We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
26 August 2008
In IP law there is an interplay between the interests of creators and inventors and the interests of those who wish to have access to works. Within copyright law, provisions on compulsory licensing exist to fine-tune the interplay between these interests. Whereas the Copyright Act 1957 provides for exclusive rights for copyright owners, there are also provisions that recognize the public’s substantial interest in the availability of the works.
Free-to-air private frequency modulation radio broadcasting is a recent phenomenon in India. The basic content of most radio stations is sound recordings. Radio stations play copyrighted music because of its popularity. The music helps to build an audience that the stations can then offer to advertisers to make a profit. This gives copyright owners the widest possible exposure for their music.
A copyright owner usually grants compulsory licence under the terms of Section 30 of the Copyright Act to exploit copyright and make the work available to the public. The underlying philosophy of the Copyright Act is that the copyright owner is free to enter into voluntary agreements or licences on terms mutually acceptable to the copyright owner and the licensee. The act confers on the copyright owner the exclusive right to perform the various acts enumerated in Section 14 of the Copyright Act. An infringement of copyright occurs if one of these acts is performed without the owner's licence. At the same time, Section 31 of the Copyright Act contains provisions on compulsory licences for works withheld from the public.
The author’s monopoly to distribute, communicate or license the work depends on the accessibility of the work. This was demonstrated in Entertainment Network (India) Limited v Super Cassette Industries Limited (JT 2008(7) SC11).
The appellant was a leading radio broadcaster that applied to the Copyright Board for a compulsory licence for a leading music company’s sound recordings and the right to broadcast the sound recordings on its channel. The appellant was under the mistaken impression that the respondent was represented by PPL, a copyright society which administers the rights of individual copyright owners collectively, and hence was paying royalties for the same to PPL. Super Cassette Industries claimed infringement of its copyright and the matter was brought before the Copyright Board to settle the amount of royalties for future broadcasts. The Copyright Board did not admit oral evidence and ordered for a compulsory licence to be issued. An appeal was filed to the Bombay High Court and then to the Delhi High Court. Eventually, the matter was presented before the Supreme Court.
The Supreme Court refused to lay down the terms of royalty valuation, although it examined the conflicting interests of the parties and concluded that to determine the ‘public interest’, the rights of the copyright holder should be given due importance. Section 31(1)(b) of the Copyright Act does not create an entitlement in favour of an individual broadcaster, but merely allows for the right to approach the board when the terms for grant of licence offer are unreasonable.
The court thus set aside the Copyright Board’s order and remitted the matter for reconsideration on the merits. Holding that each case must be considered on its own facts, the Supreme Court considered all the facts equally to ensure there was no misuse of legal provisions under the guise of enforcing public interest. The court held that the legislative intent was to treat works that are 'withheld from the public' differently from the 'right to broadcast' works, thus a purposive construction was warranted.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.