Industries Ltd. Vs. Music Broadcast Pvt. Ltd.
Nos.4196-4197 of 2012 arising out of SLP(C) Nos.26581-26582 of 2011]
J U D G M E N T
ALTAMAS KABIR, J.
sole question for consideration in these appeals is whether on a complaint made
to the Copyright Board under Section 31 of the Copyright Act, 1957, the said
Board under Clause (b) of Sub-Section (1) can pass an interim order in the
pending complaint. Since, we shall be dealing with the said section throughout this
judgment, the same is extracted here in below : “31. Compulsory licence in
works withheld from public.-
(1) If at any time
during the term of copyright in any Indian work which has been published or
performed 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 re-publication of the work or has refused to allow the
performance in public of the work, and by reason of such refusal the work is 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 the
complainant considers reasonable, the Copyright Board, after giving to the
owner of the copyright in the work a reasonable opportunity of being heard and after
holding such inquiry as it may deem necessary, may, if it is satisfied that the
grounds for such refusal are not reasonable, direct the Registrar of Copyrights
to grant to the complainant a licence to re-publish the work, perform the work
in public or communicate the work to the public by [broadcast], as the case may
be, subject to payment to the owner of the copyright of such compensation and
subject to such other terms and conditions as the Copyright Board may determine;
and thereupon the Registrar of Copyrights shall grant the licence to the
complainant in accordance with the directions of Copyright Board, on payment of
such fee as may be prescribed.
Explanation.-In this sub-section,
the expression "Indian work” includes- (i) an artistic work, the author of
which is a citizen of India; and (ii) a cinematograph film or a [sound recording]
made or manufactured in India. (2) Where two or more persons have made a
complaint under sub-section (1), the licence shall be granted to the complainant
who in the opinion of the Copyright Board would best serve the interests of the
in order to consider the said question, it is necessary to set out some of the
facts giving rise to the said question.
appeals preferred by Super Cassettes Industries Ltd., hereinafter referred to
as “Super Cassettes”, are directed against the order dated 1st September, 2011,
passed by the Delhi High Court whereby it reversed the order passed by the
Copyright Board on 28th March, 2011, in which the Board held that it did not
have the power to grant an interim compulsory licence.
By its judgment and
order dated 1st September, 2011 in R.F.A.No.250 of 2011 and C.M.No.8977 of
2011, the High Court reversed the finding of the Copyright Board upon holding
that even while the grant of compulsory licence under Section 31 of the Copyright
Act was under consideration, an interim compulsory licence could be granted.
The High Court also
held that where the dispute is over the quantum of licence fee, an interim
compulsory licence had to be granted. The impugned order directs the Copyright
Board to grant an interim compulsory licence against Super Cassettes with the
further direction to the Board to fix its own terms for such licences, after
hearing the parties.
for Super Cassettes, Mr. Amit Sibal, learned counsel, submitted that on 16th
May, 2008, this Court had decided the two set of cases, in which it upheld the setting
aside of the compulsory licence granted against Super Cassettes by the Copyright
Board in relation to Entertainment Network India Ltd., hereinafter referred to as
“ENIL”, a radio broadcaster.
In the other set of
matters, where Super Cassettes was not a party, this Court upheld the grant of
compulsory licence in relation to the works administered by Phonographic Performance
Ltd., here in after referred to as “PPL”, and remanded the matter to the
Copyright Board to fix the rates at which the compulsory licences, in relation to
the works administered by PPL, were to be granted.
to the decision of this Court, the Copyright Board passed the order on 25th
August, 2010, fixing the rates, not just for PPL, but for all music providers,
including Super Cassettes, although, it was not aparty to the proceedings. Mr.
Sibal submitted that on 9th September, 2010,Music Broadcast Pvt. Ltd.,
hereinafter referred to as “MBPL”, wrote to Super Cassettes informing it that
MBPL proposed to broadcast the works in which copyright was owned by Super
Cassettes on the terms fixed in the aforesaid order of the Copyright Board
dated 25th August, 2010. Mr. Sibal submitted that this was done despite the
fact that MBPL had an existing voluntary licence from Super Cassettes, which had
subsisted since 25thMarch, 2002, and had been amended and renewed a number of
times since then. It was also submitted that several other broadcasters with existing
voluntary licence from Super Cassettes wrote similar letters to it.
Cassettes filed Writ Petition No.6255 of 2010, questioning the order passed by
the Copyright Board dated 25th August, 2010. After hearing Super Cassettes and
the Respondents, including MBPL, on 15th September,2010, the Delhi High Court
passed an interim order to the effect that the order dated 25th August, 2010,
passed by the Board would not be relied upon by any of the Respondents or any other
party for a compulsory licence against Super Cassettes.
Despite the aforesaid
order of the Delhi High Court dated 15th September, 2010, MBPL filed an
application for compulsory licence under Section 31(1)(b) of the Copyright Act,
relying solely on the rates fixed by the Copyright Board for PPL by its order
dated 25th August,2010. Other eight broadcasters also filed applications for compulsory
licence against Super Cassettes, relying solely on the order of the Copyright
Board dated 25th August, 2010. Super Cassettes responded to the said offer made
by MBPL on the same terms as were prevalent under the expired voluntary licence
The said proposal made
by Super Cassettes was rejected by MBPL, while other broadcasters continued to broadcast
the work of Super Cassettes on existing mutually agreed terms which were
different from the terms set out in the order of the Copyright Board dated 25th
August, 2010. By its order dated 28th March, 2011, the Copyright Board
dismissed the application for interim relief filed by MBPL holding that it did
not have the power to grant any interim compulsory licence.
Sibal submitted that even though MBPL did not broadcast the works of Super
Cassettes after 25th December, 2010, its radio station, known as“ Radio City”,
improved its listenership ratings to become the most popular radio station in
Mumbai and was maintaining its position as the fifth most popular radio station
in Delhi. Mr. Sibal urged that MBPL thereafter preferred an appeal against the
order dated 28th March, 2011, before the Delhi High Court and vide the impugned
order, the High Court held that the Copyright Board had the power to issue
interim compulsory licence.
Sibal submitted that the impugned order of the Delhi High Court, inter alia,
held that the power to grant interim relief is not dependent upon a specific
statutory empowerment to this effect. The power is a common law principle and
is not founded on any statute or legislation.
Mr. Sibal submitted
that the Delhi High Court also held that the refusal of the copyright holder to
grant a licence would, in effect, compel the broadcaster or any other party
similarly placed, into succumbing to the demands of the owners and that since,
litigation is protracted over years, a party would be unable to play or
broadcast music, owned by the copyright holder, even though it was willing to
pay a reasonable fee for making such broadcast and may also have to give up its
action under Section 31 of the Copyright Act.
Mr. Sibal urged that
the High Court went on to hold that refusal to grant interim relief would
frustrate the rights of a broadcaster under Section 31 of the Copyright Act,
which would render the provisions of the statute futile and nugatory.
was further held by the High Court that where the controversy concerns only the
quantum of licence fee, an interim protection should be granted and even though
Super Cassettes was not a party to the order of the Copyright Board dated 25th
August, 2010, it is similarly placed as PPL, which was bound by the order
passed by the Board on 25th August, 2010.Accordingly, it was appropriate that
Super Cassettes should also receive 2%of the net advertisement revenue as
licence fee in the interim period for broadcasting of its sound recordings.
Sibal urged that the Division Bench of the Bombay High Court chose not to
differ with the decision of the Single Judge in Music Choice India Pvt. Ltd.
Vs. Phonographic Performance Ltd. [(2009) 39 PTC 597], in which the learned
Single Judge had held that the Copyright Act did not prohibit the Copyright Board
from passing any interim order for determination of reasonable fees by way of
royalty or compensation by the plaintiff. The High Court disposed of the appeal
by making an interim arrangement, whereby Super Cassettes was to receive an
aggregate of 4% of the advertisement revenue of MBPL for broadcasting its sound
recordings, music and literary work, while remanding the matter to the Copyright
Board for interim order, making it clear that the Board need not be bound by the
interim arrangement devised by the Court.
Sibal submitted that the High Court had erred in law in holding that even in
the absence of an express conferment by statute, the Copyright Board had the
power to grant an interim compulsory licence under Section 31of the Copyright
Act. He urged that the Copyright Board is a Tribunal created under Section 11
of the Copyright Act, 1957, and being a creature of statute, its powers were
confined to the powers given to it by the statute.
Mr. Sibal urged that
while Section 12 of the Act vested the Copyright Board with the authority to regulate
its own procedure and Section 74 conferred certain limited powers of a civil
court on the Board, the same were procedural in nature and did not vest the Board
with a substantive right to grant interim orders under Section 31 of the Act. Mr.Sibal
submitted that the High Court had erred in holding that grant of interim relief
was not dependent upon a specific statutory empowerment to this effect.
submitted that being a creature of statute, the Copyright Board could only exercise
such powers as were expressly vested in it by the statute and that the power to
grant an interim compulsory licence not having been vested with the Board, it could
not exercise such substantive power, which it did not possess.
support of his submissions, Mr. Sibal referred to the decision of this Court in
Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar &Anr. [2011
(9) SCALE 287], wherein three learned Judges of this Court we recalled upon to
consider as to whether the District Forum and the State Commission as
established under the Consumer Protection Act, 1986, had the power to recall an
ex parte order. After examining various provisions of the Consumer Protection
Act, this Court held that such an express power not having been conferred on
the District Forum and the State Commission, they had no jurisdiction to
exercise such powers which had not been expressly given to them.
Sibal also referred to the decision of this Court in Morgan Stanley Mutual Fund
Vs. Kartick Das [(1994) 4 SCC 225], wherein this Court was considering the
scope of the provisions of the Consumer Protection Act,1986. On construction of
Section 14 of the said Act, this Court came to the conclusion that there was no
power under the Act to grant any interim relief, even of an ad interim nature. Their
Lordships who decided the matter, observed as follows : “……… If the
jurisdiction of the Forum to grant relief is confined to the four clauses mentioned
under Section 14, it passes our comprehension as to how an interim injunction
could ever be granted disregarding even the balance of convenience.”
was also made to a decision of the Punjab and Haryana High Court in Sham Lal
Vs. State Election Commission [AIR 1997 P&H 164], in which the High Court
was considering a similar question as to whether the Election Tribunal
constituted under the Punjab State Election Commission Act, 1994, had the power
to pass an injunction so as to restrain an elected representative from assuming
office pending adjudication of an election petition filed against him.
After considering various
provisions of the1994 Act, the Court observed that “if the legislature had so desired,
nothing prevented it from conferring statutory power upon the Election Tribunal
to grant interim stay or injunction or restraint order during the pendency of
the election petition.” Accordingly, the Court went on to hold that the
Election Tribunal did not have the power to pass any order of injunction or
stay which would impede the implementation of the result ofelection.
Sibal cited yet another decision on the same issue rendered by a Full Bench of
the Karnataka High Court in Lingamma Vs. State of Karnataka [AIR 1982 Karnataka
18], where the question involved was as to whether the Appellate Tribunal
constituted under the Karnataka Appellate Tribunal Act,1976, was empowered to pass
interim orders when there was no express provision which conferred such
substantive power on the Appellate Tribunal.
The Full Bench held
that “in the absence of express conferment, power to grant temporary injunction
was not implied.” The Full Bench further held that the fact that no express
provision had been made conferring on the Tribunal jurisdiction to make
interlocutory orders, clearly indicates that the legislature did not want the
Tribunal to have such powers.
Sibal urged that in view of the aforesaid decisions and having regard to the
fact that the Copyright Act did not specifically vest the Copyright Board with substantive
powers to pass interim orders under Section 31 of the Copyright Act, the High Court
erred in taking a view which was contrary to the well-established principle
that a statutory body could exercise only such powers that were vested in it by
a statute and not otherwise.
Learned counsel urged
that by making an interim arrangement and granting an interim compulsory
licence to the Respondent, the High Court had conferred upon itself a
jurisdiction which the Copyright Board and, consequently, the High Court did not
possess under Section 31 of the Copyright Act.
Sibal went on to submit further that all tribunals constituted under different
statutes, were not the same and some enjoyed powers to pass certain orders
which had been vested in them by statute, which made them different from other
tribunals to whom such express powers had not been given. Learned counsel urged
that there were certain tribunals which completely supplemented the
jurisdiction of the Civil Court and, therefore, exercised all the powers of the
Civil Court in respect of the matters entrusted to them by statute.
In this regard,
reference was made to Section41(1) of the Armed Forces Tribunal Act, 1985, which
specifically provides that the Tribunal shall have all jurisdiction, powers and
authority exercisable by all courts in matters relating to service. Reference was
also made to other Tribunals, such as, the Telecom Disputes Settlement & Appellate
Tribunal, the National Green Tribunal and also the Debts Recovery Tribunal,
which had been expressly vested with powers to pass interim orders under the
statutes under which they had been created. Mr. Sibal submitted that there were
no similar provisions in the Copyright Act, which granted such powers to the
Sibal then submitted that notwithstanding the fact that the Copyright Board was
discharging quasi-judicial functions, it did not possess inherent powers to
pass interim orders, since it continued to be a tribunal governed by the
statute under which it had been created. It did not, therefore, have
jurisdiction to pass interim orders which inheres in other Tribunals. Referring
to the decision of this Court in Bindeshwari Prasad Singh Vs. Kali Singh
[(1977) 1 SCC 57],
Mr. Sibal urged that in
the said decision, this Court was called upon to decide as to whether a Magistrate
had the authority to review or recall his order. It was held that unlike
Section 151 of the Civil Procedure Code, which vests the civil courts and
certain tribunals with inherent powers, the subordinate criminal courts had no
such inherent power, since there was absolutely no provision in the Code of
Criminal Procedure empowering a magistrate to exercise suchpowers.
Sibal lastly referred to the decision of this Court in Transcore Vs. Union of
India [(2008) 1 SCC 125], and submitted that in the said case, this Court had
observed that the Debts Recovery Tribunal is a tribunal and a creature of
statute and it does not have inherent powers which existed in the civil courts.
Sibal also submitted that apart from the decisions rendered in the case of
Morgan Stanley Mutual Fund (supra), the Supreme Court had held on several
occasions that while entertaining matters, final relief ought not to have been
granted at the interim stage. In fact, as submitted by Mr. Sibal, the courts
will not imply a power in a particular provision of the statute if the legislative
intent behind the statute suggested a contrary view. Learned counsel submitted
that implying a power to exercise the powers under Section 31 of the Act was
not the legislative intent which is easily discernible.
It was urged that implying
such a power would transform compulsory licensing to statutory licensing
without any statutory mandate to do so. Mr. Sibal also reiterated the principle
that power would not be implied to displace a pre-existing vested statutory right
and the court would not, therefore, exercise such powers as a statutory right unless
a statute expressly allowed the same.
The power to over-ride
such pre-existing right had to be in express terms and could not be implied. Various
other decisions were referred to by Mr. Sibal, which will only amount to
repetition to what has already been stated.
Sibal submitted that the High Court erred in holding that the Copyright Board
had power to grant an interim compulsory licence and that when there was a
dispute as to the quantum of fees payable by the licencee, an interim
compulsory licence had to be given. Mr. Sibal submitted that in the face of the
well-established propositions of law, the High Court’s order could not stand
and was liable to be set aside.
Abhishek Manu Singhvi, learned Senior Advocate, appearing for the Respondent,
firstly contended that although Section 31 of the Copyright Act may not have
expressly vested the power to pass interim orders on the Copyright Board pending
disposal of an application for grant of a compulsory licence, the same would
have to be read into the Section as being incidental to the powers granted by
the Statute to the Board to grant compulsory licences. Dr. Singhvi urged that
it could not have been the intention of the legislature that pending the
determination of the right of an applicant to a compulsory licence, the public
should be deprived of the entertainment of listening to music in respect of
which the owner has the copyright, in this case, Super Cassettes.
Singhvi urged that if it were to be held that the Board did not have such power
to grant an interim compulsory licence, the consequences would be contrary to
public interest, since it was not possible to assess the time that could be
taken by the Copyright Board for disposing of an application for grant of
compulsory licence. Dr. Singhvi submitted that the Copyright Act is a Code in itself
and that matters relating to copyrights and grant of licences had been left to
the Copyright Board for decision, which only lend strength to the submission that
the Board is vested with incidental and ancillary powers under Section 31 of
the Act to give effect to the final relief which it is empowered to give under the
Singhvi referred to Section 25 of the Trade Marks Act as also Section 25(i) and
(ii) of the Patents Act, which vested the authorities under the said Acts to
pass appropriate orders in aid of the final relief. Dr. Singhvi urged that it is
in situations such as these, that the doctrine of “implied power” comes into
play. Learned counsel submitted that without holding that the Copyright Board
had the authority to direct the grant of interim compulsory licences in keeping
with the doctrine of implied power, the provisions of the Copyright Act would be
rendered somewhat unworkable.
Singhvi urged that the Copyright Board is a quasi-judicial body discharging
quasi-judicial functions and under the scheme of the Act, it has been vested
with the power to determine the reasonableness of royalties claimed by
performing rights societies and to fix the rates thereof and to consider
applications for general licences for public broadcasting of works. Dr. Singhvi
submitted that it is in that context that Section 12 of the Copyright Act would
have to be read. Under Section 12, which defines the powers and procedure of
the Copyright Board, it has been stipulated that the Board would, subject to
any rules that may be made under the Act, have the power to regulate its own procedure,
including the fixing of places and times of its meetings. Referring to
Sub-section (7) of Section12, Dr. Singhvi urged that the Copyright Board is to be
deemed to be a Civil Court for certain purposes and all proceedings before the Board
are to be judicial proceedings within the meaning of Sections 193 and 228 of the
Indian Penal Code.
Singhvi then drew the Court’s attention to Section 19-A of the Copyright Act,
which was inserted by amendment with effect from 9th August,1984, in regard to
disputes with respect to assignment of copyright. It was submitted that the
said provision clearly indicated that the Board was an adjudicating authority
in regard to disputes between the parties and would, therefore, be deemed to be
vested with ancillary powers to make interim orders in aid of the final relief that
could be granted under Section 31 of the Act.
Singhvi urged that the Copyright Act contemplated the grant of three types of
licences, namely :- i) voluntary; ii) compulsory; and iii) statutory. Dr.
Singhvi urged that Sections 30, 31 and 31-A of the Act deal with grant of
voluntary, compulsory and statutory licences. However, while Section 30 deals
with grant of voluntary licences by the owners of the copyright, Sections 31
and 31-A speak of grant of licences for broadcasting works which had been
withheld from the public, either by the copyright owners, or where the owner of
an Indian work is either dead or untraceable.
However, Section 52
of the Act also made provision that certain acts performed by broadcasters were
not to be considered as infringement of copyright. In particular, reference was
made by Dr. Singhvi to Section52(1)(j)(iv) which indicates that the making of
sound recordings in respect of any literary, dramatic or musical work would not
amount to infringement of copyright if the person making such sound recording
allowed the owner of the right or his duly authorised agent or representative to
inspect all records and books of accounts relating to such sound recording.
Dr. Singhvi urged
that, in any event, any decision in respect of the above provisions would be
appealable under Section 72 of the Copyright Act. Dr. Singhvi urged that the
powers now vested in the Copyright Board were, in fact, powers which had been vested
in it as high a body as Judicial Committee of the Privy Council under Section 4
of the Copyright Act, 1911,which had been passed by the Parliament of the
United Kingdom and modified in its application to India by the Indian Copyright
support of the submissions made by him, Dr. Singhvi referred to various
decisions, beginning with the decision of this Court in Income Tax Officer Vs.
M.K. Mohammed Kunhi [(1969) 2 SCR 65], wherein the power of the Income Tax Appellate
Tribunal to stay recovery of penalty was under consideration. Although, such power
was not directly vested in the Tribunal, the High Court held that the power to
order the stay or recovery of penalty is an incidental and ancillary power
possessed by the Tribunal in its appellate jurisdiction. Reference was also made
to the decision cited on behalf of the Appellant in Morgan Stanley’s case (supra).
Dr. Singhvi urged
that the same was no longer good law on account of the subsequent decisions of
this Court. Dr. Singhvi urged that in Allahabad Bank, Calcutta Vs. Radha
Krishna Maity & Ors. [(1999) 6 SCC 755], this Court was considering the
provisions of the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993, hereinafter referred to as “the DRT Act”, wherein it was held that
in a Suit under Section 19(1) for recovery of monies, the Tribunal acted within
its powers in passing an interim order to restrain the defendants from recovering
any money from a particular party. It was held that in view of Section 22(1) of
the Act, the Tribunal could exercise powers contained in the Civil Procedure
Code and could even go beyond the Code as long as it passed orders in conformity
with the principles of natural justice.
This Court held
further that Section 19(6)of the Act did not in any manner limit the generality
of the powers of the Tribunal under Section 22(1) and that Section 19(6) was an
enabling provision and that certain types of stay orders and injunctions mentioned
therein could be passed by the Tribunal, but the same could not be deemed to be
exhaustive nor restricting the Tribunal’s powers only to those types of
injunctions or stay orders mentioned therein. It was also observed that in
addition, Rule 18 enabled the Tribunal to pass orders to secure the ends of
Dr. Singhvi urged
that the aforesaid decision of this Court was based on its earlier decision in
Industrial Credit & Investment Corporation of India Ltd. Vs. Grapco Industries
Ltd. & Ors. [(1999) 4 SCC 710], where in it had been held that the Debts
Recovery Tribunal had jurisdiction under Section 19(6) of the DRT Act to grant interim
orders, since such power inheres in a Tribunal.
Singhvi lastly contended that the decision in Rajeev Hitendra Pathak’s case
(supra) could not be relied upon for a decision in this case on account of the
fact that in the said case this Court was called upon to consider as to whether
the District Forum and the State Commission had been vested with powers of
revision, in the absence whereof they could not exercise such powers which had
not been expressly vested in them.
Dr. Singhvi urged
that having regard to the various decisions of this Court which have
categorically held that powers to pass certain interim orders were incidental
and ancillary to the exercise of powers conferred on a Tribunal by the Statute,
the doctrine of implied power would stand attracted and the orders of the High Court
could not, therefore, be faulted.
Bhaskar P. Gupta, learned Senior Advocate, appearing for some of the
interveners, adopted Dr. Singhvi’s submissions and reiterated the concept that
the Copyright Act is a complete code in itself and the parties to the dispute
would have to take recourse to the provisions of the Act and not the Civil Code
which lends support to Dr. Singhvi’s submissions that the “doctrine of implied power”
would have to be incorporated in the provisions of the Copyright Act, as far as
the Copyright Board isconcerned.
Gupta also raised the question as to whether during the pendency of an existing
licence granted under Section 30, a dispute could be raised with regard to the fees
charged under Section 31(1)(b) which may subsequently convert the voluntary
licence given under Section 30 of the Copyright Act into a compulsory licence under
Section 31 thereof. Mr. Gupta contended that since Section 31(1)(b) of the Act contemplates
adjudication, the Copyright Board had the trappings of a quasi-judicial authority
which inheres in itself the right to pass interim orders in the interest of the
parties and to apply the principles of natural justice, keeping in mind the public
In this regard, Mr. Gupta
also submitted that Section 75 of the Copyright Act provides that the orders for
payment of money passed by the Registrar of Copyrights, the Copyright Board or
by the High Court would be deemed to be decrees of a Civil Court and would be
executable in the same manner as a decree of such Court. Mr. Gupta contended
that the intention of the legislature would be clear from the scheme of the Act
that matters relating to copyright should be dealt with by the authorities
under the Act and not the Civil Court.
Prathiba Singh, learned Advocate, who appeared for one of the parties, while
reiterating the submissions made by Dr. Singhvi and Mr. Gupta, submitted that
the powers of the Board had been gradually increased by legislation from time
to time and even in regard to the question of subsisting licences and the grant
of new licences, there could be no dispute as to the powers vested in the
Copyright Board and the orders which it was competent to pass.
Mrs. Singh, however, introduced
another dimension into the debate by contending that the membership of the Copyright
Board is drawn from various quarters. There being 14 members, it does not meet
regularly and decisions in cases are, therefore, deferred for long intervals. In
fact, as pointed out by
Mrs. Singh, sometimes
it is not possible to hold even one meeting in a month. In such cases, unless the
power to grant interim orders were read into the provisions of Section 31 of
the Act, there would be a complete stalemate in regard to cases where matters
were pending before the Board and the public would be deprived of the pleasure
of listening to such music and sound broadcasting.
Harish Salve, learned Senior Advocate, in his turn provided another twist to
the question under consideration in urging that inherent powers exist in an
appellate forum. Mr. Salve urged that this was not a case where the Copyright
Board was not entitled to pass orders of an interim nature, but whether it should
exercise such power. Mr. Salve further urged that the power under Section 31(1)(b)
was in respect of matters which were already in the public domain and the transaction
being purely of a commercial nature, the Board was only called upon to decide how
much charges were required to be paid for broadcasting music and sound recordings
in respect whereof Super Cassettes had the copyright.
Mr. Salveurged that
Section 31(1)(b) merely enumerated the right of the Copyright Board to decide
and compute the amount of fees payable for the use of the copyright, which was
being withheld from the public. According to Mr. Salve, the essence of the
Copyright Act is the delicate balance between intellectual property rights and
the rights of access to the copyright material. In such a situation, according
to Mr. Salve, a private right of copyright would have to give way to the public
interest as contemplated in Section 31 of the Copyright Act.
to the submissions made on behalf of the Respondents and the interveners, Mr.
Sibal urged that the powers which were inherent in a Tribunal as against the
implied powers, stood on a different footing and, in any event, the provisions
of Sections 19(4) and 19-A were not relevant to the doctrine of implied power
in the facts of this case.
Sibal submitted that the concept of public interest was nothing but a bogey
introduced on behalf of the Respondents, when the entire transaction only involved
the computation of the fees payable to a copyright owner for use of the
copyright when the same was withheld from the public. Referring to the decision
between ENIL and the Appellant in Entertainment Network (India) Limited Vs.
Super Cassette Industries Limited[(2008) 13 SCC 30], Mr. Sibal referred to
paragraph 116 thereof, which is extracted herein below :- “116. Section
31(1)(b) in fact does not create an entitlement in favour of an individual
The right is to approach
the Board when it considers that the terms of offer for grant of licence are
unreasonable. It, no doubt, provides for a mechanism 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
involve narrow commercial interest. For the purpose of interpretation of a
statute, the court must take into consideration all situations 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. The mechanism to be adopted by the
Board for determining the right of a complainant has been provided under the
Act.” Mr. Sibal urged that the decision of the High Court was liable to beset
aside and that of the Copyright Board was liable to be restored.
emerges from the submissions made on behalf of the respective parties is the
dispute as to the width of the powers vested in the Copyright Board under
Section 31 of the Copyright Act. There is no dispute that the Copyright Act is a
Code by itself and matters relating to copyrights and grant of licences in
respect of such copyrights have been left to the Copyright Board for decision.
Chapter II of the
Copyright Act,1957, deals with the establishment of a Copyright Office and the constitution
of a Copyright Board and the powers and procedure to be exercised and
formulated for the functioning of the said Board. Section 11 of the Act, which comes
within the said Chapter, provides for the constitution of a Copyright Board,
which would hold office for such period and on such terms and conditions as may
be prescribed. Section 12enumerates the powers and procedure of the Board and is
extracted herein below :- “12.Powers and procedure of Copyright Board. –
a. The Copyright Board
shall, subject to any rules that may be made under this Act, have power to
regulate its own procedure, including the fixing of places and times of its
sittings: Provided that the Copyright Board shall ordinarily hear any
proceeding instituted before it under this Act within the zone in which, at the
time of the institution of the proceeding, the person instituting the proceeding
actually and voluntarily resides or carries on business or personally works for
gain. Explanation.-In this sub-section "zone" means a zone specified in
section 15 of the States Reorganisation Act, 1956. (37 of 1956).
b. The Copyright Board
may exercise and discharge its powers and functions through Benches constituted
by the Chairman of the Copyright Board from amongst its members, each Bench
consisting of not less than three members: [Provided that, if the Chairman is of
opinion that any matter of importance is required to be heard by a larger
Bench, he may refer the matter to a special Bench consisting of five members.]
c. If there is a
difference of opinion among the members of the Copyright Board or any Bench
thereof in respect of any matter coming before it for decision under this Act,
the opinion of the majority shall prevail: [Provided that where there is no
such majority, the opinion of the Chairman shall prevail.]
d. The [Chairman] may
authorise any of its members to exercise any of the powers conferred on it by
section 74 and any order made or act done in exercise of those powers by the
member so authorised shall be deemed to be the order or act, as the case may
be, of the Board.
e. No member of the Copyright
Board shall take part in any proceedings before the Board in respect of any
matter in which he has a personal interest.
f. No act done or
proceeding taken by the Copyright Board under this Act shall be questioned on
the ground merely of the existence of any vacancy in, or defect in the
constitution of, the Board.
g. The Copyright Board
shall be deemed to be a civil court for the purposes of [sections 345 and 346
of the Code of Criminal Procedure, 1973 (2 of 1974)] and all proceedings before
the Board shall be deemed to be judicial proceedings within the meaning of
sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860)”.
As would be noticed, the
Copyright Board has been empowered to regulate its own procedure and is to be
deemed to be a Civil Court for the purposes of Sections 345 and 346 of the Code
of Criminal Procedure, 1973, and all proceedings before the Board shall be deemed
to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian
clearly indicate that the Copyright Board discharges quasi-judicial functions,
which as indicated in Sections 19-A, 31, 31-A, 32and 52, requires the Board to
decide disputes in respect of matters arising there from. In fact, Section 6
also spells out certain disputes which the Copyright Board has to decide, and
its decision in respect thereof has been made final. However, for the purposes
of these appeals we are concerned mainly with Section 31, which has been
submissions have been made regarding the power of the Copyright Board to grant
interim compulsory licences in works withheld from the public, in relation to
matters which were pending before it. Having considered the said submissions,
we are unable to accept the submissions made by Dr. Abhishek Manu Singhvi, Mr.
Bhaskar P. Gupta, Mr. Harish Salve and the other learned counsel appearing for
the different interveners.
The Copyright Board
has been empowered in cases where the owner of a copyright in a work has
withheld the same from the public, after giving the owner of the copyright in
the work a reasonable opportunity of being heard and after holding such inquiry
as it may consider necessary and on being satisfied that the grounds for
withholding the work are not reasonable, to direct the Registrar of Copyrights
to grant to the complainant a licence to republish the work, perform the work
in public or communicate the work to the public by broadcast, as the case may
be, subject to payment to the owner of the copyright of such compensation and subject
to such other terms and conditions as the Board may determine.
The language used in the
Section clearly contemplates a final order after a hearing and after holding an
inquiry to see whether the ground for withholding of the work from the public
was justified or not. There is no hint of any power having been given to the
Board to make interim arrangements, such as, grant of interim compulsory licences,
during the pendency of a final decision of anapplication.
has been held by this Court in innumerable cases, a Tribunal is a creature of
Statute and can exercise only such powers as are vested in it by the Statute. There
is a second school of thought which propagates the view that since most
Tribunals have the trappings of a Court, it would be deemed to have certain ancillary
powers, though not provided by the Statute, to maintain the status-quo as
prevailing at the time of filing of an application, so that the relief sought for
by the Applicant is not ultimately rendered otiose.
While construing the
provisions of Section 14 of the Consumer Protection Act, 1986, in the Morgan Stanley
Mutual Fund’s case (supra), this Court categorically held that in the absence of
any specific vesting of power, no interim relief could be granted, not even of an
ad-interim nature. The decision in the recent judgment of this Court in Rajeev
Hitendra Pathak’s case (supra) also supports the case made out by Mr. Sibal to
the extent that in the absence of any express power conferred on the District Forum
and the State Commission under the Consumer Protection Act, they had no
jurisdiction to exercise powers which had not been expressly given to them.
the decision rendered in Bindeshwari Prasad Singh’s case(supra), which was a
decision as to the jurisdiction of a Magistrate to review or recall his order,
it was held that in the absence of any specific power in the Code of Criminal
Procedure, the Magistrate was not entitled to exercise such a power.
the other hand, the various decisions cited on behalf of the Respondent and the
interveners were in the context of the question as to whether a Tribunal has
incidental powers, which were inherent though not specifically vested, in order
to preserve the status-quo as in M.K. Mohammed Kunhi’s case (supra), Allahabad
Bank, Calcutta’s case (supra) or even in Grapco Industries Ltd.’s case (supra),
till a decision was reached in the pending matter.
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.
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 interimst age the final relief which it could grant.
also indicated hereinbefore, 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.
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
(SURINDER SINGH NIJJAR)
Industries Ltd. Vs. Music Broadcast Pvt. Ltd.
Nos.4196-4197 of 2012 @ SLP (Civil) Nos.26581-26582 of 2011]
J U D G M E N T
I agree with the conclusion reached by my learned brother Justice Kabir, I wish
to add a few lines.
my mind, the issue is not whether the Copyright Board is a Court or a Tribunal
while exercising the jurisdiction under Section 31 of the Copyright Act or any other
Section, which authorises the Copyright Board to perform certain adjudicatory
functions. It is also not the issue whether Courts or Tribunals have such powers,
which are categorised as powers ancillary to their jurisdiction irrespective of
the fact that the Statute, which created the jurisdiction, does not, always, expressly
provide for the exercise of such ancillary powers. This Court has held on more
than one occasion that such powers could be implied - Income Tax Officer vs.
M.K. Mohammed Kunhi, 1969 (2) SCR 65 and Allahabad Bank, Calcutta vs. Radha
Krishna Maity and others, (1999) 6 SCC 755. As noticed by my learned brother at
para 39 of the Judgment, there have been decisions of this Court, which appear
conflicting on the question whether a Statutory Tribunal has powers other than
those expressly conferred by the Statute.
the ultimate analysis, both the Courts and the Tribunals are adjudicatory
bodies to whom the Legislature entrusts the authority to resolve the disputes
falling within the jurisdiction conferred upon each of such bodies and brought before
them. The jurisdiction is, normally, defined with reference either to; (1) the
subject matter of the dispute and/ or the pecuniary value of the dispute; or
(2) the territorial nexus of either the parties to the dispute or the subject
matter of the dispute to the Court or Tribunal.
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, recognizes 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
the jurisdiction and authority of not only the Tribunals, but also the Courts
are structured by the statutory grants andlimitations.
both the grant as well as the limitations could be either express or implied
from the scheme of a particular enactment. The considerations relevant for
ascertaining whether there is an implied grant of such powers, as can be culled
out from the various Judgments relied upon by the learned counsel appearing in
these matters, which have been taken note of by my learned brother Justice
Kabir, appear to be; (1) need to preserve status quo with respect to the
subject matter of the dispute in order to enable the party, which eventually
succeeds in the litigation, to enjoy the fruits of the success; and (2) need to
preserve the parties themselves a consideration, which weighed heavily with this
Court in implying such powers in favour of the Magistrates while exercising the
jurisdiction under Section 125 of the Code of Criminal Procedure.
often stated principle that Courts would not, normally, grant a relief by way
of an interim measure, which is either identical with or substantially the same
as the final relief sought in the proceeding, is based on the ground that
indiscriminate grant of such interim reliefs are capable of producing public
mischief see Assistant Collector of Central Excise, Chandan Nagar, West Bengal v.
Dunlop India Limited and others,(1985) 1 SCC 260. This Court opined that the
injury, if any, to the party approaching the Court is reversible and the public
interest in certain instances should outweigh the temporary inconvenience of
another example, if a returned candidate to the constitutionally created Legislative
Bodies could be restrained from functioning as a legislator by an interim order
pending the adjudication of the legality of such candidate’s election, the same
would produce great public mischief.
different considerations come into play depending upon the context or nature of
the legal rights at issue or subject matter of the dispute, etc., in deciding
the question whether an adjudicatory body can be said to have been invested
with the power to grant interim orders, which are identical or substantially
similar to the final relief that can be afforded in the lis by implication from
the scheme and language of the enactment, which created the jurisdiction.
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
in a “work”, undoubtedly, is a valuable legal right subsisting in the “owner”
or somebody claiming through the owner. Such aright 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 abovementioned 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.
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 abovementioned 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.
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 cinematograph film, such as, Satanic Versesor
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 monitory 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.