Bombay High Court declines to hear interim CL applications; shows the Appellant the way to the Copyright Board

In a concise 28 page Order dated 22nd January, 2010, a Division Bench of the Bombay High Court in the case of Music Choice India Pvt. Ltd. v. Phonographic Performance Ltd. has turned down the appeal of the appellant radio station to grant interim relief until such time that the Copyright Board heard and decided it Compulsory Licensing (CL) application.

The radio station Appellant had filed a CL application with the Copyright Board back in 2007 after several rounds of failed negotiations with the Respondent Copyright Society. Although the facts aren’t exactly clear, it appears that the radio station appellant was frustrated with the Copyright Board not deciding on its application because of which it approached the district court for declaratory judgment stating that it was entitled to broadcast music pending adjudication of the dispute. The Appellants had even stated that they were ready to pay a fixed royalty to the Respondents for the time being. The Appellants had also prayed for an injunction restraining the Respondents from interfering with their business of broadcasting.

The main argument forwarded by the Appellant was that the Supreme Court in the landmark CL case – Entertainment Network of India Ltd. v. Super Cassette Industries Ltd. had recognized the right of broadcasters to broadcast copyrighted works under a compulsory licence. In pertinent part the Appellant depended on the following extract from the SC judgment:

This scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to 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 license as also the terms on which such license can be granted…….

The Respondents however opposed the jurisdiction of an ordinary civil court to entertain such a suit since the same was barred by Section 9 of the Code of Civil Procedure. Section 9 of the CPC prohibits civil courts from entertaining any suit if the same has been prohibited either expressely or impliedly by any other statute. In this case since the Copyright Act expressely vested the adjudication of Compulsory Licensing disputes with the Copyright Board it could be argued convincingly that a Civil Court was impliedly barred from entertaining such a suit.

The Division Bench agreed with the Respondents contentions and stated that the Appellants could not attempt to short circuit the procedure established by the statute by approaching civil courts when only the Copyright Board is vested with the jurisdiction to entertain the same. The Division Bench however was careful to state that it was not making any comments on the powers of the Copyright Board to grant interim compulsory licences.

It would be interesting to see whether the radio station in question could approach the, now-functioning, Competition Commission and claim relief on the grounds that the Respondent has abused its dominant position.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

One comment.

  1. AvatarAnonymous

    Wouldn’t the rationale of DB be applicable in the case of determining whether a parallel/exclusive proceeding lies to the Competition Commission too…i am not aware of a parallel to Section 9…but was just thinking in terms of basic legislative intent…i.e if they have a specialised body (copyright board) to adjudicate on the reasonability of royalty rates ( or in other words when it is necessary to issue compulsory licenses), isn’t it only logical that this body should be the forum of first instance vis-a-vis disputes of this specific nature?

    Having said this i do believe there should be some directive to the Copyright Board for speedy disposal of dispute pending before it.

    And also one more you think approaching a different quasi judicial body..competition commission as opposed to copyright board..will ensure that proceedings move faster?


Leave a Reply

Your email address will not be published.