In July last year we had carried a post on a Delhi High Court judgment which held that Copyright Societies had no right to sue on behalf of their members. It just came to our knowledge that this judgment was over-ruled by a Division Bench of the Delhi High Court on 3rd November, 2008. Strangely though this judgment has not been reported either by Manupatra or PTC. The good news however is that the Delhi High Court website has started hosting copies of all its judgments in a PDF format and unlike the bad old days these judgments have absolutely no typographical errors. The judgment of the appellate court in the case of PPL v. Hotel Gold Regency & Ors. (RFA(OS) No. 57 & 58 of 2008) can be accessed over here.
In July the Single Judge had returned a plaint filed by PPL, a copyright society, on the grounds that (i) Only a copyright owner or an exclusive licencee could institute a suit for copyright infringement under the Copyright Act & (ii) A copyright society could only administer the rights of its members and the Copyright Act did not allow for a copyright society to sue on behalf of its members.
In coming to these conclusions the Single Judge has interpreted the Copyright Act to hold that a copyright society can never be an exclusive licensee because of the proviso to Section 33(1) which states that “an owner of copyright shall, in his individual capacity, continue to have the right to grant licenses in respect of his own works consistent with his obligation as a member of the registered copyright society”. Therefore as per the Single Judge since the Copyright Act did not allow for any Copyright Society to be an exclusive licencee there was no question of any Copyright Society instituting a suit for copyright infringment since as per the Act only an exclusive licencee or the owner of the Copyright Act could insitute such a proceeding.
The Division Bench comprising of Justice Kaul & Justice Garg have given the Copyright Act a wonderfully purposive interpretation so as to come to the conclusion that Copyright Societies did indeed have a right to sue on behalf of their member. The judgment starts of by reasoning that one of the reasons the Single Judge had come to the conclusions in question was for the simple reason that neither of the counsels had brought to the attention of the Single Judge the judgment of the Supreme Court in the case of M/s Entertainment Network (India) Ltd. v. M/s Super Cassette Industries Ltd. 2008 (9) SCALE 69, which had been delivered by the SC after the arguments had been concluded before the Single Judge. In the Entertainment Network (India) Ltd. case the Supreme Court held that Section 34 creates a virtual agency so as to enable the society to act on behalf of the owner and this power to act on behalf of the owner extended to being able to sue infringers on behalf of the copyright owner. In addition to borrowing extensively from the Supreme Court the Division Bench also considered the Statement & Objects of the amendment which stated that one object of the amendment is “to deal more effectively with the infringement of Copyright and related rights”. In light of the Supreme Court judgment in the Entertainment Network case and the Statement of Objects and Reasons, the Division Bench held that the Copyright Societies would have a right to sue on behalf of its members and to state the contrary would mean to give a go-bye to the principles of agency under the Indian Contract Act, 1872.
So far the judgment of the Division Bench was spot on. However in my opinon they have not dealt with the primary point in detail i.e. can a copyright society sue even if they are not an exclusive licencee? There is a reason that the Copyright Act vests the right to sue in only the owner and hte exclusive licencee. The reason for not extending this right to mere licencees is that it would vest in multiple parties the right to sue for the same copyright. If the right to sue is extended to even mere licnecees then in that case there would be total chaos because there would be a multiplicity of proceedings. It is therefore important to vest the right to sue in only one person and not more. This in my opinion is the logic behind Section 55 of the Copyright Act. In the case at hand the Single Judge had noted that PPL had admitted that they were not exclusive licencees. The Division Bench however has not touched on this matter and instead dodged it by holding that it could be decided at trial and not at the preliminary stage.