Copyright Act, 1957 — Sections 31, 11, 12, 6, 32 & 52 — Interim compulsory licence

February 27th, 2013

Copyright Act, 1957 — Sections 31, 11, 12, 6, 32 & 52 — Interim compulsory licence — Granted by Copyright Board during pendency of complaint — Permissibility — Power of board to grant interim compulsory licences in works withheld from public, in relation to pending matters — Language used in section 31 clearly contemplates a final order after a hearing and after holding an inquiry to see whether the ground for withholding of work from public was justified or not — No hint of any power having been given to Board to make interim arrangements such as grant of interim compulsory licence pending final decision on an application — Presence of such power cannot be inferred in absence thereof in the statute itself — Impugned judgment of Division Bench of High Court set aside — Appeal allowed.

Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr., 2011(9) SCALE 287, Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, Relied on.

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

(Para 42)

It is no doubt true, that Tribunals discharging quasi-judicial functions and having the trappings of a Court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such Tribunal would have the power to grant at the interim stage the final relief which it could grant.

(Para 43)

As also indicated herein before, such incidental powers could at best be said to exist in order to preserve the status-quo, but not to alter the same, as will no doubt happen, if an interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant mandatory injunction at the interim stage, it would have vested the Board with such authority. The submission made that there is no bar to grant such interim relief in Section 31 has to be rejected since the presence of a power cannot be inferred from the absence thereof in the Statute itself.

(Para 44)

In the aforesaid circumstances, we have no hesitation in allowing the appeals and setting aside the impugned judgment and order of the Division Bench of the High Court. The Appeals are, accordingly, allowed. There will be no order as to costs.

(Para 45)

(As per Hon’ble J. Chalameswar): Both the Courts and the Tribunals are adjudicatory bodies to whom the Legislature entrusts the authority to resolve the disputes falling within the jurisdiction conferred upon each of such bodies and brought before them. The jurisdiction is, normally, defined with reference either to; (1) the subject matter of the dispute and/or the pecuniary value of the dispute; or (2) the territorial nexus of either the parties to the dispute or the subject matter of the dispute to the Court or Tribunal.

(Para 48)

In the context of Courts adjudicating civil disputes, the jurisdiction and powers necessary to effectively exercise the jurisdiction, such as, securing the presence of defendants/respondents or witnesses, granting of interim orders etc., and the method and manner of enforcement of a decision or a decree, are matters elaborately dealt by the Code of Civil Procedure. Similarly, the Code of Criminal Procedure contains provisions necessary for the exercise of the jurisdiction of the Criminal Courts. While the Code of Civil Procedure, under Section 151, recognises the existence of inherent powers in all Civil Courts, the Code of Criminal Procedure recognises all such inherent powers only in the High Court under Section 482.

(Para 49)

Therefore, the jurisdiction and authority of not only the Tribunals, but also the Courts are structured by the statutory grants and limitations.

(Para 50)

For deciding the question whether the Copyright Board, exercising the jurisdiction under Section 31 of the Copyright Act, can grant ad hoc compulsory licence by an interim order pending the adjudication of the issue, is required to be examined.

(Para 55)

Copyright in a “work”, undoubtedly, is a valuable legal right subsisting in the “owner” or somebody claiming through the owner. Such a right has more than one dimension. It may have a commercial value depending upon the quality, nature and the public demand of the work. It may also have aesthetic value. Whether such a right should be transferred or not is a matter, essentially, for the “owner” of the copyright to determine. It is, further, the right of the owner to decide on what terms and conditions (which need not necessarily be related to money alone), he would part with the copyright of his work if ever he decides to part with it. However, Section 31 of the Copyright Act creates an exception to the above mentioned principle of the right of the owner of the copyright. In substance -the Section deprives the “copyright” of the “owner” against his volition. In other words, by Section 31, the State is authorised, by its coercive powers, to deprive the owner of his copyright in a work, which is his property and the right to enjoy such property in the manner as the owner of the property pleases. Necessarily, in view of the constitutional mandate under Article 300A, such a deprivation can only be by the authority of law and it is too well entrenched a principle on the constitutional law that such a law could be only for a public purpose.

(Para 56)

The core of Section 31 is that the owner of a copyright has; (1) either refused to “republish” or “allow the republication” of his work or “refused to allow the performance in public” of the work; (2) by reason of such refusal the work is withheld from the public; and (3) the grounds for such refusal are not reasonable. It is in the above mentioned circumstances, if the Copyright Board is satisfied that the grounds of refusal are not reasonable, the Copyright Board is authorised, by law, to take steps for the grant of a compulsory licence.

(Para 57)

As can be seen, the appellants are interested in the commercial exploitation of a work, of which they are not “owners” of the copyright. To succeed in their claim for a compulsory licence in their favour, they must, firstly, establish that “the work is withheld from the public”, because of the “owner’s” refusal to republish the work, etc.; secondly, the owner’s refusal is on grounds, which are “not reasonable” in law. Whether the owner is withholding the republication on grounds, which are unreasonable or not, is a question, which can only be decided upon affording a complete hearing to the owner of the work, as I have already indicated the reason for withholding need not only be monetary. Take for example the case of a book or a cinematography film, such as, Satanic Verses or Da Vinci Code, which have created quite some commotion in certain quarters including the security threat to the author or owner of the work. If the author, on realising that repeated publication of the work might endanger his security, declines or refuses republication of the work, it cannot be said that the author (owner) unreasonably withheld republication. Such a refusal has nothing to do with the monetary considerations. Therefore, by conceding a power to grant ad hoc compulsory licence during the pendency of the proceeding, under Section 31, would not only render the final inquiry into the question, a futile exercise in a case where the owner has reasons other than inadequacy of monetory compensation. The power under Section 31 to grant a compulsory licence meant for avoiding the withholding of the republication or refuse to allow the performance in pubic of some “work” -is, essentially, for the benefit of the public. Commercial benefit to “publisher” is incidental. Unless, it is demonstrated that failure to imply such power to direct immediate republication or performance of a work in public would be detrimental to public interest, the power to grant ad hoc compulsory licence, cannot be implied. No such detriment is demonstrated. In the absence of an express statutory grant, I would not imply the power to grant an ad hoc compulsory licence by way of interim order by the Copyright Board.

(Para 58)

Super Cassettes Industries Ltd. v. Music Broadcast Pvt. Ltd.[Bench Strength 2], Civil Appeal Nos. 4196-4197/2012 (Arising out of SLP (C) Nos. 26581-26582/2011)(04/05/2012), 2012(3) R.A.J. 613: 2012 AIR(SC) 2144: 2012(5) SCC 488: 2012(4) JT 627: 2012(5) SCALE 142: 2012(3) Supreme 273: 2012(3) SLT 578: 2012(50) PTC 225 [Altamas Kabir, J.: J. Chelameswar, J.]

Entry Filed under: Commercial Laws,Judgements

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