Court allows continuation of previously established statutory licensing rates for sound recordings during litigation, emphasizing the necessity of maintaining status quo pending final rate determination.

JUDGMENT

[VIA VIDEO CONFERENCING]

Sanjeev Narula, J. (Oral):

I.A. 11026/2021 in C.O.(COMM.IPD-CR) 3/2021,
I.A. 11349/2021 in C.O.(COMM.IPD-CR) 6/2021,
I.A. 11361/2021 in C.O.(COMM.IPD-CR) 7/2021,
I.A. 11364/2021 in C.O.(COMM.IPD-CR) 8/2021,
I.A. 11367/2021 in C.O.(COMM.IPD-CR) 9/2021,
I.A. 11370/2021 in C.O.(COMM.IPD-CR) 10/2021,
I.A. 11373/2021 in C.O.(COMM.IPD-CR) 11/2021,
I.A. 11384/2021 in C.O.(COMM.IPD-CR) 12/2021,
I.A. 11387/2021 in C.O.(COMM.IPD-CR) 13/2021; (u/S. 151 of the Code of Civil Procedure, 1908, (`CPC') seeking interim relief allowing the Petitioners to continue making payments at the license fee rates fixed by the IPAB vide order dated 31st December 2020, pending determination of license fee rate in the present proceedings), and
I.A. 11409/2021 in C.O.(COMM.IPD-CR) 14/2021 (u/S. 151 of the CPC seeking interim order for maintaining status quo in respect of the payment of royalty for broadcast of sound recordings by the Petitioner as per the rates determined by IPAB Order dated 31st December 2020 till revised statutory licence royalty rate for broadcast of sound recordings through radio are determined)

CONTENTS

BRIEF FACTS.

INTERIM RELIEF SOUGHT

PETITIONERS' CONTENTIONS

A. EXISTENCE OF PRIMA FACIE CASE

B. BALANCE OF CONVENIENCE LIES IN FAVOUR OF PETITIONERS

C. IRREPARABLE INJURY WILL BE CAUSED IF RELIEF NOT GRANTED

D. LICENSE TO BE APPLICABLE TO "FUTURE WORKS"AS WELL

RESPONDENTS' CONTENTIONS

A. DELIBERATE DELAY BY THE PETITIONER

B. NO PRIMA FACIE CASE

C. BALANCE OF CONVENIENCE -INTERIM ORDER WILL PREJUDICE THE RIGHTS AND INTERESTS OF THE RESPONDENTS

D. ENIL-2021 IS PER INCURIAM AND NOT BINDING

E. THE IPAB ORDER IS NOT SEVERABLE, AND THUS, IF EXTENDED, MUST BE IN ENTIRETY.

ANALYSIS AND FINDINGS

A. WHETHER DELAY BY THE PETITIONERS DISENTITLES THEM TO THE PRAYER SOUGHT?

B. WHAT IS THE SCOPE OF PROCEEDINGS UNDER SECTION 31D OF THE COPYRIGHT ACT, 1957?

C. WHETHER THE POSITION IN LAW REMAINS UNCHANGED AFTER THE 2012 AMENDMENT? IF SO, WHAT IS ITS EFFECT ON SECTION 31D?

D. WHETHER THE COURT HAS THE POWER TO FIX INTERIM RATES UNDER SECTION 31D?

E. WHETHER THE IPAB ORDERS SETS OUT THE COMPOSITE RATES FOR BOTH SOUND RECORDINGS AND UNDERLYING WORKS?

F. WHETHER THE IPAB ORDER SHOULD BE EXTENDED IN ENTIRETY OR WITH ALTERATION?

G. WHETHER THE DIRECTIONS GIVEN HEREINAFTER, SHALL APPLY AD INTERIM OR TILL THE STAGE OF FINAL DETERMINATION FOR THE PRESENT PROCEEDINGS?

RELIEF

BRIEF FACTS

1. The captioned petitions have been filed by certain private radio broadcasting organizations, seeking revision of statutory license rate under Section 31D of the Copyright Act, 1957 [hereinafter referred to as `the Act'], read with Rule 31(9) of the Copyright Rules, 2013 [hereinafter referred to as `the Rules'] for broadcasting sound recordings, which are owned and/or exclusively controlled by the Respondents herein, via the Petitioner's radio stations.

2. Since all the petitions seek nearly identical reliefs and narrate similar facts, for the sake of brevity and convenience, facts of C.O. (COMM. IPDCR) 3/2021 are being noted specifically, unless otherwise specified.

3. The facts leading to the present lis are as follows:

3.1. All the Petitioners are radio broadcasters.¹ The Respondents and Impleaders can be broadly classified into: (i) music recording labels,² and (ii) copyright societies,³ comprising of members who are music composers, lyricists, and other such creators/authors of musical and/or literary works embodied in the sound recordings.

3.2. The license fee rates which are currently in force, payable by the Petitioners for exercise of their right under Section 31D, were prescribed by the erstwhile Intellectual Property Appellate Board [hereinafter referred to as `IPAB'] effective from 1st October 2020, vide a common order dated 31st December, 2020 [hereinafter referred to as `the IPAB Order'], pursuant to a petition filed by them under Section 31D of the Act.

3.3. Presently, the Petitioners are making payment for utilization