The main legal point established in the judgment is that the Copyright Board possesses the power to pass interim orders in proceedings under Section 31 of the Copyright Act, 1957, and it must consider a prima facie case, balance of convenience, and irreparable loss before granting interim relief.

Vikramajit Sen, J.

1. This Appeal, which has been argued in minute detail and with great vehemence by learned Counsel for the adversaries, raises a neat legal nodus, viz. whether the Copyright Board possesses power to pass interim orders in proceedings under Section 31 of the Copyright Act, 1957 ("Act" for short). Section 31 provides for the grant of a compulsory licence in respect of copyrighted works. The contention of Mr. Akhil Sibal, learned Counsel for the Respondent, is that interim orders or arrangements are not postulated by the said provision of the Act, whereas Mr. C.A. Sundaram and Mr. Sandeep Sethi, learned Senior Counsel for the Appellant, contend to the contrary. By the impugned Order, the Copyright Board has come to the conclusion that it was powerless to grant any interim relief, that is, permit the exploitation of a copyrighted work on appropriate terms, during the pendency of proceedings under Section 31 of the Act. If the answer to the first question is that the Board is competent to pass interim orders, then we would have to consider, contemplate and formulate the terms on which interim relief can be granted.

2. Succinctly stated, the Appellant, Music Broadcast Pvt. Ltd., had entered into a Memorandum of Understanding (MoU) with Super Cassette Industries Limited (SCIL), the owner of the copyright in the sound recording as well as literary work in various popular music. The Respondent, therefore, is the holder of rights which may otherwise fall within the repository and ownership of the Phonographic Performance Limited with regard to sound recording and Indian Performance Rights" Society (IPRS) in respect of music and literary works. The grant of licences to private FM Channels, such as the Appellant before us, has greatly enhanced the financial significance of both these rights, leading to an exponential explosion of litigation.

3. The parties before us have executed an MoU, inter alia, agreeing to pay/receive royalty at the specified rates on a "per needle hour" computation. For the purposes of answering the controversy before us, we think it necessary to reproduce the following clause in the MoU:

9. The Parties to this MOU undertake that if any Court/Copyright Board whether in any interim or final order where both SCIL and MBPL are parties, stipulates a rate different from what is agreed by the parties as contained in Annexure A, then MBPL shall make payments to SCIL at such modified rate so stipulated by the Court/Copyright Board, with effect from the date so stipulated in such order. If the rate at which the Fees as per clauses 2 and 3 above is modified or revised pursuant to any provision of this MOU, then the parties may adjust its rights and obligations and payment/refund/adjustment of License fee shall be made accordingly.

4. It appears that in the year 2001, the Appellant had approached the Copyright Board, alleging that the royalty claimed by the Respondent was unreasonable. The Copyright Board, by Order dated 19.11.2002, granted a compulsory licence to the Appellant/Applicant at ' 661/- per needle hour. The Respondent Company owns and controls the largest repertoire of contemporary Hindi songs and licenses its works for broadcast through radio stations, independent of any registered copyright society. This adjudication was challenged in the Bombay High Court by the adversaries before us. The Orders of the Copyright Board were set aside and the matter was remanded back to the Copyright Board for a fresh adjudication of the amount of royalty.

5. In separate proceedings, in which the Respondent was the Defendant, the Copyright Board, in terms of its Order dated 20.10.2003, had directed the Registrar of Copyrights to grant a compulsory licence under Section 31(1)(b) of the Act to Entertainment Networks (India) Limited [ENIL]. That decision was assailed before the Division Bench of the Delhi High Court in Super Cassette Industries Ltd. v. Entertainment Network (India) Ltd. AIR 2004 Delhi 326 which s