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 Varsha                                       COMP-264-2022 AND COMP-363-2019 final.doc

7. Mr. Khambata has referred to Section 18(2) of the Act wherein it is provided that the assignee shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.

8. Mr. Khambata has also referred to Section 18 (1) of the Act which specifically recognizes the owner's right to assign his copyright either wholly or partially, to any person.

9. Mr. Khambata has referred to the Right of an owner of copyright to license its work under Chapter VI of the Act. Under section 30 of the Chapter VI of the Act the Licences by owners of copyright have been provided. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorised agent:

10. Mr. Khambata has submitted that Section 30 of the Act is the source, which gives an "owner" of a copyright the power to grant any interest in the copyright by license. Section 30 applies to an "owner". An "owner" as is clear from Section 18(2) and as mentioned above includes an "assignee". Further, Section 30 also specifically empowers "duly authorized agent" of the owner, to grant license. He has referred to Section 30 (A) of the Act and has submitted that this makes it very clear that the provisions of Section 30 apply to licensing in the same way as the provisions of Section 19 apply to an assignment. Therefore, the Act allows an "owner" to grant a license directly or through an agent under Section 30 and then sets out the varsha 16 of 87 Varsha COMP-264-2022 AND COMP-363-2019 final.doc procedure for licensing by specifying that what applies to assignment would apply to licensing as well.

12. Mr. Khambata has submitted that such a scheme provided under the Act would have been totally unnecessary if the Defendants were correct in their contention that it was only a "registered copyright society" which could carry on such business of issuing or granting licences. Accepting the Defendant's submission as pleaded and argued would amount to rendering this scheme meaningless.

13. Mr. Khambata, thereafter, referred to the Scope and object of the 1994 Amendment. By the 1994 Amendment a new chapter - Chapter VII was introduced, which deals with 'copyright society'. He has submitted that the object of 1994 Amendment was to promote the Collective administration of rights through a Copyright Society, both varsha 17 of 87 Varsha COMP-264-2022 AND COMP-363-2019 final.doc for the benefit of the owner as well as general public. The copyright societies, on an "authorization" from the owners could administer rights that were either licensed and/or assigned to them. As such, a Copyright Society fundamentally operated to administer rights in respect of works that belong to "others". He has submitted that by its very nature therefore, a copyright society may wear two hats i.e. (i) an authorized agent and (ii) an assignee. It administers the rights of "owners" by operating as an agent. He has submitted that reading of Clause 11 of the Notes on Clauses together with Sections 33 to 36 which have been introduced by 1994 Amendment Act was was merely to provide for registration and to regulate functioning of copyright societies. The amendments so introduced did not in any manner affect and/or circumscribe the rights of an owner to conduct its own affairs including granting of licenses by such owner. The "sea change" as sought to be contended by the Defendants is absolutely not evident from the 1994 Amendment or Notes on Clauses in this regard.

18. Mr. Khambata has then referred to Section 35 (1) of the Act, wherein it is provided that "Every copyright society shall be subject to the collective control of the owners of rights under this Act whose rights it administers ..."

19. Thus, both Sections 34 and 35 draw a clear distinction between the author/ owner of the right on the one hand and the administrator of that right on the other (i.e. the copyright society) as such has been drawn.

20. Mr. Khambata has referred to the decision of the Supreme Court in the "Entertainment Network India Ltd. v. Super Cassette Industries Ltd".1 He has submitted that the Supreme Court has held that Chapter VII was incorporated into the Act so as to enable an author to commercially exploit his intellectual property through a Copyright Society. A Copyright Society steps into the shoes of the author, it issues licenses on behalf of the author and files litigation on his behalf. The Supreme Court goes on to hold that as per Section 34 of the Act, a Copyright Society is a virtual agent authorized to act on behalf of the owner. Therefore, Chapter VII does not take away the rights of the author/ owner, it only gives a choice to the author/ owner to either exploit its copyright on its own or to exploit its copyright through a Copyright Society. The idea of a Copyright Society is to assist the owner and not take away rights from an owner.