Delhi High Court
M/S. Phonographic Performance ... vs Hotel Gold Regency & Ors. on 3 November, 2008
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16.10.2008
% Date of decision: 03.11.2008
+ RFA (OS) No.57 of 2008
M/S. PHONOGRAPHIC PERFORMANCE LIMITED ...APPELLANT
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Pragyan Sharma,
Ms. Kanika Mehra & Mr. Mohit,
Advocates.
Versus
M/S. LIZARD LOUNGE & ORS. ...RESPONDENTS
Through: Mr. K.K. Sharma, Advocate
for Respondents 4 & 9.
Ms. Pratibha M. Singh &
Mr. Sudeep Chatterjee,
Advocates for Respondents 7, 12
& 14.
Ms. Bimla Sharma, Advocate for
Respondents 11 & 15.
Ms. Nidhi Lal, Advocate for
Respondent No.14.
+ RFA (OS) No.58 of 2008
M/S. PHONOGRAPHIC PERFORMANCE LIMITED ...APPELLANT
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Pragyan Sharma,
Ms. Kanika Mehra & Mr. Mohit,
Advocates.
Versus
HOTEL GOLD REGENCY & ORS. ...RESPONDENTS
Through: Mr. Neeraj Malhotra &
Mr. Sohit Chaudhary, Advocates
for Respondent No.1.
Mr. K.K. Sharma, Advocate
for Respondents 2 & 3.
Ms. Pratibha M. Singh &
Mr. Sudeep Chatterjee,
Advocates for Respondent No.7.
Ms. Bimla Sharma, Advocate for
Respondents 10.
Mr. Dhruv Anand, Advocate for
Respondent No.11.
RFA(OS) No.57 of 2008 & RFA (OS) No.58 of 2008 Page 1 of 19
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J.
1. The rights of a Copyright Society to institute a suit in its
own name for infringement of Copyright has given rise to
these Appeals. In terms of the impugned
judgements/orders, the applications filed by the
respondents (defendants in the suit) under Order 7 Rule 11
of the Code of Civil Procedure, 1908 (hereinafter referred to
as the said Code) have been allowed and the plaint has
been rejected.
2. The appellant is a company duly incorporated and
registered under the provisions of the Companies Act,
1956. It has been registered as a Copyright Society under
Section 33 of the Copyright Act, 1957 (hereinafter referred
to as the said Act) and a certificate to that effect has been
issued by the Registrar of Copyrights. The various owners
of Copyrights in different sound recordings of recorded
music entered into agreements with the appellant enabling
the appellant to administer their rights by issuance of
licenses in respect thereof. The agreements give various
rights to the appellant as a licensee. The respondents, on
the other hand are hotels, lounges, bars & restaurants who
are alleged to be playing the sound recordings for which
the owners of the Copyrights have entered into License
Agreements with the appellant. The respondents have
been playing the said music without any such license from
the appellant and thus, a case of infringement of Copyright
had been pleaded. The appeals arise from two suits filed
by the appellant seeking injunctions against infringement of
Copyright in the sound recordings as also for recovery of
money for unauthorisedly playing the sound recordings and
thus, communicating the same to the public in different
premises of the respondents without any license.
3. It is the case of the respondents that such a suit cannot be
maintained by the appellant and if at all any grievance
arose the same could be agitated only by the owners of the
Copyrights.
4. In order to appreciate the controversy, it is necessary to
consider some of the relevant provisions of the said Act.
Chapter VII was substituted by Act 38 of 1994. It consists
of Section 33 to Section 36A. Section 33 of the said Act
deals with registration of Copyright Society. Sub-section 3
of Section 33 of the said Act confers the power on the
Central Government to register such association of persons
as Copyright Society subject to the conditions as may be
prescribed. The relevant provisions are as under:
"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 this
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 a performing rights society
functioning in accordance with the provisions of
Section 33 on the date immediately before the
coming into force of the Copyright (Amendment) Act,
1994 shall be deemed to be a copyright society for
the purposes of this Chapter and every such society
shall get itself registered within a period one year
from the date of commencement of the Copyright
(Amendment) Act, 1994.
(2) Any association of persons which fulfils such
conditions as may be prescribed may apply for
permission to do the business specified in sub
section (1) to the Registrar of Copyrights who shall
submit the application to the Central Government.
(3) The Central Government may, having regard to
the interest of the authors and other owner of rights
under this Act, the interest and convenience of the
public and in particular of the groups of persons who
are most likely to seek licences in applicants, register
such association of persons as a copyright society to
such conditions as may be prescribed.
Provided that the Central Government shall not
ordinarily register more than one copyright society to
do business in respect of the same class of works.
(4) The Central Government may, if it is satisfied that
a copyright society is being managed in a manner
detrimental to the interest of the owners of rights
concerned, cancel the registration of such society
after such inquiry as may be prescribed.
(5) If the Central Government is of the opinion that in
the interest of the owners of rights concerned, it is
necessary so to do, it may, by order, suspend the
registration of such society pending inquiry for such
period not exceeding one year as may be specified in
such order under sub section (4) and that
Government shall appoint and administrator to
discharge the functions of the copyright society."
5. Section 34 of the said Act authorizes the administration of
rights of an owner by such a registered Copyright Society.
Section 34 of the said Act reads as under:
"34. Administration of rights of owner by
copyright society - (1) Subject to such conditions
as may be prescribed,-
(a), a copyright society may accept from an owner of
rights exclusive authorisation to administer any right
in any work by issue of licences or collection of
licence fees or both, and
(b) an owner of rights shall have the right to
withdraw such authorisation without prejudice to the
rights of the copyright society under any contract.
(2) It shall be competent for a copyright society ot
enter into agreement with any foreign society or
organisation administering rights corresponding to
rights under this Act, to entrust to such foreign
society or organisation the administration in any
foreign country of rights administered by the said
copyright society in India, or for administering in
India the rights administered in a foreign society or
organisation the administration in any foreign
country of rights administered by the said copyright
society in India, or for administering in India the
rights administered in a foreign country by such
foreign society or organisation.
Provided that no such society or organisation shall
permit any discrimination in regard to the terms of
licence or the distribution of fees collected between
rights in Indian and other works.
(3) Subject to such conditions as may be prescribed,
a copyright society may -
(i) Issue licences under Section 30 in respect of any
rights under this Act,
(ii) Collect fees in pursuance of such licences,
(iii) Distribute such fees among owners of rights after
making deductions for its own expenses,
(iv) Perform any other functions consistent with the
provisions of Section 35."
6. It is, thus, apparent from a reading of the aforesaid
provisions that the Copyright Society can accept from the
owners of the Copyrights the authorization to administer
such rights and issue licenses and collect fee in pursuance
to such licenses. Thus, such Copyright Societies step into
the shoes of the Copyright owners and that is why a
reference has been made to the provisions of Section 30 of
the said Act, which reads as under:
"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 licence in
writing signed 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."
7. The rights of a Copyright Society are not unfettered and
thus, Section 35 of the said Act provides for control over the
Copyright Society by the owners of the rights. Section 35 of
the said Act reads as under:
"35. Control over the copyright society by the
owner of rights - (1) Every copyright society shall
be subject to the collective control of the owners of
rights under this Act whose rights it administers (not
being owners of rights under this Act administered by
a foreign society or organisation referred to in sub
section (2) of Section 34 and shall, in such manner as
may be prescribed,-
(a) Obtain the approval of such owners of rights for
its procedure of collection and distribution of fees.
(b) Obtain their approval for the utilisation of any
amounts collected as fees for any purposes other
than distribution to the owner of rights, and
(c) Provide to such owners regular, full and detailed
information concerning all its activities, in relation to
the administration of their rights.
(2) All fees distributed among the owners of rights
shall, as far as may be, be distributed in proportion
to the actual use of their works."
8. It may be noted at this stage that the case of the
respondents is that in terms of the aforesaid provisions, the
Copyright Society has a non-exclusive right. Such plea is
based on the first proviso to Section 33, Section 34 (1)(b) &
Section 35 (1) of the said Act.
9. The respondents seek to rely upon the provisions contained
in Chapter XII of the said Act dealing with the civil remedies
and the provisions relied upon are as under:
"54. Definition - For the purposes of this Chapter,
unless the context otherwise requires, the
expression, "owner of copyright" shall include-
(a) An exclusive licensee :
(b) In the case of an anonymous or pseudonymous
literary, dramatic, musical or artistic work, the
publisher of the work, until the identity of the author
or, in the case of an anonymous work of joint
authorship, or a work of joint authorship published
under names all of which are pseudonyms, the
identity of any of the authors, is disclose publicly by
the author and the publisher or is otherwise
established to the satisfaction of the Copyright Board
by that author or his legal representatives.
55. Civil remedies for infringement of copyright
- (1) Where copyright is any work has been infringed,
the owner of the copyright shall, except as otherwise
provided by this Act, be entitled to all such remedies
by way of injunction, damages, accounts and
otherwise as are or may be conferred by law for the
infringement of a right.
Provided that if the defendant proves that at the date
of the infringement he was not aware and had no
reasonable ground for believing that copyright
subsisted in the work, the Plaintiff shall not be
entitled to any remedy other than an injunction in
respect of the infringement and a decree for the
whole or part of the profits made by the defendant
by the sale of the infringing copies as the court may
in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical
or artistic work, a name purporting to be that of the
author or the publisher, as the case may be, appears
on copies of the work as published, or, in the case of
an artistic work, appeared on the work when it was
made, the person whose name so appears or
appeared shall, in any proceeding in respect of
infringement of copyright in such work, be presumed,
unless the contrary is provided, to be the author or
the publisher of the work, as the case may be.
(3) The costs of all parties in any proceeding in
respect of the infringement of copyright shall be in
the discretion of the court."
.... .... .... .... .... .... .... .... ....
"61. Owner of copyright to be party to the
proceeding - (1) In every civil suit or other
proceeding regarding infringement of copyright
instituted by an exclusive licensee, the owner of the
copyright shall, unless the court otherwise directs, be
made a defendant and where such owner is made a
defendant, he shall have the right to dispute the
claim of the exclusive licensee.
(2) Where any civil suit or other proceeding
regarding infringement of copyright instituted by an
exclusive licensee is successful, no fresh suit or other
proceeding in respect of the same cause of action
shall lie at the instance of the owner of the
copyright."
10. It is, thus, the plea of the respondents that the expression
"owner of Copyright" includes an exclusive licensee as
distinct from a non-exclusive licensee as in the case of a
Copyright Society. Thus, when Section 55 confers the right
on the owner of the Copyright to seek relief by way of
injunction, damages, accounts and otherwise against
infringement, only an exclusive licensee would be entitled
to step into the shoes of the owner of Copyright. This
aspect is further explained by reference to Section 61 of the
said Act that even an exclusive licensee while instituting a
suit is required to make the owner of the Copyright a
defendant unless the court otherwise directs and the owner
would have the right to dispute the claim of the exclusive
licensee.
11. In the impugned order the learned single Judge has framed
two fundamental questions regarding the maintainability of
the suit as under:
"1. Whether, in view of the provisions of sections
33 and 34 of the Copyright Act, 1957, a suit for
infringement of copyright would be maintainable at
the instance of a registered copyright society in the
absence of the owner of the copyright?
2. Whether, in view of the provisions of section 61
of the Copyright Act, 1957, inasmuch as the owner of
the copyright has not been made a party to the
present suit, the same would be liable to be rejected
on the ground of non-impleadment of a necessary
party?"
12. The learned single Judge in respect of the second question
raised has found in favour of the appellant by coming to the
conclusion that the provisions of Section 61 (1) of the said
Act apply to an exclusive licensee and not to a Copyright
Society registered under Section 33 of the said Act. The
appellant being a Copyright Society was held not to be an
exclusive licensee. However, insofar as the maintenance of
a suit for infringement of Copyright was concerned, the
finding is against the appellant.
13. The learned single Judge has discussed the aforesaid
provisions referred to come to the conclusion that these
provisions indicate that the business of issuing or granting
licenses in respect of any work in which Copyright subsists
can only be conducted by a registered Copyright Society
under Section 33 (3) of the said Act while the owner of the
Copyright shall continue to have the right to grant licenses
in respect of his works consistent with his obligations as a
member of a registered Copyright Society. Thus, a
Copyright Society has been held not to have exclusive
license to grant licenses. It is also the view of the learned
single Judge that the object of setting up of the Copyright
Society was to confer the right to collect license fee,
distribute the same amongst the owners after deduction of
expenses of the Copyright Society but the right to institute
an infringement action is a conspicuous by its absence. In
fact, Section 35 of the said Act requires a Copyright Society
to be under the collective control of the owners of the right
and would have to obtain approvals from them for certain
acts. The rights of the Copyright Society have been, thus,
held to be circumscribed by provisions of Section 34 of the
said Act. The provisions of Section 55 of the said Act have
been held to confer the right for seeking a remedy against
infringement only by the owner of Copyright, the
expression "owner of Copyright" having been defined in
Section 54 to include an exclusive licensee. The Copyright
Society not being an exclusive licensee has been held not
to have a right to institute legal proceedings.
14. The learned single Judge has referred to one of the model
agreements executed with the owner of Copyright and the
clause relied upon by the appellant being Clause 2, which
is, once again, reproduced hereinunder:
"2. Enforcements
Ancillary to the rights granted in Clause 1 to the
Collection Company and/or its agents, in case any
instance of any infringement of the Communication
to the Public right of any of the Recordings
hereunder is brought to the notice of the Collection
Company, the Owner hereby authorizes the
Collection Company and/or its duly authorized agents
to do the following:-
(a) swear affidavits, institute, commence or
conduct civil, criminal and/or administrative
proceedings, file complaints, notices, or give
evidence in any court, tribunal or relevant
authority, and appoint solicitors to act for the
purpose of commencing or conducting
proceedings on the Owner's behalf in respect
of such infringing/unauthorized Communication
to the Public, arising out of this Agreement;
(b) compromise, refer to arbitration or otherwise
settle any suit or legal or administrative
proceedings commenced under this
Agreement, consulting where reasonably
necessary with the copyright owner or
exclusive licensee as appropriate;
(c) receive property, damages or costs awarded by
a court, tribunal or other relevant authority, or
as agreed by settlement, in respect of
proceedings commenced under this
Agreement, to the Collection Company's
account for the purpose of contributing
towards the costs of undertaking such further
proceedings; and\
(d) give undertakings to any court, tribunal or
relevant authority as to damages and costs
and in case damages and/or costs are awarded
by a court, tribunal or judicial authority against
the Collection Company in respect of
proceedings, which have been initiated
pursuant to this Agreement, the Owner hereby
agrees to pay to the Collection Company the
Owner's share thereof."
15. The learned single Judge has, however, come to the
conclusion that whatever agreement between the owner of
the Copyright and the Copyright Society and the provisions
made thereunder may provide, only what is permissible
under the said Act would be enforceable. Since it has been
held that the Act does not permit grant of any authorization
by an owner of Copyright to the Copyright Society to sue for
infringement of Copyright and seek injunctions, damages,
accounts or other civil remedies, the suit has been held not
to be maintainable. Such a right is stated to be in the
exclusive domain of the owner of the Copyright or an
exclusive licensee while a Copyright Society is neither.
16. We heard learned counsels for the parties at length and
have examined the submissions advanced before us as also
the impugned judgements of the learned single Judge.
17. We must first note a subsequent development which has
occurred by reason of a pronouncement by the Apex Court
in M/s. Entertainment Network (India) Ltd. Vs. M/s. Super
Cassette Industries Ltd. 2008 (9) SCALE 69. This judgement
was pronounced by the Supreme Court on 16.5.2008, which
is stated to be the last working day. The impugned
judgements were reserved on 19.3.2008 and the
judgements were pronounced on 2.7.2008 immediately on
the reopening after the summer recess. The interregnum
period of time was, thus, small and both the learned
counsels for the parties did not bring this judgement to the
notice of the learned single Judge. The judgement is of
some significance as it deals with the matter in issue.
18. The Supreme Court was ceased with the interpretation of
Section 31 of the said Act. A Copyright Society registered
with the Government of India was administering the
broadcasting rights of the music recordings of its member
companies. The Supreme Court carried out a broad
analysis of the provisions including the provisions relating
to a Copyright Society. It is necessary to refer to the same
in extensio for it succinctly sets out the rights and
obligations of such a Copyright Society.
"73. Chapter VI deals with licence. The statutory
licences are required to be granted having regard to
the various factors stated therein.
74. Section 33 is a special provision which provides
for registration of a copyright society.
75. It may, however, be necessary to consider that
unlike other countries the broadcasting rights by
themselves were introduced in India for the first time
by inserting Section 37 in the year 1994. It is true
that the rights of free-to-air broadcasters have not
been dealt with in a specific legislation unlike some
other jurisdiction. It may, however, be of some
importance to note that Chapter VII deals with
Copyright society, the concept whereof was
incorporated in the Act so as to enable an author to
commercially exploit his intellectual property by a
widespread dispersal in a regulated manner. It for all
intent and purport steps into the shoes of the author.
The society grants license on behalf of the author, it
files litigation on his behalf, both for the purpose of
enforcement as also protection of the enforcement of
his right. It not only pays royalty to the author but is
entitled to distribute the amount collected by it
amongst its members. Section 34 providing for
administration of rights of owners by a copyright
society for all intent and purport creates a virtual
agency so as to enable the society to act on behalf of
the owner. The civil remedies for infringement of
copyright as envisaged under Section 55 of the Act
can also be enforced by the society. The Scheme of
the statute governing the field in other countries is
vast and wide. The jurisdiction of the Tribunal is
indisputably very wide. No such legislative changes
have been made in India presumably because until
recent times, the Copyright in musical work was
owned by a cooperative society, namely, IPRS and
PPL.
76. The third party granting license on a prescribed
fee of a musical work was contemplated under the
Act. As a general rule for administering such
copyrights, there are about 300 radio stations now.
Monopoly in respect of sound recording is, as it
appears from the tariff supplied to us by the
respondent embrace within its field, Pop/Music
Quizzes, Mobile DJ, Jukeboxes, Dance Teachers,
Dance Centre/Studio, Exercise, Amateur Operatic
& Dramatic Societies, Theatrical Productions,
Temporary Camps/Shacks, Banquet Halls,
Background Music- Guest Houses & Lodges, Hotels,
Background Music- Public Houses & Cafes & Non AC
Restaurants, Bankground Music - AC Restaurants,
BARS, Background Music - Shops & Stores Premises,
Background Music - Hairdressing Salons & Beauty
Parlours, Background Music - Clinics, Background
Music - Nursing Homes & Hospitals, Background
Music - Factories & Offices/Banks, Background Music
- Waiting Rooms/Reception Areas, Background Music-
Telephone Music on hold,Puppet/Magic Shows,
Background Music-Theatres, Background Music -
Cinemas, Background Music- Museums & Art
Galleries, Background Music- Ten Pin Bowling
Centres/Bowling Alleys, Background Music-
Amusement & Pleasure Parks, Background Music -
Amusement Arcades, Background Music - Casinos,
Background Music - Gymnasiums, Background Music
- Swimming Pools.
77. The right of the author of a copyright vis-`-vis
the Society, thus,may be exercised in almost all
walks of life from the `Radio Stations' to a small
`Hairdressing Salon'.
78. If the right of an author/society is so pervasive,
is it necessary to construe the provisions under
Section 31 of the Act having regard to the
International Covenants and the laws operating in
the other countries? The answer to the said question
must be rendered in affirmative. Interpretation of a
statute cannot remain static. Different canons and
principles are to be applied having regard to the
purport and object of the Act. What is essential
therefor is to see that the expanding area in which
the copyright will have a role to play is covered.
While India is a signatory to the International
Covenants, the law should have been amended in
terms thereof. 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. Ground realities
would not only depend upon the new situations and
changes in the societal conditions vis-`-vis the use of
sound recording extensively by a large public, but
also keeping in view of the fact that the Government
with its eyes wide open have become a signatory to
International Conventions."
19. The aforesaid observations have also to be appreciated in
the context of the Statement of Objects and Reasons dated
6.5.1992 for amending the said Act where it is clearly
stated that one such object is "to deal more effectively with
the infringement of Copyright and related rights". The
notes on various clauses inter alia state as under:
"Clause 11. - This clause seeks to substitute new
provisions for Chapter VII to make provision for
copyright societies in respect of any kind of right
(and not merely "performer's rights") and to make
adequate general provision for the registration and
management of such societies in the interests both
of authors and of other copyright owners for whom it
would be impracticable or uneconomical to license
the use of their work individually to all users, or to
collect fees from them, and also in the interests of
the general public and particularly of users of rights
who may not conveniently be able to obtain licenses
from individual authors or copyright holders; and
thus to improve the enforcement of copyright with
benefits both to the holders of rights and to the
general public."
20. The Statement of Objects and Reasons, thus, show that the
new provisions of Chapter VII providing for such Copyright
Societies were incorporated with various objectives and one
such objective was to improve the enforcement of
Copyright with benefits both to the holders of the right and
to the general public.
21. The Supreme Court in M/s. Entertainment Network (India)
Ltd. case (supra) has unequivocally observed that for all
intents and purports the Copyright Society steps into the
shoes of the author. Not only that it is further observed:
"the Society grants licenses on behalf of the author, it files
litigation on his behalf, both for the purpose of enforcement
as also protection of enforcement of his rights". Section 34
of the said Act was held to create a virtual agency for all
intents and purports so as to enable the Society to act on
behalf of the owner. The Supreme Court concluded that the
civil remedy for infringement of Copyright as envisaged
under Section 55 of the said Act can also be enforced by
the Society.
22. In our considered view, the matter remains no more res
integra in view of the categorical observations made by the
Apex Court aforesaid and it cannot be said that the
Copyright Society is not entitled to maintain a civil action
for infringement.
23. Learned counsels for the respondents did seek to contend
that these observations were made in the context of the
interpretation of Section 31 of the said Act. We find little
force in this plea for the reason that the Supreme Court has
dealt with the very objective of amendment of Chapter VII
as also the rights conferred on a Copyright Society. We are
unable to accept the plea of the learned counsels for the
respondents that the absence of any discussion about a
Copyright Society not having exclusive rights would make
the observations of the Supreme Court not binding or obiter
in nature.
24. We can also look at the matter in issue from another
perspective. The Copyright Society may not have exclusive
rights inasmuch as the owner continues to simultaneously
have rights to deal with his Copyright in the work.
However, the Statement of Objects and Reasons and the
provisions if read in that context clearly show that both the
mechanism for administration of the Copyrights as also
enforcement thereof was the intent of the legislature while
incorporating/amending the provisions. It is not as if the
enforcement mechanism was to be kept aside and only the
administration and license fee aspects were to be
incorporated. We are also unable to agree with the
conclusion of the learned single Judge that unless the Act
gives such an authorization, the Society would have no
right.
25. It is true that the Act provides for certain things to be done
in a certain manner by the Copyright Society and no doubt
it would have to be done in that manner; however, we
cannot ignore the clauses contained in the agreement
between the Copyright Society and the owner where
specific powers have been conferred to institute all kinds of
legal proceedings. The relevant Clause 2 has already been
extracted above. If we were to accept the reasoning of the
learned single Judge, it would imply that the principles of
agency as contained under the Indian Contract Act, 1872
have to be given a go-bye. The Copyright Society is an
agent appointed under the agreement by the owner of the
Copyright and specific powers have been conferred on the
agent to institute legal proceedings. The said Act does not
contain any provision prohibiting the institution of legal
proceedings in derogation to the general law of agency.
The author being the first owner of Copyright under Section
17 of the said Act can certainly appoint an agent to institute
legal proceedings.
26. Learned counsel for the appellant has also drawn our
attention to the Commentary of Copinger and Skone James
on Copyright (Fifteenth Edition) where following
observations have been made under the heading
"Rationale for Collecting Societies":
"1. INTRODUCTION
A. RATIONAL FOR COLLECTING SOCIETIES
.... .... .... .... .... .... .... .... ....
Licenses are granted in return for royalties or fees
and the collecting societies collect and distribute the
resulting remuneration among the copyright owners.
Such organizations either acquire copyrights from
their members by assignment or act as agents or
licensees on behalf of their members to enforce
copyright. Collecting societies are also empowered
to monitor the uses made of the works to ensure that
unauthorized uses of the works controlled by them
do not take place. Where necessary, they enforce
the rights of their members by legal action for
infringement. For example, in the field of music, no
individual composer, producer of a sound recording
or other copyright owner has the resources, in
practice, to secure adequate protection for his work
or deal with the very large number of broadcasters
and the many thousands of different public
performance users in thousands of different places
wishing to exploit such works."
27. We have no doubt in our mind that the very object of
providing for such a Copyright Society was not only to
administer the license regime and recovery of fee in a
better manner but also to prosecute claims for
infringement. To hold otherwise would be a half job done.
Individual owners of Copyright find it difficult to enter into
multiple license agreements and recover fee or enforce
their rights. The creation of a Copyright Society is to serve
all the three objectives without denuding the author of its
own individual rights. The present cases are not one where
the owner is contradicting the rights of the Copyright
Society. In any case they are all aspects/matters of trial
and the plaint could not have been thrown out at the
threshold on the aforesaid ground.
28. We are, however, not required to delve into any further
detail as the authoritative pronouncement of the Apex
Court in M/s. Entertainment Network (India) Ltd. case
(supra) sets that controversy to rest.
29. The appeals are accordingly allowed, impugned judgements
set aside with the direction to restore the suits to their
original numbers to be proceeded with in accordance with
law.
30. The parties are left to bear their own costs.
31. Parties to appear before the learned single Judge for further
proceedings on 24.11.2008.
SANJAY KISHAN KAUL, J.
NOVEMBER 03 2008 MOOL CHAND GARG, J.
b'nesh
