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2011 Supreme(P&H) 1398
2011(4) LAW HERALD (P&H) 3821
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
Civil Writ Petition No.7772 of 2011 (O&M)
M/s Phonographic Performance Limited
v.
State of Punjab & Ors.
{Decided on 27/07/2011}
For the Petitioner:Mr. Gaurav Chopra, Advocate, with Mr. Anurag Chopra, Advocate.
For the Respondents 1 to 3:Mr. Arvind Mittal, Additional Advocate General, Punjab.
For the Respondent No.4:Mr. G.S.Punia, Advocate.
Headnote:Copyrights--Sound Recording--Performance in marriage parties by DJ’s--A DJ that plays a CD or mixes sounds in his consoles reproduces from the already existing devices which have captured that music or sound or talk--That is enough to say that he reproduces a sound recording and to that extent to be said to have infringed the right, if he does not hold a licence.
(A) Copyrights Act, 1957, Ss.63, 64 & 70--Criminal and Civil remedy--Section 64 of the Copyright Act empowers the police to seize infringing copies and Section 66 empowers the Court to try any offence under the Act to direct that all copies of the work or of plays in the possession of the offenders to be delivered up to the owner of the copyright--Section 70 gives the power to a Judicial Magistrate Ist Class to try the offence under the Act—Complainant shall be entitled to enforce the rights secured under the Act, both through civil law as well as by setting criminal law in motion. (Para 11)
(B) Copyrights Act, 1957, Ss.51, 53, 62 & 70--Sound Recordings--Playing of, by DJ, at functions--Complaint by copyright society--Allegation of filing of criminal complaints without proper verifications--State Govt. issued instructions, that copyright society should first approach the Government, ascertain the authority of alleged infringement and then only Police should register the case--Till, further instructions by State Govt. no action is to be taken against DJ’s association--Instructions quashed--Held; The police machinery is bound to enforce the law, without requiring the petitioner to approach the government for further directions, for every copyright violation when public performer in any event (that would include a marriage ceremony) reproduces a sound recording without licence from the copyrights society. (Para 12)
(C) Copyrights Act, 1957, Ss.2(ff) & 63--Sound Recording--Performance in marriage parties by DJ’s--Held; A DJ that plays a CD or mixes sounds in his consoles reproduces from the already existing devices which have captured that music or sound or talk--That is enough to say that he reproduces a sound recording and to that extent to be said to have infringed the right, if he does not hold a licence. (Para 7)
(D) Copyrights Act, 1957, S.64--Complaint of infringement of copy rights--Sound Recordings--Locus standi--Difficult to carry all agreement by copy rights, society every where to show its members--Can disseminate the information to anyone demanding information by hosting a website that will contain details of all members of the Company, who are the authors/ owners of the respective copyrights of the sound recording and the list of items with identifiable code numbers or names of recordings so that for all parties concerned. (Para 10)
Mr. K. Kannan, J.: - I. Cause of action for the petition
The petitioner seeks for the relief of issue of writ of certiorari to quash the order/letter dated 13.04.2011 issued by the Additional Director General of Police, who is arrayed as the 3rd respondent in the writ petition. By the impugned order dated 13.04.2011 (Annexure P-8), 3rd respondent has given certain directions to all the District Police chiefs (Police Commissioners, all Senior Superintendents of Police) of Punjab, in response to a complaint from Mr. Dalip Bhanot claiming to be a President of Light Sound & DJ Association, Amritsar (Punjab). The complaint is purported to have been made against the employees of the petitioner-Company pleading for suitable action on the ground that the members of the complainant’s association are being harassed by the petitioner for making false complaints as though their (DJs’) public performances constitute violation of some copyrights claimed by the petitioner-Company. The impugned order records the complaint of the DJ Association that in several cases, criminal actions are being pursued at the instance of the petitioner without appropriate verification whether there had been any violation of copyrights and the 3rd respondent has, therefore, observed as under:
“.....all Police Chiefs (Police Commissioner of Punjab & Senior SSPs of Punjab) will check all such cases on basis of real facts and only then they will lodge FIRs and not under any pressure from PPL. Also all court cases against DJ associations should be reviewed.”
The impugned order contains a second part which is also reproduced hereunder:-
“The compulsion of procuring licenses for DJ by PPL Company is not correct according to rules, as this is the work of Government and till Punjab Government like other states issues any information in this regard the DJ associations cannot be pressurized for any such licenses. Thus PPL is advised to present their side of the case in front of the Government and must wait for any further directions/notifications from the Government. Till then the working of DJ associations should not be interfered with by PPL.”
II The portion of the impugned order that requires judicial review
2. I may state even at the outset that in so far as the letter states that the police will lodge FIRs only after verifying all facts and not under any pressure by the petitioner-Company, there cannot be a cause for any grievance. The whole case must be only examined from the perspective of whether the members of DJ Association would require any licence, for, the letter states that the petitioner should present the case before the Government and must wait for directions, as if to suggest that even if the petitioner lodges a complaint for copyright violation, no action could be initiated till the government signals approbation.
III. A brief survey of the provisions under the Copyrights Act that the petition traverses
3. The petition details the powers which the petitioner enjoys under the Copyright Act by express references to the definitions contained under Section 2 (xx) defining “sound recordings”, Section 2 (ff) defining “communication to the public”, Section 2(y) defining “work”, Section 34 defining “the power to administer the right of owners of the work”, Section 51 defining the circumstances when copyright could be said to be infringed, Section 63 that refers to offences of infringement of copyright or other rights conferred by this Act, and Section 64 that empowers the police to seize infringing copies and the exclusive privilege registered to the registered society to grant any right to sound recordings by license by virtue of Sections 30, 33 and 34 and the compliance that the impugned letter cast of new requirement of having to satisfy the Government and explained the stand in order that the police takes appropriate action even in cases where violation of copyright assured.
IV. The statement in defence and the apprehensions of misuse
4. The State
