Delhi High Court
The Federation Of Hotels & Restaurants ... vs Union Of India & Ors. on 7 April, 2011
Author: Vikramajit Sen
Bench: Vikramajit Sen, S.L. Bhayana
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.452/1999, WP(C) No.914-1040/2009
& CM No.17009/2008
The Federation of Hotels &
Restaurants Association of India ...Appellant through
Mr. Lalit Bhasin, Ms. Ratna
Dwivedi Dhingra, Mr. Sanjay
Gupta, Mr. Ranjan Kumar &
Mr. Moazzam Khan, Advs.
versus
Union of India & Ors. ....Respondent through
Mr. P.V. Kapur, Sr. Adv. with
Mr. Himanshu Bagai &
Mr. Aman Anand, Advs. for
Respondent No.2
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Pragyan Sharma &
Mr. Rupesh Gupta, Advs.
for Respondent No.3/
Phonographic Performance
WITH
WP(C) No.23787-89/2005, WP(C) No.3870-3995/2009 & CM
Nos.15793/2005, 15893/2006, 17003/2008, 17424/2008 &
161/2010, 154/2010 & CM No.4243/2010
The Federation of Hotels &
Restaurants Association of India ...Appellant through
Mr. Lalit Bhasin, Ms. Ratna
Dwivedi Dhingra, Mr. Sanjay
Gupta, Mr. Ranjan Kumar &
Mr. Moazzam Khan, Advs.
versus
Union of India & Ors. ....Respondent through
Dr. A.M. Singhvi, Sr. Adv.
with Mr. Pragyan Sharma &
WP(C)452.1999 Page 1 of 30
Mr. Rupesh Gupta, Advs.
for Respondent No.3/
Phonographic Performance
% Date of Hearing : March 04, 2011
Date of Decision : April 07, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
(1) These Civil Writ Petitions have been filed under Article 226 of the Constitution of India for the issuance of an appropriate writ striking down Sections 2(ff), 13, 33(3), 34(3) of the Copyright Act, 1957 as these provisions are perceived by the Petitioners as being violative of Article 14 and 19(1)(g) of the Constitution of India. In WP(C) No.452/1999 & WP(C) No.914- 1040/2009, the Indian Performing Rights Society (hereinafter referred as IPRS) stands impleaded as Respondent No.2, Phonographic Performance Ltd. (hereinafter referred as PPL) as Respondent No.3 and the Registrar of Copyrights as Respondent No.4. In WP(C) No.23787-89/2005 & WP(C) No.3870-3995/2009, the IPRS has not been impleaded. The Prayers contained in these two set of Writ Petitions read thus:-
WP(C)452.1999 Page 2 of 30
WP(C) No.452/1999 & WP(C) No.914-1040/2009 a. declare by an appropriate writ order or direction, Section 2(ff), 13, 33(3) and 34(3) of the Copyright Act, 1957, to be ultra vires Article 14 & 19(1) (g) of the Constitution of India; or b. issue a writ of mandamus or any other appropriate writ, order of direction to the Union of India and the Registrar of Copyrights to withdraw the registration of IPRS & PPL under Section 33 of the Act;
c. issue a writ of mandamus directing the Registrar of Copyrights to denotify the tariff schemes gazetted by IPRS & PPL in the year 1996 under Section 34 of the Copyright Act 1957 for being arbitrary and unreasonable;
d. pass such other and further orders as may be deemed just and proper in the facts and circumstances of the present case;
e. award costs of the petition to the petitioner.
WP(C) No.23787-89/2005 & WP(C) No.3870-3995/2009 a. declare by any appropriate writ, order or direction, Sections 2(ff), 13, 33(3) and 34(3) of the Copyright Act, 1957 to be ultra vires and violative of Articles 14 & 19 (1) (g) of the Constitution of India; and/or b. issue directions against Phonographic Performance Limited against charging the Petitioners a fee for so called special events license, and c. quash the exorbitant rates notified by Phonographic Performance Limited for the special events license for the year 2005, and d. award costs of the petition to the Petitioners.WP(C)452.1999 Page 3 of 30
e. pass any such order and further order(s) as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present case.
(2) Mr. Lalit Bhasin, learned counsel for the Petitioners, has contended that Section 34 of the Copyright Act, 1957 is unconstitutional as it bestows uncontrolled, unregulated and unbridled powers on a copyright society with regard to issuance of licenses to various bodies and organizations, collecting fees in pursuance of such licences and distributing such fees among owners of those rights. The submission is that Guidelines ought to have been put in place for regulating the functions of the concerned Copyright and Performing Societies. The grievance is that the Copyright Act does not stipulate the conditions on which the said societies can issue licenses, and most importantly, what fee is to be charged in that context. It has also been contended that inasmuch as the Copyright Societies perform functions as broadcasters of music throughout the country as well as overseas, there functioning is a public character. It is contended that the purpose of the statute is not merely to fix adequate compensation for exploitation of the concerned copyright, but also to promote music and performances for the benefit of the public. A grievance is made of the absence of conditions for fixing rates WP(C)452.1999 Page 4 of 30 for issuance of licenses. Hence, the argument goes that the provisions of the Copyright Act, 1957, more particularly Sections 33, 34 and 35, are ultra vires the Constitution of India. (3) So far as the Registrar of Copyrights or the Copyright Board is concerned, it is contended that since neither of them have the right or authority to examine the reasonableness of the rates fixed/demanded by the Copyright Society, the statute is ultra vires the Fundamental Rights guaranteed by the Constitution. Emphasis is placed on the statutory position prevailing prior to the amendments carried out in 1994 to the Copyright Act inasmuch as the unamended provisions provide for Objection to be filed with regard to myriad matters, including fees/charges/royalty. It is contended that the amendments to the Copyright Act, which came into force in 1994, extinguish the powers in this regard that were formerly bestowed on the Copyright Board. The argument is that this statutory power now vests in the Copyright Society which exists to protect and project the self-interests of its constituent members. Emphasis has been placed on Rule 10 of the Cable Television Networks Rules, 1994 (CTN Rules for short) passed under the mantle of the Cable Television Networks (Regulation) Act, 1995. It is underscored that the said Rule 10 of CTN Rules empowers the Appropriate Authority to fix the maximum retail WP(C)452.1999 Page 5 of 30 price of each channel regardless of/or overruling the price fixation carried out by the Society. The submission is that the Copyright Act, 1957 should contain a similar power, and since it does not do so, it is violative of the Fundamental Rights enshrined in Articles 14 and 19(1)(g) of the Constitution of India. Mr. Bhasin emphasizes that there is no privity of contract between hotels and restaurants on the one hand and the IPRS/PPL on the other. This is for the reason that the hotel receives these programmes via the Broadcaster or the MSO or the cable operators operating in the area. The contention is that once the „overall fee‟ is paid by the Hotel, no further payments are postulated or should be permitted; it is exclusively the responsibility and liability of the Cable Operator etc. to obtain requisite copyright licenses. The Petitioners assail the vires of Section 33 of the Copyright Act in that it creates a monopoly in favour of the OIPRS/PPL; because of the monopoly such Societies hold the consumers to ransom by charging exorbitant licence fees. Challenge has also been cast on the practice of the Society to charge special licence fee on events organized by Hotels and/or Restaurants on Christmas Eve, New Year Eve, Valentine Day etc., in spite of the fact that the licencee would have already paid the demanded fee stretching over the entire calendar year. The next argument is WP(C)452.1999 Page 6 of 30 that since the Central Government has permitted at least three societies to be registered in respect of the same class of work, Section 33(3) of the Copyright Act, 1957 has been violated, and if this is not so, the vires of the Section are suspect. (4) The dialectic which has been drawn up on behalf of the Petitioners is that the rights of authors, lyricists and composers etc. are extinguished or become fused with the rights of the owners of sound recording and hence separate payments to these two categories ought not to be countenanced. It is pointed out that the licencees, such as the Petitioners, use only the end product, that is the sound recording, and thus should be liable only to the owners of the sound recording. The challenge to the claim of the IPRS is predicated on the argument that the sound recording is a complete product by itself as postulated in Section 2 (xx), 2 (y) (iii), 13 (i) (c), 14 (a)
(iv), Sections 17, 21, 38, 52 (i) (j) etc. ARE THE WRIT PETITIONS MAINTAINABLE (5) Learned Senior Counsel for the PPL has challenged the maintainability of these Writ Petitions on the premise that PPL is purely a private body and that its members, who are owners of the sound recording, have assigned their rights for communicating the sound recordings to the public. Since the PPL does not perform any public or statutory functions, not WP(C)452.1999 Page 7 of 30 being „State‟, as contemplated by Article 12 of the Constitution, it is impervious to the extraordinary jurisdiction of the High Court. Emphasis is laid on the purely commercial and private nature of dealings of PPL. Dr. A.M. Singhvi, learned Senior Counsel, who had opposed maintainability of the Writ Petitions on behalf of PPL, had also correctly drawn our attention to the question that the Copyright Act being ultra vires to the Constitution of India, had not been argued by Mr. Bhasin and, therefore, the Writ Petitions were manifestly not maintainable. We must immediately record that this submission made by Dr. Singhvi, to the effect that the Petitioners had not attacked the vires of the Copyright Act and the Copyright Rules, is factually correct. Beyond merely a self-serving statement and an ipse dixit to the effect that the IPRS and PPL discharge public functions, no material or cogent argument has been put forward on behalf of the Petitioners.
(6) The owners of Copyright are fully entitled to reap the rewards for their creativity and genius. In the present regime, Parliament has seen fit to place few restraints on the enjoyment of the owners‟ rights. However, since a party can invoke Section 31 for obtaining a compulsory license from the Registrar of Copyrights by approaching the Copyright Board, competing interests have been duly balanced by Parliament. WP(C)452.1999 Page 8 of 30 (7) If we are to adopt a strict and technical approach, we should dismiss the Petitions as not maintainable on the strength of Federal Bank Ltd. -vs- Sagar Thomas, (2003) 10 SCC 733, wherein the Supreme Court has laid down that the existence of merely regulatory provisions, intended to ensure that business or commercial activity is carried out by private bodies in a disciplined manner, Article 226 of the Constitution of India does not get attracted. In Binny Ltd. -vs- V. Sadasivan, AIR 2005 SC 3202, it has once again been enunciated that Article 226 preeminently contains a public Law element; ergo, it is not applicable against private wrongs. Writs may also issue against private bodies provided they are for the enforcement of a public duty. In Ramana Dayaram Shetty -vs- The International Airport Authority of India, AIR 1979 SC 1628, the Supreme Court has opined that the "action of the Executive Government must be informed with reason and should be free from arbitrariness. This is the very essence of the rule of law and it bears minimal requirement". However, the status of the IPRS/PPL cannot be equated with that of the International Airport Authority of India. In Chander Mohan Khanna -vs- The National Council of Educational Research & Training, AIR 1992 SC 76, despite noting that the Respondent veritably enjoys a monopoly, Article 12 of the Constitution of India was found not WP(C)452.1999 Page 9 of 30 to have been attracted. Mention may also be made to Sabhajit Tewary -vs- Union of India, AIR 1975 SC 1329 where it was held that the Respondent, which is registered under the Societies Registration Act, 1860, was not imbued with statutory duties and hence could not correspond to „State‟, as envisaged in Article 12 of the Constitution of India. For the very same reasons, M/s. Dwarka Prasad Laxmi Narain -vs- The State of Uttar Pradesh, 1954 SCR 803 is not relevant for the controversy before us. This is for the simple reason that the actions under the Uttar Pradesh Coal Control Order, 1953 cannot be placed on the same platform as the tariff demanded by private bodies, such as the IPRS and the PPL. The watershed between the ultra vires demands and legitimate demands, so far as a challenge to writ proceedings is concerned, would largely fall on the status of the Respondent, viz. whether it performs any obligations of a constitutional or statutory nature. (8) There is such a plethora of precedents on this aspect of the law that a more detailed analysis would lead to inordinate prolixity of this Judgment. As we have already noted above, the broadcast or dissemination of music to the public at large is neither a statutory responsibility nor a duty of a public character. The Copyright and Performing Societies, IPRS/PPL are an amalgamation of conglomeration of individuals/owners WP(C)452.1999 Page 10 of 30 who are fully entitled to claim the highest premium for enjoyment of the fruit of their labour or intellect, subject to any statutory restraints that may have been provided for by Parliament.
(9) In these circumstances, we hold that the Writ Petitions, save for the aspect of the vires of the Copyright Act, are not maintainable.
IS AN ALTERNATIVE REMEDY AVAILABLE (10) The existence or otherwise of an alternative remedy immediately and logically comes into focus, following upon the previous discussion. The challenge raised before us is to the quantum of charges claimed by the Respondent/Copyright and Performing Societies, namely, IPRS and PPL. It is argued that arbitrary and exorbitant charges cannot be allowed to be claimed by the IPRS/PPL, on behalf of the author, composer, lyricists, sound recorder, producer of a motion picture etc. It is further contended that only one copyright society can be allowed to be registered, whereas, as is manifest from the present writ action, there are at least two such societies in existence. We have already noted the existence of Section 31 which postulates that the powers of the Registrar of Copyrights is empowered to grant a compulsory license in circumstances dealt with in that Section. Assuming that the Petitioners are WP(C)452.1999 Page 11 of 30 dissatisfied with the quantum of charges demanded by the concerned society on the ground that they are excessive or extortionate, the Petitioners can approach the Registrar of Copyrights for the grant of a compulsory license. This remedy has not been availed of in the case before us. Thereafter, Section 33 requires every person or association of persons intending to carry on the business of issuing or granting licences in respect of any work in which a copyright subsists, or in respect of any other rights conferred by the Copyright Act, to obtain registration from the Central Government. Sub- section(3) of Section 33 obligates the Central Government to keep in perspective the interests of the owners as well as the public. Section 78 of the Copyright Act empowers the Central Government to make Rules for carrying out the purposes of the statute. Chapter V of the Copyright Rules, 1958 framed pursuant thereto, concerns the registration and functioning of Copyright and Performing Societies, such as IPRS and PPL. Rule 12 deals with the conditions for submission of an application for registration of a copyright society; and a Performing Rights Society in Rule 13. Thereafter, the Rules copiously deal with the conditions as well as the manner in which registration can be obtained. Most significantly, Rule 14F provides for the cancellation by the Central Government of WP(C)452.1999 Page 12 of 30 the registration of a copyright society. It is also important to emphasise Rule 14B(ii) which enables the Central Government to reject an application for registration, inter alia, if "there exists another copyright society registered under the Act for administering the same class of works and it is functioning well". Since the grievances ventilated before us, in our opinion, must perforce be laid before the Central Government on a true understanding of the Copyright Act, 1957 and the Copyright Rules, 1958, we must refrain from giving any definitive interpretation of the provisions or even an indication of how the Central Government or the Registrar of Copyrights or the Copyright Board should interpret these provisions. We shall, therefore, go no further than merely notice that the embargo seems to be on granting multiple registrations in respect of the same class of works. We say this for the reason that Mr. P.V. Kapur, learned Senior Counsel for IPRS, has addressed detailed arguments on the aspect that globally Copyright laws recognize different ownership rights vis-à-vis music, which word we use in a compendious manner. It is the quasi-judicial statutory authority, such as the Registrar of Copyright and the Copyright Board which must be approached in the first instance by aggrieved parties like the Petitioners before us. WP(C)452.1999 Page 13 of 30 (11) In this analysis, it is plain to us that the Copyright Act and the Copyright Rules provide a remedy that can be availed of by any person aggrieved with the grant of registration of a Copyright or a Performing Society for exploitation of the respective proprietary rights in copyrights. Chapter XIV of the Copyright Act is a fasciculus comprising Sections 71 to 73 pertaining to Appeals. Section 72(1) bestows the right of an appeal against the final order of the Registrar of Copyrights to the Copyright Board. Section 72(2) provides for an appeal to the Copyright Board in respect of any final decision of the Registrar of Copyrights except in cases where the Registrar of Copyrights is itself the Appellate Forum. An Appeal against the final decision or order of the Copyright Board lies to the High Court within whose jurisdiction the Appellant actually and voluntarily resides or carries on business or personally works for gain. Writ jurisdiction has never been intended as a concurrent remedy to that of an appeal. It is beyond cavil that the High Courts will not exercise their extraordinary jurisdiction where alternative remedy is available. It is also unarguable that the High Courts will not exercise writ jurisdiction if it tantamount to obliterating a statutory right of appeal. Keeping in perspective the fact that the Writ Petitioners have not exercised or availed of the remedies provided under WP(C)452.1999 Page 14 of 30 the Copyright Act, 1957, any pronouncement made on the grievances addressed before us pertaining to the quantum of fees/charges by the IPRS/PPL, or as to whether registration of the IPRS and PPL has been validly granted, or whether the Act permits separate/special charges to be claimed for special events, such as Christmas Eve, New Year Eve or Valentine Day functions would defeat the purposes of the Copyright Act. We must, and we do abjure from entering upon this controversy. ARE ANY OF THE PROVISIONS OF THE COPYRIGHT ACT, 1957 OR THE COPYRIGHT RULES, 1958 FRAMED THEREUNDER ULTRA VIRES THE CONSTITUTION.
(12) It has already been noted by us that Dr. Singhvi had correctly submitted that arguments on this aspect of the Writ Petitions had not been addressed by Mr. Bhasin in his opening address. It is, therefore, quite possible to conclude or certainly view this challenge as a cosmetic one, calculated to cover up the legal blemishes so far as the challenge to the tariff charged by the IPRS/PPL, or even to their right to claim separate tariffs for special days are concerned. Traversing the avenue of the extraordinary jurisdiction of this Court under Article 226 of the Constitution is impermissible. We have been inundated and very burdened by the volume of case law cited at the Bar. In the view that we have favored, we think it unnecessary to discuss and analyse each and every case. We shall, however, WP(C)452.1999 Page 15 of 30 mention three decisions since they bring to the fore the complex nature of rights and liabilities that can be generated on the legal nodus before us. Indian Performing Right Society Ltd. -vs- Eastern Indian Motion Pictures Association, (1977) 2 SCC 820 sounds the exposition of the law before us. It was noted that the Appellant, Indian Performing Right Society Ltd., comprises composer of musical works, authors of literary and dramatic works and artist. After analyzing the provisions of the Copyright Act, 1957, the Court considered the competing claims before the composer of lyrics or musical work on the one hand and the producer of the soundtrack of a cinematograph film on the other. Their Lordships found that once the author of a lyric or a musical work parts with a portion of his copyright by authorizing the film producers to make a cinematograph film in respect of his work incorporated or recorded on the soundtrack of the film, the producer enjoys the exclusive copyright in respect of the publication of that film. The public exhibition includes the soundtrack as well as the cinematograph film. Accordingly, the artist is free to exploit and earn from his copyright in the musical work, whilst the film producer can do so in respect of the combination of artistic pieces contained in the film. If the composer exhibits the films or broadcasts any musical composition contained in the film, he WP(C)452.1999 Page 16 of 30 would violate the rights of the film producer. If the film producer engages other artists to render another version of the musical composition, he violates the copyright of the composer. The producer does not, however, violate any right enuring in the composer from a repeated exhibition of the film since he has already paid the composer for these rights. The following paragraphs from Indian Performing Right Society Ltd. are worthy of reproduction:-
15. The interpretation clause (f) of Section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in continuation with Section 14(1)(c)(iii) that the term "cinematograph film"
includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is associated with the film. Section 13 recognises "cinematograph film" as a distinct and separate class of "work" and declares that copyright shall subsist therein throughout India. Section 14 which enumerates the rights that subsist in various classes of works mentioned in Section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinematograph film means among other rights, the right of exhibiting WP(C)452.1999 Page 17 of 30 or causing the exhibition in public of the cinematograph film i.e. of causing the film insofar as it consists of visual images to be seen in public and insofar it consists of sounds to be heard in public. Section 13(4) on which Mr Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between Section 13(4) and Section 14(1)(a)(iii) on the one hand and Section 14(1)(c)(ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of Section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film insofar as it consists of visual images to be seen in public and insofar as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or musical work for the performance of the work in public. In other words, a distinct copyright in the WP(C)452.1999 Page 18 of 30 aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in Section 13(4) of the Act on which Mr Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of Section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track of from WP(C)452.1999 Page 19 of 30 communicating or authorising the communication of the film by radio-diffusion, as Section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the expresses provisions of clauses (f), (m), (y) of Section 2, Section 13(1)(b) and Section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinematograph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood.
16. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d), (v), (f), (m), (v) and (y) of Section 2, Sections 13(1) and 14(1)(c), provisos (b) and
(c) to Section 17 and Sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright [comprising a bundle of exclusive rights mentioned in Section 14(1)(c) of the Act] comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized.
WP(C)452.1999 Page 20 of 30 (13) In Entertainment Network (India) Limited -vs- Super Cassette Industries Limited, (2008) 13 SCC 30, the copyright of sundry musical works was held by the Respondent. The Appellant had unauthorisedly broadcast these musical works on their Radio Station, namely, Radio Mirchi. The Appellant‟s case was that it had paid licence fee to Phonographic Performance Limited (PPL) and it was not aware that it was further liable to pay charges to Super Cassettes; that it had undertaken to pay these charges. No consensual terms having been concluded between these parties, Radio Mirchi applied under Section 31 of the Copyright Act, 1957 for a „compulsory license‟. The Bombay High Court held that the grant of a compulsory license of reasonable remuneration was postulated under Section 31 of the Copyright Act, whereas the Delhi High Court held to the contrary. Their Lordships opined that the very purpose behind Section 31 of the Copyright Act was to approach the Copyright Board for the grant of a compulsory license when the parties had failed to reach an agreement on this score. Another question which had arisen was whether the grant of multiple compulsory licenses was envisaged under the said provision. The view of the Supreme Court was that the purpose of the enactment was to grant multiple licenses regardless of whether it pertained to a small part of or the whole of the country. WP(C)452.1999 Page 21 of 30 Significantly, their Lordships had also given their imprimatur to the approach of the High Court in declining to return a decision on the quantum of charges for the reason that this exercise fell within the province and responsibility of the Copyright Board. The Supreme Court had also rejected the argument that the right to proprietary subsumed the right to exploit the musical works; it underscored the fact that the right to property was no longer a Fundamental Right. It favoured the contrary position. In upholding the vires of the Copyright Act, 1957, the Court had balanced the proprietary rights of the owner of a copyright with that of the public by underscoring the availability of a claim for a compulsory license. Garware Polyesters & Polymers Ltd. - vs- Telelink, AIR 1989 Bombay 331 was a decision of a Single Bench. The Plaintiff was a holder of a video copyright, whereas the Defendant was a Cable T.V. Network which was transmitting the films, the copyright of which vested in the Plaintiff. The learned Single Judge analyzed and noted Section 2(dd) which defines „broadcast‟ to mean communication to the public. The Defendants‟ contention was that since the films were viewed inside the private homes of various subscribers, it did not tantamount to a broadcast. Applying the ratio of several judgments delivered by foreign courts, the Court concluded that even though the viewing by the subscribers may be within the WP(C)452.1999 Page 22 of 30 privacy of their homes, it fell within the ambit of the word „broadcast‟ as defined in Section 2(dd) of the Copyright Act, 1957. A learned Single Judge of this Court, in Supercassette Industries -vs- Nirulas Corner House, 148(2008) DLT 487, has applied this decision in granting an injunction in favour of the holder of the copyright against the Defendant/Holder which was showing these works through cable connection in the hotel rooms against specific charges. The ratio of Northern India Caterers (India) Ltd. -vs- Lt. Governor of Delhi, (1978) 4 SCC 36 was, however, not applied before our learned Brother. (14) We shall briefly refer to the decision of the House of Lords in Chappel and Co. Ltd. -vs- Redwood Music Ltd., 1981 RPC 337 to underscore that the existence of separate copyrights in a singular musical piece is not a phenomenon unknown to law. (15) In Performing Right Society Ltd. -vs- Hawthorn‟s Hotel (Bournemouth) Ltd., [1933] All E.R. 268, the Order is concise and hence is reproduced by us for ease of reference:-
The only question which has to be decided in this action is whether the performance of the two works in question on Nov. 20, 1932, was a performance of those two works "in public." If it was, the defendants have infringed the rights which are conferred upon the plaintiffs, as owners of the performing rights, by virtue of s.1 (2) of the Copyright Act, 1911.WP(C)452.1999 Page 23 of 30
The defendants‟ hotel is unlicensed. It has accommodation for about 175 guests, and regularly, for the past four years, on Sunday evenings, the trio engaged on Nov. 20, 1932, has played in the lounge. In addition to playing on Sunday evenings it plays at tea- time during the Christmas and Easter holidays. On Nov. 20, 1932, a number of guests were sleeping at the hotel. Some of them were in the lounge on the occasion in question. There was also present an emissary of the plaintiffs (accompanied by a friend) who went there for the purpose of hearing whether any piece of music, to the copyright of which the plaintiffs were entitled, would be played by the trio.
I think that it is quite plain, on the evidence, that any member of the public, who had given notice to the defendants of his desire to dine at the hotel on Nov. 20, 1932 or any other Sunday, would have been allowed to have dinner there, provided that he appeared to be respectable. No doubt, he would have been at liberty to go into the lounge and listen to the music performed by the trio. In other words, any respectable member of the public who is prepared to pay the price charged by the defendants either for consuming meals in their hotel, or for staying there, was at liberty to listen to the music performed by the trio engaged by the defendants. In my judgment the performance by the defendants, in those circumstances, was a performance "in public", and the rights which the plaintiffs have under the statute have been infringed. The rights of the plaintiffs have been challenged by the defendants and the plaintiffs are entitled to an injunction restraining WP(C)452.1999 Page 24 of 30 the defendants, their servants and agents, for the duration of the copyright, from performing in public the two musical works in question.
(16) Suffice it to say that the amendments carried out in the Copyright Act, 1957 are calculated to guarantee a fair return to the authors, composers or lyricist or sound recorders, as the case may be. There is no absolute, untrammeled or unbridled right existing or granted to the public at large to enjoy fruits of such creation without any payment in recompense or for payments which the public may be willing to give. The initial burden or duty of harmonizing these competing interests and rights has been laid at the door of the Copyright Board in the case of price fixation/tariff and in other cases with the Registrar of Copyrights. We must traverse that very path as was laid down in Entertainment Network (India) Limited wherein their Lordships had endorsed the approach of the Bombay High Court in remitting the matter back to the Copyright Board for determination. So far as any challenge to according registration of multiple societies is concerned, it is the Central Government which must take a decision. We must not succumb to indiscipline by entering into a detailed discussion on the legitimacy or reasonableness of the tariff for the simple reason that this question must be voiced and the WP(C)452.1999 Page 25 of 30 verdict given by the Authorities created under the Copyright Act. Thereafter, the aggrieved party can avail of the rights to file an appeal, as has been provided by the Act, or if it is the decision of the Central Government which is sought to be assailed, possibly by invoking the extraordinary powers preserved by Article 226 of the Constitution of India.
IS THE COPYRIGHT ACT, 1957 ULTRA VIRES THE CONSTITUTION (17) The challenge to the vires of the Act in the Writ Petitions has been formulated, inter alia, in this manner:-
Because Section 34 of the Act is arbitrary and unreasonable as there are no guidelines for fixing of rates and no means of verifying or checking the reasonableness of license fees fixed by Copyright Societies. The same is violative of Article 14 and deserves to be struck down on this ground alone. ...
Because a combined reading of Sections 13 (1) (a), 2(p) and 16 makes it amply clear that copyright subsists in music including any graphical notation but not in words or actions intended to be sung, spoken or performed with the music. Section 13 (1) (a) provides that Copyright shall subsist in "original literary, dramatic, musical and artistic works". Section 2(p) defines "musical work" to mean "a work consisting of music and includes any graphical notation of such work but does not include any works or any action intended to be sung, spoken or performed with the music". Section 16 WP(C)452.1999 Page 26 of 30 of the Act lays down that no person shall be entitled to copyright or any similar right in any work, whether published or unpublished otherwise than under and in accordance with provisions of this Act or of any other law for the time being in force. ...
.....
Because the explanation to Section 2 (ff) of the Copyright Act holds any work made available to a guest in a hotel room to be "communication to the public"
which is contrary to reason. A person who occupies room in a hotel and accesses a work in private cannot be said to be in a public place. Accommodation provided to guests in a hotel comprises facilities and amenities that are availed and enjoyed in the confines of the room. The explanation to Section 2 (ff) however provides otherwise, without any rationale or reason. A work enjoyed at home is private is no different from if enjoyed or accessed in a hotel room, by the same individual. The unreasonable classification of hotel rooms as public places has allowed the societies/copyrights owners to claim exorbitant licence fees and the classification deserves to be set aside for being unreasonable and irrational.
(18) We are also not persuaded to take a negative view on the vires of the Copyright Act on the strength of the arguments addressed by Mr. Bhasin that the right to file objections has been deleted from the present statute. The Act provides an WP(C)452.1999 Page 27 of 30 adequate remedy in the form of the alleviating process of compulsory licensing.
(19) The Petitioners challenge the vires of Section 13 of the Copyright Act inasmuch as it provides that copyright was subsisting in the following classes of works - (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. We are in no manner of doubt that the categorization is founded on an intelligible differentia so far as music is concerned. Broadly stated, most of the popular songs, which may contain lyrics as well as melodies, have been attracting different renditions, which may have been performed publicly, or recorded in a studio. The works of Western classical maestros, such as Beethoven, Mozart, Gustav Mahler etc. have been given expression by several philharmonic orchestra, all of whom are entitled to copyrights of their works. Popular musicians, such as Beatles, have had their works performed by several other groups. The Beatles are entitled to revenues of their original copyrights and other musicians/orchestras are entitled to incomes from broadcasts of their authorized recordings. The Copyright Board, as and when approached, will have to pronounce upon the vexed and complicated question of whether a consumer or recipient of a broadcast, if liable to pay WP(C)452.1999 Page 28 of 30 copyright fees to the artist/musician of a version recording and in addition thereto, also to the holders of the original/primary copyright. To borrow from the words of their Lordships, copyright encompasses bundles of artists which, at any given time, may vest in different persons.
(20) We are unable to appreciate the strengths or merits of any challenge to Section 2 (ff) of the Copyright Act. These questions are no longer res integra. We are in respectful agreement with the views expressed by the learned Single Judge in Garware Polyesters & Polymers Ltd. which dealt with the question of whether any publication occurs via broadcast through cable.
Learned counsel for the Petitioners has also contended that the Fundamental Rights of the Petitioners under Article 19(1)(g) of the Constitution have been violated because of the demands raised by the IPRS and PPL. This argument is wholly devoid of merit and must be summarily rejected. The tariff charged by the Hotels and the Restaurants can come under similar challenge. It is wholly unregulated, and to many, seen as unrealistically exorbitant. In a laissez faire economy, such as what exists in India today, every person is entitled to claim any price for utilization of rights or services. We are not dealing with essential commodities. If the Government is of the opinion WP(C)452.1999 Page 29 of 30 that the public at large is being exploited, appropriate legislation shall, no doubt, be passed.
(21) In view of this discussion, the Writ Petitions, in all their aspects and ramifications, are devoid of merit. Prima facie, there is legal foundation for the IPRS as well as PPL to claim payment against use of the copyrights held by them. If and when the Petitioners approach the concerned appropriate Authorities for adjudication of their disputes, a definitive answer shall be given with regard to legitimacy of these claims. (22) All interim Orders are recalled. Writ Petitions are dismissed. Pending applications are also dismissed. We refrain from imposing costs.
( VIKRAMAJIT SEN ) JUDGE ( S.L. BHAYANA ) JUDGE April 07, 2011 tp WP(C)452.1999 Page 30 of 30