Supreme Court of India
M/S ENTERTAINMENT NETWORK (INDIA) LTD.versusM/S SUPER CASSETTE INDUSTRIES LTD.
- Citation
- 2008 INSC 708
- Decided
- 16 May 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Section 31(2) pertains only to clause (a) of sub‑section (1), the Board has jurisdiction to grant compulsory licences for broadcast where the owner’s refusal is unreasonable, and multiple licences may be granted.
Summary
The Supreme Court examined a dispute between Entertainment Network (India) Ltd. (Radio Mirchi) and Super Cassettes Industries Ltd. over the broadcast of copyrighted sound recordings. The appellant sought a compulsory licence under Section 31(1)(b) of the Copyright Act, 1957, after the Copyright Board had fixed royalty rates and directed security. The Court considered whether the Board had jurisdiction to grant such licences when the works were already available to the public, whether multiple licences could be issued under Section 31(2), and what factors should guide the Board in determining the grant and terms of a compulsory licence. Applying purposive construction and principles of natural justice, the Court held that Section 31(2) applies only to clause (a) of sub‑section (1) and not to clause (b), that the Board may grant compulsory licences for broadcast where the owner’s refusal is unreasonable, and that multiple licences are permissible. The order of the Copyright Board was set aside and the matter remitted for fresh consideration. The appeals were allowed.
Issues considered
- Whether the Copyright Board has jurisdiction under Section 31(1)(b) to direct the owner of a copyright or a copyright society to issue compulsory licences for broadcast when the work is already available to the public.
- Whether Section 31(2) limits the grant of a compulsory licence to a single complainant, thereby precluding multiple licences.
- What considerations the Copyright Board must take into account when deciding to grant a compulsory licence and determining the compensation/royalty.
Legislation cited
- Copyright Act, 1957s. 14(1)(a), s. 14(1)(e), s. 2(d), s. 2(ff), s. 2(j), s. 2(y), s. 30, s. 31(1)(a), s. 31(1)(b), s. 31(2), s. 31A, s. 32, s. 32A, s. 33, s. 34, s. 34A, s. 55, s. 72
- General Clauses Act
Subjects
CopyrightCompulsory licenceSection 31BroadcastNatural justicePurposive constructionRoyaltyCompensationPublic interestIntellectual property
Judgment
[2008] 9 S.C.R. 165
M/S ENTERTAINMENT NETWORK (INDIA) LTD. A
\/.
M/S SUPER CASSETTE INDUSTRIES LTD.
(Civil Appeal No. 5114 of 2005)
MAY 16, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]
)c
Copyright Act, 1957:
~
S.31 - Interpretation of - S.31(2) refers to case falling
under clause (a) of sub-section (1) of Section 31 and not clause c
(b) thereof- In terms of s.31, Principles of Natural Justice are
required to be complied with - The manner in which the Copy-
right Board dealt with the matter not approved - Order of the
Board set aside and matter remitted to the Board for consid-
eration of the matter afresh on merit - Administrative Law - D
Principles of Natural Justice - Constitution of India - Arlie/es
14, 19(1)(g).
Doctrines:
Doctrine of purposive construction -Applicability of. E
International conventions, covenants and resolutions:
Applicability of for the purpose of interpreting domestic
statute, would depend upon the acceptability of the conven-
tions in question - Where protection of human rights, envi- F
ronment, ecology etc. involved courts should not be loathe to
refer to International Conventions.
Marginal Notes: Where the statute is clear, marginal note
may not have any role to play
G
Words & Phrases:
'Work', 'public', 'compensation', 'royalty' - Meaning of in
'"' the context of Copyright Act, 1957.
165 H
166 SUPREME COURT REPORTS (2008] 9 S.C.R.
A First respondent is one of the leading music compa-
nies engaged in the production and/or acquisition of
rights in sound recordings. It has copyright over a series
of cassettes and CDs commonly known as T-series, con-
taining cinematographic films and sound recordings.
B Appellant broadcasts under the brand name "Radio
Mirchi". It is a leading FM radio broadcaster. Disputes and
differences arose between the holding company of the
first respondent and Phonographic Performance Ltd.
(PPL) as regards the playing of the songs of which copy-
C rights belongs to the first respondent in their FM radio
network.
A suit was filed before the Delhi High Court for re-
straining the appellant from playing and broadcasting the
music belonging to the first respondent on any of the
D Radio Stations belonging to the appellant.
Various Radio Stations including the appellant filed
an application before the Copyright Board at Hyderabad
in terms of Section 31 (1 )(b) of the Act for grant of compul-
sory license to all the radio stations. The Copyright Board
E by a judgment and order dated 19.11.2002 fixed the stan-
dard rate of:
Payment to be made at Rs.1200/needle hour during
prime time.
F For 12 normal hours = 60% of standard rate
For 8 lean (night) hours = 25% of standard rate and
respondents also directed to furnish a security/bank guar-
antee of Rs.20,00,000/- per radio station to PPL.
G The Board also held that the same shall be opera-
tive for a period of 2 years and the matter shall be recon-
sidered again in September-October, 2004. Super Cas-
settes was not a party therein. The Board fixed royalties
initially for a period of two years. An appeal thereagainst
H was preferred before Bombay High Court and it is the
ENTERTAINMENT NETWORK v. SUPER CASSETTE 167
INDUSTRIES
subject matter of C.A. No. 5181 of 2005. A
Appeals were filed before the Bombay High Court
by the radio companies and PPL against the order dated
19.11.2002.
13 Appeals in total were filed before the Bombay High B
Court. The Bombay High Court by a common judgment
and order dated 13.4.2004 in First Appeal Nos. 279-294 of
2003, 421 of 2003 and 1573 of 2003 remitted the matters
back to the Copyright Board for reconsideration and for
fixation of license fees. c
Appellant filed an application before the Copyright
Board at Delhi, for grant of compulsory licence in terms
of Section 31(1)(b) of the Act against Super Cassettes. The
Application was allowed granting a compulsory licence.
Appellant filed an appeal against the said order before D
the Bombay High Court questioning the rates of compen-
sation only. The said appeal was tagged with various
other appeals which had been filed 'b~fore the Bombay
High Court against the said order passed by the Copy-
right Board at Hyderabad. E
Respondents however preferred two-fold appeals
before the Delhi High Court. By reason of the impugned
judgment. dated 30.6.2004, the respondent's appeal has
been allowed remitting the matter back to the Copyright
Board to reconsider the application of the appellant for F
grant of compulsory license under Section 31 of the Act
after giving adequate opportunity to the parties to adduce
evidence and to dispose of the same by a rea$oried or-
der. The High Court furthermore directed that the appel-
lant must file an undertaking that it would not broadcast G
the sound recordings of the respondent. Appellant had
filed Petition for Special Leave to Appeal giving rise to
Civil Appeal No. 5114 of 2005 in this Court.
Thus there are two judgments before this Court, one H
168 SUPREME COURT REPORTS [2008) 9 S.C.R.
A from the Bombay High Court and another from the Delhi
High Court. Whereas the Bombay High Court opined that
in terms of Section 31 .of the Act, grant of compulsory li-
cense on reasonable remuneration is permissible; the
Delhi High Court held otherwise.
B The core questions which, arose for consideration
were:
/
. (i) Whether the Copyright Board has jurisdiction
under Section 31(1)(b) of the Copyright Act, 1957
c to direct the owner of a copyright in any Indian
work Or a registered copyright society to issue
compulsory licences to broadcast such as
works, where such work is available to the
public through radio broadcast?
·D (ii) Whether in any event such a compulsory
license can be issued to more than one
complainant in the light of Section 31 (2)?
(iii) What would be the relevant considerations
which the Copyright Board must keep in view
E while deciding on;
(a) Whether to issue a compulsory license to
a particular person; and
(b) The terms on which the compulsory license
F may be issued, including the compensation?
Allowing the appeals, the Court
HELD: 1.1 Applicability of the International Conven-
tions and c'ovenants, as also the resolutions, etc. for the
G 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 lr.ternational Cov-
enants can be utilized. Where International Conventions
H are framed upon undertaking a great deal of exercise
ENTERTAINMENT NETWORK v. SUPER CASSETTE 169
INDUSTRIES
upon giving an opportunity of hearing to both the parties A
and filtered at several levels as also upon taking into con-
sideration the different societal conditions in different
countries by laying down the minimum norm, as for ex-
ample, the ILO Conventions, the court would freely avail
the benefits thereof. [Para 19] [218-G,H, 219-A] B
1.2 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 exist-
ing enactment, recourse to International Convention is
permissible. [Para 19] [[219-B]] c
1.3 As regards the question where the protection of
human rights, environment, ecology and other second-
generation or third~generation rights is involved, the
courts should not be loathe to refer to the International
D
Conventions. [Para 19] [219-E]
Gramophone Company of India Ltd. v. D.B. Pandey
(1984) 2 SCC 534; Kesavananda Bharati v. State of Kera/a
(1973) 4 SCC 225; Jagdish Saran and Ors. V. Union of India
(1980) 2 SCC 768; -Indian Handicrafts Emporium and Ors. V. E
Union of India (2003) 7 SCC 589; Motor General Traders and
Anr. v. State of Andhra Pradesh and Ors. (1984) 1 SCC 222;
Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3
SCC 385; Synthetics and Chemicals Ltd. and Ors. v. State of
UP and Ors. (1990) 1 SCC 109; Liverpool and London S.P F
;
and I Asson. Ltd. V. M. V Sea Success I and Anr. (2004) 9
sec 512; M. v Elisabeth (1993) Supp. (2) sec 433; The
State of West Bengal v. Kesoram Industries Ltd. And Ors.
(2004) 10 SCC 201; Pratap Singh v. State of Jharkhand and
Anr. (2005) 3 SCC 551; Centrotrade Minerals and Metal Inc.
G
v. Hindustan Copper Limited (2006) 11 SCC 245; State of
• Punjab and Ors. v. Amritsar Beverages Ltd. and Ors. 2006 (7)
..,J SCALE 587; State of Punjab and Anr. v. Devans Modern
Brewan·es Ltd. and Anr. (2004) 11 SCC 26; Anuj Garg and
Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1;
H
170 SUPREME COURT REPORTS [2008] 9 S.C.R.
A PUCL v. Union of India (1997) 3 SCC 433; John Vallamattom
v. Union of India (2003) 6 SCC 611; Madhu Kishwarv. State of
Bihar (1996) 5 SCC 125; Kubic Darusz v. Union of India (1990)
1 sec 568; Chameti Singh v. State of UP (1996) 2 sec 549;
C. Masi/amani Mudaliar v. Idol of Sri Swaminathaswami
B Thirukoil (1996) 8 SCC 525; Apparel Export Promotion Coun-
cit v. A.K. Chopra (1999) 1 SCC 759; Kapila Hingorani Vs.
State of Bihar (2003) 6 SCC 1; State of Punjab & Anr. Vs. Mis.
Devans Modem Breweries & Anr. 2003 (10) SCALE 202 and
-
Liverpool & London S.P & I Asson. Ltd. Vs. M. V Sea Sue-
c cess I 2003 (10) SCALE 1 - referred to
The Berne Convention, Articles 11, 11 bis; Rome Con-
vention, Articles 3(f), 12; Copinger and Skone James on
Copyright, 151h Ed.2005, para 2-5, page 27, Vol.1 and Black's
Law Dictionary, Seventh Edition - referred to.
D
2.1 The Copyright Act seeks to maintain a balance
between the interest of the owner of the copyright in pro-
tectinf-his works on the one hand and the interest of the
public to have access to the works, on the other. The ex-
tent to which the owner is entitled to protection in regard
E 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. [Para 21] [221-B,C]
2.2 Whereas the Act provides for exclusive rights in
F favour of owners of the copyright, there are provisions
where it has been recognized that public has also sub-
,
stantial interest in the availability of the works. The provi-
sions relating to grant of compulsory license must be
viewed having regard to the aforementioned competing
rights wherefor an appropriate balance has to be stuck.
G
[Para 21] [221-C,D]
2.3 The freedom to contract is the foundation of eco-
nomic activity and an essential aspect of several Consti-
tutional rights including the freedom to carry on trade or
H business guaranteed under Article 19(1)(g) and the right
ENTERTAINMENT NETWORK v. SUPER CASSETTE 171
INDUSTRIES
to property under Article 300A of the Constitution of In- A
dia. But the said right is not absolute. It is subject to rea-
sonable restrictions. [Para 21] [221-G,H, 222-A]
2.4 Section 30 enables the owner of the copyright to
grant any interest in the copyright by a license in writing
signed by him or by his duly authorized agent. The un- B
derlying philosophy of the Copyright Act is that the owner
~
of the copyright is free to enter into voluntary agreement
or licenses on terms mutually acceptable to him and the
licensee. The Act confers on the copyright owner the ex-
elusive right to do the various acts enumerated in Sec- c
tion 14. An infringement of copyright occurs if one of
those acts is done without the owner's license. A license
passes no interest, but merely makes lawful that which
would otherwise be unlawful. The Act also expressly rec-
ognizes the notion of an "exclusive license" which is D
defined in Section 2(j). But, that does not mean, as would
be noticed from the discussions made hereinafter, that it
would apply in all situations irrespective of the nature of
right as also the rights of others. It means a licence which
confers on the licensee, to the exclusion of all other per- E
sons (including the owner of the copyright) any right com-
prised in the copyright in a work. An exclusive licensee
has specific rights under the Act such as the right to have
recourse to civil remedies under Section 55 of the Act.
This Scheme shows that a copyright owner has complete F
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 is not abso-
G
lute. It is subject to right of others to obtain compulsory
licence as also the terms on which such licence can be
..;
granted. [Para 21] [222-A-G]
3.1 The meaning of a word must be attributed to the
context in which it is used. For giving a contextual mean- H
172 SUPREME COURT REPORTS (2008] 9 S.C.R.
A ing, 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
s not withheld its work from public. When an offer is made
on an unreasonable term or a stand is taken which is oth-
erwise arbitrary, it may amount to a refusal on the part of
the owner of a copyright. When the owner of a copyright
or the copyright society exercises monopoly in it, then
c 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 con-
dition which is wholly alien or foreign therefor. An unrea-
D sonable demand if acceded to, becomes an unconstitu-
tional contract which for all intent and purport may amount
to refusal to allow communication to the public work re-
corded in sound recording. A de jure offer may not be a de
facto offer. [Para 24] [226-E-H, 227-A]
E 3.2 Although the term 'work' has been used both in
clauses (a) and (b) of sub-Section (1) of Section 31, the
same has been used for different purpose. The said term
'work' has been defined in Section 2(y) in different con-
texts. It enumerates the works which are: (a) a literary,
F dramatic, musical or artistic work; (b) a cinematograph
film; (iii) a sound recording. Thus, a literary work ex facie
may not have anything to do with sound recording. [Para
24] [227-B,C]
3.3 There are indications in the Act particularly hav-
G ing regard to Sections 14(1)(a) and 14(1)(e) thereof that
they are meant to operate in different fields. They in fact
do not appear to be operating in the same field. Clause
(a) refers to publication or republication of the work. It may
be in print media or other medias. Clause (b), however,
H refers to broadcast alone. Sound recording is a part of it.
ENTERTAINMENT NETWORK v. SUPER CASSETTE 173
INDUSTRIES
Sub-clauses (i) to (vii) of sub-clauses (a) of sub-Section A
(1) of Section 14 and sub-clauses (i) to (iii) of sub-clause
(e) conferred different meanings of the word copyright.
Whereas clause (a) refers to work in general, clause (b)
refers to work recorded in such sound recording, which
in turn means the recording of sounds from which such B
sounds may be reproduced regardless of the medium on
which such recording is made or the method by which
the sounds are produced. Clause (b) ex facie does not fit
in the scheme of clause (a). [Para 24] [227-C,D,E,F]
3.4 Interpretation of clause must be given effect to c
having regard to the limitations contained therein, namely,
unless context otherwise requires. [Para 24] [227-F]
3.5 Communication to the public is possible by way
• of diffusion. Explanation appended to Section 2(ff) clearly
D
shows the extensive meaning of the said term. Publica-
tion and republication of a work in general may be differ-
ent from communication of a work recording in sound
recording. The use of words 'such work' also assumes
significance. The said words must be understood hav-
ing regard to the fact that sound recording is also a work. E
If it is accepted that voluntary licenses have been entered
into by the owners with All India Radio and some other
Radio Broadcasters, then it is sufficient for closing the
doors on another person to approach the Copyright Board.
One may as well say that if it is provided to a satellite chan- F
nel or a space radio, the same also would subserve the
purpose for refusing to grant an application under Sec-
tion 31 of the Act. [Para 24] [227-G,H, 228-A,B]
'
•
_,
3.6 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
G
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
H
174 SUPREME COURT REPORTS (2008] 9 S.C.R.
A any other meaning is assigned, the terms 'on terms which
the complaints considers reasonable' would lose all sig-
nificance. The very fact that refusal to allow communica-
tion on terms which the complainant considers reason-
able have been used by the Parliament indicate that un-
B reasonable 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. [Para 24] [228-C,D,E]
3.7 PPL and SCIL might have been called upon the
c broadcasters to enter into licenses and were willing to
license their repertoire. But their contention was that if
such terms are unreasonable, it amounted to refusal
which would attract Section 31 of the Act. The word 'com-
municate the work to the public by broadcast" is of sig-
D nificance. It provides for a mode of communication. Thus,
only because a Registrar of a Copyright would be directed
to grant a licence to communicate the work to the public
by broadcast would not mean that only a single licence
shall be granted. The Board acting as a statutory author-
E ity can exercise its power from time to time. It is therefore
not correct to contend that having regard to the provi-
sions of sub-section (2) of Section 31, compulsory licence
can be granted only to one and not to more than one
broadcaster. [Para 24] [228-F-H, 229-A]
t
F 3.8 Section 31 (1 )(b) in fact does not create an entitle-
ment in favour of an individual broadcaster. The right is
to approach the Board when it considers that the terms
of offer for grant of license are unreasonable. It, no doubt,
provides for a mechanism but the mechanism is for the I
G purpose of determination of his right. When a claim is :ti
made in terms of the provisions of a statute, the same
has to be determined. All cases may not involve narrow '"'
commercial interest. For the purpose of interpretation of
a statute, the court must take into consideration all situa-
H tions including the interest of the person who intends to
ENTERTAINMENT NETWORK v. SUPER CASSETTE 175
INDUSTRIES
have a licence for replay of the. sound recording in re- A
spect whereof another person has a copyright. It, how-
ever, would not mean that all and sundry can file applica-
tions. [Para 24] [229-C,D,E]
3.9 Admittedly in terms of Section 31 of the Copy-
right Act the principles of natural justice are required to B
.. be complied with and an enquiry has to be held. The ex-
tent of such enquiry will depend upon the facts and cir-
cumstances 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, c
the Registrar of copyright would be directed to grant a
license for the said purpose. The amount of compensa-
tion payable to the owner of the copyright must also be
determined. The Board would also be entitled to deter-
Ii
mine such other terms and conditions as the Board may D
think fit and proper. Registration is granted only on pay-
ment of such fees and subject to compliance of the other
directions. [Para 24] [229-G,H, 230-A,B]
4.1 An owner of a copyright indisputably has a right
akin to the right of property. It is also a human right. Now, E
human rights have started gaining a multifaceted approach.
Property rights vis-ii-vis individuals are also incorporated
within the 'multiversity' of human rights. As, for example,
any claim of adverse possession has to be read in conso-
nance with human rights. [Para 25] [230-C,D] F
4.2 The right of property is no longer a fundamental
right. It will be subject to reasonable restrictions. In terms
of Article 300A of the Constitution, it may be subject to
the conditions laid down therein, namely, it may be wholly
G
or in part acquired in public interest and on payment of
reasonable compensation. [Para 25] [231-B,C]
P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors.
(2007) 6 sec 59 - referred to.
H
176 SUPREME COURT REPORTS [2008] 9 S.C.R.
A Peter Smith v. Kvaerner Cementation Fo11ndations Ltd.
(2006) EWCA Civ 242; Beaulane properties Ltd. v. Palmer
2005 EWHC 817(Ch.) and J. A. Pye (Oxford) Ltd. v. Graham
(2002) 3 ALL ER 865 - referred to.
5.1 The right to property, therefore, is not dealt with its
8 subject to restrict when a right to property creates a mo-
nopoly 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 en-
couraged. Knowledge must be allowed to be disseminated.
C An artistic work if made public should be made available
subject of course to reasonable terms and grant of reason-
able compensation to the public at large. [Para 26] [231-E,F]
5.2 The legislature for all intent and purport equates
'compensation' with 'royalty'. In the context of the Act, •
0
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 'com-
pensation' may be held to be payable on a periodical ba-
sis, as apart from the compensation, other terms and con-
E ditions can also be imposed. The compensation must be
directed to be paid with certain other terms and condi-
tions which may be imposed. [Para 27] [232-D,E,F]
Gherulal Parakh v. Mahadeodas Maiya and Ors. 1959
F Supp (2) SCR 406 and Oevinder Singh and Ors. Vs. State of
Punjab and Ors. AIR 2008 SC 261 - referred to.
"World Copyright Law" (2"d Edn) by J.A.L. Sterling - re-
ferred to.
G 6. It is also well settled that where the statute is clear,
marginal note may not have any role to play. [Para 26]
[232-G,H]
K.P Varghese v. Income-Tax Officer, Ernakulam (1981)
4 SCC 173 and Bhinka & Ors. V. Charan Singh 1959 Supp.
H (2) SCR 798 - referred to.
ENTERTAINMENT NETWORK v. SUPER CASSETTE 177
INDUSTRIES
7.1 The intention of the Parliament, it is trite, must be A
ascertained from the plain reading of the Section. The in-
tention 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. lt"requires special treat-
ment as it confers upon every person, who wishes to broad- 8
casta work or the work recorded in a sound recording, the
right to do so is either by entering into a voluntary agree-
ment to obtain a licence on such terms which appear to be
reasonable to him or when the term appears to be unrea-
sona.ble to approach the Board. [Para 27] [233-~,B,C] c
7.2 One wishes the statute would have been clear
and explicit. But only because it is not, the courts cannot
fold its hands and express its helplessness. When such
a complaint is made, it confers the jurisdiction "l pon the
Board. It may ultimately allow or reject the complaint but D
it cannot be said that the complaint itself is not maintain-
able. [Para 27] [233-C,D]
8.1 Interpretation of Section 31 (2) is attracted in a case
where there are more than one applicants. The question
of considering the respective claim of the parties would E
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 pe-
riod; if that be so another person can make such an ap- F
plication. 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. Purposive construction therefor may be re-
sorted to. [Para 28] [233-E,F,G] G
,_, 8.2 The provisions of the Act and the Rules in this
i case, are, thus required to be construed in the light of the
action of the State as envisaged under Article 14 of the
Constitution of India. With a view to give effect thereto,
H
178 SUPREME COURT REPORTS [2008] 9 S.C.R.
A the doctrine of purposive construction may have to be
taken recourse to. [Para 28) [235-B,C)
8.3 The Court while interpreting a statute will put it-
self in the armchair of the reasonable legislature, all stat-
utes must be presumed to be reasonable. It is now a trite
8 law that literal interpretation should be avoided when it
leads to absurdity. If it is to be held that once the compul-
sory 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
C 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 en-
D titled 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). [Para 28) [235-C,D,E,F]
8.4 In this case, however, the meaning of the Statute
E is neither clear nor sensible. It is a statute where a purpo-
sive construction is warranted. It is a case where sub-
section (2) should be kept confined to clause (a) for that
purpose. The statute has to be read down. It is not a case
of improper interpolation so as to take away a primary
F purpose of the legislative intent. It is expedient to give
effect to the intent of the statute. This itself says that
creases can be ironed out. While undertaking the said
exercise, the court's endeavour would be to give a mean-
ing to the provisions and not render it otiose. Therefore,
G this Court is of the opinion that Section 31 (2) refers to
case falling under clause (a) of Sub-section (1) of Section
31 and not clause (b) thereof. [Para 28) [236-F,G, 237-A]
I
Oriental Insurance Co. Ltd. v. Brij Mohan and Ors (2007)
7 sec 56 - relied on.
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 179
INDUSTRIES
New India Assurance Company Ltd. v. Nusli Neville A
Wadia and Anr. 2007 (14) SCALE 556, (2008) 3 SCC 279;
Bharat Petroleum Corporation Ltd. V. Maddula Ratnavalli and
Ors. (2007) 6 SCC 81 and Indian Administrative Services
(SCS) Association, UP & Ors. V. Uniqn of India & Ors. 1993
Supp. (1) SCC 730 - referred to. B
Aharon Barak, "Purposive Interpretation in Law" (2007)
pg. 87 - referred to.
9. The Tribunal exercises a limited jurisdiction in In-
dia. Different cases are required to be considered on its c
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. The Bombay High Court's views are en-
D
dorsed. [Para 29] [237-B,C]
10.1 The question before the Board was as to
whether there was an abuse in the sense that unreason-
able amount was being claimed by way of royalty. As it
was a case of abuse, the Board had the jurisdiction to E
entertain any application for grant of compulsory licence.
How far and to what extent appellant has infringed the
right of the respondent is a matter which may be taken
into consideration by the Board. A suit was filed and in-
i junction was granted. Apart from the fact that the appel- F
lant 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 un-
dertaking. Each case must be considered on its own facts.
[Paras 30, 31] [238-B,C,D,E]
G
10.2 This Court doe::; 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 fixE:d for production of witnesses.
H
180 SUPREME COURT REPORTS [2008] 9 S.C.R.
A Therefore, the order of the Board should be set aside and
the matter be remitted to the Board again for the consid-
eration of the matter afresh on merit. [Para 31] [238-E,F]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5114
of 2005
B
From the Judgment and final Order dated 30.6.2004 of
the High Court of Delhi at New Delhi in R.F.A. No. 848/2003
WITH
c C.A. Nos. 5178-5180, 5181, 5182 and 5183 of 2005.
Dr. Abhishek Manu Singhvi, Harish N. Salve, Shyam Di-
van, Sudhir Chandra, Pratibha Singh, Maninder Singh, Surbhi
Mehta, Gaurav Sharma, Sumeet Bhatia, Abhinav Sanghi,
Kamaldeep Dyal, Krishnendu Datta, Ashish Verma. Thomas
D Kurwika, Ayaz Bilawala, Gaurav Goel, E.C. Agrawala, Amit
Sharma, Ashutosh Garg, Amit Sibbal, Sameer Parekh,
Ranjeeta Rohatgi, Diksha Rai, Rahul, Ajatshatru, Haryjot S.
Bhalia (for M/s. Parekh &Co.) Praveen Kumar, Sagar Chandra,
Hari Shankar K., Vikas Singh, Joseph Pookkatt, Prashant
E Kumar and Vaibhav Srivastava for the Appearing Parties.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
INTRODUCTION
F
2. Interpretation of Section 31 of the Copyright Act, 1957
(for the sake of brevity, hereinafter referred to as, 'the Act') is
involved in these appeals.
3. We may notice the factual matrix of the matter.
G
BACKGROUND FACTS
4. First responder:it is one of the leading music compa-
nies engaged in the production and/or acquisition of rights in
sound recordings. It has copyright over a series of cassettes
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 181
INDUSTRIES [S.B. SINHA, J.]
and CDs commonly known as T-series. It has copyrights in cin- A
ematographic films and sound recordings. Appellant Mis. En-
tertainment Network (India) Ltd. (ENIL) broadcasts under the
brand name "Radio Mirchi". It is a leading FM radio broadcaster.
Disputes and differences arose between Bennett Coleman &
Co. Ltd., the holding company of the first respondent and Pho- B
nographic Performance Ltd. (PPL) as regards the playing of
the songs of which copyrights belongs to the first respondent in
their FM radio network. Appellant is a company which holds
licence for running FM radio stations in various cities across
India. c
Free-to-Air private FM Radio Broadcasting is a recent
phenomenon in India and the basic content of any radio station,
presently, is only sound recordings, i.e., songs.
Disputes and differences having arisen between the par-
D
ties in regard to broadcast of the songs in respect whereof the
first respondent holds a copyright as owner thereof or by rea-
son of purchase of the copyright belonging to others.
5. BACKGROUND FACTS
The radio industry was revolutionized by the Government E
of India as_in October 1999 for its first phase of granting license
for private FM, broadcasting channel, tenders were invited.
Appellant herein was awarded the license for running a
private FM broadcasting service in 12 cities on payment of a F
hefty license fee. Several other bidders were also granted Ii-
censes. Respondent, however, was not a member of the ap-
pellant - society. It was found to have been using the broad-
casting songs in respect whereof Super Cassettes Industry Lim-
ited (SCIL) had an ownership over the copyright. It was a mem-
G
ber of the copyright society being Phonographic Performance
Ltd. (PPL). Indisputably, there had been an infringement of the
..,;
copyright Qf Super Cassettes. Allegedly, appellant was under
the belief that it was a part of PPL and whereupon the music
belonging to the repertoire of SCIL was played during the pe-
H
182 SUPREME COURT REPORTS [2008] 9 S.C.R.
A riod from October 2001 to May, 2002 in its stations at Indore
and Ahmedabad. Royalty was paid by ENIL to PPL at the rate
of Rs.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
B was not a part of the copyright society PPL. Negotiations failed
between the parties.
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.
c
6. COMMUNICATIONS BETWEEN THE PARTIES
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
D 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 Cas-
settes again by a notice dated 2.4.2002 through its Advocate
E called upon ENIL to: "a) immediately desist from broadcasting
Sound Recording(s) of Super Cassettes clients through its Ra-
dio Station; b) Tender an unconditional apology for the illegal
broadcast of Sound Recordings of Super Cassettes clients in
past; c) give an undertaking that it shall not broadcast the Sound
F Recordings of Super Cassettes clients through its Radio Sta-
tion without a valid licence and payment of royalty (the terms of
which can be mutually arrived at), and d) pay a sum of Rs.
50,00,000.00 (Fifty lacs only) as liquidated damages, for the
illegal broadcast and acts of infringements committed by it, to
G Super Cassettes within 15 days of receipt hereof under intima-
tion to Super Cassettes failing which Super Cassettes have
positive instruction of its clients to initiate such legal actions
8oth Civil and/or Criminal against you, your directors, and all
other persons responsible for the said infringement without any
further notice and in that case you shall be further liable for all
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 183
INDUSTRIES [S.B. SINHA, J.]
cost and consequences thereof which may please be noted A
very carefully".
In response to the said notice, ENIL stated:
"2. Since our clients intend to negotiate with your clients,
as was our clients intention from the beginning we have B
approached your clients and have offered payment of
royalty, the price of which will be mutually convenient to
both the parties.
3. It is our clients' contention that music is for general
benefit of society at large. Our clients understand that your C
clients have entered into a contract/Agreement with Media
Broadcast Indian Ltd., broadcasting under the channel
"Radio City", and our clients are also likewise prepared .to
popularise your client's music and add value to your clients'
content by entering into Agreement/License with your D
clients.
4. As we have already stated in the aforesaid para music
is for general enjoyment and a restrictive practice of a tie
up only with Media Broadcast India Ltd. is not in public
interest. We, therefore, do not admit any of the allegations E
made by your clients in your aforesaid letter and further
suggest that your clients resolve the issue by entering into
a contract beneficial to both parties."
Super Cassettes, however, by another legal notice dated F
1.6.2002 stated:
"My client has clearly indicated its willingness to grant
your client a public performance license. However, without
obtaining such license, your client continues to broadcast
songs of our clients. G
In the circumstances, your client is once again called upon
to:
•' ~~
(a) First immediately cease and desist from such r: · ~
unauthorized broadcast before a formal license>·~H
.,
184 SUPREME COURT REPORTS [2008] 9 S.C.R.
A agreement is drawn up.
(b) Pay my client a sum of Rs.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
B various cities."
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
c 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
D 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
E administered by us.
It will be essential for your to apply for our licence for
broadcasting of our members' existing and future sound
recordings, subject to our tariff and terms and conditions
as applicable.
F
We shall appreciate if you kindly confirm to us the centres
where you will be setting up your F.M. Broadcasting
stations/transmitters, and the estimated date/month from
which the said stations/transmitters will start operations.
G On receipt of this information, we shall send you the licence
application form and the tariff details."
It, however, appears that several broadcasters including
ENIL by a letter dated 17.4.2001 addressed to PPL stated as
under:
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 185
INDUSTRIES [S.B. SINHA, J.]
"We acknowledge that you are constituted as the body A
legally empowered to represent the interests of the owners
of music copyrights around the world when performances
take place in India. We are, therefore, approaching you to
discuss arrangements for the provisions of licensing the
broadcast of copyrighted music on our new stations. 8
We want to begin discussions immediately, since at least
> some of our stations are all but ready to begin broadcasts
now.
We can begin with the agreement that owners of copyrights c
deserve to be compensated for the use of their music on
radio stations. Radio stations play copyrighted music
because of its popularity because the music helps build
the audience that the stations can offer to advertisers with
eventual hope of making an opening profit. We assume
D
that copyright owners desire exposure to their music that
is as broad as possible.
The expectations for the future of private radio
broadcasting in India are high, and we have the ambition
to develop private radio to a level of popularity not unlike E
what achieves in most other developed countries in the
world. Whereas radio currently attracts the average Indian
for less than half an hour a day, daily radio listenership in
most countries averages something over three hours a
day. Uniquely among the media, radio has the ability to F
provide as entertainment and information services to
listerners who do not have to stop everything else they
may be doing to take full advantage of the programming.
We feel that while radio has been a dismal failure at
attracting listenership thus far in this country, we can, with
G
your expectation, build radio listening to the point that
music will begin to play a much larger role in the lives of
the Indian public than is the case today.
We hope that we can meet at your ea_rliest convenience
to begin to discuss a contractual business arrangement, H
186 SUPREME COURT REPORTS [2008) 9 S.C.R.
A 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
B meeting."
Indisputably, appellant, in the suit filed by the first respon-
dent having come to learn that it is outside PPL's jurisdiction to
give an undertaking not to use the songs copyright whereof be-
e longs 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.
In a letter to the respondent, appellant stated, "We had no
intention to infringe your copyright as in fact we had been regu-
D larly paying royalty to PPL including t.he T-Series needle time
played on our station."
The appellant thus contended that it had been all ~long
under a wrong impression that Super Cassettes was a mem-
ber of PPL and that it had no knowledge that the license was
E required to be obtained. Super Cassettes, however, contend
that such a stand was not correct as would appear from its let-
ter dated 28.5.2002, and that the appellant had intended to
negotiate with the respondent from the very beginning.
F PROCEEDINGS BEFORE THE COPYRIGHT BOARD -
FIRST LICENCE CASE
7. Various RadiQ Stations including the petitioner filed an
application before the Copyright Board at Hyderabad in terms
G of Section 31 (1 )(b) of the Act on or about 19.11.2002 for grant
of compulsory license to all the radio stations.
The Copyright Board by a judgment and order dated
19.11.2002 fixed the standard rate of:
Payment to be made at Rs.1200/needle hour during
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 187
INDUSTRIES [S.B. SINHA, J.]
prime time. A
For 12 normal hours= 60% of standard rate
For 8 lean (night) hours= 25% of standard rate and
respondents also directed to furnish a security/bank
guarantee of Rs.20,00,000/- per radio station to PPL. B
The Board also held that the same shall be operative for a
period of 2 years and the matter shall be reconsidered again in
September-October, 2004. Super Cassettes was not a party
therein. The Board fixed royalties initially for a period of two
years. An appe!'ll thereagainst was preferred before Bombay C
High Court and it is the subject matter of C.A. No. 5181 of 2005.
Appeals were filed before the Bombay High Court by the
radio companies and PPL against the order dated 19.11.2002,
details whereof are as under:
D
"1. PPL V. Music Broadcast 279 of 2003
2. PPL V. ENIL 280 of 2003
3. PPL V. Miullennium Chennai ~. 281 of 2003
E
4. PPL V. Millennium Delhi 283 of 2003
5. ENIL V. PPL 288 of 2003
6. Millennium Chennai V. PPL 291 of 2003
7. Millennium Delhi V. PPL 292 of 2003 F
8. Music Broadcast V. PPL 294 of 2003
• 9. Radio Midday V. PPL 421 of 2003
13 Appeals in total were filed before the Bombay High
Court. The Bombay High Court by a common judgment and G
order dated 13.4.2004 in First Appeal Nos. 279-294 of 2003,,
421 of 2003 and 1573 of 2003 remitted the matters back to the·· ..
Copyright Board for reconsideration and for fixation of license
fees.
H
188 SUPREME COURT REPORTS [2008] 9 S.C.R.
A SECOND LICENSE CASE
8. 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 Sec-
tion 31(1)(b) of the Act against Super Cassettes praying, inter
B 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
c Copyright Board."
On being noticed, respondents filed an objection contend-
ing that as the suit for infringement was pending before the Delhi
High Court, no application for compulsory license could be en-
tertained. The High Court, on an application filed by the appel-
D lant, clarified that the respondent was free to canvas its sub-
missions 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 wit-
nesses. However, when respondent intended to present oral
E evidence, it was declined. Submissions were directed to be
made on or about 20.10.2003. Application No. 10 of 2003 was
allowed granting a compulsory license.
Appellant filed an appeal against the said order before
the Bombay High Court questioning the rates of compensation
F only. The said appeal was tagged with various other appeals
which had been filed before the Bombay High Court against
the order dated 19.11.2002 passed by the Copyright Board at
Hyderabad.
G Respondents, however preferred two-fold appeals before
the Delhi High Court which were marked as RFA No. 848 of
2003. By reason of the impugned judgment dated 30.6.2004,
the respondent's appeal has been allowed remitting the matter
back to the Copyright Board to reconsider the application of
H the appellant for grant of compulsory license under Section 31
ENTERTAINMENT NETWORK v. SUPER CASSETTE 189
INDUSTRIES [S.8. SINHA, J.]
of the Act after giving adequate opportunity to the parties to A
adduce evidence and to dispose of the same by a reasoned
order. The High Court furthermore directed that the appellant
must file an undertaking that it would not broadcast the sound
recordings of the respondent. Appellant had filed Petition for
Special Leave to Appeal giving rise to Civil Appeal No. 5114 of B
2005 in this Court.
PROCEEDING BEFORE US
9. We have two judgments before us; one from the Bombay
High Court and another from the Delhi High Court. Whereas c
the Bombay High Court opined that in terms of Section 31 of
the Act, grant of compulsory license on reasonable remunera-
tion is permissible; the Delhi High Court held otherwise.
Both the parties have preferred these appeals before us,
.. the particulars whereof are as under: D
Case No. Parties
1. C.A. No.5114/05 ENIL Vs. SCIL
2. C.A. No.5178-80/05 PPL Vs. Millennium Chennai
E
3. C.A. No.5181/05 PPL Vs. ENIL
4. C.A. No.5182/05 PPL Vs. Radio Mid-day West
5. C.A. No.5183/05 PPL Vs. Music Broadcast Pvt. Ltd.
CONTENTIONS AND SUBMISSIONS F
10. Mr. H.N. Salve, Dr. A.M. Singhvi and Mr. Sudhir
Chandra, learned Senior Counsel appearing on behalf of the
appellant would submit:
(i) The said provisions seek to strike a balance between G
creation of monopoly which is generally considered
opposed to public interest and protecting intellectual
property rights as a measure to encourage creativity
in the respective fields.
H
190 SUPREME COURT REPORTS [2008] 9 S.C.R.
A (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 compursory licence provided
B the following conditions are satisfied:
(a) the work in question should have been
published or performed in public.
(b) the own'3r of the copyright should have refused
c 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
).
D 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.
E (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 word has been brought about by an amendment
F made by Act No. 23 of 1983. The words used prior
to its amendment were 'radio diffusion'.
(v) Section 31 (1 )(b) was designed specifically to enable
the Board to intervene where the owner, particularly
of a sound recording did not allow its public
G broadcast.
(vi) The finding of the High Court that no compulsory
licence car:i be granted now would be conferred in
the public interest.
H (vii) The words 'such work' occurring in clauses (a) and
ENTERTAINMENT NETWORK v. SUPER CASSETIE 191
INDUSTRIES [S.B. SINHA, J.]
(b) do not operate in the same field inasmuch as A
clause (a) refers to publication or republication of
the work in print media. Clause (b) refers to the
broadcast alone; the sound recording being a part
of it. And in that view of the matter, the finding of the
High Court that clause (b) cannot apply so long as B
somebody has allowed to broadcast it to the public
is not correct.
(viii) Properly construed, an owner of a copyright cannot
make any discrimination between one broadcaster
and another and what can be demanded is equitable C
remuneration for grant of broadcasting right, as a
refusal to grant such a licence may even hit the
Government owned free to air channels, which would
be manifestly opposed to public interest.
(ix) The Copyright Board not only have the requisite -D_
jurisdiction to grant a compulsory licence but also
determine the quantum of remuneration payable to
him for grant of such licence.
(x) Subject of course to protection of the commercial E
rights of the owner of the sound recording, no owner
of a copyright can refuse to allow broadcast of a
sound recording, merely on the ground that the same
may affect the profit of the owner inasmuch as the
public interest in this behalf is paramount. F
(xi) Section 31 (1) must be construed having regard to
the fact that India is a signatory to various International
conventions, such as, Berne Convention, Rome
Convention, etc. as would appear from the
International Copyright Order, 1999 issued by the G
Central Government. Section 31(1) must also be
construed h_aving regard to the laws indicted by other
countries in the light of the said convention. Sub-
Sectioll (2) of Section 31, if given literal meaning,
would lay to an anomaly and thus its area of operation H
192 SUPREME COURT REPORTS [2008] 9 S.C.R.
I
A should be confined to clause (a) of sub-Section (1)
of Section 31 only.
(xii) It was urged that as the courts do not themselves lay
down the principles for grant of compensation, this
Court may lay down the same for further guidance of
B the same.
i
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
c owners of the copyrights should be the prime
considerc:tion 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
D 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.
E
(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.
F
(iii) As the Act expressly recognizes the notion of an
"exclusive licence" as defined in Section 20), a
specific right in terms thereof can be conferred only
on one person which would include a right to have
recourse to civil remedies in terms of Section 55 of
G
the Act, which enables the owner of a copyright to
enjoy the fruits of his work by earning an agreed fee l
or royalty through the issuance of licence.
(iv) The Copyright Board unlike its counterparts of
H Australia, England or Singapore have a limited
ENTERTAINMENT NETWORK v. SUPER CASSETTE 193
INDUSTRIES [S.B. SINHA, J.]
jurisdiction and its principal functions are: A
"(a) To decide whether a work has been published
or as to the date on which the work was
published for the purpose of determining the
term of copyright under Chapter V of the Act.
(Section 6); B
\
(b) To decide whether the term of copyright or any
work is shorter in any other country than that
under the Act (Section 6);
(c) To settle disputes arising in respect of c
assignment of copyright (Section 19A);
(d) To settle disputes arising in respect of a
voluntary license issued under Section 30 of
the Act (Section 30A);
D
(e) To grant compulsory licenses in respect of Indian
works withheld from the public (Section 31);
(f) To grant a compulsory license to public
unpublished Indian works (Section 31A);
E
(g) To grant a compulsory license to produce and
publish translation of literary and dramatic
works (Section 32);
.. (h) To grant a compulsory license to reproduce and
publish certain categories of liberary, scientific F
or artistic works for certain purposes (Section
32A);
(i) To rectify the register of copyright on an
application of the Registrar of Copyrights or
G
...I
any other person aggrieved (Section 50);
U) To hear appeals from any decision or whatever
' the decision of the Registrar of Copyright
{Section 72).
H
194 SUPREME COURT REPORTS [2008] 9 S.C.R.
A (v) Section 31 of the Act must be given its literal
meaning, which would mean that the Board can
exercise its jurisdiction provided:
(i) There is a refusal by the owner and as a result of
which the work is "withheld from the public", or
B
(ii) In the case of a broadcast, the work has not been
"allowed to be comm1,micated to the public"
(vi) As in the instan~ case, the repertoire of SCIL
and PPL are available to the public inasmuch
c as these copyright owners society have entered
into voluntary licenses with All India Radio and
some other FM Radio Broadcasters, the
provisions of Section 31 of the Act were not
applicable.
D
(vii) As both PPL and SCIL called upon the
broadcaster to enter into licenses and were
willing to license their repertoire on mutual
agreed terms, it cannot be said that there has
been a refusal on their part to grant licenses. In
E 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
F "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
G
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
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 195
INDUSTRIES [S.B. SINHA, J.]
to th~ public by broadcast. A
(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 B
~ 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 c
the interests of the general public is to be best
served itself is a pointer to the fact that
compulsory license should not be granted to all
the radio broadcasters.
"' (xi) The Board is not expected unlike the statutes D
of other countries to go into the reasonableness
or otherwise of the ~ariff fixed for grant of
licenses.
(xii) The Copyright society not being the owner of
copyright, in any event, cannot be subjected to E
grant of a compulsory license in teffils of Section
31 of the Act.
(xiii) The Act, havirrg used different words
'compensation' and 'royalty', Section 3 signifies F
a lump sum amount to be paid to bring back
the work into the pubic domain. It also goes to
show that it is a one time exercise.
CORE ISSUES
G
11. The core questions which, therefore, arise for consid-
eration in these appeals are:
(i) Whether the Copyright Board has jurisdiction under
Section 31(1)(b) of the Copyright Act, 1957 to direct
the owner of a copyright in any Indian work or a H
196 SUPREME COURT REPORTS [2008] 9 S.C.R.
A registered copyright society to issue compulsory
licences to broadcast such as works, where such
work is available to the public through radio
broadcast?
(ii) Whether in any event such a compulsory license can
B be issued to more than one complainant in the light
of Section 31 (2)? '
(iii) What would be the relevant considerations which the
Copyright Board must keep in view while deciding
c on;
(a) Whether to issue a compulsory license to a
particular person; and
(b) The terms on which the compulsory license may
be issued, including the compensation?
D
STATUTORY PROVISIONS
12. In view of the fact that interpretation of Section 31 of
the Act would depend upon the Scheme of the Act, we may
E notice the relevant provisions thereof. It is also necessary to
have a broad overview.
The Copyright Act, 1957 was enacted to amend and con-
solidate the law relating to copyright. Section 2(d) defines 'au-
thor', which reads as under:
F 2(d) "author means, -
(i) in relation to a literary or dramatic work, the author of
the work;
(ii) in relation to a musical work, the composer;
G
(iii) in relation to an artistic work other than a photograph,
the artist;
(iv) in relation to a photograph, the person taking the
photograph;
H
ENTERTAINMENT NETWORK v. SUPER CASSETIE 197
INDUSTRIES [S.B. SINHA, J.]
(v) in relation to a cinematograph film or sound recording, A
the producer; and
(vi) in relation to any literary, dramatic, musical or artistic
work which is computer-generated, the person who
causes the work to be created;"
B
Section 2(dd) defines 'broadcast' to mean cbmmunica-
tion to the public-(i) by any means of wireless diffusion, whether
in any one or more of the forms of signs, sounds or visual im-
ages; or (ii) by wire, and includes a re-broadcast.
Section 2(ff) defines 'communication to the public' to mean: c
"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
D
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 E
household or place of residence including residential
rooms of any hotel or hostel shall be deemed to be
communication to the public;"
Sections 2(ffd) defines 'copyright society' to mean a soci-
ety registered under sub-section (3) of Section 33. Section 20) F
defines 'exclusive licence' to mean a licence which confers on
the licensee or on the licensee and persons authorized by him,
to the exclusion of all other persons (including the owner of the
copyright), any right comprised in the copyright in a work, and
"exclusive licensee" shall be construed accordingly. G
Section 2(1) defines 'lnqian work' to mean a literary, dra-
j
matic or musical work, - (i) the author of which is a citizen of
India; or (ii) which is first published in India; or (iii) the author of
which, in the case of an unpubli~hed work, is, at the time of the
H
198 SUPREME COURT REPORTS [2008] S S. C.R.
A making of the work, a citizen of India.
Section 2(m) defines 'infringing copy' to mean (i) in rela-
tion to a lilterary, dramatic, musical or artistic work, a reproduc-
tion thereof otherwise than in the form of a cinematographic
film; (ii) in relation to a cinematograph film, a copy of the film
B made on any medium by any means; (iii) in relation to a sound
recording, any other recording embodying the same sound re- I
cording, made by any means; (iv) in relation to a programme or
performance in which such a broadcast reproduction right or a
performer's right subsists under the provisions of this Act, the
c sound recording or a cinematographic film of such programme
or performance, if such reproduction, copy or sound recording
is made or imported in contravention of the provisions of the
Act. Section 2(xx) defines 'sound recording' to mean a record
of sounds from which such sounds may be produced regard-
D less of the medium on which such recording is made or the ...
method by which the sounds are produced. Section 2(y) de-
fines 'work' to mean any of the following works, namely:- (i) a
literary, dramatic, musical or artistic work; (ii) a cinematograph
film; (iii) a sound recording.
E Section 3 of the Act defines for meaning of publication.
Section 4 deals with when 'work' would not be deemed to be
published or performed in public.
Chapter II of the Act deals with Copyright Office and Copy-
F right Board.
Section 11 provides for the provisions relating to 'Copy-
right Board'
Chapter Ill deals with 'Copyright'.
G Section 13 provides for subsistence of copyright through-
out India in the classes of works specified therein, which in-
eludes (a) original literary, dramatic, musical and artistic works; I.
(b) cinematograph films; and (c) sound recording. Sub-section
(4) of Section 13 provides that the copyright in a cinematograph
H film or a sound recording shall not affect the separate copyright
ENTERTAINMENT NETWORK v. SUPER CASSETTE 199
INDUSTRIES [S.S. SINHA, J.]
in any work in respect of which or a substantial part of which, A
the film, or, as the case may be, the sound recording is made.
Section 14 of the Act provides for the meaning of copy-
right.
Clause (c) of sub-section (1) of Section 14 talks about B
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 re-
spect of a work or any substantial part thereof and in the case
·of a sound recording, namely, c
(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
0
occasions;
(iii) to communicate the sound rec.ordin1fto the public.
Explanation: For the purpos~s of this Section, a copy which
has been sold once shall be deemed to be a copy already E
in circulation. '
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 copyright and
the rights of the owner. Section 17 states that subject to the F
provisions of this Act, the author of a work shall be the first owner
of the copyright therein. Proviso (b) appended thereto reads as
under:
"(b) subject to the provision$ of clause (a), in the case of G
a photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph film made, for valuable
consideration, at the instance of any person, such person
shall, in the absence of any agreement to the contrary, be
the first owner of the copyright therein."
H
200 SUPREME COURT REPORTS [2008] 9 S.C.R.
A Sections 18 and 19 relate to assignment of copyright and
mode of assignment respectively. Section 19 deals with dis-
putes with respect to assignment of copyright. Section 27 pro-
vides for the term of copyright in sound recording in the follow-
ing terms:
B "27. Term of copyright in sound recording.- In the case of
a sound recording, copyright shall subsist until sixty years
from the beginning of the calendar year next following the
year in which the sound recording is published.
c However, only because the term for holding copyright un-
der the said provisions are different, the same would not mean
that the right of the copyright owner in sound recording is some-
what inferior.
Chapter VI of the Act deals with licences.
D
Section 30 provides for the licences by owners of copy-
right. It, in other words, deals with a situation where licence is
...
granted on a voluntary basis. Section 30A provides for applica-
tion of Sections 19 and 19A. Section 31A provides for compul-
E sory licence in unpublished Indian works, the relevant portions
whereof are as under:
"(1) Where, in the case of an Indian work referred to in
sub-clause (iii) of clause (D of Section 2, the author is
dead or unknown or cannot be traced, or the owner of the
F copyright in such work cannot be found, any person may
apply to the Copyright Board for a licence to publish such
work or. a translation thereof in any language.
(4) Where an application is made to the Copyright Board
under this section, it may, after holding such inquiry as
G. may be prescribed, direct the Registrar of Copyrights to
grant to the applicant a licence to publish the work or a
translation thereof in the language mentioned in the
application subject to the payment of such royalty and
subject to such other terms and conditions as the
H Copyright Board may determine, and thereupon the
ENTERTAINMENT NETWORK v. SUPER CASSETTE 201
INDUSTRIES [SB. SINHA, J.)
Registrar of Copyrights shall grant the licence to the A
' applicant in accordance with the direction of the Copyright
Board."
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. B
~
Chapter VI I of the Act deals with copyright societies. Sec-
tion 33 provides for registration of copyright society, relevant
portion whereof are as under:
"33. Registration of Copyright Society.- c
(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 D
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
E
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 conditions as may be prescribed: F
Provided that the Central Government shall not ordinarily
register more than one copyright society to do business
in respect of the same class of works.
(4) The Central Government may, if it is satisfied that a G
copyright society is being managed in a manner
detrimental to the interests of the owners of rights
concerned, cancel the registration of such society after
such inquiry as may be prescribed."
H
202 SUPREME COURT REPORTS (2008) 9 S.C.R.
A Registration of such copyright society is mandatory in char-
acter. Sub-Section (2) of Section 33 provides for that any asso-
ciation of persons who fulfils such conditions as may be pre-
scribed may apply for permission to do the business specified
in sub-Section (1) to the Registrar of Copyrights who shall sub-
. B mit the application to the Central Government. Sub-Section (3)
of Section 33 empowers the Central Government to grant a li-
cence having regard to the interest of the authors and other
owners of rights under the Act, the interest and convenience of '
the public and in particular of the groups of persons who are
c. most likely to seek licenses in respect of the relevant rights and
, the ability and professional competence of the applicants, reg-
·.Jster such' association. Section 34 provides for administration
of rights of owner by copyright society. The proviso appended
thereto prohibit any discrimination in regard to the terms of li-
D cence or the distribution of fees collected between rights in In-
dian and other works. The concept of copyright society appears
to be that the interest of the copyright holder can be protected
.
by the said society while granting licence so as to enable all
players to have the benefit of a single window; as such a soci-
ety is entitled to: "
E
(i) issue licences under Section 30 in respect of any
rights under this Act;
(ii) collect fees in pursuance of such licences;
F (iii) distribute such fees among owners of rights after
making deductions for its own expenses;
(iv) perform any other functions consistent with the
provisions of Section 35.
Sections 34A, 35, 50 and 51 of the Act read as under:
G·
"34A. Payment of remuneration by copyright society.-
(1) If the Central Government is of the opinion that a
copyright society for a class of work is generally •
administering the rights of the owners of rights in such
H work throughout India, it shall appoint that society for the
ENTERTAINMENT NETWORK v. SUPER CASSETIE 203
INDUSTRIES [S.B. SINHA, J.]
purpose of this section. A
(2) 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: B
~ 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. c
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. D
... 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-
E
(a) the making of any entry wrongly omitted to be made in
the reg[ster, or
(b) the expunging of any entry wrongly made in, or
remaining on, the register, or
\ ,. F
' (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 granted by the owner
of the copyright or the Registrar of Copyrights under this Act or G
in contravention of the conditions of a licence so granted or of
~- any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by
this Act conferred upon the owner of the copyright, or
H
204 SUPREME COURT REPORTS [2008] 9 S.C.R.
A (ii) permits for profit any place to be used for the ...
communication of the work to the public where such
communication constitutes an infringement of the
copyright in the work, unless he was not aware and
had no reasonable ground for believing that such
B communication to the public would be an infringement
of copyright; or
(b) when any person-
,
.•.
(i) makes for sale or hire, or sells or lets for hire, or by
c way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such
an extent as to affect prejudicially the owner of the
copyright, or
(iii) by way of trade exhibits in public, or
D
(iv) imports into India. any infringing copies of the work: ..
Provided that nothing in sub-clause (iv) shall apply to the
import of one copy of any work for the private and domestic
use of the importer.
E
Explanation.- For the purposes of this section, the
reproduction of a literary, dramatic, musical or artistic work
in the form of a cinematograph film shall be deemed to be
an "infringing copy".
F Section 63 of the Act provides for offence of infringement .,
of copyright or other rights conferred by the Act. Section 72 of
the Act provides for appeals against orders of Registrar of
Copyrights and Copyright Board. Section 74 empowers the
Registrar of Copyrights and Copyright Board to exercise cer-
G tain powers of civil courts.
In view of the aforementioned statutory backdrop, we may
-~
notice Section 31 of the Act.
"31. Compulsory licence in works withheld from
H public.- (1) If at any time during the term of copyright in
ENTERTAINMENT NETWORK v. SUPER CASSETTE 205
INDUSTRIES [S.B. SINHA, J.]
~
any Indian work which has been published or performed A
in public, a complaint is made to the Copyright Board that
the owner of copyright in the work-
(a) has refused to republish or allow the republication of
the work or has refused to allow the performance in public
of the work, and by reason of such refusal the work is B
~
.-._
withheld from the public; or
(b) has refused to allow communication to the public by
broadcast of such work or in the case of a sound recording
the work recorded in such sound recording on terms which c.
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
D
~ 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 E
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
lo'' payment of such fee as may be prescribed.
F'
Explanation.- In this sub-section, the expression "Indian
work" includes-
(i) an artistic work, the author of which is a citizen of
India; and
G
~ (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 H
206 SUPREME COURT REPORTS (2008] 9 S.C.R.
....
A would best serve the interests of the general public."
RULES
13. Section 78 of the Act provides for power to make rules.
The Central Government in exercise of the said power
B framed rules known as 'The Copyright Rules, 1958" (for short
"the Rules"). ~
,.
Chapter V of the Rules deals with the provisions relating
to Cooperative Societies. Relevant clauses of which are quoted
c herein below:
"12. Conditions for submission of applications for
registration of copyright societies.
(1) Any association of persons, whether incorporated or
D
not, comprising seven or more owners of copyright ,,.
(hereinafter referred to as "the applicant") formed for the J
purpose of carrying on the business of issuing or granting
licences in respect of any class of works in which copyright
subsists or in respect of any other right conferred by the
Act may.file with the Registrar of Copyrights an application
E in Form 11-C for submission to the Central Government for
grant of permission to carry on such business and for its
registration as a copyright society.
(2) An application under sub-rule (1) shall be signed by all
..,
F the members of the governing body (by whatever name
called) and the chief executive of the applicant (who need
not be a member of the applicant).
14-G. Conditions subjeqt to which a copyright may accept
authorization and an owner of rights may withdraw such
G authorization- (1) A copyright society may accept from an ..,
owner of rights or his duly authorised agent, exclusive
authorisation to administer any right in a work if such owner "
or such agent enters into an agreement, in writing, with the
copyright society specifying the rights to be administered,
H the duration for which such rights are authorised to be
ENTERTAINMENT NETWORK v. SUPER CASSETIE 207
,_.__,.
INDUSTRIES [S.B. SINHA, J.]
administered, the quantum of fees agreed to and the A
frequency at which such fees shall be paid by the copyright
society in accordance with its Scheme of Tariff and
Distribution.
(2) The owner of copyrights shall, without prejudice to the
rights under the agreement and subject to the condition of B
I.
..... a prior notice of sixty days, be free to withdraw such
authorisation in case the copyright society fails to fulfil its
commitments as laid down in the agreement.
14-J. Tariff Scheme.- As soon as may be, but in no case c
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 of tariff to be called the
"Tariff Scheme~ setting out the nature and quantum offees
,., or royalities which it proposes to collect in respect of such
D
l 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 E
__.
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
Y·
other rights whose names are borne on its Register of
Owners [maintained under clause (1) of rule 14-1] for the F
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." G
THE FORMS
14. In terms of the Rules, forms have also been prescribed.
Relevant clauses of Form llA appended to First Schedule to the
Copyright Rules, 1~58 read as under: H
208 SUPREME COURT REPORTS [2008] 9 S.C.R.
. ,l,
A "8. Estimated cost of the work to be published.
9. Proposed retail price per copy of the work.
10. Rate of royalty, which the applicant considers
reasonable, to be paid to the copyright owner.
B
11. Means of the applicant for payment of the royalty.
~
12. Whether the prescribed fee has been paid and, if so, ;..
particulars of payment (give Postal Order/Bank Draft/
Treasury Challan number).
c 13. (a) Full name, address and nationality of the person
competent to issue a licence.
(b) Whether the applicant after due diligence on his part
was unable to find the owner.
D (c) Whether the applicant has requested and had been
...
denied authorisation by the said person to produce
and publish the translation or reproduce the work or
'
publish the unpublished work.
(d) If the applicant was unable to find the owner, whether
E
he had sent a copy of the request by registered air
mail post to the publisher whose name appears on
the work. If so, the date on which the copy was sent."
CONVENTIONS
F 15. Before we embark upon respective contentions of the
parties, we may notice some International Conventions to which
India is a signatory. The Central Government issued the Inter-
national Copyright order by a notification published in the Ga-
zette of India on 24.3.1999. It defines 'Berne Convention Coun-
G try' to mean a country which is a member of the Berne Copy-
right Union, and includes a country mentioned either in Part I or
in Part II of the Schedule. It defines 'Phonograms Convention
Country' to mean a country which has either ratified, or accepted,
or acceded to the Convention for the Protection of Producers
H of Phonograms against Unauthorized Duplication of their
ENTERTAINMENT NETWORK v. SUPER CASSETTE 209
INDUSTRIES [S.B. SINHA, J.]
-"·
Phonograms, done at Geneva on the twenty-ninth day of Octo- A
ber, one thousand nine hundred and seventy-one, and includes
a country mentioned in Part V of the Schedule. It defines 'Uni-
versal Copyright Convention Country' to mean a country which
has either ratified or accepted, or acceded to the Universal
Copyright Convention, and includes a country mentioned either B
in Part Ill or in Part IV of the Schedule. It defines 'World Trade
Organization Country' to mean a country which is a member of
... the World Trade Organization and which has either ratified, or
accepted, or acceded to the Agreement on Trade Related As-
pects of Intellectual Property Right, 1994, and includes a COl.m- c
try mentioned in Part VI of the Schedule. The countries which
have ratified/accepted/acceded to Berne Convention are speci-
fied in Part I of the Schedule appended thereto. Part II of the
Schedule specifies those countries which are yet to ratify/ac-
cept/accede to the 1971 Text of Berne Convention. Part Ill of
, the Schedule specifies the countries which have ratified/ac-
D
l cepted/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 Uni-
versa I Copyright Convention. Part V of the Schedule specifies
Phonograms Conventions Countries and Part VI specify the E
World Trade Organization Countries.
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 F
Convention provides for the protection of literary and artistic
works. The relevant provisions whereof are Articles 11, 11 bis,
which reads as under:
"Article 11. (1) Authors of dramatic, dramatico-musical
and musical works shall enjoy the exclusive right of G
authorizing:
¥
(i) the public performance of their works, including such
public performance by any means or process;
(ii) any communication to the public of the performance of H
210 SUPREME COURT REPORTS (2008] 9 S.C . R.
i
A their works.
(2) Authors of dramatic or dramatico-musical works shall
enjoy, during the full term of their rights in the original works,
the same rights with respect to translations thereof.
B Article 11bis. (1) Authors of literary and artistic works
shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication ...
thereof to the public by any other means of wireless
diffusion of signs, sounds or images;
c
(ii) any communication to the public by wire or by
rebroadcasting of the broadcast of the work, when this
communication is made by an organization other than the
original one;
D (iii) the public communication by loudspeaker or any other •
analogous instrument transmitting, by signs, sounds or .1
images, the broadcast of the work.
(2) It shall be a matter for legislation in the countries of the
Union to determine the conditions under which the rights
E
mentioned in the preceding paragraph may be exercised,
but these conditions shall apply only in the countries where
they have been prescribed. They shall not in any
circumstances be prejudicial to the moral rights of the
author, nor to his right to obtain equitable remuneration
F which, in the absence of agreement, shall be fixed by
competent authority.
(3) In the absence of any contrary stipulation, permission
granted in accordance with paragraph (1) of this Article
G shall not imply permission to record, by means of
instruments recording sounds or images, the work
broadcast. It shall, however, be a matter for legislation in i
the countries of the Union to determine the regulations for
ephemeral recordings made by a broadcasting
organization by means of its own facilities and used for its
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 211
INDUSTRIES [S.B. SINHA, J.]
4· own broadcasts. The preservation of these recordings in A
official archives may, on the ground of their exceptional
documentary character, be authorized by such legislation."
Article 3(f) of the Rome Convention defin~s the term
'broadcasting' as under:
B
"3(f) 'Broadcasting' means the transmission by wireless
means for public reception of sounds or of images and
sounds."
Article 12 of the Rome Convention reads as under:
c
"Article 12
If a phonogram published for commercial purposes, or a
reproduction of such phonogram, is used directly for
broadcasting or for any communication to the public, a
single equitable remuneration shall be paid by the user to D
.l, 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."
E
GENERAL PRINCIPLES
16. 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 F
is evident from Section 16 thereof. When an author of a copy-
right and other claims a copyright, it is subjected to the provi-
sions 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 neces-
sary to dilate more upon these aspects of the matter as the
G
object behind enacting the Act is absolutely clear and explicit. It
... creates a monopoly in favour of the author. Copyright also ere-
ates a monopoly in favour of the copyright society. What re-
quires protection is unlawful reproduction of the author's work
by others. It is the long period which encourages the authors to
H
212 SUPREME COURT REPORTS [2008) 9 S.C.R.
A create works of literature, music and art.
In Gramophone Company of India Ltd. v. D.B. Pandey
••
[(1984) 2 SCC 534 at 549, this Court held:
"An artistic, literary or musical work is the brain-child of an
B author, the fruit of his labour and, so, considered to be his
property. So highly is it prized by all civilized nations that
it is thought worthy of protection by national laws and ...
international conventions relating to copyright."
In Copinger and Skone James on Copyright (15 1h Ed.
c 2005, para 2-05, page 27, Vol. 1), it is stated:
"Finally, it is considered a social requirement in the public
interest that authors and other rights owners should be
encouraged to publish their work so as to permit the widest
possible dissemination of works to the public at large.
D
These four fundamental principles are cumulative and inter- ,.;.
dependent and are applied in the justification of copyright
in all countries, although different countries give varying
emphasis to each of them. To generalize, it is true to say
that in the development of modern copyright laws, the
E economic and social arguments are given more weight in
Anglo-American laws of common law tradition, whereas,
in Continental law countries with civil law systems, the
natural law argument and the protection of authors are
given first place.
F
'The protection of copyright, along with other intellectual
property rights, is considered as a form of property worthy
of. special protection because it is seen as benefiting
society as a whole and stimulating further creative activity
and competition in the public interest."
G
INTERNATIONAL CONVENTIONS AND FOREIGN LAW
)'.
17. India is a Signatory to Berne Convention. It is also a
signatory to the Rome Convention.
'.
H The International Conventions provide for compulsory Ii-
ENTERTAINMENT NETWORK v. SUPER CASSETTE 213
INDUSTRIES [S.B. SINHA, J.]
~
cense. Whereas U.K., Australia, Singapore, U.S.A. have framed A
laws for grant of compulsory license and also constituted Tribu-
nals for the purpose of overseeing the tariff for licensing, stricto
sensu the Indian Act does not say so.
BROAD ANALYSIS OF THE PROVISIONS
8
18. A statute as is well known must be read in its entirety.
I
It is required to be read chapter by chapter, section by section
....
and clause by clause. The definitions of the term 'broadcast' as
also 'sound recording' must be given a wide meaning. Clause
(a) of Section 13 protects original work whereas clauses (b) c
and (c) protect derivative works. It provides for commercial mani-
festation 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
) D
for a restrictive right as would appear from the provisions con-
~
tained in Section 14 (1)(e) of the Act.
For a proper construction of the provisions, will it be nee-
essary to keep in mind the difference between the right of the
original work and right of sound recording? Should we also bear E
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 F
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 beginning of the calendar year next following the
year in which the author dies, the term of copyright in sound 'G
recording subsists only for 60 years, but as indicated herein be-
fore, the same would not mean that the right of an owner of
sound recording is in any way inferior to that of right of an owner
of copyright on original literary work etc.
Chapter VI deals with licence. The statutory licences are H
214 SUPREME COURT REPORTS [2008] 9 S.C.R.
A required to be granted having regard to the various factors stated
therein.
Section 33 is a special provision which provides for reg-
istration of a copyright society.
B It may, however, be necessary to consider that unlike other
countries the broadcasting rights by themselves were introduced
in India for the first time by inserting Section 37 in the year 1994.
It is true that the rights of free-to-air broadcasters have not been
dealt with in a specific legislation unlike some other jurisdic-
C tion. It may, however, be of some importance to note that Chap-
ter VII deals with Copyright society, the concept whereof was
incorporated in the Act so as to enable an author to commer-
cially exploit his intellectual property. by a widespread dispersal
in a regulated manner. It for all intent and purport steps into the
shoes of the author. The society grants license on behalf of the
0
author, it files litigation on his behalf, both for the purpose of
enforcement as also protection of the enforcement of his right.
It not only pays royalty to the author but is entitled to distribute
the amount collected by it amongst its members. Section 34
providing for administration of rights of owners by a copyright
E society for all intent and purport creates a virtual agency so as
to enable the society to act on behalf of the owner. The civil
remedies for infringement of copyright as envisaged under
Section 55 of the Act can also be enforced by the society. The
Scheme of the statute governing the field in other countries is
F vast and wide. The jurisdiction of the Tribunal is indisputably
very wide. No such legislative changes have been made in In-
dia presumably because until recent times, the Copyright in
musical work was owned by a cooperative society, namely,
IPRS and PPL.
G
The third party granting license on a prescribed fee of a
musical work was contemplated under the Act. As a general
rule for administering such copyrights, there are about 300 ra-
dio stations now. Monopoly in respect of sound recording is, as
H it appears from the tariff supplied to us by the respondent em-
ENTERTAINMENT NETWORK v. SUPER CASSETTE 215
INDUSTRIES [S.B. SINHA, J.]
_.._
brace within its field, Pop/Music Quizzes, Mobile DJ, Jukeboxes, A
Dance Teachers, Dance Centre/Studio, Exercise, Amateur
Operatic & Dramatic Societies, Theatrical Productions, Tern-
porary Camp~/Shacks, Banquet Halls, Background Music-
Guest Houses & Lodges, Hotels, Background Music- Public
Houses & Cates & Non AC Restaurants, Bankground Music - B
AC Restaurants, BARS, Background Music - Shops & Stores
Premises, Background Music - Hairdressing Salons & Beauty
~ Parlours, Background Music - Clinics, Background Music -
Nursing Homes & Hospitals, Background Music - Factories &
Offices/Banks, Background Music- Waiting Rooms/Reception c
Areas, Background Music- telephone Music on hold,Puppet/
Magic Shows, Background Music- Theatres, Background Mu-
sic - Cinemas, Background Music- Museums & Art Galleries,
Background Music- Ten Pin Bowling Centres/Bowling Alleys,
Background Music-Amusement & Pleasure Parks, Background
D
). Music - Amusement Arcades, Background Music - Casinos,
"" Background Music - Gymnasiums, Background Music- Swim-
ming Pools.
The right of the author of a copyright vis-a-vis the Society,
thus, may be exercised in almost all walks of life from the 'Ra- E
dio Stations' to a small 'Hairdressing Salon'.
If the right of an author/society is so pervasive, is it neces-
sary to construe the provisions under Section 31 of the Act hav-
ing regard to the International Covenants and the laws operat-
,i. ing in the other countries? The answer to the said question must l F
be rendered in affirmative. Interpretation of a statute cannot re-
main static. Different canons and principles are to be applied
having regard to the purport and object of the Act. What is es-
sential therefor is to see that the expanding area in which the
copyright will have a role to play is covered. While India is a G
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 pur-
port and object of the Act would be allowed to be defeated. If
the ground realities changed, the interpretation should also H
216 SUPREME COURT REPORTS [2008] 9 S.C.R.
A change. Ground realities would not only depend upon the new
situations and changes in the societal conditions vis-a-vis the
use of sound recording extensively by a large public, but also
keeping in view of the fact that the Government with its eyes
wide open have become a signatory to International Conven-
8 tions.
APPLICATION OF INTERNATIONAL CONVENTIONS IN
INDIA
19. It is for the aforementioned limited purpose, a visit to
c the provisions of International Conventions would be necessary.
In interpreting the domestic/municipal laws, this Court has
extensively made use of International law inter alia for the fol-
lowing purposes:
(i) As a means of interpretation;
D
'
(ii) Justification or fortification of a stance taken; J._
(iii) To fulfill spirit of international obligation which India
has entered into, when they are not in conflict with
the existing domestic law;
E
(iv) To reflect international changes and reflect the wider
civilization;
(v) To provide a relief contained in a covenant, but not
in a national law;
F
(vi) To fill gaps in law.
Beginning from the decision of this court in Kesavananda
Bharati v. State of Kera/a [(1973) 4 SCC 225), there is indeed
no dearth of case laws where this Court has applied the norms
G of international laws and in particular the international covenants
to interpret domestic legislation. 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
H case of any such inconsistency, the domestic legislation should
ENTERTAINMENT NETWORK v. SUPER CASSETTE 217
INDUSTRIES [S.B. SINHA, J.]
.....
prevail. A
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 B
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."
In the aforementioned judgment, this Court referred to a c
large number of decisions .for the purpose of interpreting the
constitutional provisions in the light of the international treaties
and conventions.
Yet again in Indian Handicrafts Emporium and Ors. v.
D
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 as contained in Part IV
of the Constitution but also Fundamental Duties as contained
in Part IVA thereof. E
Referring to Motor General Traders and Anr. v. State of
Andhra Pradesh and Ors. ( 1984 ) 1 SCC 222, Rattan Arya
and Ors. v. State of Tamil Nadu and Anr. ( 1986 ) 3 SCC 385
and Synthetics and Chemicals Ltd. and Ors. v. State of UP F
and Ors. ( 1990) 1 SCC 109, this Court held:
"There cannot be any doubt whatsoever that a law which
was at one point of time was constitutional may be rendered
unconstitutional because of passage of time. We may
note that apart from the decisions cited by Mr. Sanghi, G
recently a similar view has been taken in Kapila Hingorani
v. State of Bihar (supra) and John Va/lamattom and Anr.
v. Union of lndia(supra)."
These judgments were referred to in the decision of
H
218 SUPREME COURT REPORTS [2008] 9 S.C.R.
A Liverpool and London S.P and I Asson. Ltd. v. M. V Sea Sue- -~-
cess I andAnr. [(2004) 9 sec 512], wherein this court observed
that as no statutory law in India operated in the field, interpreta-
tive changes, if any, must, thus be made having regard to the
ever changing global scenario.
B Liverpool also referred to the decision of the court in M. V.
Elisabeth [1993 Supp. (2) SCC 433] as an authority for the
proposition that the changing global scenario should be kept in >-
mind having regard to the fact that there does not exist any pri-
mary act touching the subject and in absence of any domestic
c legislation to the contrary.
Concurring with the said decisions, it was however opined
that the same could not mean that it restricted the jurisdiction of
the Indian High Courts to interpret the domestic legislation strictly
according to the judge made law.
D
Liverpool and London S.P and I Asson. Ltd. (supra) has ,_
been followed by the Supreme Court in a plethora of cases in-
ter alia The State of West Bengal v. Kesoram Industries Ltd.
and Ors. [(2004) 10 SCC201]. In Pratap Singh v. State of
E Jharkhand and Anr. [(2005) 3 SCC 551] wherein this court di-
rected to interpret the Juvenile Justice Act in light of the Consti-
tutional as well as International Law operating in the field. {See
also Centrotrade Minerals and Metal Inc. v. Hindustan Cop-
per Limited [(2006) 11 SCC 245]; State of Punjab and Ors. v.
F Amritsar Beverages Ltd. and Ors. [2006 (7) SCALE 587]; State
of Punjab and Anr. v Devans Modern Brewaries Ltd. and Anr.
((2004) 11 SCC 26] and Anuj Garg and Ors. v Hotel Associa-
tion of India and Ors. ((2008) 3 SCC 1]}.
However, applicability of the International Conventions and
G Covenants, as also the resolutions, etc. for the purpose of inter-
preting 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 In-
ternational Covenants can be utilized. Where International Con-
H ventions are framed upon undertaking a great deal of exercise
ENTERTAINMENT NETWORK v. SUPER CASSETTE 219
INDUSTRIES [S.8. SINHA, J.]
upon giving an opportunity of hearing to both the parties and A
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.
Those Conventions to which India may not be a signatory 8
but have been followed by way of enactment of new Parliamen-
tary statute or amendment to the existing enactment, recourse
to International Convention is permissible.
This kind of stance is reflected from the decisions in PUCL c
v. Union of India, [(1997) 3 SCC 433], John Val/amattom v.
Union of India, [(2003) 6 SCC 611], Madhu Kishwar v. State of
Bihar [(1996) 5 SCC 125], Kubic Darusz v. Union of India,
[(1990) 1 SCC 568], Chameli Singh v. State of UP, [(1996) 2
SCC 549], C. Masilamani Mudaliar v. Idol of Sri D
Swaminathaswami Thirukoil, [(1996) 8 SCC 525], Apparel Ex-
port Promotion Council v. A.K. Chopra, [(1999) 1 SCC 759],
Kapila Hingorani Vs. State of Bihar [(2003) 6 SCC 1], State of
Punjab & Anr. Vs. M/s. De vans Modern Breweries & Anr. [2003
(10) SCALE 202] and Liverpool & London S.P & I Asson. Ltd. E
Vs. M. V Sea Success I [2003 (10) SCALE 1].
Furthermore, as regards the question where the protec-
tion of human rights, environment, ecology and other second-
generation or third-generation rights is involved, the courts
.,. should not be loathe to refer to the International Conventions. F
LAW IN OTHER COUNTRIES
20. Reference to laws to other jurisdictions stricto sensu
may not be apposite, where the scheme of the Act/Statute is
different. Where the statute is differently worded, same or simi- G
lar interpretation may not be possible.
We have noticed the laws operating in other countries only
to highlight that broadly it is in two forms, namely:
(a) free to air broadcasting does not require a copyright H
220 SUPREME COURT REPORTS [2008] 9 S.C.R.
A licence;
(b) a free to air broadcaster requires a licence - however
to commence broadcast all that he has to do is to
give an undertaking to pay a reasonable sum which
in the event of dispute will be decided by a competent
B tribunal.
Australian Law ,.
Under Section 109 of the Australian Copyright Act, the form
adopted is in the same form as in (b) above. The additional
c feature of the law is that the royalty for broadcasting of pub-
lished sound recording is frozen at a ceiling of 1% of the gross
earnings of the broadcaster during the specified period. There
are also provisions for compulsory licensing.
China
D
China has the form (a) above for domestic recordings. J_
They however, follow the Berne Convention for International re-
cordings. These domestic recordings can be broadcasted on
the radio or television without any licence or payment. Even a
E commercial broadcast is in form (b) above.
Japan
Japan has form (b) above. The Director General of the
Cultural Affairs Agency will determine the compensation required
F to be paid by a Broadcaster. Non-profit transmission of works :..,
already made public is exempted from paying any royalty.
United Kingdom
In U.K. statutory licensing and compulsory licensing ex-
G ists. Copinger & 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]
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 221
INDUSTRIES [S.B. SINHA, J.]
.....
It is of some significance to note that although it has been A
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
B
21. The Act seeks to maintain a balance between the in-
-(
terest 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 copy- c
right and the interest of the public is a matter which would de-
pend upon the statutory provisions.
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 interest in the avail- D
"
ability of the works. The provisions relating to grant of compul-
sory license must be viewed having regard to the aforemen-
tioned competing rights wherefor an appropriate balance has
to be stuck. For the said purpose, we may notice the broad
features of the Act. E
Section 16 of the Act provides that no person shall be en-
titled to copyright otherwise than under and in accordance with
the provisions of the Act. Section 14 defines the expression
"copyright" to mean the exclusive right to do or authorize the
doing of specific things in respect of a work, as detailed in that F
section.
The primary method that an owner of copyright employs
to exploit the copyright and to make this work available to the
public is through the vehicle of voluntary licenses in terms of G
Section 30 of the Act.
}(
The freedom to contract is the foundation of economic
activity and an essential aspect of several Constitutional rights
including the freedom to carry on trade or business guaranteed
under Article 19(1 )(g) and the right to property under Article 300A H
222 SUPREME COURT REPORTS [2008) 9 S.C.R.
_..,_
A of the Constitution of India. But the said right is not absolute. ll
is subject to reasonable restrictions.
Section 30 enables the owner of the copyright to grant
any interest in the copyright by a license in writing signed by
him or by his duly authorized agent.
B
The underlying philosophy of the Copyright Act is that the
owner of the copyright is free to enter into voluntary agreement
).
or licenses on terms mutually acceptable to him and the lie-
ensee. The Act confers on the copyright owner the exclusive
c right to do the various acts enumerated in Section 14. An in-
fringement of copyright occurs if one of those acts is done with-
out the owner's license./\ license passes no interest, but merely
makes lawful that which would otherwise be unlawful. The Act
also expressly recognizes the notion of an "exclusive license"
which is defined in Section 2(j). But, that does not mean, as
D
would"be noticed from the discussions made hereinafter, that it
would apply in all situations irrespective of the nature of right as •
also the rights of others. It means a license which confers on
the licensee, to the exclusion of all other persons (including the
owner of the copyright) any right comprised in the copyright in a
E work. An exclusive licensee has specific rights under the Act
such as the right to have recourse to civil remedies under Sec-
tion 55 of the Act. This Scheme shows that a copyright owner
has complete freedom to enjoy the fruits of his labour by earn-
ing an agreed fee or royalty through the issuance of licenses.
F 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.
G
COPYRIGHT SOCIETY
22. 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
H 33 of the Act provides for the registration of a Copyright Soci-
ENTERTAINMENT NETWORK v. SUPER CASSETTE 223
INDUSTRIES [S.B. SINHA, J.]
ety. Section 34 of the Act empowers a Copyright Society to A
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 B
other functions consistent with the collective control of the own-
....( ers whose rights it administers .
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 c
work in circulation. (Section 34A(2)]
Chapter V of the Copyright Rules, 1958 makes detailed
provisions with respect to the conduct of business by Copyright
Societies. Rule 14J requires that a Copyright Society shall frame
;. D
_.. 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 "Distri-
bution Scheme" setting out the procedure fat collection and dis-
tribution of royalty specified in the Tariff Scheme among the E
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."
F
COMPULSORY LICENCE
23. The scheme of the Act affirms the freedom to contract
as being the primary machinery by which the copyright owner
publishes his work through a voluntary license regime in terms
of Section 30. Compulsory licenses are an exception to the gen- G
eral freedom of the copyright owner to contract.
Section 31 deals with compulsory license in works with-
held from the public and the submissions relating to this provi-
sions are set out in detail in the next section of this outline of
H
224 SUPREME COURT REPORTS [2008] 9 S.C.R.
-""·
A submissions.
Section 31A empowers the Copyright Board to issue a
compulsory license in respect of an unpublished Indian work or
a translation thereof in any language, whose author is dead or
unknown or cannot be traced or the owner of copyright in such
B work cannot be found. Section 31A(4) empowers the Board to
hold an enquiry and direct the Registrar of Copyrights to grant
to the applicant a license to publish the work or translation, sub- )..
ject to the payment of such royalty and subject to such other
terms and conditions as the Copyright Board may determine.
c
Section 32 empowers the Copyright Board to issue a com-
pulsory license to produce and publish a translation of literary
or a dramatic work in any language after a period of 7 years
from the first publication of the work.
D Section 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.
E 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.
Rule 9 of the Copyright Rules prescribed the manner in
F which the Copyright Board shall determine royalties payable to
the owner with respect to a compulsory license for a translation
.
under Section 32. Rule 11 D 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
G under Section 31A, Section 32 and Section 32A.
Rule 11C (4) provides that where there are more appli-
cants 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
H compulsory license to such one of the applicants, as in the opin-
ENTERTAINMENT NETWORK v. SUPER CASSETTE 225
INDUSTRIES [S.B. SINHA, J.]
ion of the Board, would best serve the interest of the general A
public.
Chapter VI relate to grant of licence, which can be divided
into two parts; licences by owners of copyright and compulsory
licenses. Compulsory licences can be granted by the Copy-
right Board subject to the limitations contained therein. It can- B
not be said to be an exception to the general rule in the strict
~ sense of the term as the provisions relating tR grant of license
by owners of Copyright and compulsory licenses operate in dif-
ferent fields. It may be true that while passing an order for grant
of compulsory licenses, the relevant factors as laid down therein C
must be kept in mind which would include the right of the owner
of the copyright as a part of the right of property, but where a
statute is to be construed as a balancing statute, the situation
may be different.
D
CONSTRUCTION OF SECTION 31 OF THE ACT
24. The broad requirements of Section 31 are as under:
"(a) The subject work must be an Indian work whose term
of copyright is subsisting;
E
(b) The Indian work must be one that has been published
or performed in public;
(c) The owner of the copyright in the work must have
(i) refused to republish or allow republication of F
the work or have refused to allow the
performance of the work and by reason of such
refusal the work is withheld from the public; or
(ii) refused to allow communication to the public
by broadcast, of such work or in the case of a G
sound recording the work recorded in such
sound recording, on terms which the
complainant considers reasonable; and
(d) The Copyright Board is satisfied that the grounds for H
226 SUPREME COURT REPORTS (2008] 9 S.C.R.
A refusal are not reasonable."
Significantly, in between the clauses (a) and (b), the word
'or' has been used. It must be read disjunctively and not con-
junctively. Even otherwise, reading the said provision, conjunc-
tively is not possible. Clause (a) refers to republication or al-
B lowing republication of the work, etc. Clause (b) refers to re-
fusal to allow communication to the public in the case of a broad-
cast or in the case of the sound recording. >-
What is the meaning of the word 'refusal'
c The dictionary meaning of 'refusal' whereupon reliance has
been placed by Mr. Divan may, at the outset, be noticed.
"refusal. 1. The denial or rejection of something offered or
demanded< the lawyer's refusal to answer questions was
based on the attorney-client privilege>. 2. an opportunity
D
to accept or reject something before it is offered to others;
,>
the right or privilege of having this opportunity <she
promised her friend the first refusal on her house>
(See Black's Law Dictionary, Seventh Edition)
E 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 nego-
tiation or an offer is made for grant of license, the same per se
F 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.
G
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.
H
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 •
ENTERTAINMENT NETWORK v. SUPER CASSETTE 227
INDUSTRIES [S.B. SINHA, J.]
condition which is wholly alien or foreign therefor. An unreason- A
able demand if acceded to, becomes an unconstitutional con-
tract which for all intent and purport may amount to refusal to
allow communication to the public work recorded in sound re-
cording. A de jure offer may not be a de facto offer.
Although the term 'work' has been used both in clauses B
(a) and (b) of sub-Section (1) of Section 31, the same has been
-I
used for different purpose. The said term 'work' has been de-
fined in Section 2(y) in different contexts. It enumerates the works
which are: (a) a literary, dramatic, musical or artistic work; (b) a
cinematograph film; (iii) a sound recording. Thus, a literary work c
ex facie may not have anything to do with sound recording.
There are indications in the Act particularly having regard
to Sections 14(1 )(a) and 14(1 )(e) thereof that they are meant to
operate in different fields. They in fact do not appear to be op-
D
erating in the same field. Clause (a) refers to publication or re-
-' publication of the work. It may be in print media or other me-
dias. Clause (b), however, refers to broadcast alone. Sound
recording is a part of it. Sub-clauses (i) to (vii) of sub-clauses
(a) of sub-Section (1) of Section 14 and sub-clauses (i) to (iii)
of s::ib-clause (e) conferred different meanings of the word copy- E
right. Whereas clause (a) refers to work in general, clause (b)
refers to work recorded in such sound recording, which in turn
means the recording of sounds from which such sounds may
be reproduced regardless of the medium on which such record-
ing is made or the method by which the sounds are produced. F
Clause (b) ex facie does not fit in the scheme of clause (a).
Interpretation of clause must be given effect to having re-
gard to the limitations contained therein, namely, unless con-
text otherwise requires.
G
Communication to the public is possible by way of diffu-
~ sion. Explanation appended to Section 2(ff) clearly shows the
extensive meaning of the said term. Publication and republica-
tion of a work in general may be different from communication
of a work recording in sound recording. The use of words 'such H
228 SUPREME COURT REPORTS [2008] 9 S.C.R.
A work' also assumes significance. The said words must be un-
derstood having regard to the fact that the sound recording is
also a work. If it is accepted that voluntary licenses have been
entered into by the owners with All India Radio and some other
Radio Broadcasters, then it is sufficient for closing the doors
B on another person to approach the Copyright Board. One may
as 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. ).
A contextual interpretation of the provisions would lead us
c to consider the ground realities. F.M. radios are played for ev-
ery city. The word 'work' in the context of broadcast must be
understood having regard to the fact that there are 150 FM.
licenses out of which about 93 are working. There are 300
broadcasters working in almost all the big cities in India. The
D 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 re-
fusal to allow communication on terms which the complainant
E considers reasonable have been used by the Parliament indi-
cate that unreasonable terms would amount to refusal. It is in
that sense the expression 'has refused' cannot be given a mean-
ing of outright rejection or denial by the copyright owner.
PPL and SCIL might have been called upon the broad-
F casters to enter into licenses and were willing to license their ·~
repertoire. But their contention was that if such ternis are un-
reasonable, it amounted to refusal which would attract Section
31 of the Act. The word 'communicate the work to the public by
broadcast" is of significance. It provides for a mode of commu-
G nication. Thus, only because a Registrar of a Copyright would
be directed to grant a licence to communicate the work to the
public by broadcast would not mean that only a single licence
shall be granted. The Board acting as a statutory authority can ""
exercise its power from time to time. It is therefore not correct
H to contend that having regard to the provisions of sub-section
ENTERTAINMENT NETWORK v. SUPER CASSETTE 229
INDUSTRIES [S.B. SINHA, J]
r- (2) of Section 31, compulsory licence can be granted only to A
one and not to more than one broadcaster. We would deal with
this provision at some details a little later. In response to a query
as to whether when an application for compulsory licence is
filed any publication thereof is made or not; we are informed
that no such rule or practice exists. Apart from the fact that ap- B
plication for grant of compulsory licence in the matter of sound
~ recording may be by different persons; the wide range of it has
been noticed by us hereinbefore. It may for different parts of the
country nay different cities. If a compulsory licence is granted
only once covering every single part of the country, the same c
cannot be lead to a conclusion that no other person can ap-
proach the Board.
Section 31(1)(b) in fact does not create an entitlement in
favour of an individual broadcaster. The right is to approach the
I- Board when it considers that the terms of offer for grant of Ii- D
-I.
cense are unreasonable. It, no doubt, provides for a mecha-
nism but the mechanism is for the purpose of determination of
his right. When a claim is made in terms of the provisions of a
statute, the same has to be determined. All cases may not in-
volve narrow commercial interest. For the purpose of interpre- E
tation of a statute, the court must take into consideration all situ-
ations including the interest of the person who intends to have a
licence for replay of the sound recording in respect whereof
_,,, another person has a copyright. It, however, would not mean
that all and sundry can file applications. F
The mechanism to be adopted by the Board for determin-
ing the right of a complainant has been provided under the Act.
Explanation appended to Section 31 also plays an impor-
tant role as it seeks to make a distinction between an artistic
G
work on the one hand and a cinematographic films or sound
recording on the other. We are not concerned therewith at this
stage.
Admittedly in terms therof the principles of natural justice
are required to be complied with and an enquiry has to be held. H
230 SUPREME COURT REPORTS (2008] 9 S.C.R.
A The extent of such enquiry will depend upon the facts and cir-
cumstances of the case. A finding has to be arrived at that the
grounds of refusal by an owner of a copyright holder is not rea-
sonable. Only upon arriving at the said finding, the Registrar of
copyright would be directed to grant a license for the said pur-
B pose. 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
c directions.
RIGHT TO PROPERTY - IS THE CONCEPT APPLI-
CABLE
25. An owner of a copyright indisputably has a right akin
to the right of property. It is also a human right. Now, human
0
rights have started gaining a multifaceted approach. Property
•
rights vis-a-vis individuals are also incorporated within the 'mul-
tiversity' of human rights. As, for example, any claim of adverse
possession has to be read in consonance with human rights.
The activist approach of the European Court of Human Rights
E is quite visible from the judgment of Beau/ane properties Ltd.
v. Palmer[2005 EWHC 817(Ch.)] and J. A. Pye (Oxford) Ltd. v.
Graham ((2002) 3 ALL ER 865].
This Court recognized need of incorporating the same
F principle for invoking the rule of strict construction in such mat-
ters in PT Munichikkanna Reddy and Ors. v. Revamma and
Ors. ((2007) 6 SCC 59] stating:
"Adverse possession is a right which comes into play not
just because someone loses his right to reclaim the
G property out of continuous and willful neglect but also on
account of possessor's positive intent to dispossess.
Intention to possess can not be substituted for intention to
dispossess. Mere possession for howsoever length of
time does not result in converting the permissible
H possession into adverse possession."
ENTERTAINMENT NETWORK v. SUPER CASSETTE 231
INDUSTRIES [S.B. SINHA, J.]
~
Further, in Peter Smith v. Kvaerner Cementation Foun- A
dations Ltd. ((2006] EWCA Civ 242] the court allowed the ap-
pellant to reopen the case despite a delay of four years as he
had been denied the right to which Article 6 of the European
Convention on Human Rights ("the Convention") entitled him -
to a fair hearing before an independent and impartial tribunal. B
But the right of property is no longer a fundamental right. It
... will be subject to rEpasonable restrictions. In terms of Article 300A
of the Constitution, it may be subject to the conditions laid down
therein, namely, it may be wholly or in part acquired in public
interest and on payment of reasonable compensation. c
PUBLIC INTEREST - PUBLIC POLICY
26. What would be a public interest? Would it depend upon
the facts and circumstances of each case and the provisions of
the statute? D
>
_._ General meaning of the word "public policy" has always
been held to be an unruly horse by this Court. [See Gherulal
Parakh v. Mahadeodas Maiya and Ors. (1959 Supp (2) SCR
406). This case was referred to in the recent decision of this
court in Devinder Singh and Ors. Vs. State of Punjab and Ors. E
[AIR 2008 SC 261]
The right to property, therefore, is not dealt with its subject
to restrict when a right to property creates a monopoly to which
-Ir· public must have access. withholding the same from public may F
amount to unfair trade practice. In our constitutional Scheme of
statute monopoly is not encouraged. Knowledge must be al-
lowed 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. q
ROYALTY AND COMPENSATION
27. Are the terms "royalty" and "compensation" are not syn-
onymous? "Royalty" means the remuneration paid to an author
in respect of the exploitation of a work, usually referring to pay-
H
232 SUPREME COURT REPORTS [2008] 9 S.C.R.
A ment on a continuing basis (e.g. 10 per cent of the sale price)
rather than a payment consisting of a lump sum in consider-
ation of acquisition of rights. May also be applied to payment to
performers. (See 'World Copyright Law' (2"d Edn) by J.A.L. Ster-
ling).
B 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 'usually' has been used. Mr. Divan himself has referred
c to Rule 11A and Form llA appended to the Rules of 1958.
Clauses (10) and (11) of the Form which have validly been made
used the word 'royalty.
"10. Rate of royalty, which the applicant considers
reasonable, to be paid to the copyright owner.
D
11. Means of the applicant for payment of the royalty" ~
The legislature therefore 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
E 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 compensa-
tion, other terms and conditions can also be imposed. The com-
pensation must be directed to be paid with certain other terms ...;
F and conditions which may be imposed.
MARGINAL NOTE
It was urged that for proper construction of Section 31 of
the Act, reference to marginal note is permissible. Strong reli-
G ance has been placed by Mr. Divan on K.P Varghese v. In-
come-tax Officer, Ernakulam ((1981) 4 sec 173] to contend
that the marginal note to a section can be relied upon for indi-
cating the drift of the section or to show what the section is deal-
ing with. It is however, also well settled that where the statute is
H clear, marginal note may not have any role to play. {See Bhinka
ENTERTAINMENT NETWORK v. SUPER CASSETTE 233
INDUSTRIES [S.B. SINHA, J.]
& ors. v Charan Singh [1959 Supp. (2) SCR 798] . A
PARLIAMENTARY INTENT
The intention of the Parliament, it is trite, must be ascer-
tained from the plain reading of the Section. The intention is to
treat works, which have been "withheld from the public" differ- B
ently 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 re-
corded in a sound recording, the right to do so is either by en-
tering into a voluntary agreement to obtain a licence on such
terms which appear to be reasonable to him or when the term
c
appears to be unreasonable to approach the Board.
We wish the statute would have been clear and explicit.
But only because it is not, the courts cannot fold its .hands and
> express its helplessness. D
..J..
When such a complaint is made, it confers the jurisdiction
upon the Board. It may ultimately allow or reject the complaint
but it cannot be said that the complaint itself is not maintain-
able.
E
INTERPRETATION OF SECTION 31(2)
28. This takes us· to the interpretation of Section 31 (2). It
is attracted in a case where there are more than one appli-
-.,...
cants. The question of considering the respective claim of the
parties would arise if they tread the same ground. The same, F
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-sec-
tion (2) of Section 31 would lead to an anomalous position if it G
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.
In New India Assurance Company Ltd. v. Nus/i Neville
H
234 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
B absurdity which must be avoided. So as to enable a
superior court to interpret a statute in a reasonable manner,
the court must place itself in the chair of a reasonable ;..
legislator/ author. So done, the rules of purposive
construction have to be resorted to which would require
c the construction of the Act in such a manner so as to see
that the object of the Act fulfilled; which in turn would lead
the beneficiary under the statutory scheme to fulfill its
constitutional obligations as held by the court inter alia in
Ashoka Marketing Ltd. (supra)."
D
Barak in his exhaustive work on 'Purposive Construction'
_,..
explains various meanings attributed to the term 'purpose'. It
would be in the fitness of discussion to refer to Purposive Con-
struction in Barak's words:
E "Hart and Sachs also appear to treat 'purpose' as a
subjective concept. I say 'appear' because, although Hart
and Sachs claim that the interpreter should imagine himself
or herself in the legislator's shoes, they introduce two
elements of objectivity: First, the interpreter should assume
F that the legislature is composed of reasonable people -..:-
seeking to achieve reasonable goals in a reasonable
manner; and second, the interpreter should accept the
non-rebuttable presumption that members Page 0184 of
the legislative body sought to fulfill their constitutional duties
in good faith. This formulation allows the interpreter to
G
inquire not into the subjective intent of the author, but rather
the intent the author would have had, had he or she acted
reasonably."
(See Aharon Barak, Purposive Interpretation in Law
H (2007) at pg. 87)
ENTERTAINMENT NETWORK v. SUPER CASSETTE
1
235
INDUSTRIES [S.8. SINHA, J.]
In Bharat Petroleum Corporation Ltd. v. Maddula A
Ratnavalli and Ors. [(2007) 6 SCC 81], this Court held:
"The Parliament moreover is presumed to have enacted
a reasonable statute (see Breyer, Stephen (2005): Active
Liberty: Interpreting Our Democratic Constitution, Knopf
(Chapter on Statutory Interpretation - pg. 99 for B
Reasonable Legislator Presumption)."
.....
The provisions of the Act and the Rules in this case, are,
thus required to be construed in the light of the action of the
State as envisaged under Article 14 of the Constitution of India. c
With a view to give effect thereto, the doctrine of purposive con-
struction may have to be taken recourse to. [See a;sp Oriental
Insurance Co. Ltd. v. Brij Mohan and Ors [(2007) 7 SCC 56]"
Furthermore, the court while interpreting a statute will put
itself in the armchair of the reasonable legisl~ture, all statutes D
...... must be presumed to be reasonable. It is now a trite law that
literal interpretation should be avoided when it leads to absur-
dity. 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 E
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 re-
gards the unreasonableness of the terms impose upon him by
the owner of the copyright must be held to be entitled to ap- F
proach the Board as and when any cause of action arises there-
for. It therefore must be held that sub-Section (2) of Section 31
is relatively directed to clause (a) and not clause (b).
Mr. Divan relied on Indian Administrative Services (SGS)
Association, U. P & ORS. v. Union of/ndia & ORS. [1993 Supp. G
(1) sec 730] wherein it has been held that:
"9. Thus it is settled law that where the intention of statutory
amendment is clear and expressive, words cannot be
interpolated. In the first place they are not, in the case,
H
236 SUPf~EME COURT REPORTS [2008] 9 S.C.R.
......
A needed. If they should be added, the statute would more
than likely fail to carry out the legislative intent. The words
are the skin of the language which the legislature intended
to convey. Where the meaning of the statute is clear and
sensible, either with or without omitting the words or adding
B one, interpolation is improper, since the primary purpose
of the legislative intent is what the statute says to be so.
If the language is plain, clear and explicit, it must be given >
effect and the question of interpretation does not arise. If
found ambiguous or unintended, the court can at best iron
c out the creases. Any wrong order or defective legislation
cannot be righted merely because it is wrong. At best the
court can quash it, if it violates the fundamental rights or
is ultra vires of the power or manifestly illegal vitiated by
fundamental laws or gross miscarriage of justice. It could
thus be held that the legislature intended that the First
D '
Amendment Rules would operate prospectively from ,,k
February 3, 1989, the date of their publication in the
Gazette of India. Its policy is explicit and unambiguous.
Rule 3(3)(ii) intended to remedy the imbalances while at
the same time the proviso intended to operate
E prospectively to avert injustice to the officers recruited/
promoted earlier than the officer promoted later to that
date. The proviso carved out an exception to ward off
injustice to the officers that became members of l.A.S.
earlier to those dates."
F
In this case, however, the meaning of the Statute is neither
clear nor sensible. It is a statute where a purposive construe-
tion is warranted. It is a case where sub-Section (2) should be
kept confined to clause (a) for that purpose. The statute has to
be read down. It is not a case of improper interpolation so as to
G
take away a primary purpose of the legislative intent. It is expe-
dient to give effect to the intent of the statute. This itself says
that creases can be ironed out. While undertaking the said ex-
ercise, the court's endeavour would be to give a meaning to the
provisions and not render it otiose. We are, therefore, of the
H
ENTERTAINMENT NETWORK v. SUPER CASSETTE 237
INDUSTRIES [S.B. SINHA, J.]
- opinion that Section 31 (2) refers to case falling under clause
(a) of Sub-section (1) of Section 31 and not clause (b) thereof.
A
PRINCIPLES OF VALUATION
29. We have, moreover, been called upon to lay down the
principles of evaluation. We decline to do so. We have been B
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 c
for the other. The principles can be determined in a given situa-
tion. 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 D
)
....
_
30. 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. E
Maitra [(1998) Fleet Street Reports 749 at 770-773]. The gen-
eral 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 licensing some
and not others. He may charge whatever he wishes. Such is not F
the position in India. Therein, the defendant did not take part in
the proceedings. It was, inter alia, from that angle, held that the
court could still exercise discretion.
The court of appeal held:
G
"Use of an injunction by PPL to obtain money to obtain
money to which they are not entitled would be an abuse,
but there is no evidence that that ever occurs. Where
unauthorized use of PPL's copyright is taking place, we
do not believe it is an abuse to refuse to licence that H
238 SUPREME COURT REPORTS [2008] 9 S.C.R.
A copyright without an appropriate payment for past use +
and an agreement for future use. Nor do we consider it an
abuse for PPL to require compliance with an injunction
either by the person refraining from using the repertoire or
by payment for such use that has taken place and will take
B place."
Apart from the fact that we are not dealing with a case
where an order of injunction is required to be issued; as indi-
»
cated hereinbefore, the question before the Board was as to
whether there was an abuse in the sense that unreasonable
c amount was being claimed by way of royalty.
CONCLUSION
31. As it was a case of abuse, the Board had the jurisdic-
tion to entertain any application for grant of compulsory licence.
D How far and to what extent appellant has infringed the right of
the respondent is a matter which may be taken into consider- •
~
ation 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
E 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.
F It took up the matter on a day for hearing which was fixed for -1
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.
G
These appeals are allowed with the aforementioned di-
rections. In the facts and circumstances of the case, the parties
~
shall pay and bear their own costs.
GN. Appeals allowed.
H
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