In January this year, the Delhi High Court considered a matter between the Phonographic Performance Ltd. (‘PPL’) and the Union of India. The issue in the case was whether the Registrar of Copyrights (Respondent No.2) has the power to grant licences over and above those directed by the Copyright Board. The Delhi High Court did not decide this issue as it observed that the petitioners had challenged the very decision of the Copyright Board before the Madras High Court and therefore deciding this issue, in the present case, was moot.
PPL is registered as a Copyright Society (under Section 33 of the Copyright Act). Members of PPL (who are the authors/owners of copyright in various sound recordings) authorize PPL to license and administer their copyrights in these sound recordings to third parties.
Respondent No. 3 is a radio broadcasting company, which uses the brand name ‘Radio City FM 91.1’. Under the Phase I Policy, the Government of India granted respondent no. 3 a license for its radio stations at Bangalore, Mumbai, Delhi, Lucknow, Patna and Nagpur. Thereafter, respondent no. 3 made an application to the Copyright Board for the grant of a compulsory license under Section 31(1)(b) in relation to PPL’s entire repertoire. After challenging the interim rate fixed by the Copyright Board before the Bombay HC and Supreme Court, the matter was remitted back to the Copyright Board for determination. In 2010, the Copyright Board by its order dated 25.08.2010 allowed the application, fixed compensation and directed the Registrar of Copyright to issue compulsory licences to respondent No. 3. The Registrar not only granted compulsory licences for the 6 FM radio stations and cities but also granted an additional 15 compulsory licences, which are the subject matter of W.P.(C) No. 8144/2011. Meanwhile, in 2005, respondent no. 3 had secured more licenses from the government in relation to new radio stations in various other cities, under the Phase II Policy. A week after the Copyright Board’s decision on 25.8.2010, the Registrar issued 6 new compulsory licenses in favour of respondent no. 3 in relation to these new radio stations, which is the subject matter of In W.P.(C) No. 7724/2011.
The issue raised in both petitions was whether the Registrar of Copyrights has the power to grant licences over and above those directed by the Copyright Board.
- No alternate remedy: Granting of additional licences by the Registrar was argued to be an administrative/ministerial act from which no appeal could like before the Copyright Board as per Section 72(1). Therefore, a writ petition was the only remedy.
- The Registrar of Copyright is required to perform ministerial functions under the direction of the Copyright Board (as per section 11(4)). Thus, it is outside the scope of jurisdiction or authority of the Registrar to grant any licence beyond what was sought for, and adjudicated upon, by the Copyright Board.
- As per Section 31 read with Rule 26(1), Copyright Rules, 1958, the Registrar of Copyright can grant licences as directed by the Copyright Board on payment of certain fees. In this case, fees were contended to be calculated at Rs. 200 per work (Schedule II of Rules). Therefore, the petitioners claimed that a fee of Rs.200/- is to be paid per sound recording in the repertoire of the petitioners (since the respondents have asked for the ‘entire’ repertoire of the petitioner). However, the same had not been paid by respondent No. 3.
- The petitioners argued that their case was not hit by laches as they had opposed the issuance of extra licenses before the Registrar and the Bombay HC in 2010 and 2011.
Respondent no. 3’s contentions:
- It was argued that a compulsory license granted under Section 31 is granted to a particular entity (i.e. the applicant) and in given in relation to the repertoire of the petitioner. Therefore, it is not limited to a particular city. Moreover, the reposdent did not mention the names of its radio stations/cities in its initial application since at that time it did not have a license from the government to operate in those cities. Additionally, the order of the Copyright Board dated 25.8.2010 did not limit the number of radio stations for which a licence may be issued to respondent no. 3.
- It was submitted that the writ petition is not maintainable because of the existence of an alternate and efficacious remedy available to the petitioners under Section 72 of the Copyright Act. Since the petitioner delayed in filing this appeal (time limit is 3 months) they have deliberately filed these petitions before this Court.
- The petitioner has entered into twenty Voluntary Licence Agreements for twenty Radio Stations with respondent No. 3 and has agreed to be bound by the order passed by the Copyright Board, i.e., order dated 25.08.2010, which now precludes the petitioners from challenging the licences issued by the Registrar.
- On the issue of calculation of license fees, the government argued that Rs. 200 per work meant Rs. 200 per Station filed by the applicant. So, if the broadcaster wanted a license for 20 stations then the licence fee would be Rs. 200 per station and not ‘per work per song’.
The court held “Since petitioners have challenged the order dated 25.08.2010 passed by the Copyright Board before the High Court of Madras and in case the petitioners succeed therein, then, that decision qua the licences issued by the respondent No.2 vide its orders dated 03.09.2010 and 16.09.2010 would be applicable.” It also observed the following:
- The court in para 62 observed that a compulsory licence is granted for the works in the petitioner’s repertoire to a particular entity (the applicant). Thus, the same is not limited to any particular city.
- The court also held that since the order/decision of the Registrar was final, an appeal should have been preferred to the Copyright Board as per Section 72. The case of R.P.Khosla & Anr. was cited to hold that even if the Registrar’s orders are administrative orders they are subject to the appeal.
- The Voluntary Licence Agreements clarified that the final order of the tribunal, i.e., Copyright Board, would be adhered to and complied with by both the parties
- On calculation of fees, the court held that a fee of Rs.200/- is to be paid per sound recording in the repertoire of the petitioner and that respondent No. 3 has not paid the prescribed fee for the compulsory licences granted by the impugned order for any of its Radio Stations.