TMI Blog2008 (5) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? - relevant considerations which the Copyright Board must keep in view while deciding on issuance of compulsory license to a particular person and terms on which the compulsory license may be issued, including the compensation. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? - HELD THAT:- The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefor is to see that the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the International Covenants, the law should have been amended in terms thereof. Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated. If the ground realities c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Copyright Society - HELD THAT:- The Copyright Society is required to frame a scheme to determine the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work in circulation - Rule 14J requires that a Copyright Society shall frame a scheme of tariff to be called a Tariff Scheme setting out the nature and quantum of fees or royalties which it proposes to collect in respect of such copyright or other rights administered by it. Rule 14K requires a Copyright Society to frame a Distribution Scheme setting out the procedure for collection and distribution of royalty specified in the Tariff Scheme among the owners of copyright. Any distribution under the Distribution Scheme is required to be in the proportion to the income of the Copyright Society from actual use of the work or works of each owner of rights. Compulsory L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large. Royalty and Compensation - HELD THAT:- The legislature for all intent and purport equates 'compensation' with 'royalty'. In the context of the Act, royalty is a genus and compensation is a species. Where a licence has to be granted, it has to be for a period. A 'compensation' may be paid by way of annuity. A 'compensation' may be held to be payable on a periodical basis, as apart from the compensation, other terms and conditions can also be imposed. The compensation must be directed to be paid with certain other terms and conditions which may be imposed. Parliamentary Intent - HELD THAT:- The intention of the Parliament, it is trite, must be ascertained from the plain reading of the Section. The intention is to treat works, which have been withheld from the public differently from the right to broadcast . The right to broadcast is a ephemeral right. It requires special treatment as it confers upon every person, who wishes to broadcast a work or the work recorded in a sound recording, the right to do s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inged the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts - However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses. We, therefore, are of the opinion that the order of the Board should be set aside and the matter be remitted to the Board again for the consideration of the matter afresh on merit. Appeal allowed. - S.B. Sinha and Lokeshwar Singh Panta, JJ For the Appearing Parties : Mr. Maninder Singh, Adv., Mrs. Pratibha Singh, Adv., Mr.Gaurav Sharma, Adv., Mr. Summet Bhatia, Adv., Ms. Surbhi Mehta, Adv., Mr. Amit Kumar Sharma, Adv., Mr. E.C.Agrawala, Adv., Mr. Sameer Parekh, Adv for, M/s P.H. Parekh Co., Mr. Prashant Kumar, Adv., Mr. Hari Shankar K., Adv. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of SCIL was played during the period from October 2001 to May, 2002 in its stations at Indore and Ahmedabad. Royalty was paid by ENIL to PPL at the rate of ₹ 400/- per needle hour pursuant to the order passed by the Calcutta High Court dated 28.9.2001. Attempts were made to obtain a licence from SCIL when ENIL came to know that it was not a part of the copyright society PPL. Negotiations failed between the parties. 8. A suit was filed before the Delhi High Court for restraining ENIL from playing and broadcasting the music belonging to SCIL on any of the Radio Stations belonging to ENIL. Communications Between the Parties 9. We may notice relevant parts of some communications between the parties. Super Cassettes through its lawyer by a notice dated 21.1.2002, in view of the said infringement of his copyright called upon ENIL, inter alia, to give an undertaking that it shall not broadcast the sound records of Super Cassettes through its Radio Station without a valid licence and payment of royalty (the terms of which were mutually arrived at). Super Cassettes again by a notice dated 2.4.2002 through its Advocate called upon ENIL to: a) immediately desist from br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client continues to broadcast songs of our clients. In the circumstances, your client is once again called upon to: (a) First immediately cease and desist from such unauthorized broadcast before a formal license agreement is drawn up. (b) Pay my client a sum of ₹ 1,00,00,000/- (Rupees one crore) for past infringement by way of radio broadcast of my client's sound recordings through your client's various FM Radio Stations situated in various cities. 12. PPL again to the Holding Company of ENIL, BCCL by a letter dated 6.9.2000 stated: As you may be aware, it is a legal requirement to obtain permission (Licence) from the copy-right owners before you can broadcast the copyrighted music (Sound Recordings). As you may further be aware, Phonographic Performance Ltd. (PPL), is the copyright society in respect of sound recordings and is registered with Government of India. We have about 50 member companies including HMV, Universal, Tips, Venus, Sony Music (India), Virgin, Milestone, Magnasound, BMG - Crescendo and others. The broadcasting rights in the music recordings - both of Indian and International music - or our members are administered by us. It wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian public than is the case today. We hope that we can meet at your earliest convenience to begin to discuss a contractual business arrangement, which will be beneficial to both the society and to the new radio industry in India. We would appreciate if you can get in touch with Mr. Prakash Iyer at 852-3880 extn. 3291 or Mobile: 982- 11-82869 in the next 7 days to set up a date and time for the meeting. 14. Indisputably, appellant, in the suit filed by the first respondent having come to learn that it is outside PPL's jurisdiction to give an undertaking not to use the songs copyright whereof belongs to PPL, Super Cassettes. The said suit admittedly has been withdrawn. It may therefore not be necessary to refer thereto the proceedings before the Board. 15. In a letter to the respondent, appellant stated, We had no intention to infringe your copyright as in fact we had been regularly paying royalty to PPL including the T-Series needle time played on our station. 16. The appellant thus contended that it had been all along under a wrong impression that Super Cassettes was a member of PPL and that it had no knowledge that the license was required to be obtained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of license fees. Second License Case 22. On or about 28.1.2003, appellant filed an application before the Copyright Board at Delhi, which was marked as Case No. 10 of 2003 for grant of compulsory licence in terms of Section 31(1)(b) of the Act against Super Cassettes praying, inter alia, for the following reliefs: Grant the applicant a compulsory license of the complete repertoire (present and future) of SCIL on the terms and conditions considered just and equitable by this Hon'ble Copyright Board. 23. On being noticed, respondents filed an objection contending that as the suit for infringement was pending before the Delhi High Court, no application for compulsory license could be entertained. The High Court, on an application filed by the appellant, clarified that the respondent was free to canvas its submissions before the Copyright Board that the person infringing the Copyright should not be granted compulsory license. The Board directed the parties to come with their respective witnesses. However, when respondent intended to present oral evidence, it was declined. Submissions were directed to be made on or about 20.10.2003. Application No. 10 of 2003 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic interest and protecting intellectual property rights as a measure to encourage creativity in the respective fields. (ii) The selective refusal to sell 'goods' which is treated under Indian Law to be an unfair trade practice is discouraged. Copyright Board, therefore, in terms of Section 31 of the Act must be held to be holding the power to grant a compulsory licence provided the following conditions are satisfied: (a) the work in question should have been published or performed in public. (b) the owner of the copyright should have refused to re-publish or allow re-publication or the performance in public of the work by reason of which the work is withheld from the public; or (c) has refused to allow a communication by a broadcast of such work on terms which the complainant considers reasonable. (iii) The term 'or' used between clauses (a) and (b) of sub-section (1) of Section 31 should be read disjunctively and not conjunctively. (iv) The language of clause (b) indicates that the same is focused on a particular form of communication to the public- namely Broadcast , which requires a proper construction having regard to the fact that the said wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for grant of compensation, this Court may lay down the same for further guidance of the same. 29. Mr. Shyam Divan, the learned Senior Counsel appearing on behalf of the respondents, on the one hand, would submit: (i) The importance of the Copyright protection for the owners of the copyrights should be the prime consideration for determining the issue. The object of the Copyright Act is 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 hand and, thus, it is imperative to keep in mind the broad features of the Act which is the owner's freedom to contract his interest by the Act as would be evident from Sections 14, 16 and 30 of the Act. (ii) The ownership of any copyright like ownership of any other property must be considered having regard to the principles contained in Article 19(1)(g) read with Article 300A of the Constitution, besides, the human rights on property. (iii) As the Act expressly recognizes the notion of an exclusive licence as defined in Section 2(j), a specific right in terms thereof can be conferred only on one per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l agreed terms, it cannot be said that there has been a refusal on their part to grant licenses. In the present case, no occasion arose for grant of a compulsory licence inasmuch as the only relief which could be granted by the Copyright Board was to direct the Registrar of Copyrights to grant to the complainant a license to communicate the work to the public by broadcast, which is already made available to the public by broadcast through All India Radio and other radio broadcasters. (viii) The existence of license have been communicated to the public. Section 31(1)(b) does not create any entitlement in favour of an individual broadcaster, but merely provides a mechanism by which an Indian work that has been withheld from the public is made available to the public by broadcast. (ix) The interests balanced in Section 31 are (i) the interest of the copyright owners and (ii) the interest of the general public. The narrow commercial interests of the broadcasters are not to be reckoned under the scheme of Section 31. (x) The relative merit and demerit of the complainants in any event being imperative for the purpose of arriving at a finding as to how the interests of the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-generated, the person who causes the work to be created; 32. Section 2(dd) defines 'broadcast' to mean communication to the public-(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast. Section 2(ff) defines 'communication to the public' to mean: making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available. Explanation:- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public; 33. Sections 2(ffd) defines 'copyright society' to mean a society registered under sub-section (3) of Section 33. Section 2(j) defines 'exclusive licence' to mean a licence which confers on the licensee or on the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a sound recording 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 sound recording is made. 38. Section 14 of the Act provides for the meaning of copyright. Clause (c) of sub-section (1) of Section 14 talks about artistic work. For the purposes of the Act, 'copyright' means the exclusive right, subject to the provisions of this Act, to do or authorize the doing of any act. The acts specified therein in respect of a work or any substantial part thereof and in the case of a sound recording, namely, (i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the sound recording to the public. Explanation: For the purposes of this Section, a copy which has been sold once shall be deemed to be a copy already in circulation. 39. Section 16 mandates that no person shall be entitled to copyright except as provided for under the Act. Chapter IV provides for the ownership of copyr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Registrar of Copyrights shall grant the licence to the applicant in accordance with the direction of the Copyright Board. 43. Section 32 deals with the provisions relating to licence to produce and publish translations. Section 32A deals with licence to reproduce and publish works for certain purposes. Chapter VII of the Act deals with copyright societies. Section 33 provides for registration of copyright society, relevant portion whereof are as under: 33. Registration of Copyright Society.- (1) ........ (2) Any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub-section (1) to the Registrar of Copyrights who shall submit the application to the Central Government. (3) The Central Government may, having regard to the interests of the authors and other owners of rights under this Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the relevant rights and the ability and professional competence of the applicants, register such association of persons as a copyright society subject to such condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The copyright society shall, subject to such rules as may be made in this behalf, frame a scheme for determining the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work in circulation: Provided that such scheme shall restrict payment to the owners of rights whose works have attained a level of circulation which the copyright society considers reasonable. 35. Control over the copyright society by the owner of rights.- (2) All fees distributed among the owners of rights shall, as far as may be, be distributed in proportion to the actual use of their works. 50. Rectification of Register by Copyright Board. -The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by- (a) the making of any entry wrongly omitted to be made in the register, or (b) the expunging of any entry wrongly made in, or remaining on, the register, or (c) the correction of any error or defect in the register. 51. When copyright infringed. -Copyright in a work shall be deemed to be infringed- (a) when any person, without a licence gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in such sound recording on terms which the complainant considers reasonable, the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of the Copyright Board, on payment of such fee as may be prescribed. Explanation.- In this sub-section, the expression Indian work includes- (i) an artistic work, the author of which is a citizen of India; and (ii) a cinematograph film or a sound recording made or manufactured in India. (2) Where two or more persons have made a complaint under sub-section (1), the licence shall be gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to commence its copyright business, it shall frame a scheme of tariff to be called the Tariff Scheme setting out the nature and quantum of fees or royalities which it proposes to collect in respect of such copyright or other rights administered by it. 14-K. Distribution Scheme. - (1) As soon as may be, but in no case later than three months from the date on which a copyright society has become entitled to commence its copyright business, it shall frame a scheme to be called the Distribution Scheme setting out the procedure for collection and distribution of the fees or royalities specified in the Tariff Scheme among the owners of copyright or other rights whose names are borne on its Register of Owners [maintained under clause (i) of rule 14-I] for the approval of such owners. (2) Any distribution under the Distribution Scheme shall, as far as possible, be in proportion to the income of the copyright society from actual use of the work or works of each owner of rights. The Forms 49. In terms of the Rules, forms have also been prescribed. Relevant clauses of Form IIA appended to First Schedule to the Copyright Rules, 1958 read as under: 8. Estimated co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Schedule. The countries which have ratified/accepted/acceded to Berne Convention are specified in Part I of the Schedule appended thereto. Part II of the Schedule specifies those countries which are yet to ratify/accept/accede to the 1971 Text of Berne Convention. Part III of the Schedule specifies the countries which have ratified/accepted/acceded to the 1971 Text of the Universal Copyright Convention. Part IV of the Schedule specifies the countries which are yet to ratify/accept/accede to the 1971 Text of Universal Copyright Convention. Part V of the Schedule specifies Phonograms Conventions Countries and Part VI specify the World Trade Organization Countries. 51. We would refer to only two Conventions, namely, Berne Convention and Rome Convention. The later comes within the purview of the World Trade Organization Convention. The Berne Convention provides for the protection of literary and artistic works. The relevant provisions whereof are Articles 11, 11bis, which reads as under: Article 11. (1) Authors of dramatic, dramatico- musical and musical works shall enjoy the exclusive right of authorizing: (i) the public performance of their works, including such public p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration. General Principles 54. There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. A copyright, however, unlike a trade mark is a right created under the Act as is evident from Section 16 thereof. When an author of a copyright and other claims a copyright, it is subjected to the provisions of the Act. The rights and obligations of the author ought to be found out within the four corners of the Act. It is not necessary to dilate more upon these aspects of the matter as the object behind enacting the Act is absolutely clear and explicit. It creates a monopoly in favour of the author. Copyright also creates a monopoly in favour of the copyright society. What requires protection is unlawful reproduction of the author's work by others. It is the long period whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal work whereas clauses (b) and (c) protect derivative works. It provides for commercial manifestation of original work and the fields specified therein. Clause (a) of sub-Section (1) of Section 14 deals with original work. It is extremely broad. In contrast thereto, the copyright on films or sound recording work operates in restrictive field; they provide for a restrictive right as would appear from the provisions contained in Section 14 (1)(e) of the Act. 59. For a proper construction of the provisions, will it be necessary to keep in mind the difference between the right of the original work and right of sound recording? Should we also bear in mind that there are various forms of intellectual property rights. Section 16 provides that a right, inter alia, in respect of any work must be claimed only under and in accordance with the provisions of the Act unlike Trade Mark and 'passing off rights' can be enforced even though they are not registered. It must also be noticed that whereas the term of a copyright in original literary, dramatic, musical and artistic works not only remains protected in the entire life time of the author but also until 60 years from the begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of sound recording is, as it appears from the tariff supplied to us by the respondent embrace within its field, Pop/Music Quizzes, Mobile DJ, Jukeboxes, Dance Teachers, Dance Centre/Studio, Exercise, Amateur Operatic and Dramatic Societies, Theatrical Productions, Temporary Camps/Shacks, Banquet Halls, Background Music- Guest Houses and Lodges, Hotels, Background Music- Public Houses and Cafes and Non AC Restaurants, Bankground Music - AC Restaurants, BARS, Background Music - Shops and Stores Premises, Background Music - Hairdressing Salons and Beauty Parlours, Background Music - Clinics, Background Music - Nursing Homes and Hospitals, Background Music - Factories and Offices/Banks, Background Music - Waiting Rooms/Reception Areas, Background Music-Telephone Music on hold,Puppet/Magic Shows, Background Music-Theatres, Background Music - Cinemas, Background Music- Museums and Art Galleries, Background Music- Ten Pin Bowling Centres/Bowling Alleys, Background Music- Amusement and Pleasure Parks, Background Music - Amusement Arcades, Background Music - Casinos, Background Music - Gymnasiums, Background Music - Swimming Pools. 63. The right of the author of a copyright vis-&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In all these cases, this court has categorically held that there would be no inconsistency in the use of international norms to the domestic legislation, if by reason thereof the tenor of domestic law is not breached and in case of any such inconsistency, the domestic legislation should prevail. 69. In Jagdish Saran and Ors. v. Union of India [(1980) 2 SCC 768], it was observed: It is also well-settled that interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with the passage of time, law must change. New rights may have to be found out within the constitutional scheme. Horizons of constitutional law are expanding. 70. In the aforementioned judgment, this Court referred to a large number of decisions for the purpose of interpreting the constitutional provisions in the light of the international treaties and conventions. 71. Yet again in Indian Handicrafts Emporium and Ors. v. Union of India [(2003) 7 SCC 589], this Court considered the Convention on International Trade in Endangered Species (CITES) and applied the principles of purposive constructions as also not only the Directive Principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association of India and Ors. [(2008) 3 SCC 1]). 77. However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. 78. Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible. 79. This kind of stance is reflected from the decisions in PUCL v. Union of India, [(1997) 3 SCC 433], John Vallamattom v. Union of India, [(2003) 6 SCC 611], Madhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In U.K. statutory licensing and compulsory licensing exists. Copinger and Skone James clearly says: ....In the case of a statutory licence the rate is fixed by law, in the case of a compulsyr licence the rate is left to be negotiated, but in neither case can use be refused or prevented....'. [Emphasis supplied] 83. It is of some significance to note that although it has been contended by Mr. Divan that the Scheme of English Statute is different, reliance has been placed by him on some English decisions to which we may refer to a little later. Essential Features of the Copyright Act 84. 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. The extent to which the owner is entitled to protection in regard to his work for which he has obtained copyright and the interest of the public is a matter which would depend upon the statutory provisions. 82. Whereas the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, 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. Copyright Society 91. The provisions with respect to Copyright Societies are contained in Chapter VII of the Act which in its present form was introduced by the Copyright (Amendment) Act, 1994. Section 33 of the Act provides for the registration of a Copyright Society. Section 34 of the Act empowers a Copyright Society to accept from the owner exclusive authorization to administer any rights in any work by issue of licenses or collection of license fee or both. A Copyright Society may issue voluntary licenses under Section 30, collect fees in pursuance of such licenses, distribute such fees amongst owners of rights, and perform any other functions cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32A empowers the Copyright Board to grant a compulsory license where after the expiry of the relevant period from the date of the first publication of an edition of a literary, scientific or artistic work, copies of such edition are not made available in India. 99. Section 32B provides for the termination of a compulsory license where it is issued under Section 32(1A) or Section 32A, on the fulfillment of the conditions mentioned in that Section. 100. Rule 9 of the Copyright Rules prescribed the manner in which the Copyright Board shall determine royalties payable to the owner with respect to a compulsory license for a translation under Section 32. Rule 11D provides for the manner in which the Copyright Board shall determine royalties payable to the owner of the copyright in respect of compulsory licenses issued under Section 31A, Section 32 and Section 32A. Rule 11C (4) provides that where there are more applicants than one seeking a compulsory license for translation of a work or for reproduction of the work or for publication of an unpublished work, then the Copyright Board make grant the compulsory license to such one of the applicants, as in the opinion of the Board, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it is offered to others; the right or privilege of having this opportunity (See Black's Law Dictionary, Seventh Edition) 104. The meaning of a word must be attributed to the context in which it is used. For giving a contextual meaning, the text of the statute must be kept in mind. An act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright. 105. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act. 110. A contextual interpretation of the provisions would lead us to consider the ground realities. F.M. radios are played for every city. The word 'work' in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word 'public' must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning is assigned, the terms 'on terms which the complaints considers reasonable' would lose all significance. The very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression 'has refused' cannot be given a meaning of outright rejection or denial by the copyright owner. 111. PPL and SCIL might have been called upon the bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 114. Explanation appended to Section 31 also plays an important role as it seeks to make a distinction between an artistic work on the one hand and a cinematographic films or sound recording on the other. We are not concerned therewith at this stage. 115. Admittedly in terms therof the principles of natural justice are required to be complied with and an enquiry has to be held. The extent of such enquiry will depend upon the facts and circumstances of the case. A finding has to be arrived at that the grounds of refusal by an owner of a copyright holder is not reasonable. Only upon arriving at the said finding, the Registrar of copyright would be directed to grant a license for the said purpose. The amount of compensation payable to the owner of the copyright must also be determined. The Board would also be entitled to determine such other terms and conditions as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions. Right to Property - Is the Concept Applicable 116. An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. Royalty and Compensation 123. Are the terms royalty and compensation are not synonymous? Royalty means the remuneration paid to an author in respect of the exploitation of a work, usually referring to payment on a continuing basis (e.g. 10 per cent of the sale price) rather than a payment consisting of a lump sum in consideration of acquisition of rights. May also be applied to payment to performers. (See 'World Copyright Law' (2nd Edn) by J.A.L. Sterling). 124. The word 'compensation', however, must have been used keeping in view the fact that if it is a statutory grant; it is a case of statutory licence. We are not unmindful of the fact in cases of other statutory licenses, the word 'royalty' has been used. Even the word 'usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ultimately allow or reject the complaint but it cannot be said that the complaint itself is not maintainable. Interpretation of Section 31(2) 130. This takes us to the interpretation of Section 31(2). It is attracted in a case where there are more than one applicants. The question of considering the respective claim of the parties would arise if they tread the same ground. The same, however, would not mean that only one person is entitled to have a licence for all time to come or for an indefinite term even in perpetuity. A licence may be granted for a limited period; if that be so another person can make such an applicatioin. Sub-section (2) of Section 31 would lead to an anomalous position if it is read literally. It would defeat the purport and object of the Act. It has, therefore, to be read down. P purposive construction therefor may be resorted to. 131. In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [2007 (14) SCALE 556, (2008) 3 SCC 279], this court opined: With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urthermore, the court while interpreting a statute will put itself in the armchair of the reasonable legislature, all statutes must be presumed to be reasonable. It is now a trite law that literal interpretation should be avoided when it leads to absurdity. If it is to be held that once the compulsory licence is granted in respect of a sound recording, the Board loses its jurisdiction for all time to come, it will lead to an absurdity. The statute does not contemplate such a position. The statute on the one hand not only in terms of General Clauses Act but also having regard to the individual complaints which a person may have as regards the unreasonableness of the terms impose upon him by the owner of the copyright must be held to be entitled to approach the Board as and when any cause of action arises therefor. It therefore must be held that sub-Section (2) of Section 31 is relatively directed to clause (a) and not clause (b). 136. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and ORS. v. Union of India and ORS. [1993 Supp. (1) SCC 730] wherein it has been held that: 9. Thus it is settled law that where the intention of statutory amendment is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court. Discretionary Jurisdiction 139. The other question which arises is as to whether the discretionary jurisdiction should have been exercised in favour of the appellant. It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. vs. Maitra [(1998) Fleet Street Reports 749 at 770-773]. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by lic ..... 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