Delhi High Court
The Federation Of Hotels & ... vs Union Of India & Ors. on 7 April, 2011
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.452/1999, WP(C) No.914-1040/2009
& CM No.17009/2008
The Federation of Hotels &
Restaurants Association of India ...Appellant through
Mr. Lalit Bhasin, Ms. Ratna
Dwivedi Dhingra, Mr. Sanjay
Gupta, Mr. Ranjan Kumar &
Mr. Moazzam Khan, Advs.
versus
Union of India & Ors. ....Respondent through
Mr. P.V. Kapur, Sr. Adv. with
Mr. Himanshu Bagai &
Mr. Aman Anand, Advs. for
Respondent No.2
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Pragyan Sharma &
Mr. Rupesh Gupta, Advs.
for Respondent No.3/
Phonographic Performance
WITH
WP(C) No.23787-89/2005, WP(C) No.3870-3995/2009 & CM
Nos.15793/2005, 15893/2006, 17003/2008, 17424/2008 &
161/2010, 154/2010 & CM No.4243/2010
The Federation of Hotels &
Restaurants Association of India ...Appellant through
Mr. Lalit Bhasin, Ms. Ratna
Dwivedi Dhingra, Mr. Sanjay
Gupta, Mr. Ranjan Kumar &
Mr. Moazzam Khan, Advs.
versus
Union of India & Ors. ....Respondent through
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Pragyan Sharma &
WP(C)452.1999 Page 1 of 30
Mr. Rupesh Gupta, Advs.
for Respondent No.3/
Phonographic Performance
% Date of Hearing : March 04, 2011
Date of Decision : April 07, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
(1) These Civil Writ Petitions have been filed under Article
226 of the Constitution of India for the issuance of an
appropriate writ striking down Sections 2(ff), 13, 33(3), 34(3) of
the Copyright Act, 1957 as these provisions are perceived by the
Petitioners as being violative of Article 14 and 19(1)(g) of the
Constitution of India. In WP(C) No.452/1999 & WP(C) No.914-
1040/2009, the Indian Performing Rights Society (hereinafter
referred as IPRS) stands impleaded as Respondent No.2,
Phonographic Performance Ltd. (hereinafter referred as PPL) as
Respondent No.3 and the Registrar of Copyrights as Respondent
No.4. In WP(C) No.23787-89/2005 & WP(C) No.3870-3995/2009,
the IPRS has not been impleaded. The Prayers contained in
these two set of Writ Petitions read thus:-
WP(C) No.452/1999 & WP(C) No.914-1040/2009
a. declare by an appropriate writ order or direction,
Section 2(ff), 13, 33(3) and 34(3) of the Copyright Act,
1957, to be ultra vires Article 14 & 19(1) (g) of the
Constitution of India; or
b. issue a writ of mandamus or any other appropriate
writ, order of direction to the Union of India and the
Registrar of Copyrights to withdraw the registration of
IPRS & PPL under Section 33 of the Act;
c. issue a writ of mandamus directing the Registrar of
Copyrights to denotify the tariff schemes gazetted by
IPRS & PPL in the year 1996 under Section 34 of the
Copyright Act 1957 for being arbitrary and
unreasonable;
d. pass such other and further orders as may be deemed
just and proper in the facts and circumstances of the
present case;
e. award costs of the petition to the petitioner.
WP(C) No.23787-89/2005 & WP(C) No.3870-3995/2009
a. declare by any appropriate writ, order or direction,
Sections 2(ff), 13, 33(3) and 34(3) of the Copyright Act,
1957 to be ultra vires and violative of Articles 14 & 19
(1) (g) of the Constitution of India; and/or
b. issue directions against Phonographic Performance
Limited against charging the Petitioners a fee for so
called special events license, and
c. quash the exorbitant rates notified by Phonographic
Performance Limited for the special events license for
the year 2005, and
d. award costs of the petition to the Petitioners.
e. pass any such order and further order(s) as this
Hon‟ble Court may deem fit and proper in the facts and
circumstances of the present case.
(2) Mr. Lalit Bhasin, learned counsel for the Petitioners, has
contended that Section 34 of the Copyright Act, 1957 is
unconstitutional as it bestows uncontrolled, unregulated and
unbridled powers on a copyright society with regard to
issuance of licenses to various bodies and organizations,
collecting fees in pursuance of such licences and distributing
such fees among owners of those rights. The submission is that
Guidelines ought to have been put in place for regulating the
functions of the concerned Copyright and Performing Societies.
The grievance is that the Copyright Act does not stipulate the
conditions on which the said societies can issue licenses, and
most importantly, what fee is to be charged in that context. It
has also been contended that inasmuch as the Copyright
Societies perform functions as broadcasters of music
throughout the country as well as overseas, there functioning is
a public character. It is contended that the purpose of the
statute is not merely to fix adequate compensation for
exploitation of the concerned copyright, but also to promote
music and performances for the benefit of the public. A
grievance is made of the absence of conditions for fixing rates
for issuance of licenses. Hence, the argument goes that the
provisions of the Copyright Act, 1957, more particularly
Sections 33, 34 and 35, are ultra vires the Constitution of India.
(3) So far as the Registrar of Copyrights or the Copyright
Board is concerned, it is contended that since neither of them
have the right or authority to examine the reasonableness of
the rates fixed/demanded by the Copyright Society, the statute
is ultra vires the Fundamental Rights guaranteed by the
Constitution. Emphasis is placed on the statutory position
prevailing prior to the amendments carried out in 1994 to the
Copyright Act inasmuch as the unamended provisions provide
for Objection to be filed with regard to myriad matters,
including fees/charges/royalty. It is contended that the
amendments to the Copyright Act, which came into force in
1994, extinguish the powers in this regard that were formerly
bestowed on the Copyright Board. The argument is that this
statutory power now vests in the Copyright Society which
exists to protect and project the self-interests of its constituent
members. Emphasis has been placed on Rule 10 of the Cable
Television Networks Rules, 1994 (CTN Rules for short) passed
under the mantle of the Cable Television Networks (Regulation)
Act, 1995. It is underscored that the said Rule 10 of CTN Rules
empowers the Appropriate Authority to fix the maximum retail
price of each channel regardless of/or overruling the price
fixation carried out by the Society. The submission is that the
Copyright Act, 1957 should contain a similar power, and since
it does not do so, it is violative of the Fundamental Rights
enshrined in Articles 14 and 19(1)(g) of the Constitution of
India. Mr. Bhasin emphasizes that there is no privity of contract
between hotels and restaurants on the one hand and the
IPRS/PPL on the other. This is for the reason that the hotel
receives these programmes via the Broadcaster or the MSO or
the cable operators operating in the area. The contention is
that once the „overall fee‟ is paid by the Hotel, no further
payments are postulated or should be permitted; it is
exclusively the responsibility and liability of the Cable Operator
etc. to obtain requisite copyright licenses. The Petitioners
assail the vires of Section 33 of the Copyright Act in that it
creates a monopoly in favour of the OIPRS/PPL; because of the
monopoly such Societies hold the consumers to ransom by
charging exorbitant licence fees. Challenge has also been cast
on the practice of the Society to charge special licence fee on
events organized by Hotels and/or Restaurants on Christmas
Eve, New Year Eve, Valentine Day etc., in spite of the fact that
the licencee would have already paid the demanded fee
stretching over the entire calendar year. The next argument is
that since the Central Government has permitted at least three
societies to be registered in respect of the same class of work,
Section 33(3) of the Copyright Act, 1957 has been violated, and
if this is not so, the vires of the Section are suspect.
(4) The dialectic which has been drawn up on behalf of the
Petitioners is that the rights of authors, lyricists and composers
etc. are extinguished or become fused with the rights of the
owners of sound recording and hence separate payments to
these two categories ought not to be countenanced. It is
pointed out that the licencees, such as the Petitioners, use only
the end product, that is the sound recording, and thus should
be liable only to the owners of the sound recording. The
challenge to the claim of the IPRS is predicated on the
argument that the sound recording is a complete product by
itself as postulated in Section 2 (xx), 2 (y) (iii), 13 (i) (c), 14 (a)
(iv), Sections 17, 21, 38, 52 (i) (j) etc.
ARE THE WRIT PETITIONS MAINTAINABLE
(5) Learned Senior Counsel for the PPL has challenged the
maintainability of these Writ Petitions on the premise that PPL
is purely a private body and that its members, who are owners
of the sound recording, have assigned their rights for
communicating the sound recordings to the public. Since the
PPL does not perform any public or statutory functions, not
being „State‟, as contemplated by Article 12 of the Constitution,
it is impervious to the extraordinary jurisdiction of the High
Court. Emphasis is laid on the purely commercial and private
nature of dealings of PPL. Dr. A.M. Singhvi, learned Senior
Counsel, who had opposed maintainability of the Writ Petitions
on behalf of PPL, had also correctly drawn our attention to the
question that the Copyright Act being ultra vires to the
Constitution of India, had not been argued by Mr. Bhasin and,
therefore, the Writ Petitions were manifestly not maintainable.
We must immediately record that this submission made by
Dr. Singhvi, to the effect that the Petitioners had not attacked
the vires of the Copyright Act and the Copyright Rules, is
factually correct. Beyond merely a self-serving statement and
an ipse dixit to the effect that the IPRS and PPL discharge
public functions, no material or cogent argument has been put
forward on behalf of the Petitioners.
(6) The owners of Copyright are fully entitled to reap the
rewards for their creativity and genius. In the present regime,
Parliament has seen fit to place few restraints on the enjoyment
of the owners‟ rights. However, since a party can invoke
Section 31 for obtaining a compulsory license from the
Registrar of Copyrights by approaching the Copyright Board,
competing interests have been duly balanced by Parliament.
(7) If we are to adopt a strict and technical approach, we
should dismiss the Petitions as not maintainable on the
strength of Federal Bank Ltd. -vs- Sagar Thomas, (2003) 10
SCC 733, wherein the Supreme Court has laid down that the
existence of merely regulatory provisions, intended to ensure
that business or commercial activity is carried out by private
bodies in a disciplined manner, Article 226 of the Constitution
of India does not get attracted. In Binny Ltd. -vs- V. Sadasivan,
AIR 2005 SC 3202, it has once again been enunciated that
Article 226 preeminently contains a public Law element; ergo,
it is not applicable against private wrongs. Writs may also issue
against private bodies provided they are for the enforcement of
a public duty. In Ramana Dayaram Shetty -vs- The
International Airport Authority of India, AIR 1979 SC 1628, the
Supreme Court has opined that the "action of the Executive
Government must be informed with reason and should be free
from arbitrariness. This is the very essence of the rule of law
and it bears minimal requirement". However, the status of the
IPRS/PPL cannot be equated with that of the International
Airport Authority of India. In Chander Mohan Khanna -vs- The
National Council of Educational Research & Training, AIR 1992
SC 76, despite noting that the Respondent veritably enjoys a
monopoly, Article 12 of the Constitution of India was found not
to have been attracted. Mention may also be made to Sabhajit
Tewary -vs- Union of India, AIR 1975 SC 1329 where it was
held that the Respondent, which is registered under the
Societies Registration Act, 1860, was not imbued with statutory
duties and hence could not correspond to „State‟, as envisaged
in Article 12 of the Constitution of India. For the very same
reasons, M/s. Dwarka Prasad Laxmi Narain -vs- The State of
Uttar Pradesh, 1954 SCR 803 is not relevant for the
controversy before us. This is for the simple reason that the
actions under the Uttar Pradesh Coal Control Order, 1953
cannot be placed on the same platform as the tariff demanded
by private bodies, such as the IPRS and the PPL. The watershed
between the ultra vires demands and legitimate demands, so
far as a challenge to writ proceedings is concerned, would
largely fall on the status of the Respondent, viz. whether it
performs any obligations of a constitutional or statutory nature.
(8) There is such a plethora of precedents on this aspect of
the law that a more detailed analysis would lead to inordinate
prolixity of this Judgment. As we have already noted above, the
broadcast or dissemination of music to the public at large is
neither a statutory responsibility nor a duty of a public
character. The Copyright and Performing Societies, IPRS/PPL
are an amalgamation of conglomeration of individuals/owners
who are fully entitled to claim the highest premium for
enjoyment of the fruit of their labour or intellect, subject to any
statutory restraints that may have been provided for by
Parliament.
(9) In these circumstances, we hold that the Writ Petitions,
save for the aspect of the vires of the Copyright Act, are not
maintainable.
IS AN ALTERNATIVE REMEDY AVAILABLE
(10) The existence or otherwise of an alternative remedy
immediately and logically comes into focus, following upon the
previous discussion. The challenge raised before us is to the
quantum of charges claimed by the Respondent/Copyright and
Performing Societies, namely, IPRS and PPL. It is argued that
arbitrary and exorbitant charges cannot be allowed to be
claimed by the IPRS/PPL, on behalf of the author, composer,
lyricists, sound recorder, producer of a motion picture etc. It is
further contended that only one copyright society can be
allowed to be registered, whereas, as is manifest from the
present writ action, there are at least two such societies in
existence. We have already noted the existence of Section 31
which postulates that the powers of the Registrar of Copyrights
is empowered to grant a compulsory license in circumstances
dealt with in that Section. Assuming that the Petitioners are
dissatisfied with the quantum of charges demanded by the
concerned society on the ground that they are excessive or
extortionate, the Petitioners can approach the Registrar of
Copyrights for the grant of a compulsory license. This remedy
has not been availed of in the case before us. Thereafter,
Section 33 requires every person or association of persons
intending to carry on the business of issuing or granting
licences in respect of any work in which a copyright subsists, or
in respect of any other rights conferred by the Copyright Act, to
obtain registration from the Central Government. Sub-
section(3) of Section 33 obligates the Central Government to
keep in perspective the interests of the owners as well as the
public. Section 78 of the Copyright Act empowers the Central
Government to make Rules for carrying out the purposes of the
statute. Chapter V of the Copyright Rules, 1958 framed
pursuant thereto, concerns the registration and functioning of
Copyright and Performing Societies, such as IPRS and PPL.
Rule 12 deals with the conditions for submission of an
application for registration of a copyright society; and a
Performing Rights Society in Rule 13. Thereafter, the Rules
copiously deal with the conditions as well as the manner in
which registration can be obtained. Most significantly, Rule
14F provides for the cancellation by the Central Government of
the registration of a copyright society. It is also important to
emphasise Rule 14B(ii) which enables the Central Government
to reject an application for registration, inter alia, if "there
exists another copyright society registered under the Act for
administering the same class of works and it is functioning
well". Since the grievances ventilated before us, in our opinion,
must perforce be laid before the Central Government on a true
understanding of the Copyright Act, 1957 and the Copyright
Rules, 1958, we must refrain from giving any definitive
interpretation of the provisions or even an indication of how the
Central Government or the Registrar of Copyrights or the
Copyright Board should interpret these provisions. We shall,
therefore, go no further than merely notice that the embargo
seems to be on granting multiple registrations in respect of the
same class of works. We say this for the reason that Mr. P.V.
Kapur, learned Senior Counsel for IPRS, has addressed
detailed arguments on the aspect that globally Copyright laws
recognize different ownership rights vis-à-vis music, which
word we use in a compendious manner. It is the quasi-judicial
statutory authority, such as the Registrar of Copyright and the
Copyright Board which must be approached in the first
instance by aggrieved parties like the Petitioners before us.
(11) In this analysis, it is plain to us that the Copyright Act and
the Copyright Rules provide a remedy that can be availed of by
any person aggrieved with the grant of registration of a
Copyright or a Performing Society for exploitation of the
respective proprietary rights in copyrights. Chapter XIV of the
Copyright Act is a fasciculus comprising Sections 71 to 73
pertaining to Appeals. Section 72(1) bestows the right of an
appeal against the final order of the Registrar of Copyrights to
the Copyright Board. Section 72(2) provides for an appeal to
the Copyright Board in respect of any final decision of the
Registrar of Copyrights except in cases where the Registrar of
Copyrights is itself the Appellate Forum. An Appeal against the
final decision or order of the Copyright Board lies to the High
Court within whose jurisdiction the Appellant actually and
voluntarily resides or carries on business or personally works
for gain. Writ jurisdiction has never been intended as a
concurrent remedy to that of an appeal. It is beyond cavil that
the High Courts will not exercise their extraordinary
jurisdiction where alternative remedy is available. It is also
unarguable that the High Courts will not exercise writ
jurisdiction if it tantamount to obliterating a statutory right of
appeal. Keeping in perspective the fact that the Writ Petitioners
have not exercised or availed of the remedies provided under
the Copyright Act, 1957, any pronouncement made on the
grievances addressed before us pertaining to the quantum of
fees/charges by the IPRS/PPL, or as to whether registration of
the IPRS and PPL has been validly granted, or whether the Act
permits separate/special charges to be claimed for special
events, such as Christmas Eve, New Year Eve or Valentine Day
functions would defeat the purposes of the Copyright Act. We
must, and we do abjure from entering upon this controversy.
ARE ANY OF THE PROVISIONS OF THE COPYRIGHT
ACT, 1957 OR THE COPYRIGHT RULES, 1958 FRAMED
THEREUNDER ULTRA VIRES THE CONSTITUTION.
(12) It has already been noted by us that Dr. Singhvi had
correctly submitted that arguments on this aspect of the Writ
Petitions had not been addressed by Mr. Bhasin in his opening
address. It is, therefore, quite possible to conclude or certainly
view this challenge as a cosmetic one, calculated to cover up
the legal blemishes so far as the challenge to the tariff charged
by the IPRS/PPL, or even to their right to claim separate tariffs
for special days are concerned. Traversing the avenue of the
extraordinary jurisdiction of this Court under Article 226 of the
Constitution is impermissible. We have been inundated and
very burdened by the volume of case law cited at the Bar. In
the view that we have favored, we think it unnecessary to
discuss and analyse each and every case. We shall, however,
mention three decisions since they bring to the fore the
complex nature of rights and liabilities that can be generated
on the legal nodus before us. Indian Performing Right
Society Ltd. -vs- Eastern Indian Motion Pictures Association,
(1977) 2 SCC 820 sounds the exposition of the law before us. It
was noted that the Appellant, Indian Performing Right Society
Ltd., comprises composer of musical works, authors of literary
and dramatic works and artist. After analyzing the provisions of
the Copyright Act, 1957, the Court considered the competing
claims before the composer of lyrics or musical work on the one
hand and the producer of the soundtrack of a cinematograph
film on the other. Their Lordships found that once the author of
a lyric or a musical work parts with a portion of his copyright
by authorizing the film producers to make a cinematograph film
in respect of his work incorporated or recorded on the
soundtrack of the film, the producer enjoys the exclusive
copyright in respect of the publication of that film. The public
exhibition includes the soundtrack as well as the
cinematograph film. Accordingly, the artist is free to exploit
and earn from his copyright in the musical work, whilst the film
producer can do so in respect of the combination of artistic
pieces contained in the film. If the composer exhibits the films
or broadcasts any musical composition contained in the film, he
would violate the rights of the film producer. If the film
producer engages other artists to render another version of the
musical composition, he violates the copyright of the composer.
The producer does not, however, violate any right enuring in
the composer from a repeated exhibition of the film since he
has already paid the composer for these rights. The following
paragraphs from Indian Performing Right Society Ltd. are
worthy of reproduction:-
15. The interpretation clause (f) of Section 2
reproduced above, which is not exhaustive, leaves no
room for doubt when read in continuation with Section
14(1)(c)(iii) that the term "cinematograph film"
includes a sound track associated with the film. In the
light of these provisions, it cannot be disputed that a
"cinematograph film" is to be taken to include the
sounds embodied in a sound track which is associated
with the film. Section 13 recognises "cinematograph
film" as a distinct and separate class of "work" and
declares that copyright shall subsist therein throughout
India. Section 14 which enumerates the rights that
subsist in various classes of works mentioned in
Section 13 provides that copyright in case of a literary
or musical work means inter alia (a) the right to
perform or cause the performance of the work in public
and (b) to make or authorise the making of a
cinematograph film or a record in respect of the work.
It also provides that copyright in case of cinematograph
film means among other rights, the right of exhibiting
or causing the exhibition in public of the
cinematograph film i.e. of causing the film insofar as it
consists of visual images to be seen in public and
insofar it consists of sounds to be heard in public.
Section 13(4) on which Mr Ashok Sen has leaned
heavily in support of his contentions lays down that the
copyright in a cinematograph film or a record shall not
affect the separate copyright in any work in respect of
which or a substantial part of which, the film, or as the
case may be, the record is made. Though a conflict may
at first sight seem to exist between Section 13(4) and
Section 14(1)(a)(iii) on the one hand and Section
14(1)(c)(ii) on the other, a close scrutiny and a
harmonious and rational instead of a mechanical
construction of the said provisions cannot but lead to
the irresistible conclusion that once the author of a
lyric or a musical work parts with a portion of his
copyright by authorising a film producer to make a
cinematograph film in respect of his work and thereby
to have his work incorporated or recorded on the sound
track of a cinematograph film, the latter acquires by
virtue of Section 14(1)(c) of the Act on completion of
the cinematograph film a copyright which gives him the
exclusive right inter alia of performing the work in
public i.e. to cause the film insofar as it consists of
visual images to be seen in public and insofar as it
consists of the acoustic portion including a lyric or a
musical work to be heard in public without securing
any further permission of the author (composer) of the
lyric or musical work for the performance of the work
in public. In other words, a distinct copyright in the
aforesaid circumstances comes to vest in the
cinematograph film as a whole which in the words of
British Copyright Committee set up in 1951 relates
both to copying the film and to its performance in
public. Thus if an author (composer) of a lyric or
musical work authorises a cinematograph film
producer to make a cinematograph film of his
composition by recording it on the sound track of a
cinematograph film, he cannot complain of the
infringement of his copyright if the author (owner) of
the cinematograph film causes the lyric or musical
work recorded on the sound track of the film to be
heard in public and nothing contained in Section 13(4)
of the Act on which Mr Ashok Sen has strongly relied
can operate to affect the rights acquired by the author
(owner) of the film by virtue of Section 14(1)(c) of the
Act. The composer of a lyric or a musical work,
however, retains the right of performing it in public for
profit otherwise than as a part of the cinematograph
film and he cannot be restrained from doing so. In
other words, the author (composer) of a lyric or musical
work who has authorised a cinematograph film
producer to make a cinematograph film of his work and
has thereby permitted him to appropriate his work by
incorporating or recording it on the sound track of a
cinematograph film cannot restrain the author (owner)
of the film from causing the acoustic portion of the film
to be performed or projected or screened in public for
profit or from making any record embodying the
recording in any part of the sound track associated
with the film by utilising such sound track of from
communicating or authorising the communication of
the film by radio-diffusion, as Section 14(1)(c) of the
Act expressly permits the owner of the copyright of the
cinematograph film to do all these things. In such
cases, the author (owner) of the cinematograph film
cannot be said to wrongfully appropriate anything
which belongs to the composer of the lyric or musical
work. Any other construction would not only render the
expresses provisions of clauses (f), (m), (y) of Section 2,
Section 13(1)(b) and Section 14(1)(c) of the Act otiose
but would also defeat the intention of the Legislature,
which in view of the growing importance of the
cinematograph film as a powerful media of expression,
and the highly complex technical and scientific process
and heavy capital outlay involved in its production, has
sought to recognise it as a separate entity and to treat
a record embodying the recording in any part of the
sound track associated with the film by utilising such
sound track as something distinct from a record as
ordinarily understood.
16. On a conspectus of the scheme of the Act as
disclosed in the provisions reproduced above
particularly clauses (d), (v), (f), (m), (v) and (y) of
Section 2, Sections 13(1) and 14(1)(c), provisos (b) and
(c) to Section 17 and Sections 22 and 26 of the Act, it
is, therefore, abundantly clear that a protectable
copyright [comprising a bundle of exclusive rights
mentioned in Section 14(1)(c) of the Act] comes to vest
in a cinematograph film on its completion which is said
to take place when the visual portion and audible
portion are synchronized.
(13) In Entertainment Network (India) Limited -vs- Super
Cassette Industries Limited, (2008) 13 SCC 30, the copyright of
sundry musical works was held by the Respondent. The
Appellant had unauthorisedly broadcast these musical works on
their Radio Station, namely, Radio Mirchi. The Appellant‟s case
was that it had paid licence fee to Phonographic Performance
Limited (PPL) and it was not aware that it was further liable to
pay charges to Super Cassettes; that it had undertaken to pay
these charges. No consensual terms having been concluded
between these parties, Radio Mirchi applied under Section 31 of
the Copyright Act, 1957 for a „compulsory license‟. The Bombay
High Court held that the grant of a compulsory license of
reasonable remuneration was postulated under Section 31 of
the Copyright Act, whereas the Delhi High Court held to the
contrary. Their Lordships opined that the very purpose behind
Section 31 of the Copyright Act was to approach the Copyright
Board for the grant of a compulsory license when the parties
had failed to reach an agreement on this score. Another
question which had arisen was whether the grant of multiple
compulsory licenses was envisaged under the said provision.
The view of the Supreme Court was that the purpose of the
enactment was to grant multiple licenses regardless of whether
it pertained to a small part of or the whole of the country.
Significantly, their Lordships had also given their imprimatur to
the approach of the High Court in declining to return a decision
on the quantum of charges for the reason that this exercise fell
within the province and responsibility of the Copyright Board.
The Supreme Court had also rejected the argument that the
right to proprietary subsumed the right to exploit the musical
works; it underscored the fact that the right to property was no
longer a Fundamental Right. It favoured the contrary position.
In upholding the vires of the Copyright Act, 1957, the Court had
balanced the proprietary rights of the owner of a copyright with
that of the public by underscoring the availability of a claim for
a compulsory license. Garware Polyesters & Polymers Ltd. -
vs- Telelink, AIR 1989 Bombay 331 was a decision of a Single
Bench. The Plaintiff was a holder of a video copyright, whereas
the Defendant was a Cable T.V. Network which was transmitting
the films, the copyright of which vested in the Plaintiff. The
learned Single Judge analyzed and noted Section 2(dd) which
defines „broadcast‟ to mean communication to the public. The
Defendants‟ contention was that since the films were viewed
inside the private homes of various subscribers, it did not
tantamount to a broadcast. Applying the ratio of several
judgments delivered by foreign courts, the Court concluded that
even though the viewing by the subscribers may be within the
privacy of their homes, it fell within the ambit of the word
„broadcast‟ as defined in Section 2(dd) of the Copyright Act,
1957. A learned Single Judge of this Court, in Supercassette
Industries -vs- Nirulas Corner House, 148(2008) DLT 487, has
applied this decision in granting an injunction in favour of the
holder of the copyright against the Defendant/Holder which was
showing these works through cable connection in the hotel
rooms against specific charges. The ratio of Northern India
Caterers (India) Ltd. -vs- Lt. Governor of Delhi, (1978) 4 SCC 36
was, however, not applied before our learned Brother.
(14) We shall briefly refer to the decision of the House of Lords
in Chappel and Co. Ltd. -vs- Redwood Music Ltd., 1981 RPC 337
to underscore that the existence of separate copyrights in a
singular musical piece is not a phenomenon unknown to law.
(15) In Performing Right Society Ltd. -vs- Hawthorn‟s Hotel
(Bournemouth) Ltd., [1933] All E.R. 268, the Order is concise
and hence is reproduced by us for ease of reference:-
The only question which has to be decided in this
action is whether the performance of the two works in
question on Nov. 20, 1932, was a performance of those
two works "in public." If it was, the defendants have
infringed the rights which are conferred upon the
plaintiffs, as owners of the performing rights, by virtue
of s.1 (2) of the Copyright Act, 1911.
The defendants‟ hotel is unlicensed. It has
accommodation for about 175 guests, and regularly, for
the past four years, on Sunday evenings, the trio
engaged on Nov. 20, 1932, has played in the lounge. In
addition to playing on Sunday evenings it plays at tea-
time during the Christmas and Easter holidays. On
Nov. 20, 1932, a number of guests were sleeping at the
hotel. Some of them were in the lounge on the occasion
in question. There was also present an emissary of the
plaintiffs (accompanied by a friend) who went there for
the purpose of hearing whether any piece of music, to
the copyright of which the plaintiffs were entitled,
would be played by the trio.
I think that it is quite plain, on the evidence, that
any member of the public, who had given notice to the
defendants of his desire to dine at the hotel on Nov. 20,
1932 or any other Sunday, would have been allowed to
have dinner there, provided that he appeared to be
respectable. No doubt, he would have been at liberty
to go into the lounge and listen to the music performed
by the trio. In other words, any respectable member of
the public who is prepared to pay the price charged by
the defendants either for consuming meals in their
hotel, or for staying there, was at liberty to listen to the
music performed by the trio engaged by the
defendants. In my judgment the performance by the
defendants, in those circumstances, was a performance
"in public", and the rights which the plaintiffs have
under the statute have been infringed. The rights of the
plaintiffs have been challenged by the defendants and
the plaintiffs are entitled to an injunction restraining
the defendants, their servants and agents, for the
duration of the copyright, from performing in public the
two musical works in question.
(16) Suffice it to say that the amendments carried out in the
Copyright Act, 1957 are calculated to guarantee a fair return to
the authors, composers or lyricist or sound recorders, as the
case may be. There is no absolute, untrammeled or unbridled
right existing or granted to the public at large to enjoy fruits of
such creation without any payment in recompense or for
payments which the public may be willing to give. The initial
burden or duty of harmonizing these competing interests and
rights has been laid at the door of the Copyright Board in the
case of price fixation/tariff and in other cases with the
Registrar of Copyrights. We must traverse that very path as
was laid down in Entertainment Network (India) Limited
wherein their Lordships had endorsed the approach of the
Bombay High Court in remitting the matter back to the
Copyright Board for determination. So far as any challenge to
according registration of multiple societies is concerned, it is
the Central Government which must take a decision. We must
not succumb to indiscipline by entering into a detailed
discussion on the legitimacy or reasonableness of the tariff for
the simple reason that this question must be voiced and the
verdict given by the Authorities created under the Copyright
Act. Thereafter, the aggrieved party can avail of the rights to
file an appeal, as has been provided by the Act, or if it is the
decision of the Central Government which is sought to be
assailed, possibly by invoking the extraordinary powers
preserved by Article 226 of the Constitution of India.
IS THE COPYRIGHT ACT, 1957 ULTRA VIRES
THE CONSTITUTION
(17) The challenge to the vires of the Act in the Writ Petitions
has been formulated, inter alia, in this manner:-
Because Section 34 of the Act is arbitrary and
unreasonable as there are no guidelines for fixing of
rates and no means of verifying or checking the
reasonableness of license fees fixed by Copyright
Societies. The same is violative of Article 14 and
deserves to be struck down on this ground alone.
...
Because a combined reading of Sections 13 (1) (a), 2(p)
and 16 makes it amply clear that copyright subsists in
music including any graphical notation but not in words
or actions intended to be sung, spoken or performed
with the music. Section 13 (1) (a) provides that
Copyright shall subsist in "original literary, dramatic,
musical and artistic works". Section 2(p) defines
"musical work" to mean "a work consisting of music
and includes any graphical notation of such work but
does not include any works or any action intended to be
sung, spoken or performed with the music". Section 16
of the Act lays down that no person shall be entitled to
copyright or any similar right in any work, whether
published or unpublished otherwise than under and in
accordance with provisions of this Act or of any other
law for the time being in force. ...
.....
Because the explanation to Section 2 (ff) of the
Copyright Act holds any work made available to a guest
in a hotel room to be "communication to the public"
which is contrary to reason. A person who occupies
room in a hotel and accesses a work in private cannot
be said to be in a public place. Accommodation
provided to guests in a hotel comprises facilities and
amenities that are availed and enjoyed in the confines
of the room. The explanation to Section 2 (ff) however
provides otherwise, without any rationale or reason. A
work enjoyed at home is private is no different from if
enjoyed or accessed in a hotel room, by the same
individual. The unreasonable classification of hotel
rooms as public places has allowed the
societies/copyrights owners to claim exorbitant licence
fees and the classification deserves to be set aside for
being unreasonable and irrational.
(18) We are also not persuaded to take a negative view on the
vires of the Copyright Act on the strength of the arguments
addressed by Mr. Bhasin that the right to file objections has
been deleted from the present statute. The Act provides an
adequate remedy in the form of the alleviating process of
compulsory licensing.
(19) The Petitioners challenge the vires of Section 13 of the
Copyright Act inasmuch as it provides that copyright was
subsisting in the following classes of works - (a) original
literary, dramatic, musical and artistic works; (b)
cinematograph films; and (c) sound recording. We are in no
manner of doubt that the categorization is founded on an
intelligible differentia so far as music is concerned. Broadly
stated, most of the popular songs, which may contain lyrics as
well as melodies, have been attracting different renditions,
which may have been performed publicly, or recorded in a
studio. The works of Western classical maestros, such as
Beethoven, Mozart, Gustav Mahler etc. have been given
expression by several philharmonic orchestra, all of whom are
entitled to copyrights of their works. Popular musicians, such
as Beatles, have had their works performed by several other
groups. The Beatles are entitled to revenues of their original
copyrights and other musicians/orchestras are entitled to
incomes from broadcasts of their authorized recordings. The
Copyright Board, as and when approached, will have to
pronounce upon the vexed and complicated question of
whether a consumer or recipient of a broadcast, if liable to pay
copyright fees to the artist/musician of a version recording and
in addition thereto, also to the holders of the original/primary
copyright. To borrow from the words of their Lordships,
copyright encompasses bundles of artists which, at any given
time, may vest in different persons.
(20) We are unable to appreciate the strengths or merits of any
challenge to Section 2 (ff) of the Copyright Act. These questions
are no longer res integra. We are in respectful agreement with
the views expressed by the learned Single Judge in Garware
Polyesters & Polymers Ltd. which dealt with the question of
whether any publication occurs via broadcast through cable.
Learned counsel for the Petitioners has also contended that the
Fundamental Rights of the Petitioners under Article 19(1)(g) of
the Constitution have been violated because of the demands
raised by the IPRS and PPL. This argument is wholly devoid of
merit and must be summarily rejected. The tariff charged by
the Hotels and the Restaurants can come under similar
challenge. It is wholly unregulated, and to many, seen as
unrealistically exorbitant. In a laissez faire economy, such as
what exists in India today, every person is entitled to claim any
price for utilization of rights or services. We are not dealing
with essential commodities. If the Government is of the opinion
that the public at large is being exploited, appropriate
legislation shall, no doubt, be passed.
(21) In view of this discussion, the Writ Petitions, in all their
aspects and ramifications, are devoid of merit. Prima facie,
there is legal foundation for the IPRS as well as PPL to claim
payment against use of the copyrights held by them. If and
when the Petitioners approach the concerned appropriate
Authorities for adjudication of their disputes, a definitive
answer shall be given with regard to legitimacy of these claims.
(22) All interim Orders are recalled. Writ Petitions are
dismissed. Pending applications are also dismissed. We refrain
from imposing costs.
( VIKRAMAJIT SEN )
JUDGE
( S.L. BHAYANA )
JUDGE
April 07, 2011
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