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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J
M/s. Leopold Cafe & Stores & Anr. – Plaintiffs /Applicants
Versus
Novex Communications Pvt. Ltd. - Defendants
NOTICE OF MOTION (L) NO. 1451 OF 2014 IN SUIT (L) NO. 603 OF 2014
Decided on: July 17, 2014
Copyright - Grant of Licenses - Copyright Act, 1957, Section 30, Section 33
Fact of the Case:
The controversy centered around whether the Defendant was entitled to grant licenses on behalf of copyright owners under the Copyright Act, 1957.
Finding of the Court:
The court found that the Defendant was not entitled to carry on the business of issuing and granting licenses in its own name, as it did not sufficiently disclose its agency and was in contravention of Section 33 of the Copyright Act, 1957.
Issues: The main issue was whether the Defendant's actions were in compliance with the provisions of the Copyright Act, 1957, specifically Sections 30 and 33.
Ratio Decidendi: The court held that the Defendant's failure to clearly disclose its agency and the issuance of licenses in its own name constituted a contravention of Section 33, and it was not entitled to continue carrying on the business of issuing and granting licenses in the manner it did.
Final Decision: The court granted an injunction restraining the Defendant from carrying on the business of issuing and granting licenses in its own name, but clarified that the Defendant could act as an authorized agent of any copyright holder under Section 30 of the Copyright Act, 1957.
1. By an order dated 26th June 2014 (corrected on 8th July 2014), I granted an ad-interim injunction in terms of prayer clause (b) of the present Notice of Motion.
2. Since then, the Defendant has filed an affidavit in reply and two supporting affidavits on behalf of the Yash Raj Films Private Limited and Shemaroo Entertainment Limited.
3. The controversy between the parties is narrow. The only question is whether the Defendant (“Novex”) is entitled to grant licenses in the fashion that it does on behalf of owners of copyright in various works.
4. At an earlier stage, there was also an issue about the showing of special events such as World Cup soccer broadcasts and other television programs etc. on behalf of the MSM Discovery Pvt. Ltd (“MSMD”) and Big Net Communications. In paragraph 24 of its affidavit in reply Novex says that it is no longer authorised to represent MSMD and Big Net Communications and that it will not, without such authorisation, make any representation on their behalf. This statement is accepted as an undertaking to the Court.
5. The issue that survives is in respect of various sound recordings and the public performance of these. Novex claims that it continues to be an agent on behalf other copyright owners, principally Yash Raj Films Pvt. Ltd. (“YRF”) and Shemaroo Entertainment Limited (“Shemaroo”). Novex claims to be able to collect license fees and grant licenses on behalf of YRF and Shemaroo under Section 30 of the Copyright Act, 1957. That Section reads thus:
30. Licences by owners of copyright.— The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing by him or by his duly authorised agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.
Explanation: Where a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the licence. (Emphasis supplied)
6. Mr. Bhatt, learned senior counsel for Novex, submits that Novex is only authorised as an agent on behalf of owners of copyright (except in those cases where it is itself the holder of the copyright). This, he submits, Novex is entitled to do, for Section 30 says that every owner of copyright in any existing work can grant any interest in the right by a written license either directly or through a duly authorised agent. Novex is, he submits, such a duly authorised agent. Novex is not, in contrast, a society of the kind contemplated under Section 33 of the Copyright Act. The prohibition in Section 33(1) of the Act therefore does not apply to Novex. Sections 33(1) and (3) reads as thus:
33. Registration of copyright society.—
(1) No person or association of persons shall, after coming into force of the copyright (Amendment) Act, 1994 commence or, carry on the business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3):
Provided that an owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society:
Provided further that the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act;
Provided also that a performing rights society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the
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