798 – Relied upon.
        (o) Copyright Act, 1957 – Section 31(2) – A literal reading of the provision would defeat the purport and object of the Act and therefore purposive construction may be resorted to – Accordingly, it would not mean that only one person is entitled to have a licence for all time to come or for an indefinite term even in perpetuity – A licence may be granted for a limited period – And thereafter another person can make such an application. (Para 148)
        2007 (14) SCALE 556: (2008) 3 SCC 279; (2007) 6 SCC 81; (2007) 7 SCC 56 – Relied upon.
        (p) Copyright Act, 1957 – Section 31(2) – On a purposive construction, it must be held that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof. (Paras 153 and 155)
        1993 Supp. (1) SCC 730 – Relied upon.
        (q) Copyright Act, 1957 – Section 31 – Principles of evaluation – One principle may be reasonable for one situation but may not be so for another – It has to be determined on merits of each case. (Para 156)
       Facts of the case :
        1. First respondent is one of the leading music companies engaged in the production and/or acquisition of rights in sound recordings. It has copyright over a series of cassettes and CDs commonly known as T-series. It has copyrights in cinematographic films and sound recordings. Appellant M/s. Entertainment Network (India) Ltd. (ENIL) broadcasts under the brand name “Radio Mirchi”. It is a leading FM radio broadcaster.
        2. Disputes and differences arose between Bennett Coleman & Co. Ltd., the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network.
        3. Appellant is a company which holds licence for running FM radio stations in various cities across India. Appellant herein was awarded the license for running a private FM broadcasting service in 12 cities on payment of a hefty license fee. Respondent, however, was not a member of the appellant - society. It was found to have been using the broadcasting songs in respect whereof Super Cassettes Industry Limited (SCIL) had an ownership over the copyright. It was a member of the copyright society being Phonographic Performance Ltd. (PPL).
        4. Indisputably, there had been an infringement of the copyright of Super Cassettes. Allegedly, appellant was under the belief that it was a part of PPL and whereupon the music belonging to the repertoire of SCIL was played during the period from October 2001 to May, 2002 in its stations at Indore and Ahmedabad. Royalty was paid by ENIL to PPL at the rate of Rs.400/- per needle hour pursuant to the order passed by the Calcutta High Court dated 28.9.2001. Attempts were made to obtain a licence from SCIL when ENIL came to know that it was not a part of the copyright society PPL. Negotiations failed between the parties.
        5. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise.
       Findings of the Court :
        Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.
        The Copyright Board adopted a wrong procedure.
       Result : Appeals allowed. Matter remitted back to Copyright Board.

JUDGMENT

S.B. Sinha, J. —

Leave granted.

INTRODUCTION

2. Interpretation of Section 31 of the Copyright Act, 1957 (for the sake of brevity, hereinafter referred to as, ‘the Act’) is involved in these appeals.

3. We may notice the factual matrix of the matter.

BACKGROUND FACTS

First respondent is one of the leading music companies engaged in the production and/or acquisition of rights in sound recordings. It has copyright over a series of cassettes and CDs commonly known as T-series. It has copyrights in cinematographic films and sound recordings. Appellant M/s. Entertainment Network (India) Ltd. (ENIL) broadcasts under the brand name “Radio Mirchi”. It is a leading FM radio broadcaster. Disputes and differences arose between Bennett Coleman & Co. Ltd., the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network. Appellant is a company which holds licence for running FM radio stations in various cities across India.

4. Free-to-Air private FM Radio Broadcasting is a recent phenomenon in India and the basic content of any radio station, presently, is only sound recordings, i.e., songs.

5. Disputes and differences having arisen between the parties in regard to broadcast of the songs in respect whereof the first respondent holds a copyright as owner thereof or by reason of purchase of the copyright belonging to others.

BACKGROUND FACTS

6. The radio industry was revolutionized by the Government of India as in October 1999 for its first phase of granting license for private FM, broadcasting channel, tenders were invited.

7. Appellant herein was awarded the license for running a private FM broadcasting service in 12 cities on payment of a hefty license fee. Several other bidders were also granted licenses. Respondent, however, was not a member of the appellant - society. It was found to have been using the broadcasting songs in respect whereof Super Cassettes Industry Limited (SCIL) had an ownership over the copyright. It was a member of the copyright society being Phonographic Performance Ltd. (PPL). Indisputably, there had been an infringement of the copyright of Super Cassettes. Allegedly, appellant was under the belief that it was a part of PPL and whereupon the music belonging to the repertoire of SCIL was played during the period from October 2001 to May, 2002 in its stations at Indore and Ahmedabad. Royalty was paid by ENIL to PPL at the rate of Rs.400/- per needle hour pursuant to the order passed by the Calcutta High Court dated 28.9.2001. Attempts were made to obtain a licence from SCIL when ENIL came to know that it was not a part of the copyright society PPL. Negotiations failed between the parties.

8. A suit was filed before the Delhi High Court for restraining ENIL from playing and broadcasting the music belonging to SCIL on any of the Radio Stations belonging to ENIL.

COMMUNICATIONS BETWEEN THE PARTIES

9. We may notice relevant parts of some communications between the parties. Super Cassettes through its lawyer by a notice dated 21.1.2002, in view of the said infringement of his copyright called upon ENIL, inter alia, to give an undertaking that it shall not broadcast the sound records of Super Cassettes through its Radio Station without a valid licence and payment of royalty (the terms of which were mutually arrived at). Super Cassettes again by a notice dated 2.4.2002 through its Advocate called upon ENIL to: “a) immediately desist from broadcasting Sound Recording(s) of Super Cassettes clients through its Radio Station; b) Tender an unconditional apology for the illegal broadcast of Sound Recordings of Super Cassettes clients in past; c) give an undertaking that it shall not broadcast the Sound Recordings of Super Cassettes clients through its Radio Station without a valid licence and payment of royalty (the terms of which can be mutually arrived at), and d) pay a sum of Rs. 50,00,000

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Judicial Analysis

gpt-4

2008 Supreme(SC) 932

IMPORTANT POINT Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.

Cases Referred (32)

Judicial Analysis

IMPORTANT POINT
Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.