Madras High Court
3 Ramesh Menon vs 4 Sony Music Entertainment ... on 23 November, 2021
W.P.No.15860 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.03.2022
DELIVERED ON : 20.04.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.15860 of 2021
1. Next Radio Limited
Rep. by Ramesh Menon
a Company incorporated under the Companies Act, 1956
and having its Registered office at
Unit 701 A, 7th Floor, Tower 2
Indiabulls Finance Centre, Senapati Bapat Marg
Elphinstone Road, Mumbai
Maharashtra, India - 400 013.
Also at: No.110, Uthamar Gandhi Salai
Prakash Presidium, 2nd Floor
Nungambakkam High Road
Chennai - 600 034.
2 Association of Radio Operators for India
Rep. by Uday Chawla,
a Society Registered under the Societies Registration Act, 1860
having its Registered Office at 304, Competent House
F-14, Connaught Place
New Delhi - 110 001.
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3 Ramesh Menon
R/o. 22/262/1, A10, Ocean Park
Near N I O, Nio Dona Paula
North Goa, Goa - 403 004.
Also at: No.110, Uthamar Gandhi Salai
Prakash Presidium, 2nd Floor
Nungambakkam High Road
Chennai - 600 034. .. Petitioners
Vs
1 Union of India
Through the Secretary
Department for Promotion of
Industry and Internal Trade
Udyog Bhavan, New Delhi - 110 001.
2 Saregama India Limited
Rep. by Rashi Pochkhanawala
having its Registered office at-
33, Jessore Roaddum Dum
Kolkata - 700 028 and at
Door No.2, 3, 4 and 5
3rd Floor, Kasi Arcade
No.116, Thyagaraya Road
T.Nagar, Chennai - 600 017.
3 Phonographic Performance Limited India
Rep. by Shailesh Kripal
Crescent Towers, 7th Floor, B-68
Veera Estate, Off New Link Road, Andheri (West)
Mumbai - 400 053 and at:
F1, 1st Floor, Jai Park Castle
New No.4, Old No.8, Turnbulls Road
Nandanam Extension, Nandanam
Chennai - 600 035
Tamil Nadu
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4 Sony Music Entertainment Private Limited
Rep. by its Managing Director
No.92 Main Avenue Santacruz (West)
Mumbai - 600054.
(R4 impleaded vide order dated 23.11.2021
made in W.M.P.No.22780 of 2021) .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of declaration (a) declaring Rule 29(4) of the
Copyright Rules 2013 non est, void, unconstitutional and ultra vires;
(b) strike down the Rule 29(4) of the Copyright Rules, 2013 as
unconstitutional being contrary to Article 19(1)(a) of the Constitution
of India; (c) in the alternative to prayer (a) above, that on a true
and correct interpretation of Rule 29(4), this Court be please to
interpret Rule 29(4) as directory and not mandatory such that its
requirements would be satisfied and treated as sufficient compliance
upon submission of the logs containing details by radio broadcasters
such as the petitioner at the end of the month.
For the Petitioners : Mr.Arvind Pandian
Senior Counsel
Mr.Abhishek Malhotra
for Mr.M.S.Bharath
Mr.V.S.Krishna
For the Respondents : Mr.R.Sankaranarayanan
Additional Solicitor General
for 1st respondent
: Mr.Satish Parasaran
Senior Counsel and
Mr.R.Parthasarathy
M/s.Arva Merchant,
Ankur Sangal, Sucheta Roy
Solaiappan.O and Trishai Nag
for 2nd respondent
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: Mr.P.R.Raman
for Mr.Adithya Reddy
for 3rd respondent
: Mr.Vijay Narayan
Senior Counsel
for M/s.Abishek Jenasenan
for 4th respondent
ORDER
THE CHIEF JUSTICE
The writ petition has been filed to challenge the constitutional
validity of Rule 29(4) of the Copyright Rules, 2013 [for brevity, "the
Rules of 2013"]. It is not only in reference to Article 19(1)(a) and
(g) of the Constitution of India, but by alleging it to be in conflict
with Section 31-D of the Copyright Act, 1957 [for brevity, "the Act
of 1957"].
2. Narrating the facts of the case, Mr.Arvind Pandian, learned
Senior Counsel and Mr.Abhishek Malhotra, learned counsel,
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appearing on behalf of the petitioners, stated that the first petitioner
(Next Radio Limited) is holder of FM licenses granted by the Ministry
of Information and Broadcasting. It is operating commercial radio
network since 2007 under the brand name of "Radio One". The
second petitioner is the Association of Radio Operators for India and
is a society registered under the Societies Registration Act, 1860.
The association was formed to promote the interest of its members
and to take steps to protect their rights. Since the petitioners are
either by themselves or in association engaged in the business of
broadcasting the music, they make compliances of the Act of 1957
and the Rules of 2013. The second respondent is a leading music
company operating in India for more than 100 years and the third
respondent claims to be a performance rights organisation licensing
its members sound recordings for communication to public in the
areas of public performance and broadcast.
3. Learned counsel giving the background of the case
submitted that an amendment in the Act of 1957 was brought by
the Copyright (Amendment) Act of 2012 to introduce Section 31-D
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of the Act of 1957. It was to provide new rights in the form of a
statutory licence for broadcasting of works. It was brought to limit
the monopolistic effect and to balance the economic rights of the
copyright owners and the rights of users. The main aim of the
amendment was to benefit and protect consumers' interest. Section
31-D of the Act of 1957 was found to be in consonance with India's
international obligations under Berne Convention, Rome Convention
and Trade-Related Aspects of Intellectual Property Rights.
4. Section 31-D of the Act of 1957, accordingly, recognised the
vesting of statutory rights in all broadcasting organisations, to
broadcast works that have been published. The only aspect that is
to be ascertained/determined prior to exercise of such right is the
quantum of license fee. For this purpose, the Intellectual Property
Appellate Board (IPAB) was vested with the jurisdiction to hear the
interested parties and decide upon the quantum/rate of a statutory
licence fee. The jurisdiction for it has now been vested with the
Commercial Courts by the notification of the Tribunal Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021.
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5. It is submitted that as per Section 31-D of the Act of 1957,
a broadcasting organisation needs to give a 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 the rights in such work royalties in the
manner and at the rate fixed by the Commercial Courts. By virtue
of the aforesaid provision, the broadcasting company can seek a
statutory licence by giving prior notice indicating the duration of the
broadcast and its territorial coverage. However, Rule 29(4) of the
Rules of 2013 was enacted going beyond the scope of Section 31-D
of the Act of 1957. While giving the notice, as per Rule 29(4) of the
Rules of 2013, the information to be furnished goes beyond the
requirement under Section 31-D of the Act of 1957, as amended,
and thereby the constitutional validity of Rule 29(4) of the Rules of
2013 has been challenged.
6. Referring to Rule 29(4) of the Rules of 2013, it is submitted
that the notice to be given should not only contain particulars qua
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the name of the channel; the territorial coverage; and, the duration,
but also the details necessary to identify the work which is proposed
to be communicated to public by way of radio broadcast; the details
of year of publication of such work; name, address and nationality
of the owner of the copyright in such works; and, also the names of
authors and principal performers of such works, etc.
7. It is submitted that Rule 29(4) of the Rules of 2013 requires
information which is not stipulated under Section 31-D of the Act of
1957 and, therefore, to the extent Rule 29(4) of the Rules of 2013
goes beyond the scope of Section 31-D of the Act of 1957 it is to be
declared unconstitutional or be ignored and the notice be limited to
cover the requirements under Section 31-D of the Act of 1957. It is
mainly on the ground that a Rule cannot be made in conflict or
beyond the scope of the statutory provision. A Rule in conflict with
the Act deserves to be struck down.
8. Learned counsel for the petitioners further submit that Rule
29(4) of the Rules of 2013 is otherwise violative of Article 19(1)(a)
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and (g) of the Constitution of India. It is for the reason that despite
the compliance of the provisions of Section 31-D of the Act of 1957
by giving the required information in the prior notice, a contingency
may occur to play a work on demand in the programme and the
information as required under sub-clauses (c), (d), (e), (f) and (j) to
Rule 29(4) of the Rules of 2013 may not be supplied and, in that
eventuality, the broadcasting companies are made liable for
prosecution.
9. Giving an illustration to explain the aforesaid, learned
counsel submitted that while Section 31-D of the Act of 1957
requires prior notice showing intention to broadcast the work stating
the duration and territorial coverage of the broadcast, as per Rule
29(4) of the Rules of 2013, a broadcasting company is required to
give the details necessary to identify the work which is proposed to
be communicated to the public, along with the year of publication of
such work and so on. The prior notice indicating all such
information as per the Rules of 2013 may not be possible at times
when a copyright is to be published on a demand of the viewer
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during the course of publication. To elaborate, it is stated that while
a programme is conceived, the songs may be played on demand of
the viewer, for which a prior notice giving the description of the
work with all required details may not be possible, and, in the
absence of it, the petitioners are dragged to face the prosecution.
The notice is to be given five days' prior to the day of broadcast and,
therefore, Section 31-D of the Act of 1957 was well-conceived
limiting the information to the extent of duration and territorial
coverage of the work, but the Rules of 2013 require information
beyond the statutory prerequisites.
10. It is submitted that the rights of the petitioners
guaranteed under Articles 19(1)(a) and (g) of the Constitution of
India are infringed, inasmuch as they are unable to run their
business despite compliance of all required formalities as given
under the Act of 1957. It is not only while running the radio
broadcast, but even on the performances, where a song may be
performed on demand of the public participating therein. Thus,
giving a practical illustration of the issue, it is submitted that if Rule
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29(4) of the Rules of 2013 is not struck down completely, it should
be struck down to the extent of sub-clauses (c), (d), (e), (f) and (j)
to Rule 29(4) of the Rules of 2013.
11. The other issue raised by learned counsel for the
petitioners is about the disclosure of time slot, duration and period
of programme in which the works are to be included. It is submitted
that the rates for the performance work have been given referring to
the time slot. If a work is performed between 8 am and 10 am, the
rates are higher, while in other time slots, it may be 50% of the
rates and, at times, it may even be 25%. The broadcasting
companies, while performing the work, may not be able to mention
the time slot of publication of the copyright work because songs
may be played on demand during the course of the programme. It
is more so in regard to those programmes which are not
preconceived, but designed to be on the demand of the viewers, i.e.,
play of the copyright work on popular demand. It cannot be
presumed that a song on demand would be played in a particular
time slot, so as to indicate in the prior notice. Therefore, the
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requirement aforesaid pursuant to Rule 29(4)(j) of the Rules of
2013 is infringing the right of the petitioners and, otherwise, it is
unnecessary.
12. Referring to the mechanism of working and settling the
rate, it is submitted that at the end of the month, the complete
details about the performance of works is given to the respondent
companies so as to determine the rate by the commercial courts. It
is not that even if a performance is being taken up suddenly it would
go unaccounted, rather at the end of the month, the necessary
disclosure about the work goes to the respondent companies and
otherwise a complete log is prepared of the performances. Thus,
even there is no purpose sought to be achieved in bringing Rule
29(4) of the Rules of 2013 to disclose certain information going
beyond the provisions of Section 31-D of the Act of 1957. It is only
a mechanism to put the broadcasting companies under threat of
prosecution for no reason and thereby affecting their rights to do
their business.
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13. Learned Senior Counsel for the petitioners referred to
Section 78 of the Act of 1957 to invite the attention of the court
regarding the power to make rules. Section 78(2) of the Act of
1957 gives power to the Central Government to make rules to
provide for all or any of the matters enumerated therein. It is to
canvass an argument that Rule 29(4) of the Rules of 2013 does not
come within the framework of rule-making power and, therefore,
referring to Section 78(2)(cD) of the Act of 1957, it is stated that
the Rules could have been framed within the framework of sub-
section (2) of Section 31-D alone and not going beyond it.
14. The other argument raised by learned counsel for the
petitioners is to declare Rule 29(4) of the Rules of 2013 to be
directory in nature. The alternative argument is in reference to the
word "shall" in the provision, taking it to be not conclusive and
decisive and for that mandatory in nature. Taking it from the real
intention of the legislature, the court should consider the nature and
design of the statute and the consequences which would follow from
construing it one way or the other. The word "shall" used in the
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provision can be taken as "may" so as to make the provision to be
directory instead of treating it to be mandatory. It would otherwise
defeat and frustrate the object of the legislation to bring Section 31-
D of the Act of 1957.
15. A reference of the judgment in the case of Atlas Cycle
Industries Ltd v. State of Haryana, (1979) 2 SCC 196, has
been given by learned counsel for the petitioners to state that
neither the Act of 1957 nor the Rules of 2013 provide for any
penalty or consequence for non-compliance with the provisions of
Rue 29(4) of the Rules of 2013 and the respondents have even
failed to substantiate the necessity for advance intimation of the
details sought under Rule 29(4) of the Rules of 2013 and, therefore,
the provision be treated as directory in nature.
16. In reference to all the facts given above and the legal
provisions, a prayer was made to declare Rule 29(4) of the Rules of
2013 to be unconstitutional as it not only infringes the
constitutional rights of the petitioners, but offends Section 31-D of
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the Act of 1957, as amended.
17. Mr.R.Sankaranarayanan, learned Additional Solicitor
General, appearing for the Union of India, submits that the
argument for challenge to Rule 29(4) of the Rules of 2013 has been
made restricting it in reference to Section 31-D(2) of the Act of
1957, ignoring the other part of the said statutory provision. It is
submitted that Section 31-D(5) of the Act of 1957 requires
disclosure of the names of the authors and principal performers of
the work in case of radio and television programme. It has been
ignored by the petitioners. Rule 29(4) of the Rules of 2013 is not
offending Section 31-D of the Act of 1957, rather it is in consonance
with it. A rule can be brought to supplement the statutory
provisions, though it cannot be to supplant it. In the instant case,
Rule 29(4) of the Rules of 2013 is supplementing Section 31-D of
the Act of 1957 and, therefore, the same is constitutionally valid.
18. Unfolding the background of the amendment brought by
the Copyright (Amendment) Act of 2012, it was submitted that prior
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to the introduction of Section 31-D(2) of the Act of 1957, the
provision was providing for compulsory license only, where the rate
for the publication of the work is to remain in the hands of the
copyright holder. To balance the rights between the copyright holder
and the broadcaster, Section 31-D of the Act of 1957 was brought
so that the rate of publication of the work may be determined by the
Appellate Tribunal, now the commercial courts. If the petitioners
are facing difficulty in getting the statutory licence on the grounds
narrated by them, they can very well perform the work under the
compulsory licence where they are not required to give prior notice.
However, if they want to come within the ambit of Section 31-D of
the Act of 1957, the required information is to be given. The prior
notice containing the required information to be given under Rule
29(4) of the Rules of 2013 is not otherwise offending Article
19(1)(a) and (g) of the Constitution of India.
19. Covering the factual aspect, it is stated that if the
broadcasting company is to publish a work on the demand of the
viewers during the course of the programme, they can do so giving
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required information within 24 hours of such communication of the
work. It is in view of the second proviso to Rule 29(1) of the Rules
of 2013. It takes care of unforeseen circumstances. Therefore, the
excuse taken by the petitioners in reference to unforeseen
circumstances to publish the work on demand, cannot be
countenanced. The petitioners are allowed to publish the work on
demand and comply the second proviso to Rule 29(1) of the Rules
of 2013 which provides for a notice to be given within 24 hours of
publication/communication of the work. In view of the above, the
lame excuse taken by the petitioners for challenge to Rule 29(4) of
the Rules of 2013 is not tenable.
20. Learned Additional Solicitor General further submits that
furnishing the details of time slot, duration and period of
programme in the prior notice cannot be an issue inasmuch as,
largely, the programmes are preconceived. Therefore, five days'
prior notice should contain the required information as given under
Rule 29(4) of the Rules of 2013. When a broadcaster gives prior
notice as per Section 31-D of the Act of 1957 in the manner
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prescribed under the Rules of 2013, it would be after giving the
duration and territorial coverage of the broadcast with the names of
the authors and principal performer of the work. In the absence of
the details of the work, if a prior notice is given, it would be an
empty formality giving no information of the work to be performed.
A prior notice containing the aforesaid information is required for
determination of the rate and payment of 25% of amount in
advance and for that reason only Rule 29(4) of the Rules of 2013
was designed to cover the required aspects to avoid any dispute
between the broadcasting company and the copyright holder.
21. If the arguments of learned counsel for the petitioners are
considered in reference to the details of information to be given
under Section 31-D of the Act of 1957, then unless they would be
knowing about the publication of the work so as to give the names
of the authors of the work, apart from the principal performer, a
prior notice cannot be considered to be in consonance with Section
31-D of the Act of 1957 and once the broadcaster would know about
the names of the authors and the principal performer of the work,
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all the required information is consequential. In view of the above,
even on facts, there is no infringement of the fundamental rights.
22. Learned Additional Solicitor General has further made a
reference of the judgment of the Division Bench of the Madras High
Court in the case of South Indian Music Companies Association
v. Union of India and another, 2016 2 LW 887, where the
constitutional validity of Section 31-D of the Act of 1957 was
addressed. The challenge to the constitutional validity of Section
31-D of the Act of 1957 was made by the broadcasting company,
but was not accepted almost on the grounds, as taken here in
reference to violation of Article 19(1)(g) of the Constitution of India.
When the broadcaster lost in the challenge to Section 31-D of the
Act of 1957, they have challenged Rule 29(4) of the Rules of 2013
indirectly to frustrate the requirement of the statutory licence in
giving prior notice.
23. It is submitted that rule-making power given under
Section 78 of the Act of 1957 authorises the Central Government to
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make rules for carrying out the purposes of this Act. Sub-section
(2) to Section 78 of the Act of 1957 was referred by the petitioners
in isolation without realising that it is without prejudice to the
generality of the powers under sub-section (1) of Section 78 of the
Act of 1957. Thus, sub-section (2) of Section 78 of the Act of 1957
cannot limit the powers of the Central Government, as otherwise
vested under Section 78(1) of the Act of 1957 so as to bring
amendment in reference to Section 31-D(2) of the Act of 1957.
24. The argument of learned counsel for the petitioners that
the provision should be treated as directory instead of taking it to be
mandatory has been contested by learned Additional Solicitor
General. It is submitted that Section 31-D of the Act of 1957 is an
enabling provision and it unequivocally states that the benefit of the
provision shall only be available upon strict compliance of all the
conditions. Since Section 31-D of the Act of 1957 is mandatory
and all the information sought under Rule 29(4) of the Rules of
2013 are flowing from the said statutory provision, Rule 29(4) of
the Rules of 2013 cannot be treated to be directory and otherwise it
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would lose its sanctity. The object of the enactment was to evolve
a mechanism to balance the rights between the copyright holder and
the broadcasting company and such object would be frustrated if
Rule 29(4) of the Rules of 2013 is treated to be directory in nature.
25. A prayer was accordingly made to dismiss the writ petition.
It is even for the reason that for challenge to the constitutional
validity, one is required to make a case of the following nature: (a)
lack of legislative competence; (b) violation of fundamental rights;
(c) violation of any provision of the Constitution of India; (d) failure
to conform to the statutory provision or exceeding the limits of
authority confirmed by the enabling Act; (e) repugnancy to the laws
of the land; and, (f) manifest arbitrariness/unreasonableness. It is
submitted that none of the grounds aforesaid is made out in the
case on hand and, therefore, a prayer was made to dismiss the writ
petition.
26. Mr.Vijay Narayan, learned Senior Counsel appearing for
the fourth respondent, Mr.Satish Parasaran, learned Senior Counsel
appearing for the second respondent and Mr.P.R.Raman, learned
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counsel appearing for the third respondent, submitted that challenge
to the Rule 29(4) of the Rules is nothing but an attempt to indirectly
attack Section 31-D of the Act of 1957, as amended in 2012. At the
first instance, the validity of Section 31-D of the Act of 1957 was
challenged before this court. However, having remained
unsuccessful in the case of South Indian Music Companies
Association v. Union of India and another, supra, the
broadcasters have made a challenge to Rule 29(4) of the Rules of
2013 so as to frustrate the compliance required for prior notice.
27. Learned Senior Counsel appearing for the private
respondents further submitted that though the petitioners have
given illustration of the practical difficulties in furnishing the
required information in the prior notice, in fact, it was furnishing the
required information in the prior notice. At times, the difficulty was
shown by the broadcasting company to know certain details of the
performance work, but on their request, it was furnished by the
respondent companies. It is not that the required information has
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not been furnished to the petitioners, but are otherwise available.
28. Learned senior counsel for the private respondents gave
reference of the letter of the petitioners and reply thereupon by the
music company to indicate that the required details not only of
particular songs, but all the songs for which they possessed
copyright, were given to the petitioners. Thus, it is incorrect to state
that the petitioners may not be knowing about the details required
to be furnished in compliance with Rule 29(4) of the Rules, rather it
is available pursuant to the information furnished by the petitioners
and lies in the public domain.
29. So far as the other practical difficulty of giving prior notice
of a work to be performed on demand of the public or viewer during
the course of the programme is concerned, learned senior counsel
appearing for the private respondents submit that care has been
taken by inserting second proviso to Rule 29(1) of the Rules of 2013
under challenge. If, for any reason, a prior notice could not be
given for performance of the work, it can be furnished by the
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broadcasting company within 24 hours of the work. Thus, the
practical difficulty shown by the petitioners to give the required
information in the prior notice does not sustain.
30. The case of the respondents is further that if challenge to
Rule 29 of the Rules of 2013 sustains, then there would hardly be
any difference between the compulsory licence and statutory licence.
The statutory licence has been brought by Section 31-D of the Act of
1957 to balance the equities, but it has to be on compliance of the
required conditions given therein. The prior notice giving all details
is required for the reason that the broadcasting companies are
required to pay 25% of the rate of the work in advance and it
cannot be worked out without giving the information of the prior
notice. The requirement to pay 25% of the amount on the rates is
to satisfy the requirement for grant of statutory licence.
31. Referring to the case and argument of learned Senior
Counsel for the petitioners, it is submitted that if in the prior notice
the petitioners would indicate only the duration and the territorial
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coverage of the broadcast, it could not be clarified as to how they
would be fetching 25% of the amount towards the broadcast,
because final rate is to be determined by the commercial courts
now. The determination of the amount can be made only when they
would be in possession of the required information to be supplied in
advance, i.e., in prior notice. Therefore, Rule 29(4) of the Rules of
2013 is well conceived taking into consideration all the aspects
required for the statutory licence which otherwise is not in conflict
with Section 31-D of the Act of 1957 and is not infringing any of the
fundamental rights of the petitioners. The prayer is, accordingly, to
dismiss the writ petition.
32. We have considered the rival submission of the parties and
scanned the matter carefully.
33. A challenge to Rule 29(4) of the Rules of 2013 has been
made. Thus, it would be gainful to refer to the said provision
hereunder:
" 29. Notice for Communication to the Public of
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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
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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 Official Gazette 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
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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
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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."
[emphasis supplied]
34. Challenge to the Rule quoted above is mainly in reference
to Section 31-D of the Act of 1957, as amended. It is on the ground
that Rule 29(4) of the Rules of 2013 goes beyond the scope of
Section 31-D of the Act of 1957 or it is in conflict with it and,
therefore, cannot stand. Rather, to the extent of conflict, it has to
be ignored or struck down. Therefore, it would be necessary to
quote Section 31-D of the Act of 1957 hereunder:
"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
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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.
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(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."
[emphasis supplied]
35. Since the first ground of challenge is conflict between the
subordinate legislation and the statutory provision, we need to
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consider the scope of Section 31-D of the Act of 1957, brought for
issuance of the statutory licence for broadcasting of literary and
musical works and sound recording. The provision allows the
broadcasting organisation desirous of communicating to the public
by way of broadcast or performance of a literary or musical work to
do so, provided it gives a prior notice to the owner of the rights in
such work in the manner prescribed containing duration or territorial
coverage of the broadcast. The names of authors and the principal
performers of the work, other than in case of the broadcasting
organisation communicating such work by way of performance, be
announced with the broadcast. Thus, the prior notice with required
information under Section 31-D of the Act of 1957 is provided to
seek a statutory licence.
36. Section 31-D(2) of the Act of 1957 requires the
broadcasting organisation to give a prior notice in such manner as
may be prescribed. The manner has been left open and, accordingly,
it has been prescribed by the respondent authorities now. It is,
thus, evident that the Rules of 2013 have been made in pursuance
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of the provisions of Section 31-D(2) of the Act of 1957 to prescribe
the manner of giving the notice. The respondent authorities have,
accordingly, prescribed the manner and, therefore, it cannot be
accepted that Rule 29(4) of the Rules of 2013 has been framed
without authority and it transgresses the statutory provision of
Section 31-D of the Act of 1957.
37. Now, we need to analyze Rule 29(4) of the Rules of 2013
to find out whether it is in conflict or beyond the scope of Section
31-D of the Act of 1957. Rule 29(4) of the Rules of 2013 provides
the details to be furnished in the notice for the broadcasting of the
work and a serious objection to sub-clauses (c), (d), (e), (f) and (j)
to Rule 29(4) of the Rules of 2013 has been made. To examine the
argument, we would be taking sub-clauses of Rule 29(4) of the
Rules of 2013 to find out whether anyone of the sub-clauses is in
conflict with the statutory provision.
38. Rule 29(4)(c) of the Rules of 2013 requires furnishing of
details to identify the work proposed to be communicated to the
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public. The aforesaid cannot be considered to be in derogation of
Section 31-D of the Act of 1957, rather while making compliance of
Section 31-D(5) of the Act of 1957, the aforesaid disclosures are to
be made and otherwise if details necessary to identify the work are
not furnished, the question would be how the amount of 25% would
be determined for advance payment. When prior notice has to be
given, it presupposes basic information of the work which is going to
be performed. Therefore, we do not find Rule 29(4)(c) of the Rules
of 2013 to be offending the statutory provision. It is covered by
Section 31-D(5) of the Act of 1957.
39. Section 31-D(5) of the Act of 1957 has been referred in
specific terms by learned Additional Solicitor General to show the
requirement of the names of the authors and the principal
performers of the work to be announced with the broadcast. It is
submitted that the broadcasting companies are under a statutory
obligation to give such information and the same can be given only
when the broadcasting company would know about the names of
the authors and the principal performers and once they would be
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knowing about it, all other information is consequential and,
therefore, Rule 29(4) of the Rules of 2013 has been framed within
the four corners of Section 31-D of the Act of 1957. The petitioners
have lost sight of Section 31-D(5) of the Act of 1957 while raising
the issue in reference to Rule 29(4)(c) of the Rules of 2013.
40. Rule 29(4)(d) of the Rules of 2013 requires the year of
publication of the work, while Rule 29(4)(e) of the Rules of 2013
requires the name, address and nationality of the owner of the
copyright in such works and Rule 29(4)(f) of the Rules of 2013
requires names of the authors and principal performers of such
work. When the broadcasting company is required to furnish the
names of the authors and the principal performers of the work under
Section 31-D(5) of the Act of 1957, it can be with information of the
year of publication of such work and is not otherwise an issue which
can be said to be an information in conflict with the statutory
provision. Rather, furnishing the details of the author and the
principal performer is in consonance with Section 31-D of the Act of
1957. Any of the information required under sub-clauses (d), (e)
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and (f) to Rule 29(4) of the Rules of 2013 is not such which can be
said to be in conflict with the Act of 1957 and, otherwise, if the
documents on record are looked into, the petitioners are furnishing
such details in the prior notice under Section 31-D of the Act.
41. The discussion made above is to be analyzed further in
reference to Section 31-D(2) and (5) of the Act of 1957. Section
31-D(2) of the Act of 1957 mandates that the broadcasting
company shall give prior notice indicating its intention to broadcast
the work stating the duration and territorial coverage of the
broadcast. The details of duration and territorial coverage of the
broadcast intended to be broadcast can be given only when the
broadcasting company would be in the know of the work to be
broadcast and otherwise if Section 31-D(5) of the Act of 1957 is
looked into, it requires even the names of the authors and principal
performers of the work. The petitioners are under an obligation to
give the names of the authors and it can be complied only when
they would be in the know of the work to be performed. It is the
same in the case of principal performers of the work. Thus, the said
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information is required to be given as per Section 31-D of the Act
and once such an information is given, we find all other information
required under Rule 29(4) of the Rules of 2013 to be consequential.
The other information to be furnished under sub-clauses (d), (e)
and (f) to Rule 29(4) of the Rules of 2013, i.e., year of publication
of such work; the name, address and nationality of the owner of the
copyrights in such works; and, the names of authors and principal
performers of such works, flows from Section 31-D of the Act of
1957 and are all consequential.
42. It is settled law that a subordinate legislation can be
brought to supplement the main statutory provision, though with a
rider that it should not supplant it. In the instant case, we do not
find that Rule 29(4) is supplanting the statutory provision, rather it
is supplementing it. Once as per Section 31-D(5) of the Act of 1957
the petitioners would be required to furnish the names of the
authors and principal performers, they would be furnishing it based
on the work selected for performance and not otherwise. Thus, we
do not find Rule 29(4) of the Rules of 2013 to be offending the main
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provision of Section 31-D of the Act of 1957, rather it is all
consequential and has to be read in harmony.
43. The aforesaid view of ours is fortified by the decision of
the Apex Court in St.Johns Teachers Training Institute v.
Regional Director, NCTE, (2003) 3 SCC 321, wherein it is held
as under:
"10. A regulation is a rule or order prescribed by a
superior for the management of some business and
implies a rule for general course of action. Rules and
regulations are all comprised in delegated
legislations. The power to make subordinate
legislation is derived from the enabling Act and it is
fundamental that the delegate on whom such a
power is conferred has to act within the limits of
authority conferred by the Act. Rules cannot be
made to supplant the provisions of the enabling
Act but to supplement it. What is permitted is the
delegation of ancillary or subordinate legislative
functions, or, what is fictionally called, a power to fill
up details. The legislature may, after laying
down the legislative policy confer discretion on
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an administrative agency as to the execution of
the policy and leave it to the agency to work
out the details within the framework of policy.
The need for delegated legislation is that they
are framed with care and minuteness when the
statutory authority making the rule, after
coming into force of the Act, is in a better
position to adapt the Act to special
circumstances. Delegated legislation permits
utilisation of experience and consultation with
interests affected by the practical operation of
statutes. Rules and regulations made by reason
of the specific power conferred by the statutes
to make rules and regulations establish the
pattern of conduct to be followed. Regulations
are in aid of enforcement of the provisions of the
statute. The process of legislation by departmental
regulations saves time and is intended to deal with
local variations and the power to legislate by
statutory instrument in the form of rules and
regulations is conferred by Parliament. The main
justification for delegated legislation is that the
legislature being overburdened and the needs of the
modern-day society being complex, it cannot possibly
foresee every administrative difficulty that may arise
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after the statute has begun to operate. Delegated
legislation fills those needs. The regulations made
under power conferred by the statute are supporting
legislation and have the force and effect, if validly
made, as an Act passed by the competent legislature.
(See Sukhdev Singh v. Bhagatram Sardar Singh
Raghuvanshi [(1975) 1 SCC 421])."
[emphasis supplied]
44. In view of the finding rendered above that Rule 29(4) of
the Rules of 2013 is not in any way offending the main provision of
Section 31-D of the Act of 1957 or transgresses the statutory
provision, we are of the opinion that the the prescription under
Section 29(4) is mandatory and not directory and, accordingly, the
decision in Atlas Cycle Industries Ltd v. State of Haryana, has
no application to the facts of this case.
45. Though at one stage, an argument was raised that the
petitioners may not be having the detailed information about the
work, however, going through the documents, it comes out that
when the required details were demanded by the petitioners, it was
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furnished by the private respondents and is available with the
petitioners. Thus, the lame excuse about the non-availability of the
details of the work cannot be accepted.
46. The issue that now remains is in reference to Rule 29(4)(j)
of the Rules of 2013. It requires the details of the time slots,
duration and period of the programmes. According to the
petitioners, it cannot be given for all the work to be performed by
the broadcasting company because many works are taken for
broadcasting instantly on the demand of the viewers. Therefore, the
details about the slot, when it is going to be played cannot be given.
The issue aforesaid has been addressed by the respondents by
stating that the statutory licence presupposes the payment of the
rates to the extent of 25% to be in advance. It cannot be analysed
or determined unless the broadcasting company so as the copyright
holder would know the details of the performance of the work in the
public and for that the slot. In view of the above, the requirement of
details is mandatory under Rule 29(4) of the Rules of 2013 for the
object sought to be achieved and to give effect to Section 31-D of
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the Act of 1957 and further if second proviso to Rule 29(1) of the
Rules of 2013 is looked into, it takes care of the contingencies
shown by the petitioners for broadcasting the work on demand in
the course of programme itself and in that circumstances, the
company can furnish the notice about the said work within 24
hours. Thus, it is not that Rule 29(4) is to be seen in a straitjacket
formula as given by the petitioners, but is to be looked into in
totality which takes care of even the practical difficulties that arise
during the course of broadcasting of the work, which includes the
time slot. Thus, we do not find any good ground to hold that Rule
29(4) of the Rules of 2013 offends Section 31-D of the Act of 1957.
47. The scope of Section 31-D of the Act was analyzed by the
Division Bench in the case of South Indian Music Companies
Association v. Union of India and another, supra, where the
validity of Section 31-D of the Act of 1957 was questioned. It was
on the ground of infringement of the right of equality and
fundamental rights guaranteed under Article 19(1)(g) of the
Constitution of India. Paragraphs 22 and 24 to 27 are quoted
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hereunder for ready reference:
"22. Coming to the challenge made on the ground of
violation of Articles 14 and 19(1)(g) to a piece of
legislation qua the power of judicial review available
to this Court, the Courts are required to take a
practical view and avoid absolute and inflexible
concept. The grounds of challenge are also limited. A
useful reference can be had to the decision of a
Division Bench of this Court Anti Corruption
Movement v. The Chief Secretary to Government of
Tamil Nadu, (2015-2-L.W. 97), in which one of us
(Sanjay Kishan Kaul, Chief Justice) is a member,
wherein, it was held as under:
“35. On appreciation of the submissions and
the judicial pronouncements referred to
aforesaid, we are of the view that the test to
be applied for determining the constitutional
validity has been correctly set out by the
learned senior counsel on behalf of private
respondents 5 to 9. The dual test in this
behalf is, (1) legislative competence
and (2) violation of Fundamental Rights
guaranteed under Part-III of the
Constitution of India.
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36. As far as legislative competence is
concerned, there is really no quibble that the
State Legislature actually had the
competence to carry out the amendment in
view of the matter falling under Entry 42 of
List-III of the VII Schedule, being the
Concurrent List. It is difficult to accept the
submission of the learned counsel for the
petitioner that since the subject matter of the
Entry deals with acquisition and requisition of
property, re-conveyance of property would
not fall within the parameters of the Entry.
Such acquisition in terms includes vesting as
well as divesting of acquired land. This is
also apparent from the fact that often, the
land which is acquired for public purpose, is
placed at the disposal of the authority for
whose benefit the acquisition has been made.
In fact, in V. Chandrasekarans case (2012-5-
L.W. 724 : (2005) 2 CTC 721), while dealing
with Section 48 of the said Act, it was
observed that the land owner cannot seek
de-vesting of land, but only has the right to
receive compensation. The State was also
held not to have requisite power to re-convey
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the land unless there is some statutory
amendment to this effect. Section 48-B is
this statutory amendment.
37. The judgments referred to in support of
the pith and substance doctrine to be applied
while examining issues of legislative
competence have been set out in the various
judicial pronouncements in Subrahmanyam
Chettiar v. Muthuswamy Goundan ((1941)
59 L.W. 61 : A.I.R. 1941 F.C. 47), A.S.
Krishna v. State of Madras (1957 Cri.L.J.
409) and Greater Bombay case ((2007) 6
SCC 236).
38. In the catena of judgments referred to by
the learned senior counsel appearing for
private respondents 5 to 9, the discussion
proceeds on the basis that the compensation
in India qua challenge to the constitutional
validity of a provision of an enactment is
similar to the United States of America, and
apart from the two aspects referred to
aforesaid, there is no third ground available.
It is in this context, it has been observed that
no enactment can be struck down by just
saying that it is arbitrary or unreasonable,
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and the endeavour should not be to
somehow or the other find a constitutional
infirmity to invalidate on it. In fact, an
enactment cannot be struck down on the
ground that Court thinks it unjustified. The
Parliament and the Legislatures, being
the representatives of the people, are
supposed to know and be aware of the
needs of the people and what is good
and bad for them. The Court is not
supposed to sit in judgment over their
wisdom”-vide State of A.P v. McDowell's
case ((1996) 3 SCC 709). Those views have
been approved by the Constitution Bench of
the Supreme Court in R. Gandhi, President,
Madras Bar Association ((2010) 11 SCC 1).
39. The presumption in favour of
constitutionality and the burden being on the
person who attacks it to show that there has
been transgression of the constitutional
principles is thus founded on the number of
judicial pronouncements discussed above as
well as in Greater Bombay Co-op. Bank Ltd.
case ((2007) 6 SCC 236) as the Courts
would be justified in giving a liberal
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interpretation in order to avoid constitutional
invalidity. Even if very wide and expansive
powers are given to an authority, they can be
in conformity with legislative intent of
exercise of power within the constitutional
limitations. It is also the view in State of
Bihar v. Bihar Distillery Ltd. case ((1997) 2
SCC 453) and State of Madhya Pradesh v.
Rakesh Kohli ((2012) 6 SCC 312), the
beginning of the principle of legislative
competence being traced out in
Subramanyan Chettiar v. Muttuswamy
Goundan case (AIR 1941 F.C. 47).
40. The challenge laid by the petitioner based
on the plea of arbitrariness and
unreasonableness on the touchstone of
Articles 14 and 19 of the Constitution of
India, on the first blush, appeared to be
attractive over the possibilities of how the
provision may be used, but once the
touchstone of constitutional validity in terms
of the aforesaid principle is applied, it is
difficult to accept the contention of the
learned counsel for the petitioner.
41. The legislative wisdom cannot be gone
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into or sat in judgment over and thus, even
what is perceived to be an erroneous
legislation cannot be quashed unless it fails
to satisfy the dual test of intelligible
classification and rationality.”
24. Similarly, when a challenge is made to
Section 31D, being violative of Article 19(1)(g),
it has to be demonstrated with clarity that the
restrictions are not reasonable. Such a right is
subject to implied limitations made explicit by
Article 19(2) to 19(6) of the Constitution.
25. As discussed above, Section 31 and 31D
provides for a mechanism to deal with the
public interest vis-a-vis the private interest. It
has been introduced by way of a public policy.
It has got an in-built mechanism to take care of
the interest of the owner. Guidelines have been
provided for the purpose of fixing royalty under Rule
31(7) and (8). The owner would be given reasonable
opportunity of being heard. There has to be
satisfaction that the refusal is not reasonable.
Section 31D was introduced taking note of
Article 11(2) and 13 of Berne Convention and
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Article 15(2) of the Rome Convention (for
sound recordings) and Article 9(1) of the TRIPS
Agreement. It was meant to support the
development and growth of private radio
broadcasting. The object is also to strike at the
monopoly to the detriment of the general
public. While doing so, the provisions also take
care of the interest of the owner. Though there
was no direct challenge, the issues sought to be
raised in this writ petition were raised and discussed
before the Apex Court in Entertainment Network
(India) Limited v. Super Cassette Industries Limited,
((2008) 13 SCC 30). The following paragraphs of the
said judgment would be apposite:
“87. The Act seeks to maintain a balance
between the interest of the owner of the
copyright in protecting his works on the one
hand and the interest of the public to have
access to the works, on the other.
……
90. The freedom to contract is the foundation
of economic activity and an essential aspect
of several Constitutional rights including the
freedom to carry on trade or business
guaranteed under Article 19(1)(g) and the
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right to property under Article 300A of the
Constitution of India. But the said right is not
absolute. It is subject to reasonable
restrictions.
……
93. …. The owner of a copyright has full
freedom to enjoy the fruits of his work by
earning an agreed fee or royalty through the
issue of licenses. But, this right, to repeat, is
not absolute. It is subject to right of others
to obtain compulsory licence as also the
terms on which such licence can be granted.
...
109. When the owner of a copyright or the
copyright society exercises monopoly in it,
then the bargaining power of an owner of a
copyright and the proposed licensee may not
be same. When an offer is made by an owner
of a copyright for grant of license, the same
may not have anything to do with any term
or condition which is wholly alien or foreign
therefor. An unreasonable demand if acceded
to, becomes an unconstitutional contract
which for all intent and purport may amount
to refusal to allow communication to the
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public work recorded in sound recording. A
de jure offer may not be a de facto offer.
….
124. The right to property, therefore, is not
dealt with its subject to restrict when a right
to property creates a monopoly to which
public must have access, withholding the
same from public may amount to unfair trade
practice. In our constitutional Scheme of
statute monopoly is not encouraged.
Knowledge must be allowed to be
disseminated. An artistic work if made public
should be made available subject of course
to reasonable terms and grant of reasonable
compensation to the public at large.”
26. In Super Cassettes Industries Limited v. Music
Broadcast Private Limited, (2012-5-L.W. 753 :
(2012) 5 SCC 488 : AIR 2012 SC 2144), it has been
held as follows:
“81. However, Section 31 of the Copyright
Act creates an exception to the above
mentioned principle of the right of the owner
of the copyright. In substance, the section
deprives the “owner” of the “copyright”
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against his volition. In other words, by
Section 31, the State is authorised, by its
coercive powers, to deprive the owner of his
copyright in a work, which is his property and
the right to enjoy such property in the
manner as the owner of the property pleases.
Necessarily, in view of the constitutional
mandate under Article 300-A, such a
deprivation can only be by the authority of
law and it is too well entrenched a principle
in the constitutional law that such a law
could be only for a public purpose.
…..
85. The power under Section 31 to grant a
compulsory licence meant for avoiding the
withholding of the republication or refuse to
allow the performance in pubic of some
“work” is, essentially, for the benefit of the
public. Commercial benefit to “publisher” is
incidental……”
27. Thus, the Apex Court has taken note of the
various factors by adopting principles governing the
interpretation of statutes including the doctrine of
purposive construction, reading down and contextual
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interpretation. There is no legislative arbitrariness
involved and the classification, being reasonable, has
nexus to the object sought to be achieved. Hence we
do not find any reason to hold that the provisions
contained in Section 31 and 31D of the Copyright Act
as unconstitutional."
[emphasis supplied]
48. The Division Bench while addressing the challenge to
Section 31-D of the Act of 1957 discussed the issue of public
interest vis-a-vis the private interest and held that Sections 31 and
31-D of the Act of 1957 have been introduced by way of public
policy. It is to bring in an in-built mechanism to take care of the
interest of the owner as well as the broadcaster. After remaining
unsuccessful in a challenge to Section 31-D of the Act of 1957, Rule
29(4) of the Rules of 2013 has been challenged.
49. At this juncture, it would be appropriate to note that prior
to the Copyright (Amendment) Act of 2012, compulsory licensing
was only available under Sections 31, 31-A and 31-B of the Act of
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1957 in respect of works unreasonably withheld from the public, or
where the author is dead or unknown, or the licence is for the
benefit of disabled. The Copyright (Amendment) Act, 2012 evolved
a new methodology for granting statutory license in India in respect
of television and radio broadcasting of a literary and musical work
and sound recordings under Section 31-D Act of 1957. Therefore,
there are three types of licences in vogue now. While voluntary
licenses are issued based on consensus between the owner and the
licensee under Section 30 of the Act, compulsory licenses are
granted by the Commercial Court based on the refusal by the owner
to accept the terms offered by the proposed licensee/complainant
under Section 31(1)(b) of the Act; and, statutory licenses are
granted to any broadcasting organisation desirious of
communicating to the public by way of broadcast or by way of
performance of a literary or musical work under Section 31-D of the
Act.
50. The legislative intent behind the introduction of Section
31-D of the Act of 1957 is to strike a balance between the copyright
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owners and the public by imposing reasonable restrictions. While
introducing a new methodology of statutory licensing under Section
31-D of the Act of 1957, the legislature thought it fit to retain the
provisions for granting compulsory license. However, Section 31-D
of the Act of 1957 was introduced to take care of procedural hurdles
and to provide a smooth mechanism and not intended to dilute the
copyright of the owner in its work. Therefore, the formalities as
required under Section 31-D of the Act of 1957 are to be complied
for grant of statutory license.
51. In view of the above, the purpose of Section 31-D of the
Act of 1957 was to balance the equities and, therefore, the
broadcaster may require to pay the rate lesser than provided for
compulsory licence, but by applying the method given under Section
31-D of the Act.
52. Considering the case from any angle, we do not find that
Rule 29(4) of the Rules of 2013 is offending Section 31-D of the Act
of 1957. Accordingly, we are unable to accept the first argument
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raised by learned senior counsel for the petitioners.
53. So far as the infringement of fundamental rights of the
petitioners is concerned, it is not a case where the broadcaster is
denied right to play the work, rather it is after making compliance of
the provisions of the Act of 1957 and the Rules of 2013 framed
thereunder. Rule 29(4) of the Rules of 2013 does not impose such
a restriction which may be said to be violative of Article 19(1)(a) or
(g) of the Constitution of India. The compliance of Rule 29(4) of
the Rules of 2013 is not such where the petitioners are unable to
give prior notice with all required information. Analyzing the facts,
it is clear that none of the information required to be given under
Rule 29(4) of the Rules of 2013 can be said to be unavailable,
rather it is available with the petitioners and is being complied with
while giving the prior notice, as referred by learned senior counsel
for the respondents. When the petitioners themselves called for the
information from the respondent music companies to furnish
required details of the copyright work and was even furnished and is
otherwise available in the public domain, it cannot be said that
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information so required under Rule 29(4) of the Rules of 2013 could
not have been furnished by the petitioners so as to avail the benefit
of statutory licence offending their fundamental rights, rather the
information is available with the petitioners in reference to their
letters sent and replied by the respondents. Therefore, we are even
unable to accept the challenge in reference to Article 19(1)(a) and
(g) of the Constitution of India.
54. The challenge to the provisions of the law otherwise
requires to be on the grounds set out by learned Additional Solicitor
General and we do not find that the provisions under challenge lack
legislative competence and it is not otherwise the case of the
petitioners. The alleged violation of the fundamental rights has
been addressed by this court so also the issue in reference to the
failure of the subordinate legislation to conform to the statute. It is
not even the case of the manifest arbitrariness or unreasonableness
in bringing in Rule 29(4) of the Rules of 2013 so as to make out a
case for grant of relief.
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55. To examine the argument in reference to Section 78 of the
Act of 1957, the provision aforesaid is reproduced hereunder:
"78. Power to make rules.—
(1) The Central Government may, by
notification in the Official Gazette, make rules
for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, the Central
Government may make rules to provide for all
or any of the following matters, namely:—
[***]
(b) the form of complaints and applications
to be made, and the licences to be granted,
under this Act;
(c) the procedure to be followed in
connection with any proceeding before the
Registrar of Copyrights;
...
(cB) the manner in which a person making
sound recording may give prior notice of his
intention to make sound recording under
sub-section (2) of section 31C;
(cC) the register and books of account and
the details of existing stock which a person
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making sound recording may maintain under
sub-section (5) of section 31C;
(cD) the manner in which prior notice
may be given by a broadcasting
organisation under sub-section (2) of
section 31D;
(cE) the reports and accounts which may be
maintained under clause (a), and the
inspection of records and books of account
which may be made under clause (b) or sub-
section (7) of section 31D;
(ca) the conditions for submission of
application under sub-section (2) of section
33;
(cb) the conditions subject to which a
copyright society may be registered under
sub-section (3) of section 33;
(cc) the inquiry for cancellation of
registration under sub-section (4) of section
33;
(ccA) the manner in which a copyright
society may publish its Tariff Scheme under
sub-section (1) of section 33A;
...
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(ccC) the form of application for renewal of
registration of a copyright society and the fee
which may accompany such application
under sub-section (3A) of section 33;
(cd) the conditions subject to which the
copyright society may accept authorisation
under clause (a) of sub-section (1) of section
34 and the conditions subject to which
owners or rights have right to withdraw such
authorisation under clause (d) of that sub-
section;
(ce) the conditions subject to which a
copyright society may issue licences, collect
fees and distribute such fees amongst owners
of rights under sub-section (3) of section 34;
(cf) the manner in which the approval of the
owners of rights regarding collection and
distribution of fees, approval for utilisation of
any amount collected as fees and to provide
to such owners information concerning
activities in relation to the administration of
their rights under sub-section (1) of section
35;
(cg) the returns to be filed by copyright
societies to the Registrar of Copyrights under
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sub-section (1) of section 36;
(d ) the manner of determining any royalties
payable under this Act, and the security to be
taken for the payment of such royalties;
(da) the manner of payment of royalty under
clause (j) of sub-section (1) of section 52;
[***]
(e) the form of Register of Copyrights to be
kept under this Act and the particulars to be
entered therein;
(f) the matters in respect of which the
Registrar of Copyrights shall have powers of
a civil court;
(g) the fees which may be payable under this
Act;
(h) the regulation of business of the
Copyright Office and of all things by this Act
placed under the direction or control of the
Registrar of Copyrights.
(3) Every rule made under this section shall be laid,
as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one
session or in two or more successive sessions, and if,
before the expiry of the session immediately
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following the session or the successive sessions
aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no
effect, as the case may be; so, however, that any
such modification or annulment shall be without
prejudice to the validity of anything previously done
under that rule."
[emphasis supplied]
56. Sub-section (1) to Section 78 of the Act gives power to the
Central Government to make rules for the purpose of carrying out
the purposes of this Act. Sub-section (2) is giving power in
particular, but without prejudice to the generality of the power given
under sub-section (1) and, therefore, while sub-section (2) may
govern the particular subject, it does not mean that other than the
particular subjects given therein the Central Government was not
having authority to come out with the rules for the purpose of
carrying out the Act. We do not find that the Rules brought by the
respondents are in any manner de hors the powers conferred under
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Section 78 of the Act of 1957.
57. The finding aforesaid is arrived at after analysing the issue
in reference to every sub-clause of Rule 29(4) of the Rules of 2013
under challenge and, that too, after taking into consideration the
difficulties projected by the petitioners in furnishing the required
information in the manner prescribed under Rule 29(4) of the Rules
of 2013 in reference to Section 31-D(2) and (5) of the Act of 1957.
58. In the result, the writ petition is dismissed. There will be
no order as to costs. Consequently, W.M.P.Nos.16749 and 16752 of
2021 are closed.
(M.N.B., CJ) (D.B.C., J.)
20.04.2022
Index : Yes
sasi
To:
The Secretary
Union of India
Department for Promotion of
Industry and Internal Trade
Udyog Bhavan, New Delhi - 110 001.
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THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.
(sasi)
W.P.No.15860 of 2021
20.04.2022
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