|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4196-4197 OF 2012
(Arising out of SLP(C)Nos.26581-26582 of 2011)
1 Super Cassettes Industries Ltd. … Appellant
Vs.
2 Music Broadcast Pvt. Ltd. … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. The 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
hereinbelow :
“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
general public.”
3. However, in order to consider the said question, it is necessary to
set out some of the facts giving rise to the said question.
4. These 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.
5. Appearing 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., hereinafter
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.
6. Pursuant 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 a
party 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 25th
March, 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.
7. Super 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 agreement. 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.
8. Mr. 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.
9. Mr. 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.
10. It 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.
11. Mr. 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.
12. Mr. 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 31
of 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. Learned counsel 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.
13. In 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 were
called 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.
14. Mr. 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.”
15. Reference 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 the
1994 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 of
election.
16. Mr. 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.
17. Mr. 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.
18. Mr. 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 Section
41(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 Copyright Board.
19. Mr. 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 such
powers.
20. Mr. 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.
21. Mr. 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.
22. Mr. 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.
23. Dr. 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.
24. Dr. 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
said Section.
25. Dr. 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.
26. Dr. 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 Section
12, 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.
27. Dr. 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.
28. Dr. 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 Section
52(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 Act, 1914.
29. In 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 justice. 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], wherein
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.
30. Dr. 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.
31. Mr. 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 is
concerned.
32. Mr. 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 interest. 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.
33. Mrs. 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.
34. Mr. 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. Salve
urged 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.
35. Replying 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.
36. Mr. 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 hereinbelow :-
“116. Section 31(1)(b) in fact does not create an entitlement in
favour of an individual broadcaster. 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 be
set aside and that of the Copyright Board was liable to be restored.
37. What 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 12
enumerates the powers and procedure of the Board and is extracted
hereinbelow :-
“12.Powers and procedure of Copyright Board. – (1) 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).
(2) 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.]
(3) 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.]
(4) 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.
(5) 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.
(6) 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.
(7) 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 Penal
Code. The provisions clearly indicate that the Copyright Board discharges
quasi-judicial functions, which as indicated in Sections 19-A, 31, 31-A, 32
and 52, requires the Board to decide disputes in respect of matters arising
therefrom. 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 extracted hereinabove.
38. Elaborate 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 an
application.
39. As 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.
40. Even 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.
41. On 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.
42. In the instant case, the power being sought to be attributed to the
Copyright Board involves the grant of the final relief, which is the only
relief contemplated under Section 31 of the Copyright Act. Even in matters
under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil
Procedure, an interim relief granting the final relief should be given
after exercise of great caution and in rare and exceptional cases. In the
instant case, such a power is not even vested in the Copyright Board and
hence the question of granting interim relief by grant of an interim
compulsory licence cannot, in our view, arise. Mr. Salve’s submission that
the substratum of the scheme of Section 31 is commercial in nature and only
involves computation of the charges to be paid to the holder of the
copyright who withholds the same from the public, is no answer to the
proposition that under Section 31 only an ultimate relief by way of grant
of a licence on payment of reasonable charges to the copyright owner to
publish and/or broadcast the work could be given. To grant an interim
compulsory licence during the stay of the proceedings would amount to
granting the final relief at the interim stage, although the power to grant
such relief has not been vested in the Board.
43. It is no doubt true, that Tribunals discharging quasi-judicial
functions and having the trappings of a Court, are generally considered to
be vested with incidental and ancillary powers to discharge their
functions, but that cannot surely mean that in the absence of any provision
to the contrary, such Tribunal would have the power to grant at the interim
stage the final relief which it could grant.
44. As 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.
45. In the aforesaid circumstances, we have no hesitation in allowing the
appeals and setting aside the impugned judgment and order of the Division
Bench of the High Court. The Appeals are, accordingly, allowed. There
will be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
……………………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated:04.05.2012
NON-REPORTABLE
IN THE SUPREME COUR OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4196-4197 OF 2012
[@ SLP (CIVIL) NOS.26581-26582 OF 2011]
Super Cassettes Industries Ltd. ….Appellant
Versus
Music Broadcast Pvt. Ltd. ….Respondent
J U D G M E N T
Chelameswar, J.
Though, I agree with the conclusion reached by my learned
brother Justice Kabir, I wish to add a few lines.
2. To 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.
3. In 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.
4. In the context of Courts adjudicating civil disputes, the
jurisdiction and powers necessary to effectively exercise the jurisdiction,
such as, securing the presence of defendants / respondents or witnesses,
granting of interim orders etc., and the method and manner of enforcement
of a decision or a decree, are matters elaborately dealt by the Code of
Civil Procedure. Similarly, the Code of Criminal Procedure contains
provisions necessary for the exercise of the jurisdiction of the Criminal
Courts. While the Code of Civil Procedure, under Section 151, recognises
the existence of inherent powers in all Civil Courts, the Code of Criminal
Procedure recognises all such inherent powers only in the High Court under
Section 482.
5. Therefore, the jurisdiction and authority of not only the
Tribunals, but also the Courts are structured by the statutory grants and
limitations.
6. However, 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.
7. The 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 individuals.
8. Take 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.
9. Therefore, 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.
10. For deciding the question whether the Copyright Board,
exercising the jurisdiction under Section 31 of the Copyright Act, can
grant ad hoc compulsory licence by an interim order pending the
adjudication of the issue, is required to be examined.
11. Copyright in a “work”, undoubtedly, is a valuable legal right
subsisting in the “owner” or somebody claiming through the owner. Such a
right has more than one dimension. It may have a commercial value
depending upon the quality, nature and the public demand of the work. It
may also have aesthetic value. Whether such a right should be transferred
or not is a matter, essentially, for the “owner” of the copyright to
determine. It is, further, the right of the owner to decide on what terms
and conditions (which need not necessarily be related to money alone), he
would part with the copyright of his work if ever he decides to part with
it. However, Section 31 of the Copyright Act creates an exception to the
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.
12. The core of Section 31 is that the owner of a copyright has;
(1) either refused to “republish” or “allow the republication” of his work
or “refused to allow the performance in public” of the work; (2) by reason
of such refusal the work is withheld from the public; and (3) the grounds
for such refusal are not reasonable. It is in the 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.
13. As can be seen, the appellants are interested in the commercial
exploitation of a work, of which they are not “owners” of the copyright.
To succeed in their claim for a compulsory licence in their favour, they
must, firstly, establish that “the work is withheld from the public”,
because of the “owner’s” refusal to republish the work, etc.; secondly, the
owner’s refusal is on grounds, which are “not reasonable” in law. Whether
the owner is withholding the republication on grounds, which are
unreasonable or not, is a question, which can only be decided upon
affording a complete hearing to the owner of the work, as I have already
indicated the reason for withholding need not only be monetary. Take for
example the case of a book or a cinematograph film, such as, Satanic Verses
or Da Vinci Code, which have created quite some commotion in certain
quarters including the security threat to the author or owner of the work.
If the author, on realising that repeated publication of the work might
endanger his security, declines or refuses republication of the work, it
cannot be said that the author (owner) unreasonably withheld republication.
Such a refusal has nothing to do with the monetary considerations.
Therefore, by conceding a power to grant ad hoc compulsory licence during
the pendency of the proceeding, under Section 31, would not only render the
final inquiry into the question, a futile exercise in a case where the
owner has reasons other than inadequacy of monetory compensation. The
power under Section 31 to grant a compulsory licence meant for avoiding the
withholding of the republication or refuse to allow the performance in
pubic of some “work” - is, essentially, for the benefit of the public.
Commercial benefit to “publisher” is incidental. Unless, it is
demonstrated that failure to imply such power to direct immediate
republication or performance of a work in public would be detrimental to
public interest, the power to grant ad hoc compulsory licence, cannot be
implied. No such detriment is demonstrated. In the absence of an express
statutory grant, I would not imply the power to grant an ad hoc compulsory
licence by way of interim order by the Copyright Board.
………………………………….J.
( J. CHELAMESWAR )
New Delhi;
MAY 4, 2012.
