TMI Blog2012 (5) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 interim stage, although the power to grant such relief has not been vested in the Board. It is no doubt true, that Tribunals discharging quasi-judicial functions and having the trappings of a Court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such Tribunal would have the power to grant at the interim stage the final relief which it could grant. Such incidental powers could at best be said to exist in order to preserve the status-quo, but not to alter the same, as will no doubt happen, if an interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant mandatory injunction at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-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 consider the said question, it is necessary to set out some of the facts giving rise to the said question. 4. These appeals preferred by Super Cassettes Industries Ltd., hereinafter referred to as Super Cassettes , are directed against the order dated 1st September, 2011, passed by the Delhi High Court whereby it reversed the order passed by the Copyright Board on 28th March, 2011, in which the Board held that it did not have the power to grant an interim compulsory licence. By its judgment and order dated 1st September, 2011 in R.F.A.No.250 of 2011 and C.M.No.8977 of 2011, the High Court reversed the finding of the Copyright Board upon holding that even while the grant of compulsory licence under Section 31 of the Copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eight broadcasters also filed applications for compulsory licence against Super Cassettes, relying solely on the order of the Copyright Board dated 25th August, 2010. Super Cassettes responded to the said offer made by MBPL on the same terms as were prevalent under the expired voluntary licence agreement. The said proposal made by Super Cassettes was rejected by MBPL, while other broadcasters continued to broadcast the work of Super Cassettes on existing mutually agreed terms which were different from the terms set out in the order of the Copyright Board dated 25th August, 2010. By its order dated 28th March, 2011, the Copyright Board dismissed the application for interim relief filed by MBPL holding that it did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sound recordings, music and literary work, while remanding the matter to the Copyright Board for interim order, making it clear that the Board need not be bound by the interim arrangement devised by the Court. 12. Mr. Sibal submitted that the High Court had erred in law in holding that even in the absence of an express conferment by statute, the Copyright Board had the power to grant an interim compulsory licence under Section 31 of the Copyright Act. He urged that the Copyright Board is a Tribunal created under Section 11 of the Copyright Act, 1957, and being a creature of statute, its powers were confined to the powers given to it by the statute. Mr. Sibal urged that while Section 12 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 injunction or restraint order during the pendency of the election petition. Accordingly, the Court went on to hold that the Election Tribunal did not have the power to pass any order of injunction or stay which would impede the implementation of the result of election. 16. Mr. Sibal cited yet another decision on the same issue rendered by a Full Bench of the Karnataka High Court in Lingamma Vs. State of Karnataka [AIR 1982 Karnataka 18], where the question involved was as to whether the Appellate Tribunal constituted under the Karnataka Appellate Tribunal Act, 1976, was empowered to pass interim orders when there was no express provision which conferred such substantive power on the Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority to review or recall his order. It was held that unlike Section 151 of the Civil Procedure Code, which vests the civil courts and certain tribunals with inherent powers, the subordinate criminal courts had no such inherent power, since there was absolutely no provision in the Code of Criminal Procedure empowering a magistrate to exercise such powers. 20. Mr. Sibal lastly referred to the decision of this Court in Transcore Vs. Union of India [(2008) 1 SCC 125], and submitted that in the said case, this Court had observed that the Debts Recovery Tribunal is a tribunal and a creature of statute and it does not have inherent powers which existed in the civil courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, which only lend strength to the submission that the Board is vested with incidental and ancillary powers under Section 31 of the Act to give effect to the final relief which it is empowered to give under the said Section. 25. Dr. Singhvi referred to Section 25 of the Trade Marks Act as also Section 25(i) and (ii) of the Patents Act, which vested the authorities under the said Acts to pass appropriate orders in aid of the final relief. Dr. Singhvi urged that it is in situations such as these, that the doctrine of implied power comes into play. Learned counsel submitted that without holding that the Copyright Board had the authority to direct the grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 decision in respect of the above provisions would be appealable under Section 72 of the Copyright Act. Dr. Singhvi urged that the powers now vested in the Copyright Board were, in fact, powers which had been vested in it as high a body as Judicial Committee of the Privy Council under Section 4 of the Copyright Act, 1911, which had been passed by the Parliament of the United Kingdom and modified in its application to India by the Indian Copyright Act, 1914. 29. In support of the submissions made by him, Dr. Singhvi referred to various decisions, beginning with the decision of this Court in Income Tax Officer Vs. M.K. Mohamme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 implied power would stand attracted and the orders of the High Court could not, therefore, be faulted. 31. Mr. Bhaskar P. Gupta, learned Senior Advocate, appearing for some of the interveners, adopted Dr. Singhvi s submissions and reiterated the concept that the Copyright Act is a complete code in itself and the parties to the dispute would have to take recourse to the provisions of the Act and not the Civil Code which lends support to Dr. Singhvi s submissions that the doctrine of implied power would have to be incorporated in the provisions of the Copyright Act, as far as the Copyright Board is concerned. 32. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 music and sound recordings in respect whereof Super Cassettes had the copyright. Mr. Salve urged that Section 31(1)(b) merely enumerated the right of the Copyright Board to decide and compute the amount of fees payable for the use of the copyright, which was being withheld from the public. According to Mr. Salve, the essence of the Copyright Act is the delicate balance between intellectual property rights and the rights of access to the copyright material. In such a situation, according to Mr. Salve, a private right of copyright would have to give way to the public interest as contemplated in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 made under this Act, have power to regulate its own procedure, including the fixing of places and times of its sittings: Provided that the Copyright Board shall ordinarily hear any proceeding instituted before it under this Act within the zone in which, at the time of the institution of the proceeding, the person instituting the proceeding actually and voluntarily resides or carries on business or personally works for gain. Explanation .-In this sub-section zone means a zone specified in section 15 of the States Reorganisation Act, 1956. (37 of 1956). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a copyright in a work has withheld the same from the public, after giving the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may consider necessary and on being satisfied that the grounds for withholding the work are not reasonable, to 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 own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apco 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tribunal. 4. In the context of Courts adjudicating civil disputes, the jurisdiction and powers necessary to effectively exercise the jurisdiction, such as, securing the presence of defendants / respondents or witnesses, granting of interim orders etc., and the method and manner of enforcement of a decision or a decree, are matters elaborately dealt by the Code of Civil Procedure. Similarly, the Code of Criminal Procedure contains provisions necessary for the exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commercial value depending upon the quality, nature and the public demand of the work. It may also have aesthetic value. Whether such a right should be transferred or not is a matter, essentially, for the owner of the copyright to determine. It is, further, the right of the owner to decide on what terms and conditions (which need not necessarily be related to money alone), he would part with the copyright of his work if ever he decides to part wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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