Delhi High Court
Super Cassettes Industries ... vs Music Broadcast Limited on 9 November, 2021
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 05/11.10.2021
% Pronounced on: 09.11.2021
+ CS(COMM) 90/2021
SUPER CASSETTES INDUSTRIES PVT.LTD. ..... Plaintiff
Through Mr.Amit Sibal, Sr.Adv. with Mr.Neel
Mason, Ms.Ridhima Pabbi, Mr.Uday S.Chopra,
Mr.Harish Kaushik, Mr.Abhay Chattopadhyay,
Ms.R.Ramya, Mr.Siddharth Vardhman, Mr.Vinay
Tripathi, Ms.Devangini Rai, Ms.Varsha Jhavar and
Mr.Saksham Dhingra, Advs.
Versus
MUSIC BROADCAST LIMITED ...... Defendant
Through Mr.Neeraj Kishan Kaul, Sr. Adv. with
Mr.Sagar Chandra, Ms.Surabhi Iyer, Ms.Sakshi
Pande and Ms.Namisha, Advs.
+ CS(COMM) 132/2021
SUPER CASSETTES INDUSTRIES PVT.LTD. ..... Plaintiff
Through Mr.Amit Sibal, Sr.Adv. with Mr.Neel
Mason, Ms.Ridhima Pabbi, Mr.Uday S.Chopra,
Mr.Vihan Dang, Mr.Harish Kaushik, Mr.Abhay
Chattopadhyay, Mr.Shivang Sharma,
Ms.R.Ramya, Mr.Siddharth Vardhman, Mr.Vinay
Tripathi and Mr.Saksham Dhingra, Advs.
versus
DB CORP. LTD. (RADIO DIVISION) ..... Defendant
Through Mr.Abhishek Malhotra, Ms.Naomi
Chandra, Ms.Shilpa Gamnani, Ms.Atmaja
CS(COMM) 90/2021 & other connected matters Page 1 of 27
Tripathi, Mr.Gurmukh Choudhri and Ms.Sanya
Dua, Advs.
+ CS(COMM) 140/2021
SUPER CASSETTES INDUSTRIES PVT.LTD. ..... Plaintiff
Through Mr.Amit Sibal, Sr.Adv. with Mr.Neel
Mason, Ms.Ridhima Pabbi, Mr.Uday S.Chopra,
Mr.Vihan Dang, Mr.Harish Kaushik, Mr.Abhay
Chattopadhyay, Mr.Shivang Sharma,
Ms.R.Ramya, Mr.Siddharth Vardhman, Mr.Vinay
Tripathi and Mr.Saksham Dhingra, Advs.
versus
ENTERTAINMENT NETWORK (INDIA) LTD. ..... Defendant
Through Mr.Abhishek Malhotra, Ms.Naomi
Chandra, Ms.Shilpa Gamnani, Ms.Atmaja
Tripathi, Mr.Gurmukh Choudhri and Ms.Sanya
Dua, Advs.
+ CS(COMM) 222/2021
SAREGAMA INDIA LTD. ..... Plaintiff
Through Mr.Akhil Sibal, Sr.Adv. with
Mr.Ankur Sangal and Ms.Sucheta Roy,
Advocates.
versus
NEXT RADIO LTD. ..... Defendant
Through Mr.Abhishek Malhotra, Ms.Naomi
Chandra, Ms.Shilpa Gamnani, Ms.Atmaja
Tripathi, Mr.Gurmukh Choudhri and Ms.Sanya
Dua, Advs.
CS(COMM) 90/2021 & other connected matters Page 2 of 27
+ CS(COMM) 320/2021
SUPER CASSETTES INDUSTRIES PVT.LTD. ..... Plaintiff
Through Mr.Amit Sibal, Sr.Adv. with Mr.Neel
Mason, Ms.Ridhima Pabbi, Mr.Uday S.Chopra,
Mr.Vihan Dang, Mr.Harish Kaushik, Mr.Abhay
Chattopadhyay, Mr.Shivang Sharma,
Ms.R.Ramya, Mr.Siddharth Vardhman, Mr.Vinay
Tripathi and Mr.Saksham Dhingra, Advs.
versus
RAJASTHAN PATRIKA PRIVATE LIMITED ..... Defendant
Through Mr.Abhishek Malhotra, Ms.Naomi
Chandra, Ms.Shilpa Gamnani, Ms.Atmaja
Tripathi, Mr.Gurmukh Choudhri and Ms.Sanya
Dua, Advs.
+ CS(COMM) 321/2021
SUPER CASSETTES INDUSTRIES PVT.LTD. ..... Plaintiff
Through Mr.Amit Sibal, Sr.Adv. with Mr.Neel
Mason, Ms.Ridhima Pabbi, Mr.Uday S.Chopra,
Mr.Vihan Dang, Mr.Harish Kaushik, Mr.Abhay
Chattopadhyay, Mr.Shivang Sharma,
Ms.R.Ramya, Mr.Siddharth Vardhman, Mr.Vinay
Tripathi and Mr.Saksham Dhingra, Advs.
versus
T.V. TODAY NETWORK LIMITED ..... Defendant
Through Mr.Abhishek Malhotra, Ms.Naomi
Chandra, Ms.Shilpa Gamnani, Ms.Atmaja
Tripathi, Mr.Gurmukh Choudhri and Ms.Sanya
Dua, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
CS(COMM) 90/2021 & other connected matters Page 3 of 27
JAYANT NATH, J.
IA No. 2701/2021 in CS(COMM) 90/2021
IA No. 4360/2021 in CS(COMM) 132/2021
IA No.4528/2021 in CS(COMM) 140/2021
IA No.6282/2021 in CS(COMM) 222/2021
IA No. 8126/2021 in CS(COMM) 320/2021
IA No. 8131/2021 in CS(COMM) 321/2021
1. The facts and issues raised in the aforesaid matters are broadly same.
For the purpose of this judgment, I am confining myself to the facts of the
first suit, namely, IA No.2701/2021 in CS(COMM) 90/2021 titled as
‗SUPER CASSETTES INDUSTRIES PVT. LTD. vs. MUSIC
BROADCAST LIMITED.'
2. IA No. 2701/2021 is an application under Order 39 Rules 1 and 2
CPC seeking an ex parte injunction to restrain the defendant, its directors,
employees, etc. from broadcasting/communicating to the public and
otherwise exploiting the plaintiff's copyright works through the defendant's
FM Radio channels/stations and infringing the plaintiff's copyright works.
3. The plaintiff has filed the accompanying suit i.e. CS(COMM)
90/2021 seeking a decree of permanent injunction and a decree/order
directing the defendant to render statement of accounts on account of
revenue earned from exploitation of the plantiff's copyright words or
defendants FM radio stations. A decree of damages is also sought.
4. The case of the plaintiff is that the plaintiff is engaged in the business
of producing and/or acquiring cinematograph films, audio-visual songs,
sound recordings including the underlying musical works/compositions and
literary works/lyrics embodied therein. It is stated that the plaintiff's
repertoire of works relates to more than 2,20,000 songs comprising of more
than 24,000 hours of music. It is claimed that the plaintiff's works comprises
the most popular contemporary film and non-film music in India. Being the
copyright owner, it is stated, the plaintiff has the exclusive right to license a
part of or all of the aforementioned rights, to monetize or seek royalty in
respect of such exploitation and has exclusive right to sue for infringement
of these rights.
5. The defendant is said to be a FM Radio Broadcaster. It is stated that
the plaintiff and the defendant entered into a license agreement on
25.01.2013 whereby the plaintiff granted the defendant a limited, non-
exclusive and non-transferrable license to broadcast the plaintiff's sound
recordings and the underlying literary and musical works as specified in the
agreement. The said license agreement was mutually extended on several
occasions but the same was not extended beyond 31.01.2021.
6. It is stated that the defendant filed an application before the then
Intellectual Property Appellate Board (IPAB) under Rule 31 of the
Copyright Rules, 2013 (hereinafter referred to as ‗the Rules) seeking
determination of rates for the purpose of statutory license under Section 31
D of the Copyright Act, 1957 (hereinafter referred to as ‗the Act'). IPAB by
its judgment dated 31.12.2020 determined the royalty rates and payment
mechanism for the statutory licensing for communication to the public of
sound recordings and underlying literary and musical works embodied in
sound recording by way of FM Radio Broadcast. An appeal has been filed
against the said order being RFA No. 49/2021 and the said matter is still
pending before this court. There are no interim orders.
7. On 25.01.2021, the defendant vide email sent a notice under Rule 29
of the Rules invoking the statutory license granted under Section 31 D of the
Act. The plaintiff responded to the said notice on 30.01.2021 setting out the
reasons as to why the purported notice fails to meet the requirements of the
applicable law which includes the IPAB Order, Section 31D of the Act and
the Rules. It is stated that the said notice fails to meet the statutory
requirements as follows:-
a. The notice is completely silent in relation to literary and
musical works forming part of the sound recordings that are part of the
plaintiff's copyright works.
b. Notice does not specify the name of the channel on which there
is an intent to broadcast the plaintiff's copyright works.
c. The notice does not specify the year of publication of the
plaintiff's copyright works that the defendant intends to broadcast.
d. The notice does not specify the name of the programme, the
time slot, duration and the period of broadcast in respect of any of the
works from the plaintiff's copyright works that the defendant intends to
broadcast on each of its channels/FM stations.
e. The notice fails to identify the name of each work, the
defendant intends to broadcast and state the alteration, it intends to
make specifically and individually for each such work.
f. Advance payment of Rs.1.50 lakh was grossly insufficient as
the defendant purportedly intended to broadcast all the songs forming
part of the plaintiff's copyright works.
g. The notice also fails to provide any basis/data/calculation.
8. Hence, the plaintiff refunded the advance payment.
9. The grievance of the plaintiff is that while monitoring the broadcasts
on the defendant's FM Radio station, the plaintiff's representatives
discovered that the sound recordings and the underlying musical and literary
works embodied therein forming part of the plaintiff's copyright works were
being communicated to the public conveying an impression to the public
that the defendant is authorised by the plaintiff to exploit the plaintiff's
copyright works. It is stated that plaintiff hence sent a legal notice dated
08.02.2021 to the defendant. The defendant sent a reply on 10.02.2021. It is
urged that despite the legal notice, the infringing activities of the defendant
are continuing. Hence, the present suit.
10. The defendant in the written statement pleads that the suit is barred by
law as it violates Section 76 of the Act. It is urged that after the expiry of the
voluntary license agreement on 31.01.2021, the defendant sought to invoke
the statutory license under Section 31 D of the Act in good faith by giving
the plaintiff prior notices on 25.01.2021 and 19.02.2021 of its intention to
broadcast its sound recordings in the calendar months of February and
March 2021. The defendant paid advance royalty to the plaintiff in the
manner and at the rate fixed by the IPAB for February and March 2021. The
duration and territorial coverage of the intended broadcast was also
mentioned in the prior notices. Hence, it is urged that there is compliance of
Section 31 D of the Act. It is stressed that Section 31D of the Act dispenses
with the requirement of consent from the copyright owner inasmuch as the
said provision envisages a non-voluntary licensing mechanism whereby the
defendant requires no authorisation or consent or license from the plaintiff to
broadcast its sound recordings. It is urged that the operation of Section 31 D
of the Act is instantly triggered upon the defendant giving prior notice of its
intent to broadcast its sound recordings. It is stated that the present suit of
the plaintiff is only an attempt to coerce the defendant to enter into repeated
lengthy, expensive and monopolistic license agreements at exorbitant
royalty rates, disregarding Section 31D of the Copyright Act.
11. It is the case of the defendant that they have complied with Section
31D of the Act and that they have taken the following steps:-
―(i) given prior notice of its intention to broadcast Plaintiff's
sound recordings;
(ii) paid advance royalties to the Plaintiff at the rate fixed by the
Hon'ble IPAB;
(iii) stated the duration of its intended broadcast of plaintiff's
sound recordings;
(iv) stated the territorial coverage of its intended broadcast of
Plaintiff's sound recordings.‖
12. The defendant also urges that it complied with Rule 29. It is urged
that the insistence of the plaintiff that the defendant is required to
specifically identify the name of each work which it intends to broadcast is a
mischievous argument and is only an attempt to delay the operation of the
statutory license regime. It is urged that particulars under Rule 29(4)(i) and
(j) can be shared by the defendant only depending on the fact as to whether
the song is actually played or broadcasted. It is stated that the name, time
slot, duration and period of the programme in which the songs are intended
to be included are flexible and subject to changes on account of public
interest/government announcements, promotional events and sponsorship
advertisements, etc.
13. It is stated that the schedule of the defendant's programme is subject
to change on day-to-day basis depending upon various factors. It is stressed
that the defendant has substantially complied with the provisions of Rule 29
(4) of the Rules and that if there is any irregularity, it is merely procedural
and a curable defect. The same does not vitiate the process and any
interpretation to the contrary would defeat the very purpose of Section 31D
of the Act. It is also stated that the requirement to furnish particulars under
Rule 29(4) is directory and not mandatory.
14. I have heard learned senior counsel for the plaintiff and learned
senior counsel for the defendant.
15. Learned senior counsel for the plaintiff has pointed out that six suits
have been filed by the plaintiff for infringement of its copyright against six
radio broadcasting companies. He has pleaded as follows:-
(i) Reliance is placed on Section 16 of the Copyright Act which provides
that no person shall be entitled to copyright or otherwise than under and in
accordance with the provisions of the Act. The primary method that an
owner of copyright employs to exploit the copyright and to make his work
available to the public is through the vehicle of voluntary license in terms of
Section 30 of the Act. It is stated that there are three modes of licensing
under the Copyright Act i.e. (i) voluntary licensing under Section 30, (ii)
commercial licensing under Section 31 and (iii) statutory licensing under
Section 31D. It is urged that in the absence of voluntary license, a defendant
can broadcast sound recordings forming part of the plaintiff's repertoire
―subject to the provision of the Section‖ i.e. Section 31 D of the Act. Rule
29 of the Copyright Rules contains the manner prescribed for the advance
notice that must be sent under Section 31D(2).
(ii) It is strongly urged that Section 31D is an expropriatory legislation
and therefore, it requires strict compliance of statutory provisions including
Rule 29 of the Rules.
(iii) It is further urged that the Act and the Rules require an advance notice
of broadcast of work much specifically stating the details provided under
Rule 24 (4) in a work specific manner and the defendant has in the
impugned notices completely failed to identify the plaintiff's works that are
proposed to be broadcast under the statutory license and the defendant has
failed to provide the required details in relation to such broadcast which are
necessary. The notices issued by the defendant are grossly in non-
compliance to the Scheme of statutory license.
(iv) Reliance is placed on the judgment of the Supreme Court in the case
of Saregama India Ltd. vs. Next Radio Limited & Ors., being 2021 SCC
OnLine SC 817.
16. Learned senior counsel for the defendant has strongly urged as
follows:-
(i) It is urged that on account of exorbitant royalty rates coupled with
monopolistic and dubious practice adopted by the plaintiff in its voluntary
license arrangement, the defendant invoked the statutory license under
Section 31D. It is urged that the royalty rates fixed by IPAB in its order
dated 31.12.2020 for invoking statutory license are on an average
approximately 60% lesser than the royalty rates set by the plaintiff in the
voluntary license agreement.
(ii) It is urged that the defendant has given prior notices of its intention to
broadcast the works of the plaintiff i.e. through its advance notice dated
25.01.2021, five days in advance, for the broadcast in the month of
February 2021 and through notice dated 19.02.2021 for the broadcast in
March 2021.
(iii) It is stated that the submission of the plaintiff that notices should
include minute details of every second of broadcast of sound recordings is
unfounded. It is stated that the time slot, duration, amount of every second
or minute can only be determined at the end of every calendar month post
actual broadcast.
(iv) Section 31 D pertains to the entirety of the defendant's intention to
broadcast in any calendar month and the same ought not to be confused with
duration of the programme under Rule 29 (4) (j).
(v) Even in the earlier voluntary agreement with the plaintiff all the
details were sent at the end of month as is apparent from a reading of the
agreement.
(vi) It is strongly urged that the present suit is a motivated suit as the
plaintiff seeks to put obstructions in the implementation of Section 31 D of
the Act.
(vii) It is further urged that what the plaintiff is contending is impossible to
be complied with. It is stated that a radio jockey plays songs on the basis of
requests received on phone, social media, etc. and on interaction with the
audience. He cannot in advance decide which song is going to be played.
Then, there are updates of traffic, updates of cricket scores, etc. Songs can
be changed. The medium of radio is a dynamic live interactive medium.
There cannot be any straight jacket formula. Creativity/spontaneity of a
radio jockey cannot be curtailed in the manner as sought by the plaintiff.
(viii) The plaintiff only seeks to put an impediment in the operation of
Section 31D of the Act.
(ix) It is further urged that Rule 29 is directory and minor aberrations, if
any, can be no ground for the plaintiff to file the present suit.
17. Both the learned counsel for the parties have relied heavily upon
various judgments to plead that Rule 29 is mandatory/directory. For the
reasons stated herein, I have not referred to the said judgments.
18. I may first look at the statutory provision. Section 31 D of the
Copyright Act reads as follows:-
―31D. Statutory licence for broadcasting of literary and musical
works and sound recording.-- (1) Any broadcasting organisation
desirous of communicating to the public by way of a broadcast or
by way of performance of a literary or musical work and sound
recording which has already been published may do so subject to
the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such
manner as may be prescribed, of its intention to broadcast the
work stating the duration and territorial coverage of the
broadcast, and shall pay to the owner of rights in each work
royalties in the manner and at the rate fixed by the Commercial
Court.
(3) The rates of royalties for radio broadcasting shall be different
from television broadcasting and the Commercial Court shall fix
separate rates for radio broadcasting and television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-section
(2), the Commercial Court may require the broadcasting
organisation to pay an advance to the owners of rights.
(5) The names of the authors and the principal performers of the
work shall, except in case of the broadcasting organisation
communicating such work by way of performance, be announced
with the broadcast.
(6) No fresh alteration to any literary or musical work, which is
not technically necessary for the purpose of broadcasting, other
than shortening the work for convenience of broadcast, shall be
made without the consent of the owners of rights.
(7) The broadcasting organisation shall--
(a) maintain such records and books of account, and render to
the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or
representative to inspect all records and books of account
relating to such broadcast,
in such manner as may be prescribed.
(8) Nothing in this section shall affect the operation of any
licence issued or any agreement entered into before the
commencement of the Copyright (Amendment) Act, 2012.‖
19. Rule 29 of the Copyright Rules, 2013 reads as follows:-
―29. Notice for Communication to the Public of literary and
musical works and sound recordings.--(1) Any broadcasting
organization desirous of communicating to the public by way of
broadcast or by way of performance of a published literary or
musical work and sound recording under sub-section (1) of
section 31D shall give a notice of its intention to the owner of the
copyright and to the Registrar of Copyrights before a period of
five days in advance of such communication to the public and
shall pay to the owner of the copyright, in the literary or musical
work or sound recording or any combination thereof, the amount
of royalties due at the rate fixed by the Board in this regard:
Provided that in case of communication to the public by way of
broadcast or by way of performance of a newly published literary
or musical work or sound recording or any combination thereof,
which has been published within the said period of five days of
such communication and which do not form part of the scheduled
programmes, the notice shall, be given before such
communication to the public:
Provided further that in case of communication to the public by
way of broadcast or by way of performance of any published
literary or musical work and sound recording or any combination
thereof, in unforeseen circumstances, the notice shall, be given
within twenty-four hours of such communication to the public:
Provided also that any broadcasting organization shall give a
notice under this Chapter only after the royalty to be paid is
determined by the Board under rule 31 and published in the
Journal and in the website of the Copyright Office and the Board.
(2) Every such notice shall be in respect of works belonging to
one owner only.
(3) Separate notices shall be given for communication to the
public by way of radio broadcast or television broadcast or by
way of performance of a literary or musical work and sound
recording which has already been published.
(4) The notice under sub-rule (1) shall contain the following
particulars, namely:--
(a) Name of the channel;
(b) Territorial coverage where communication to public by
way of radio broadcast, television broadcast or performance
under sub-rule (3) is to be made;
(c) Details necessary to identify the work which is proposed to
be communicated to the public by way of radio broadcast,
television broadcast or performance under sub-rule (3);
(d) Year of publication of such work, if any;
(e) Name, address and nationality of the owner of the
copyright in such works;
(f) Names of authors and principal performers of such works;
(g) alterations, if any, which are proposed to be made for the
communication to the public by way of radio broadcast,
television broadcast or performance of the works, reasons
thereof, and the evidence of consent of the owners of rights, if
required, for making such alteration;
(h) Mode of the proposed communication to the public, i.e.
radio, television or performance;
(i) Name, if any, of the programme in which the works are to
be included;
(j) Details of time slots, duration and period of the programme
in which the works are to be included;
(k) Details of the payment of royalties at the rates fixed by the
Board; and
(l) Address of the place where the records and books of
account are to be maintained for inspection by the owner of
rights.‖
20. Hence, Section 31 D of the Act permits a broadcasting organisation to
communicate to the public by way of broadcast or by way of performance of
a literary or musical work and sound recording. Section 31D (2) of the Act
provides that the broadcasting organisation will give a prior notice, in such
manner as may be prescribed, of its intention to broadcast the work stating
the duration and the territorial coverage of the broadcast and shall pay to the
owner of rights in each work royalties in the manner that may be fixed by
the commercial court.
21. Rule 29 of the rules provides the method of notice for communication
under Section 31 D (2) of the Act. Rule 29 (4) gives the particulars required
to be given in such notice. The broad controversy revolves around Rule
29(4) (i) (j) and (k) of the Rules.
22. I may now see as to whether the defendant has complied with the
aforesaid provisions for giving a prior notice.
23. I may look at the second notice sent by the defendant dated
19.02.2021 under Rule 29 of the Rules read with Section 31D of the Act
which reads as follows:-
―WITHOUT PREJUDICE
By Email/Courier
19th February 2021
To,
Super Cassettes Industries Private Limited
E-2/16, White House, Ansari Road,
Darya Ganj, New Delhi-110002.
Re: Issuance of Notice under Rule 29 of the Copyright Rules,
2013 for invoking the Statutory License granted under Section
31D of the Copyright Act, 1957.
Dear Sirs,
This is in relation to the captioned matter.
Please note that we are desirous of broadcasting the published
sound recordings which form part of your repertoire under the
Statutory License granted to all broadcasting organizations,
including radio broadcasting organization, under Section 31D of
the Copyright Act.
Therefore, as per the requirement of Rule 29 of the Copyright
Rules, 2013, the present notice is being sent to you as well as to
the Registrar of Copyrights to put you to notice of our intent to
broadcast the published sound recordings which form part of
your repertoire, as per the details given below.
Kindly note that the payment for the broadcast of sound
recordings is also being made as per the Order dated 31st
December, 2020 passed by the Hon'ble Intellectual Property
Appellate Board (IPAB) in OP (SEC-31D)/3/2020/CR/NZ, fixing
the rate of royalty, inter alia, for broadcast of sound recordings
through FM radio, under Section 31D of the Copyright Act,
1957.
The advance royalty amount of Rs 3,00,000/-(Rupees Three
Lakh Only) which is 25 % of the estimated amount paid by us
through RTGS /NEFT method from our Bank number:
08352120000029 on 19th February 2021 for the month of March
2021. The payment advice is also attached herein for your
reference.
Therefore, in compliance of the provisions of Rule 29(4) of the
Copyright Rules, 2013, please find below, the requisite
information pertaining to the intended broadcast of the sound
recordings which form part of your repertoire through FM radio:
Name of the Radio City
Channel
Territorial coverage The broadcast shall be done through
where communication to the 39 radio stations operated by MBL
public by way of radio at Bangalore, Delhi, Mumbai,
broadcast is to be made Hyderabad, Lucknow, Chennai, Jaipur,
Ahmedabad, Vadodara, Surat, Pune,
Nagpur, Coimbatore, Vizag,
Ahmednagar, Jalgaon, Sangli, Solapur,
Nanded, Akola, Patna, Kanpur,
Madurai, Nasik, Kolhapur, Udaipur,
Kota, Bikaner, Ajmer, Jamshedpur,
Patiala, Agra, Bareilly, Gorakhpur,
Hissar, Jalandhar, Karnal, Ranchi,
Varanasi
Details necessary to We intend to broadcast all published
identify the work which is sound recordings which form part of
proposed to be your repertoire.
communicated to the
public by way of radio
broadcast
Year of publication of We intend to broadcast all published
sound recording sound recordings which form part of
your repertoire.
Name, Address, Name; Super Cassettes Industries
Nationality of the owner Private Limited
of copyright of such sound Address: E-2/16, White House, Ansari
recording Road,
Darya Ganj, New Delhi-110002.
Nationality: Indian
Name of authors and We intend to broadcast all published
principal performers of sound recordings which form part of
such sound recordings your repertoire.
Alternations, if any, made No fresh alterations have been made to
to the sound recording, the sound recordings other than what is
reasons thereof, and the technically necessary for broadcasting,
evidence of consent of the such as, shortening the work for
owners of rights, if convenience of broadcast.
required, for making such
alteration
Mode of communication Radio broadcast through FM Radio
to the public
Name, if any, of the The sound recordings shall be
programme inwhich the broadcasted through Radio City and
sound recording is to be further details of programme shall be in
included accordance with the logs provided at
the end of the calendar month.
Details of time slots, The details of time slots, duration and
duration and period of the period of the programme in which the
programme in which the sound recordings are included, shall be
works are included in accordance with the logs provided at
the end of the calendar month
Details of the payment of As per the Order dated 31st December,
royalties at the rates fixed 2020 passed by the Hon'ble Intellectual
by the Board Property Appellate Board (IPAB) in
OP (SEC-31D)/3/2020/CR/NZ, we are
depositing 25% (twenty five percent)
as advance amount under the
compliance of Rule 29, subject to
adjustment of amount every calendar
month. Details of the advance deposit
amount are stipulated above.
Address of the place Music Broadcast Limited
where the records 5th Floor, RNA Corporate Park, Off
and books of Western
account are to be Express Highway, Kalanagar,
maintained for Government
inspection by the Colony, Bandra East, Mumbai,
owner of rights: Maharashtra -
400051.
This is for your information, perusal and records and you are
requested to take notice and acknowledge the present notice.
Thanking you,
For Music Broadcast Limited
Authorised Signatory
Encl: As stated
CC:
The Registrar of Copyrights,
Boudhik Sampada Bhawan,
Plot No. 32, Sector 14, Dwarka,
New Delhi - 110078‖
24. Under Rule 29 (4) (j), the defendant was obliged to give the time
slots, duration and period of the programme in which the works are to be
included. The defendant admittedly has not given such details and states that
the details of the time slots, duration and period of the programme shall be
in accordance with the logs to be provided at the end of the calendar month.
25. Similarly, Rule 29 (4) (i) of the Rules provides that names of
programme in which the works are to be included are to be given. Such
details as is obvious from the above notice are missing.
26. Similarly, Rule 29(4)(k) provides that details of the payment of
royalties at the rates fixed by the Board have also to be provided. The
defendant has paid an ad-hoc sum of Rs. 3 lakhs without giving the break-
up.
27. There is clearly non-compliance of the Rule 29(4)(i),(j) and (k) and
other provisions.
28. The issue is: Is it mandatory for the defendant to give details as
elaborated in Rule 29(4) of the Rules?
29. According to the defendant these provisions are not mandatory but
directory. It is also urged that even in the past when the voluntary
agreements were executed between the parties, the details were provided at
the end of the month. It is urged that it is not the grievance of the plaintiff
that the details which are given later on are erroneous and not as per the
record as stipulated in Rule 30.
30. In my opinion, I need not dwell deeper into the matter at the present
stage of the proceedings in view of the judgment of the Supreme Court in
the case of Saregama India Ltd. vs. Next Radio Limited & Ors.(supra). The
Supreme Court in the said judgment stated as follows:-
―13. Rule 29(4) has been challenged before the High Court on
the ground that it (i) violates Article 19(1)(a) of the Constitution;
and (ii) is ultra vires Section 31D of the Act.
14. The High Court, in the course of its interim order, observed:
―3. Prima facie, there appears to be an element of
unworkability about the Rule in that it may be seen to be
almost claustrophobic in its operation and leaving very
little room for flexibility. Indeed, the very concept of
speaking or performing ad lib, which is the essence of
spontaneity in any live speech or live performance,
would be lost if pre-planned details, down to the every
second of the programme must be disclosed as the
impugned Rule may be read to imply.‖
15.The High Court was of the view that the duty which is cast on
broadcasters in the notice to broadcast under Rule 29(1) is
―apparently onerous‖. Consequently, it directed that the
petitioners before it may be permitted to resort to the second
proviso to Rule 29(4) as a ―routine procedure‖, instead of an
exception, subject to the duration of the ex post facto reporting
being enlarged to fifteen days. In other words, the High Court,
while maintaining the requirement of a prior notice under 10
Section 31 D, has re-fashioned the rule by stipulating that details
pertaining to the broadcasts, particularly the duration, time slots
and the like, including the quantum of royalty may be furnished
within fifteen days of the broadcast or performance.
xxxxx
19. Mr Neeraj Kishan Kaul has submitted that:
(i) Section 31D was introduced by Parliament by an
amendment of 2012 to obviate the exercise of monopolistic
rights wielded by copyright owners to the detriment of the
public at large;
(ii) Section 31D creates a statutory right in favour of
broadcasters to obtain licenses as a result of which the earlier
regime of voluntary licensing has been replaced by the regime
of statutory licenses envisaged in Section 31D;
(iii) Until December 2020, in the absence of a duly constituted
IPAB, broadcasters were functioning under the ambit of
voluntary licensing agreements;
(iv) Rule 29(4) defeats the object of Section 31D insofar as it
incorporates minute details in the prior notice which has been
prescribed;
(v) Many broadcasters operate in the context of interactive
dynamic sites as a result of which the requirements which have
been prescribed in Rule 29(4) are onerous and impossible to
fulfill;
(vi) The broadcasters are ready and willing to pay royalties
which are prescribed by the IPAB according to the statute at
the end of every month and even inspection of records is
furnished to copyright owners; and
(vii) Whereas Section 31D provides for only the duration and
territorial coverage of the intended broadcast, the notice which
has been prescribed by Rule 29(4) has gone far beyond the
statutory ambit of Section 31D and is ultra vires for that
reason.
20. While counsel appearing on behalf of the contesting parties
have addressed submissions on merits, we would desist from
expressing any opinion on the constitutional challenge which is
pending consideration before the High Court of Judicature at
Madras where, as noted earlier, the writ petitions are slated for
final disposal on 4 October 2021.
21. At this stage, the issue is whether the interim order of the
High Court can be sustained. Essentially, as the narration in the
earlier part of this judgment would indicate, the High Court has
substituted the provisions of Rule 29(4) with a regime of its own,
which is made applicable to the broadcasters and the petitioners
before it. A Constitution Bench of this Court in In Re:
Expeditious Trial of Cases Under Section 138 of NI Act 1881 has
emphasized that the judiciary cannot transgress into the domain
of policy making by re-writing a statute, however strong the
temptations maybe. This Court observed:
―20. Conferring power on the court by reading certain words
into provisions is impermissible. A judge must not rewrite a
statute, neither to enlarge nor to contract it. Whatever
temptations the statesmanship of policy-making might
wisely suggest, construction must eschew interpolation and
evisceration. He must not read in by way of creation. The
Judge's duty is to interpret and apply the law, not to change
it to meet the Judge's idea of what justice requires. The
court cannot add words to a statute or read words into it
which are not there.‖
22. It is a settled principle of law that when the words of a statute
are clear and unambiguous, it is not permissible for the court to
read words into the statute. A Constitution Bench of this Court in
Padma Sundara Rao v State of Tamil Nadu [(2002) 3 SCC 533]
has observed:
―12. ...The court cannot read anything into a statutory
provision which is plain and unambiguous. A statute is an
edict of the legislature. The language employed in the
statute is determinative factor of legislative intent. The first
and primary rule of construction is that the intention of the
legislation must be found in the words used by the
legislature itself. The question is not what may be supposed
and has been intended but what has been said.
.....
14. While interpreting a provision the court only interprets
the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of process of law, it is
for the legislature to amend, modify or repeal it, if deemed
necessary.‖
23. The court is entrusted by the Constitution of the power of
judicial review. In the discharge of its mandate, the court may
evaluate the validity of a legislation or rules made under it. A
statute may be invalidated if is ultra vires constitutional
guarantees or transgresses the legislative domain entrusted to the
enacting legislature. Delegated legislation can, if it results in a
constitutional infraction or is contrary to the ambit of the
enacting statute be invalidated. However, the court in the
exercise of judicial review cannot supplant the terms of the
provision through judicial interpretation by re-writing statutory
language. Draftsmanship is a function entrusted to the legislature.
Craftsmanship on the judicial side cannot transgress into the
legislative domain by re-writing the words of a statute. For then,
the judicial craft enters the forbidden domain of a legislative
draft. That precisely is what the Division Bench of the High
Court has done by its interim order. Section 31D(2) speaks of the
necessity of giving prior notice, in the manner as may be
prescribed, of the intention to broadcast the work stating the
duration and the territorial coverage of the broadcast, together
with the payment of royalties in the manner and at the rates fixed
by the Appellate Board. While the High Court has held the
broadcasters down to the requirement of prior notice, it has
modified the operation of Rule 29 by stipulating that the
particulars which are to be furnished in the notice may be
furnished within a period of fifteen days after the broadcast. The
interim order converts the second proviso into a ―routine
procedure‖ instead of an exception (as the High Court has
described its direction). This exercise by the High Court amounts
to re-writing. Such an exercise of judicial redrafting of legislation
or delegated legislation cannot be carried out. The High Court
has done so at the interlocutory stage.
24. We are, therefore, clearly of the view that an exercise of
judicial re-drafting of Rule 29(4) was unwarranted, particularly at
the interlocutory stage. The difficulties which have been
expressed before the High Court by the broadcasters have
warranted an early listing of the matter and this Court has been
assured by the copyright owners that they would file their
counter affidavits immediately so as to facilitate the expeditious
disposal of the proceedings. That having been assured, we are of
the view that an exercise of judicial re-writing of a statutory rule
is unwarranted in the exercise of the jurisdiction under Article
226 of the Constitution, particularly in interlocutory proceedings.
The High Court was also of the view that the second proviso may
be resorted to as a matter of routine, instead of as an exception
and that the ex post facto reporting should be enlarged to a period
of fifteen days (instead of a period of twenty four hours). Such an
exercise was impermissible since it would substitute a statutory
rule made in exercise of the power of delegated legislation with a
new regime and provision which the High Court considers more
practicable.
25. We accordingly allow the appeals by setting aside the interim
order of the High Court dated 2 August 2021. This is, however,
subject to the clarification that this Court has not expressed any
opinion on the merits of the rival submissions which would fall
for determination in the exercise of the writ jurisdiction of the
High Court in the pending proceedings.‖
31. Hence, the Supreme Court expressed the view that the difficulties
expressed by the broadcasters as elaborated in para 19 of the aforenoted
judgment cannot be a ground for re-writing the statutory rules in
interlocutory proceedings. The said judgment further holds that the
impugned order of the Madras High Court converts the second proviso of
Rule 29 into a ‗routine procedure' instead of an exception and that the
directions of the High Court tentamount to re-writing of the statutory
provision. Such an exercise cannot be carried out that too at an interlocutory
stage.
32. As noted above, in the facts of this case, the defendant has admittedly
not complied with Rule 29(4)(i), (j) and (k) of the Rules.
33. It has been strongly urged that literal compliance of the afore-noted
Rule 29(4) is neither feasible nor required. It is urged that there is substantial
compliance. It is further urged that in any case, it is not the grievance of the
plaintiff that any manipulation has been done by the defendant. This court is
now dealing with this matter at an interlocutory stage. At this stage, this
court, as noted above by the Supreme Court, cannot re-write the provisions
of Rule 29 (4) of the Rules. The defendant has chosen to voluntarily
abandon the voluntary license regime that they were earlier following in
compliance of Section 30 of the Act. At this stage, once they have shifted to
the statutory license scheme for broadcasting as spelt out in Section 31D of
the Act, prima facie, they would have to comply with the terms and
conditions of the Statute and the Rules thereof. The defendant has
admittedly failed to comply with the said Rules. The plaintiff has made out a
prima facie case.
34. The defendant, its directors, employees, etc. are accordingly
restrained from broadcasting/communicating to the public and/or otherwise
exploiting the plaintiff's copyright works through the defendant's FM Radio
channels/stations without complying with Rule 29, especially, with Rule
29(4)(i)(j) and (k) of the Copyright Rules, 2013.
35. IA No. 2701/2021 stands disposed of.
36. The same order as passed in IA No. 2701/2021 is passed in IA No.
4360/2021, IA No.4528/2021, IA No.6282/2021, IA No. 8126/2021 and IA
No. 8131/2021. The same also stand disposed of.
JAYANT NATH, J
NOVEMBER 09, 2021/rb
