Copyright

Copyright Compulsory Licensing Disputes: Copyright Board lacks Jurisdiction


In this post, I will cover two decisions that deal with the question of whether the Copyright Board has the power to grant an interim compulsory license based on interim royalty rates.

In this case of Reliance Broadcast Network Limited v. Super Cassettes Industries Limited, the applicant (Reliance) filed an application on 9th November, 2011 under S.31(b) of the Copyright Act for grant of compulsory license. The applicant demanded an interim order to be allowed to broadcast the songs, based on royalty rates deemed by the applicant to be reasonable.

What does Section 31 of the Act deal with?

Section 31(b) of the Indian Copyright Act deals with compulsory licensing. It states that if an applicant under the section demonstrates that the owner of copyright has refused to grant a license to it for the purpose of broadcasting the same to the public, then the Copyright Board may grant such a license, when a prima facie case is made out.

Arguments of the Applicant (Reliance & Music Broadcast)

The counsel for the applicant rested his arguments on a bare reading of Section 31, indicating that the Copyright Board has the right to direct the grant of such a license and that it has the power to grant interim relief which is ancillary to, and in aid of the final relief.

  1. Reference was made to the order in appeal in the case of Music Choice India v. PPL where the court did not overrule the finding of the single judge of the trial court holding that grant of interim relief by the Copyright Board was permissible, although it did not express as opinion on the matter.
  2. Reliance was also placed on the interpretation of S.125 and S,156(3) of the CrPC to support this view.
  3. Thirdly, reference was made to Section 12 of the Act which permits the Board to regulate its own procedure,
  4. Fourth, Section 74 which grants power to the Board to call for witnesses, much like a civil court
  5. Lastly, Section 72(2) of the Act which uses the phrase ‘final decision or order’ to suggest that orders in the nature of interim orders are also within its contemplation.
Arguments of the Respondent (Super Cassettes Industries Ltd.)

Counsel for the respondent made the following basic arguments in support of the view that the Copyright Board does not have the power to grant an interim compulsory license:

  1. Flowing from the roots of the nature and purpose of copyright, voluntary licensing is the norm and compulsory licensing is merely the exception. As such, there is no indication that interim orders for compulsory licensing were intended under S.31(b) of the Act.
  2. Rebutting the S.12 and S.74 arguments, counsel stated that the powers mentioned therein are limited to features of the Board expressly provided for and cannot be extended to grant of interim orders
  3. Extending the argument above, it was shown that S.52(1)(j) makes an express provision where it was intended to cover cases of interim injunction.
  4. A grant of interim compulsory license would abrogate the pre-existing, statutorily vested rights of the copyright owner.
In the case of SCIL v. Music Broadcast, the facts were almost identical, with the applicant seeking a license at the interim royalty rate of 0.25% to 2% of the net advertisement revenue. The arguments submitted by both parties were also identical to those advanced in the Reliance case.

Final Decision

Based on the above arguments, it was found in both cases that that the Copyright Board does not have the right to venture into the domain of interim compulsory licenses. While making a passing reference to S.95 of the Trademarks Act and the jurisdiction of the IPAB, contrasting it with the power of the copyright Board, it was found that the Copyright Board does not have jurisdiction to provide for interim orders in the matter of compulsory licensing under S.31(1)(b) of the Indian Copyright Act.

We would like to thank Mr. Neel Mason, who served as counsel for the respondent in both cases, for bringing this to our notice and providing us with the orders.

3 comments.

  1. AvatarMohan Vidhani

    With the analogy of Section 95 of Trade Marks Act, which has often been interpreted by IPAB, that it does not have powers to pass interim orders (though in some cases the IPAB has passed the interim orders), the Copyright Board would also have no powers to pass interim order for compulsory license U/S 31(1)(b) of Copyright Act..

    Reply
  2. AvatarAnonymous

    Dear Mr. Mohanty. the blog was a good read and we would appreciate if you could please inform us of the court which pronounced the decision.
    Also the date when reliance filed the petition is mentioned as 11th November 2011 and would require correction
    Thank you

    Reply
  3. AvatarAnonymous

    Can you please provide the exact citation for this case and also Name of the Court which decided it.

    Reply

Leave a Reply

Your email address will not be published.