TMI Blog2010 (1) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... ht Board with liberty to make such application as deemed fit for expedition or for grant of interim relief in their pending application. It was left to the Board to consider such an application, if made, on merits. 6. The Appellant had filed suit No. 2124 of 2007. The Appellant is a private limited company incorporated under the provisions of the Companies Act, 1956 and its main object is to carry on the business of receiving, producing, acquiring, broadcasting, communicating, telecasting various entertainment and entertainment related content and programmes. The Defendant is a company incorporated under the Companies Act, 1956 and has been registered as a Collecting Society under Section 33(3) of the Copyright Act, 1957 ('The Act' for short) to carry on the business of issuing licenses inter alia to broadcast / communicate to the public sound recordings. 7. The Plaintiff proposes to launch a 24 hour music channel in India, playing only music embodied in sound recordings accompanied by static graphics displayed on the screen via the local operators of Satellite, Cable and Internet platforms. It made an application to the Ministry of Information and Broadcasting. The P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Copyright Board on the Plaintiffs application dated 4th July, 2007 and / or such other application that may be made by the Plaintiff from time to time for compulsory license or otherwise; c) That pending the hearing and final disposal of the Suit the Defendant, its directors, servants and agents be restrained, by an order and injunction of this Hon'ble Court from interfering with the Plantiff s broadcast of the present and future sound recordings of the Defendant upon payment of royalty and on terms and conditions contained in the Plaintiffs letter dated 12th April, 2007 being Exhibit C to the plaint or such reasonable interim royalty fee as may be determined by this Hon'ble Court. 9. On 04.09.2008, the learned Trial Judge passed an ad-interim order in Notice of Motion No. 3651 of 2007 and prior to the said date i.e on 04.08.2008, the following preliminary issue was framed: 1) Whether this Court has jurisdiction to try and decide the suit pertaining to the fixation of royalty by the statutory board under Section 31 of the Copyright Act? By the ad-interim order, certain arrangement was made to meet the ends of justice. It is stated across the Bar that as of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions as may be prescribed. The Chairman of the Board shall be a person who is, or has been, a Judge of a High Court or is qualified for appointment as a Judge of a High Court. Section 12 deals with the powers and procedure of Board. It may exercise and discharge its powers and functions through Benches constituted by its Chairman from amongst its members, each Bench consisting of not less than three members. If there is a difference of opinion among the members of the Board or any Bench thereof in respect of any matter coming before it for decision under this Act, the opinion of the majority shall prevail and whereas there is no such majority, the opinion of the Chairman shall prevail. No member of the Board shall take part in any proceedings before the Board in respect of any matter in which he has a personal interest. The Board shall be deemed to be a Civil Court for the purposes of Sections 345 and 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. As per Section 13 of the Act, copyright shall subsist through out India in the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire, any copy if the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public; (e) in the case of a sound recording, - (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. As per Section 16, 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 the provisions of this Act or of any other law for the time being in force. Section 18 states that the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof whereas Section 19 states the mode of assignment. Section 19A deals with respect to assignment of copyright. 13. Section 30 provides for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Copyright to grant to the complainant a license 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 Register of Copyrights shall grant the license to the complainant in accordance with the directions of the Copyright Board, on payment of such fee as may be prescribed. Section 51 deals with infringement of Copyright which reads as under: Copyright in a work shall be deemed to be infringed - (a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to the Board for a compulsory license. In the meanwhile, it has taken substantial efforts and incurred huge expenditure in its proposed venture and also established system for broadcasting music which is lying idle as its application has not yet been decided by the Board. The Plaintiff undertakes to pay to the Defendant such royalty as may be fixed by the Board pursuant to its application dated 04.07.2007 for a compulsory license. As per the Plaintiff, it has a right to broadcast sound recording in the repertoire of the Defendant on payment to it of such royalty and / or compensation and subject to terms and conditions as the Board may determine upon the pending applications and in the meanwhile, the Plaintiff must be allowed to broadcast on such undertakings. Once such an undertaking has been submitted to the Board to pay to the Defendant amount of royalty or compensation and agreeing to abide by the terms and conditions as may be determined by the Board on its application dated 04.07.2007, the Defendant, its directors, servants and agents ought to be restrained by a permanent order of injunction from interfering with the Plaintiffs broadcasting of sound recording of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above observations that the right to broadcast of work recorded in sound recording has been recognized by the Supreme Court and therefore, once the Plaintiff has furnished an undertaking before the trial court to pay the royalty amount as may be fixed by the Board, in the pending application, the trial court has jurisdiction to entertain the suit and decree it for the reliefs prayed. Any other interpretation, as per Shri. Dwarkadas would render the scheme of the Act redundant and the above observations made by the Supreme Court in the above case would be ineffective and meaningless. He also submitted that even on the point of equity, such a relief could be granted by the Civil Court and it is not necessary for the Applicant to wait for a final outcome from the Board which takes years together to decide the complaint so as to grant compulsory license. In the opinion of Shri. Dwarkadas, the suit filed by the Plaintiff is maintainable and the trial Court has the jurisdiction to grant the reliefs prayed for. 17. Dr. Tulzapurkar, learned Senior Counsel appearing for the Defendant while supporting the view taken by the trial court submitted that the relief sought for by the Plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. 18. In the case of Phonographic Performance Ltd and Ors. v. Music Broadcast (P) Ltd and Ors . 2004(29) PTC 282 (Bom) (DB), a Division Bench of this Court had an occasion to examine the scheme of the Act and on the interpretation of Section 31(l)(b) of the Act, it has held: ...the Legislature has made its intention of dealing with the mode of communication namely broadcast differently and therefore, in our opinion, as the words of the provisions are clear, there is no question of importing the concept of the refusal resulting in withholding of the work from the public into the field of broadcast also, as the intention of the Legislature in that regard is absolutely clear. Perusal of the provisions of Sub-section (1) of Section 31 further shows that the complainant in relation to cases covered by both Clauses (a) and (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining the license, such an act would fall within the ambit of Section 51 of the Act i.e infringement of the Copyright and consequently, it would be an offence under Section 63 of the Act. Any person knowingly infringes or abets the infringement of copyright in a work shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall be less than fifty thousand rupees but which may extend to two lakh rupees. The Act is a special statute and it is a self sufficient piece of legislation. Any order passed by the Board under Section 31(l)(b) is appealable before this Court under Section 72 therein. The Board is headed by a retired Judge of the High Court or a person eligible to be appointed as a Judge of the High Court. The Bench of the Board consisting at least three members and in case of different opinion, a view of majority of the members would prevail. What is prayed by the Plaintiff in the suit filed by it before the learned Trial Judge is nothing short of compulsory license within the meaning of Section 31(l)(b) of the Act while its application for the very same purpose is pending before the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain the suit. In that view of the matter, the learned trial Judge has stated that the relief prayed in the suit was innocuous or may be it is innovative. We, therefore, do not find any fault in the said observations. 20. The learned Trial Judge in the impugned judgment has also held that the Plaintiff is not prevented from filing an application for interim relief pending its application of compulsory license and reliance in that regard has been placed on the judgment of the Supreme Court in case of The Management Hotel Imperial, New Delhi v. Hotel Workers' Union AIR 1959 SC 1342. Shri. Dwarkadas may be justified in expressing his doubts on the correctness of the said observations of the learned Trial Judge. It appears that the learned Trial Judge intended to suggest that the scheme of the Act does not bar filing of such an application before the Board. Be that as it may, we refrain from expressing any opinion on the issue whether an application for interim relief can be filed and entertained by the Copyright Board. 21. For the reasons set out herein above, this Appeal must fail and the same is hereby dismissed. We confirm the impugned order passed by the learned t ..... 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