PHONOGRAPHIC PERFORMANCE LTD Vs. MUSIC BROADCAST P LTD

JUDGEMENT

(1.) ALL these appeals challenge the same judgment of the Copyright Board at Hydrabad dated 19th november, 2002. These appeal have been filed under sub-section (7) of Section 72 of the copyright Act; 1957 (hereinafter referred to as the "act") The order dated 19-11-2392 has been passed by the Copyright Board under Section 31 of the Act. It appears that the Government off India, in the year 1999, invited tenders for the purpose of granting licence for providing private FM broadcasting services in 40 cities. The complainants before the Copyright Board have been granted licence by the Government for establishing fm broadcasting services in various cities. It appears that these organisations which were granted licences for establishing FM Broadcasting services approached M/s. Phonographic Performance ltd. (Hereinafter referred to PPL for the sake of brevity), which holds copyright in sound recording for grant of licence. But the terms or rate demanded by PPL were not acceptable to the persons who were granted licences by the Government for setting up private broadcasting services. (These persons hereinafter referred to as the "complainants" for the sake of brevity), and therefore, the complainants presented their complaints under Section 31 of the Act before the copyright Board. It appears that the complainant m/s. Music Broadcast Pvt. Ltd. , which is operating a radio broadcasting station at Bangalore and some other places had instituted a suit in this Court, being Suit No. 2138 of 2001. In that suit an interim order was passed by this Court. As a result at whish the Plaintiff in that suit was granted right to broadcast sound recording in which the PPL had copyright. The complainant M/s. Entertainment network (India) Ltd. was allotted time slot on All india Radio at Mumbai and Delhi sometime in 1993. A dispute arose between the complainant m/s. Entertainment Network (India) Ltd. and PPL. Therefore, PPL filed a suit being suit No. 304 of 1993 in the Calcutta High Court. Before the calcutta High Court, a settlement was reached between the parties and that suit was disposed of in terms of the consent terms, which were filed. The scheme to which the settlement related admittedly is no longer in existence. The complainant M/s. Entertainment Netword (India)Pvt. Ltd. has also been granted licence by the central Government for setting up a private FM broadcasting Services in 12 cities including calcutta, Chennai, Mumbai, Delhi and Hydrabad. As PPL refused to grant licence to all the six complainants, six complainants were filed before the Copyright Board. Complaint No. 1 of 2000 was filed by M/s. Music Broadcast Pvt. Ltd. Complaint no. 2 of 2002 was filed by M/s. Entertainment Netword (India) Pvt. Ltd. , Complaint No. 3 of 2002 was filed by Ms. Millennium Chennai Broadcast Pvt. Ltd. , complaint No. 4 of 2002 was filed by Millennium mumbai Broadcast Pvt. Ltd. , Complaint No. 5 of 2002 was filed by M/s. Millennium Delhi Broadcast pvt. Ltd. and Complaint No. 6 of 2002 was filed by m/s. Radio Mid Day West (India) Ltd. To all these complaints PPL was joined as Defendant. As observed above all the six complaints Mere filed under section 31 of the Act for grant of compulsory licence for broadcasting sound recording in which the PPL has copyright, as according to the complainants PPL has refused to grant licence to the complainants on terms Mhich the complainants consider reasonable. The matter was heard by the copyright Board. It appears that before the copyright Board the Defendant PPL raised an objection to the jurisdiction of the Copyright board to entertain these complainants mainly on the ground that the sound recording for the broadcast of which compulsory licence was sought from the copyright Board have not been withheld from the public by the PPL, in as much as, licence in relation to these sound recording has been granted by the PPL to All India Radio. Both the parties placed material which according to them was relevant for fixing the compensation payable to the ppl for grant of licence. The Copyright Board passed an order dated 19-12-2932. The Copyright board overruled the objection raised by the PPL to its jurisdiction to entertain the complaint. In so far as fixation of the amount of compensation is concerned, the Copyright Board rejected the material produced by the complainants for determination of the compensation. However, it held that it has power to fix the amount of compensation according to its own valued judgment and proceeded to fix the amount of compensation. The Copyright board also directed the parties to produce further material before it, so that after considering that material the Copyright Board can make a further order. All the complainants before Copyright Board as also PPL felt aggrieved by the order passed by the Copyright Board. Therefore, all the complainants and the PPL have filed these appeals challenging that order.

(2.) WE have heard the learned Counsel appearing for the complainants as also the learned Counsel appearing for PPL at length. Both the parties have also submitted their written submissions. From the oral and the written submissions submitted by the parties following points arise for consideration:-

(3.) THE learned Counsel for the complainants submits that the provisions of Section 31 of the act are required to be construed by taking into consideration the entire scheme of the Act and that the Section cannot be construed in isolation. It is submitted that general principle on which copyright is recognised is reflected in Article 27 of the Universal Declaration of Humanrights. It is submitted that the provision in Section 31 for grant of compulsory licence is based on the principals incorporated in Article 27 of the universal Declaration of Humanrights. It is submitted that compulsory licence is provided to ensure that the members of the public are not deprived of the enjoyment of the copyright work. At the same time rights of the owner of the copyright can not be put in jeopardy and the scheme of the act is that a compulsory licence is granted only when such work is withheld from the public. It is submitted that provisions of Section 51 (1) (a) and section 31 (1) (b) are to be read together so that the requirement of the work being withheld from public is made applicable even to compulsory licence for broadcast of a sound recording. It is submitted that the object of compulsory licence is not to ensure that middle men like the complainants are able to make use of the copyrighted work. The object of the provisions is to make minimum inroad on the absolute right of the copyright owner, and therefore, a provision has been made for grant of compulsory licence only in case the work hat been withheld from the public. It is submitted that if the exploitation of the work in a particular mode has already taken place and licence in respect of that exploitation is already granted then second licence is not intended to be granted by way of a compulsory licence to exploit that work in that mode. It is submitted that since the sound recording in relation to which the dispute relates is already broadcast by All India Radio pursuant to a licence granted by PPL) which haw a wider reach, it cannot be said that the sound recording has been withheld from the public and therefore, there is no question of grant of any compulsory licence. Relying on the judgment of the Supreme Court in the case of London Rubber Co. v/s. Durex reported in air 1963 SC 1982. it is submitted that the placement of particular words at a particular place in a stature is not decisive. What is to be considered is the intention of the legislature and the provision has to be construed to give effect to the intention of the legislature.