In a decision dated 3rd May, 2012, a bench of three judges of the Supreme Court overruled a Division Bench order of the Delhi High Court which had held that the Copyright Board had the power to grant interim compulsory licences under Section 31.
The order of the Supreme Court can be accessed over here on the Indian Kanoon website and Mathew’s post on the earlier order of the Delhi High Court can be accessed over here.
Radio stations have long been attempting to secure interim compulsory licences from the Copyright Board, for sound recordings owned by PPL, SCIL etc. In 2010, we had blogged about this one case before the Bombay High Court where a radio station had attempted to get an interim CL from the Copyright Board by filing a suit for declaratory judgment before a district court. In that case the Bombay High Court ruled against the radio stations and upheld the decision of the district court that only the Copyright Board could decide matters under Section 31 of the Copyright Act. In the last two years there have been at least two cases before the Delhi High Court, including the present case which was ruled on by the Supreme Court.
The reason for radio stations desperately trying to secure interim compulsory licences, is the fact that the Copyright Board can take years before delivering a final order. In the meanwhile, the radio stations will have to pay out the royalties demanded by music owners. As we’ve seen from the August, 2010 order of the Copyright Board, there can be a huge difference in the royalties demanded by music owners and the royalties fixed by the Board.
In its judgment the Supreme Court disagrees with the Delhi High Court’s conclusion that the Copyright Board could grant interim CL even though the legislation was silent on this aspect. The Delhi High Court had ruled that since the Copyright Board could grant a CL, it would have the implied powers to grant all ancillary and interim reliefs. The Supreme Court however categorically stated that a Copyright Board could not grant interim relief unless the legislation specifically provided the Board with such a power.
The Supreme Court judgment will be rendered infructuous, to a large extent, once Parliament passes the Copyright (Amendment) Bill, 2010 since Clause 19 of this Bill seeks to introduce a Section 33A in the legislation granting the Copyright Board powers to fix an interim tariff in any dispute over the tariff scheme notified by the Copyright Society. This amendment however would not apply in the present case since SCIL is not a copyright society but a private company.