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2012 (5) TMI 731

int - Held that:- In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final relief, which is the only relief contemplated under Section 31 of the Copyright Act. Even in matters under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, an interim relief granting the final relief should be given after exercise of great caution and in rare and exceptional cases. In the instant case, such a power is not even vested in the Copyright Board and hence the question of granting interim relief by grant of an interim compulsory licence cannot, in our view, arise. Mr. Salve’s submission that the substratum of the scheme of Section 31 is commercial in nature and only involves computation of the charges to be paid to the holder of the copyright who withholds the same from the public, is no answer to the proposition that under Section 31 only an ultimate relief by way of grant of a licence on payment of reasonable charges to the copyright owner to publish and/or broadcast the work could be given. To grant an interim compulsory licence during the stay of the proceedings would amount to granting the final relief at the i .....

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opyright 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 re-publish 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 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 granted to the complainant who in the opinion of the Copyright Board would best serve the interests of the general public. 3.However, in order to .....

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n the terms fixed in the aforesaid order of the Copyright Board dated 25th August, 2010. Mr. Sibal submitted that this was done despite the fact that MBPL had an existing voluntary licence from Super Cassettes, which had subsisted since 25th March, 2002, and had been amended and renewed a number of times since then. It was also submitted that several other broadcasters with existing voluntary licence from Super Cassettes wrote similar letters to it. 7. Super Cassettes filed Writ Petition No.6255 of 2010, questioning the order passed by the Copyright Board dated 25th August, 2010. After hearing Super Cassettes and the Respondents, including MBPL, on 15th September, 2010, the Delhi High Court passed an interim order to the effect that the order dated 25th August, 2010, passed by the Board would not be relied upon by any of the Respondents or any other party for a compulsory licence against Super Cassettes. Despite the aforesaid order of the Delhi High Court dated 15th September, 2010, MBPL filed an application for compulsory licence under Section 31(1)(b) of the Copyright Act, relying solely on the rates fixed by the Copyright Board for PPL by its order dated 25th August, 2010. Other .....

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futile and nugatory. 10. It was further held by the High Court that where the controversy concerns only the quantum of licence fee, an interim protection should be granted and even though Super Cassettes was not a party to the order of the Copyright Board dated 25th August, 2010, it is similarly placed as PPL, which was bound by the order passed by the Board on 25th August, 2010. Accordingly, it was appropriate that Super Cassettes should also receive 2% of the net advertisement revenue as licence fee in the interim period for broadcasting of its sound recordings. 11. Mr. Sibal urged that the Division Bench of the Bombay High Court chose not to differ with the decision of the Single Judge in Music Choice India Pvt. Ltd. Vs. Phonographic Performance Ltd. [(2009) 39 PTC 597], in which the learned Single Judge had held that the Copyright Act did not prohibit the Copyright Board from passing any interim order for determination of reasonable fees by way of royalty or compensation by the plaintiff. The High Court disposed of the appeal by making an interim arrangement, whereby Super Cassettes was to receive an aggregate of 4% of the advertisement revenue of MBPL for broadcasting its soun .....

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On construction of Section 14 of the said Act, this Court came to the conclusion that there was no power under the Act to grant any interim relief, even of an ad interim nature. Their Lordships who decided the matter, observed as follows : ……… If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience. 15. Reference was also made to a decision of the Punjab and Haryana High Court in Sham Lal Vs. State Election Commission [AIR 1997 P&H 164], in which the High Court was considering a similar question as to whether the Election Tribunal constituted under the Punjab State Election Commission Act, 1994, had the power to pass an injunction so as to restrain an elected representative from assuming office pending adjudication of an election petition filed against him. After considering various provisions of the 1994 Act, the Court observed that if the legislature had so desired, nothing prevented it from conferring statutory power upon the Election Tribunal to grant interim stay or injunctio .....

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ces Tribunal Act, 1985, which specifically provides that the Tribunal shall have all jurisdiction, powers and authority exercisable by all courts in matters relating to service. Reference was also made to other Tribunals, such as, the Telecom Disputes Settlement & Appellate Tribunal, the National Green Tribunal and also the Debts Recovery Tribunal, which had been expressly vested with powers to pass interim orders under the statutes under which they had been created. Mr. Sibal submitted that there were no similar provisions in the Copyright Act, which granted such powers to the Copyright Board. 19. Mr. Sibal then submitted that notwithstanding the fact that the Copyright Board was discharging quasi-judicial functions, it did not possess inherent powers to pass interim orders, since it continued to be a tribunal governed by the statute under which it had been created. It did not, therefore, have jurisdiction to pass interim orders which inheres in other Tribunals. Referring to the decision of this Court in Bindeshwari Prasad Singh Vs. Kali Singh [(1977) 1 SCC 57], Mr. Sibal urged that in the said decision, this Court was called upon to decide as to whether a Magistrate had the a .....

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, firstly contended that although Section 31 of the Copyright Act may not have expressly vested the power to pass interim orders on the Copyright Board pending disposal of an application for grant of a compulsory licence, the same would have to be read into the Section as being incidental to the powers granted by the Statute to the Board to grant compulsory licences. Dr. Singhvi urged that it could not have been the intention of the legislature that pending the determination of the right of an applicant to a compulsory licence, the public should be deprived of the entertainment of listening to music in respect of which the owner has the copyright, in this case, Super Cassettes. 24. Dr. Singhvi urged that if it were to be held that the Board did not have such power to grant an interim compulsory licence, the consequences would be contrary to public interest, since it was not possible to assess the time that could be taken by the Copyright Board for disposing of an application for grant of compulsory licence. Dr. Singhvi submitted that the Copyright Act is a Code in itself and that matters relating to copyrights and grant of licences had been left to the Copyright Board for decision, .....

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hvi urged that the Copyright Act contemplated the grant of three types of licences, namely :- (i) voluntary; (ii) compulsory; and (iii) statutory. Dr. Singhvi urged that Sections 30, 31 and 31-A of the Act deal with grant of voluntary, compulsory and statutory licences. However, while Section 30 deals with grant of voluntary licences by the owners of the copyright, Sections 31 and 31-A speak of grant of licences for broadcasting works which had been withheld from the public, either by the copyright owners, or where the owner of an Indian work is either dead or untraceable. However, Section 52 of the Act also made provision that certain acts performed by broadcasters were not to be considered as infringement of copyright. In particular, reference was made by Dr. Singhvi to Section 52(1)(j)(iv) which indicates that the making of sound recordings in respect of any literary, dramatic or musical work would not amount to infringement of copyright if the person making such sound recording allowed the owner of the right or his duly authorised agent or representative to inspect all records and books of accounts relating to such sound recording. Dr. Singhvi urged that, in any event, any deci .....

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was also observed that in addition, Rule 18 enabled the Tribunal to pass orders to secure the ends of justice. Dr. Singhvi urged that the aforesaid decision of this Court was based on its earlier decision in Industrial Credit & Investment Corporation of India Ltd. Vs. Grapco Industries Ltd. & Ors. [(1999) 4 SCC 710], wherein it had been held that the Debts Recovery Tribunal had jurisdiction under Section 19(6) of the DRT Act to grant interim orders, since such power inheres in a Tribunal. 30. Dr. Singhvi lastly contended that the decision in Rajeev Hitendra Pathak s case (supra) could not be relied upon for a decision in this case on account of the fact that in the said case this Court was called upon to consider as to whether the District Forum and the State Commission had been vested with powers of revision, in the absence whereof they could not exercise such powers which had not been expressly vested in them. Dr. Singhvi urged that having regard to the various decisions of this Court which have categorically held that powers to pass certain interim orders were incidental and ancillary to the exercise of powers conferred on a Tribunal by the Statute, the doctrine of impl .....

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Board is drawn from various quarters. There being 14 members, it does not meet regularly and decisions in cases are, therefore, deferred for long intervals. In fact, as pointed out by Mrs. Singh, sometimes it is not possible to hold even one meeting in a month. In such cases, unless the power to grant interim orders were read into the provisions of Section 31 of the Act, there would be a complete stalemate in regard to cases where matters were pending before the Board and the public would be deprived of the pleasure of listening to such music and sound broadcasting. 34. Mr. Harish Salve, learned Senior Advocate, in his turn provided another twist to the question under consideration in urging that inherent powers exist in an appellate forum. Mr. Salve urged that this was not a case where the Copyright Board was not entitled to pass orders of an interim nature, but whether it should exercise such power. Mr. Salve further urged that the power under Section 31(1)(b) was in respect of matters which were already in the public domain and the transaction being purely of a commercial nature, the Board was only called upon to decide how much charges were required to be paid for broadcasting .....

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een provided under the Act. Mr. Sibal urged that the decision of the High Court was liable to be set aside and that of the Copyright Board was liable to be restored. 37. What emerges from the submissions made on behalf of the respective parties is the dispute as to the width of the powers vested in the Copyright Board under Section 31 of the Copyright Act. There is no dispute that the Copyright Act is a Code by itself and matters relating to copyrights and grant of licences in respect of such copyrights have been left to the Copyright Board for decision. Chapter II of the Copyright Act, 1957, deals with the establishment of a Copyright Office and the constitution of a Copyright Board and the powers and procedure to be exercised and formulated for the functioning of the said Board. Section 11 of the Act, which comes within the said Chapter, provides for the constitution of a Copyright Board, which would hold office for such period and on such terms and conditions as may be prescribed. Section 12 enumerates the powers and procedure of the Board and is extracted hereinbelow :- 12.Powers and procedure of Copyright Board. - (1) The Copyright Board shall, subject to any rules that may be .....

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nd 346 of the Code of Criminal Procedure, 1973, and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code. The provisions clearly indicate that the Copyright Board discharges quasi-judicial functions, which as indicated in Sections 19-A, 31, 31-A, 32 and 52, requires the Board to decide disputes in respect of matters arising therefrom. In fact, Section 6 also spells out certain disputes which the Copyright Board has to decide, and its decision in respect thereof has been made final. However, for the purposes of these appeals we are concerned mainly with Section 31, which has been extracted hereinabove. 38. Elaborate submissions have been made regarding the power of the Copyright Board to grant interim compulsory licences in works withheld from the public, in relation to matters which were pending before it. Having considered the said submissions, we are unable to accept the submissions made by Dr. Abhishek Manu Singhvi, Mr. Bhaskar P. Gupta, Mr. Harish Salve and the other learned counsel appearing for the different interveners. The Copyright Board has been empowered in cases where the owner of .....

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er, it was held that in the absence of any specific power in the Code of Criminal Procedure, the Magistrate was not entitled to exercise such a power. 41. On the other hand, the various decisions cited on behalf of the Respondent and the interveners were in the context of the question as to whether a Tribunal has incidental powers, which were inherent though not specifically vested, in order to preserve the statusquo as in M.K. Mohammed Kunhi s case (supra), Allahabad Bank, Calcutta s case (supra) or even in Grapco Industries Ltd. s case (supra), till a decision was reached in the pending matter. 42. In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final relief, which is the only relief contemplated under Section 31 of the Copyright Act. Even in matters under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, an interim relief granting the final relief should be given after exercise of great caution and in rare and exceptional cases. In the instant case, such a power is not even vested in the Copyright Board and hence the question of granting interim relief by grant of an interim compulsory licence .....

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ers, which are categorised as powers ancillary to their jurisdiction irrespective of the fact that the Statute, which created the jurisdiction, does not, always, expressly provide for the exercise of such ancillary powers. This Court has held on more than one occasion that such powers could be implied - Income Tax Officer vs. M.K. Mohammed Kunhi, 1969 (2) SCR 65 and Allahabad Bank, Calcutta vs. Radha Krishna Maity and others, (1999) 6 SCC 755. As noticed by my learned brother at para 39 of the Judgment, there have been decisions of this Court, which appear conflicting on the question whether a Statutory Tribunal has powers other than those expressly conferred by the Statute. 3. In the ultimate analysis, both the Courts and the Tribunals are adjudicatory bodies to whom the Legislature entrusts the authority to resolve the disputes falling within the jurisdiction conferred upon each of such bodies and brought before them. The jurisdiction is, normally, defined with reference either to; (1) the subject matter of the dispute and / or the pecuniary value of the dispute; or (2) the territorial nexus of either the parties to the dispute or the subject matter of the dispute to the Court or .....

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e another example, if a returned candidate to the constitutionally created Legislative Bodies could be restrained from functioning as a legislator by an interim order pending the adjudication of the legality of such candidate s election, the same would produce great public mischief. 9. Therefore, different considerations come into play depending upon the context or nature of the legal rights at issue or subject matter of the dispute, etc., in deciding the question whether an adjudicatory body can be said to have been invested with the power to grant interim orders, which are identical or substantially similar to the final relief that can be afforded in the lis by implication from the scheme and language of the enactment, which created the jurisdiction. 10. For deciding the question whether the Copyright Board, exercising the jurisdiction under Section 31 of the Copyright Act, can grant ad hoc compulsory licence by an interim order pending the adjudication of the issue, is required to be examined. 11. Copyright in a work , undoubtedly, is a valuable legal right subsisting in the owner or somebody claiming through the owner. Such a right has more than one dimension. It may have a com .....

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. Take for example the case of a book or a cinematograph film, such as, Satanic Verses or Da Vinci Code, which have created quite some commotion in certain quarters including the security threat to the author or owner of the work. If the author, on realising that repeated publication of the work might endanger his security, declines or refuses republication of the work, it cannot be said that the author (owner) unreasonably withheld republication. Such a refusal has nothing to do with the monetary considerations. Therefore, by conceding a power to grant ad hoc compulsory licence during the pendency of the proceeding, under Section 31, would not only render the final inquiry into the question, a futile exercise in a case where the owner has reasons other than inadequacy of monetory compensation. 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. Unless, it is demonstrated that failure to imply such power to direct immediate republication or performance of a work in publi .....

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