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TMI Blog2008 (5) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? - relevant considerations which the Copyright Board must keep in view while deciding on issuance of compulsory license to a particular person and terms on which the compulsory license may be issued, including the compensation. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? - HELD THAT:- The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefor is to see that the expanding area in which the copyright will have a role to play is covered. While India is a 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 purport and object of the Act would be allowed to be defeated. If the ground realities changed, the interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. Copyright Society - HELD THAT:- 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 work in circulation - Rule 14J requires that a Copyright Society shall frame 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 Distribution Scheme setting out the procedure for collection and distribution of royalty specified in the Tariff Scheme among the 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. Compulsory Licence - HELD THAT:- Chapter VI relate to grant of licence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and grant of reasonable compensation to the public at large. Royalty and Compensation - HELD THAT:- The legislature 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 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 compensation, other terms and conditions can also be imposed. The compensation must be directed to be paid with certain other terms and conditions which may be imposed. Parliamentary Intent - HELD THAT:- The intention of the Parliament, it is trite, must be ascertained from the plain reading of the Section. The intention 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. It requires special treatment as it confers upon every person, who wishes to broadcast a work or the work recorded in a sound recording, the right to do so is either by entering into a voluntary agreement to obtain a licence on such terms which appear to be reasonable to him or wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the appellant 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 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. It took up the matter on a day for hearing which was fixed for 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. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... suant 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 was not a part of the copyright society PPL. Negotiations failed between the parties. 8. 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. Communications Between the Parties 9. 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 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 Cassettes again by a notice dated 2.4.2002 through its Advocate called upon ENIL to: "a) immediately desist from broadcasting Sound Recording(s) of Super Cassettes clients through its Radio Station; b) Tender an unconditional apology for the illegal broadcast of Sound Recordings of Super Cassettes clients i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orized broadcast before a formal license agreement is drawn up. (b) Pay my client a sum of ₹ 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 various cities." 12. 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 meeting." 14. Indisputably, appellant, in the suit filed by the first respondent having come to learn that it is outside PPL's jurisdiction to give an undertaking not to use the songs copyright whereof belongs 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. 15. In a letter to the respondent, appellant stated, "We had no intention to infringe your copyright as in fact we had been regularly paying royalty to PPL including the T-Series needle time played on our station." 16. The appellant thus contended that it had been all along under a wrong impression that Super Cassettes was a member of PPL and that it had no knowledge that the license was required to be obtained. Super Cassettes, however, contend that such a stand was not correct as would appear from its letter dated 28.5.2002, and that the appellant had intended to negotia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Copyright Board." 23. On being noticed, respondents filed an objection contending that as the suit for infringement was pending before the Delhi High Court, no application for compulsory license could be entertained. The High Court, on an application filed by the appellant, clarified that the respondent was free to canvas its submissions 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 witnesses. However, when respondent intended to present oral 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. 24. Appellant filed an appeal against the said order before the Bombay High Court questioning the rates of compensation 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. 25. 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term 'or' used between clauses (a) and (b) of sub-section (1) of Section 31 should be read disjunctively and not conjunctively. (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 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 broadcast. (vi) The finding of the High Court that no compulsory licence can be granted now would be conferred in the public interest. (vii) The words 'such work' occurring in clauses (a) and (b) do not operate in the same field inasmuch as 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 somebody has allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (iii) As the Act expressly recognizes the notion of an "exclusive licence" as defined in Section 2(j), 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 the Act, which enables the owner of a copyright to enjoy the fruits of his work by earning an agreed fee or royalty through the issuance of licence. (iv) The Copyright Board unlike its counterparts of Australia, England or Singapore have a limited jurisdiction and its principal functions are: "(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) 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 assignment of copyright (Section 19A); (d) To settle disputes arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanced 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 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 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 of other countries to go into the reasonableness or otherwise of the tariff fixed for grant of licenses. (xii) The Copyright society not being the owner of copyright, in any event, cannot be subjected to grant of a compulsory license in terms of Section 31 of the Act. (xiii) The Act, having used different words 'compensation' and 'royalty', Section 3 signifies 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. 30. Core Issues The core questions which, therefore, arise for consideration in these appeals are: (i) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;" 33. Sections 2(ffd) defines 'copyright society' to mean a society registered under sub-section (3) of Section 33. Section 2(j) 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. 34. Section 2(l) defines 'Indian work' to mean a literary, dramatic 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 unpublished work, is, at the time of the making of the work, a citizen of India. 35. Section 2(m) defines 'infringing copy' to mean (i) in relation to a lilterary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematograph film, a copy of the film made on any medium by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions; (iii) to communicate the sound recording to the public. Explanation: For the purposes of this Section, a copy which has been sold once shall be deemed to be a copy already in circulation. 39. 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 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 provisions of clause (a), in the case of 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." 40. Sections 18 and 19 relate to assignment of copyright and mode of assignment respectively. Section 19 deals with disputes with respect to assignment of copyright. Section 27 provides for the term of copyright in sound recording in the following terms: "27. Term of copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests of the authors and other owners of rights under 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: 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 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." 44. Registration of such copyright society is mandatory in character. Sub-Section (2) of Section 33 provides for that 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 Copyrights who shall submit the application to the Central Government. Sub-Section (3) of Section 33 empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) the making of any entry wrongly omitted to be made in the register, or (b) the expunging of any entry wrongly made in, or remaining on, the register, or (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 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 (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 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 way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 general public." Rules 48. Section 78 of the Act provides for power to make rules. The Central Government in exercise of the said power 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 hereinbelow: "12. Conditions for submission of applications for registration of copyright societies. (1) Any association of persons, whether incorporated or not, comprising seven or more owners of copyright (hereinafter referred to as "the applicant") formed for the purpose of carrying on the business of issuing or granting licences in respect of any cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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." The Forms 49. In terms of the Rules, forms have also been prescribed. Relevant clauses of Form IIA appended to First Schedule to the Copyright Rules, 1958 read as under: "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. 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). 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. (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, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rld Trade Organization Convention. The Berne Convention provides for the protection of literary and artistic works. The relevant provisions whereof are Articles 11, 11bis, which reads as under: "Article 11. (1) Authors of dramatic, dramatico- musical and musical works shall enjoy the exclusive right of 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 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. "Article 11-. (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; (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; (iii) the public communication by loudspeaker or any other analogous instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the four corners of the Act. It is not necessary to dilate more upon these aspects of the matter as the object behind enacting the Act is absolutely clear and explicit. It creates a monopoly in favour of the author. Copyright also creates a monopoly in favour of the copyright society. What requires protection is unlawful reproduction of the author's work by others. It is the long period which encourages the authors to create works of literature, music and art. 54. 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 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." 55. In Copinger and Skone James on Copyright (15th Ed. 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 recording subsists only for 60 years, but as indicated hereinbefore, 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 required to be granted having regard to the various factors stated therein. 60. Section 33 is a special provision which provides for registration of a copyright society. 61. 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 right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows, Background Music-Theatres, Background Music - Cinemas, Background Music- Museums and Art Galleries, Background Music- Ten Pin Bowling Centres/Bowling Alleys, Background Music- Amusement and Pleasure Parks, Background Music - Amusement Arcades, Background Music - Casinos, Background Music - Gymnasiums, Background Music - Swimming Pools. 63. The right of the author of a copyright vis-'-vis the Society, thus, may be exercised in almost all walks of life from the 'Radio Stations' to a small 'Hairdressing Salon'. 64. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? 65. The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefor is to see that the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the International Covenants, the law should have been amended in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reting the constitutional provisions in the light of the international treaties and conventions. 71. Yet again in Indian Handicrafts Emporium and Ors. v. 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. 72. 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 U.P. 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, recently a similar view has been taken in Kapila Hingorani v. State of Bihar (supra) and John Vallamattom and Anr. v. Union of India(supra)." 73. These judgments were referred to in the decision of Liverpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible. 79. This kind of stance is reflected from the decisions in PUCL v. Union of India, [(1997) 3 SCC 433], John Vallamattom 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 U.P., [(1996) 2 SCC 549], C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, [(1996) 8 SCC 525], Apparel Export Promotion Council v. A.K. Chopra, [(1999) 1 SCC 759], Kapila Hingorani vs. State of Bihar [(2003) 6 SCC 1], State of Punjab and Anr. vs. M/s. Devans Modern Breweries and Anr. [2003 (10) SCALE 202] and Liverpool and London S.P. and I Asson. Ltd. vs. M.V. Sea Success I [2003 (10) SCALE 1]. 80. Furthermore, 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 Conventions. Law in Other Countries 81. Reference to laws t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to protection in regard 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. 82. 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 availability of the works. The provisions relating to grant of compulsory license must be viewed having regard to the aforementioned competing rights wherefor an appropriate balance has to be stuck. For the said purpose, we may notice the broad features of the Act. 86. Section 16 of the Act provides that no person shall be entitled 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 section. 87. 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 Section 30 of the Act. 88. The freedom to contract is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety to 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 other functions consistent with the collective control of the owners whose rights it administers. 92. 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 work in circulation. [Section 34A(2)] 93. 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 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 "Distribution Scheme" setting out the procedure for collection and distribution of royalty specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 32 and Section 32A. Rule 11C (4) provides that where there are more applicants 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 compulsory license to such one of the applicants, as in the opinion of the Board, would best serve the interest of the general 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 Copyright Board subject to the limitations contained therein. It cannot be said to be an exception to the general rule in the strict sense of the term as the provisions relating to grant of license by owners of Copyright and compulsory licenses operate in different fields. It may be true that while passing an order for grant of compulsory licenses, the relevant factors as laid down therein 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. Construction of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 condition which is wholly alien or foreign therefor. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. 106. 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 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 ex facie may not have anything to do with sound recording. 107. 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 operating in the same field. Clause (a) refers to publication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the complainant considers reasonable have been used by the Parliament indicate that unreasonable 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. 111. PPL and SCIL might have been called upon the 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 'communicate the work to the public by broadcast" is of significance. 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 authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. We would deal with this provision at some details a little later. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions. Right to Property - Is the Concept Applicable 116. An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-'-vis individuals are also incorporated within the 'multiversity' 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 is quite visible from the judgment of Beaulane properties Ltd. v. Palmer [2005 EWHC 817(Ch.)] and J. A. Pye (Oxford) Ltd. v. Graham [(2002) 3 ALL ER 865]. 117. This Court recognized need of incorporating the same principle for invoking the rule of strict construction in such matters in P.T. 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 property out of continuous and willful neglect but also on account of posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Copyright Law' (2nd Edn) by J.A.L. Sterling). 124. 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 to Rule 11A and Form IIA 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. 11. Means of the applicant for payment of the royalty" 125. 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 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 compensation, other terms and conditions can also be imposed. The compensation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n therefor may be resorted to. 131. In New India Assurance Company Ltd. v. Nusli Neville 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 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 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)." 132. 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 Construction in Barak's words: "Hart and Sachs also appear to treat 'purpose' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore must be held that sub-Section (2) of Section 31 is relatively directed to clause (a) and not clause (b). 136. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and ORS. v. Union of India and ORS. [1993 Supp. (1) SCC 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, 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 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 out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. vs. Maitra [(1998) Fleet Street Reports 749 at 770-773]. The general 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 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: "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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