New Delhi: Super Cassettes Industries Ltd and Phonographic Performance Ltd have filed separate petitions before the Supreme Court seeking a review of its May decision in a case against the owner of Radio Mirchi that was seen as favouring public interest against the intellectual property right of a copyright holder.
Super owns the T-Series brand of music cassettes and ranks among the largest holders of copyrighted audio-vis-ual, sound recording and musical work in India. It has also granted a voluntary licence to various FM radio channels such as Music Broadcast Pvt. Ltd’s Radio City and the government-run All India Radio to broadcast its music.
Super is not a member of Phonographic, which is a copyright society that collects royalties on behalf of the music industry. Phonographic’s members include Universal, Tips , Venus, Virgin and Sony Music(India).
In April 2002, Super served a legal notice asking Radio Mirchi’s parent Entertainment Networks (India) Ltd (Enil), a majority-owned subsidary of Bennett, Coleman and Co. Ltd, to desist from broadcasting its sound recordings without a valid licence or payment of royalty, and claimed damages of Rs50 lakh. HT Media Ltd, which publishes Mint, also runs Fever 104 that competes with Radio Mirchi.
Enil maintained during the proceedings that it was under the belief that the copyrighted music owned by Super was part of Phonographic. Enil had been paying Phonographic a royalty at the rate of Rs400 per needle hour since 2001.
In 2003, Enil filed an application before the Copyright Board in New Delhi and succeeded in gaining a compulsory licence for copyrighted music owned by Super as per the 1957 copyright Act.
A compulsory licence is an exception to copyright law and forces a copyright holder to let others use the work, usually on payment of a royalty or fee.
Super then challenged the move before the Delhi high court, which, in turn, asked the Copyright Board to take up the issue and asked Enil to file an undertaking that it would not broadcast sound recordings belonging to Super.
Aggrieved by this, Enil approached the apex court in 2005 with a verdict of the Bombay high court. While the Delhi high court decision dealt with the grant of a compulsory licence of copyrighted work owned by Super, the Bombay high court verdict related to a compulsory licence sought by Enil and other radio stations with regard to copyrighted sound recordings owned Phonographic members.
Unlike the Delhi court decision, the Bombay court permitted the grant of a compulsory licence to Enil and others with regard to copyrighted music owned by members of Phonographic on payment of a reasonable sum.
In May, the apex court ruled that the Copyright Board had the jurisdiction to entertain complaints against copyright owners by individuals seeking compulsory licences. This, in effect, allows Enil to approach the Copyright Board for a compulsory licence.
According to Saikrishna Rajagopal, partner at law firm Saikrishna and Associates, Section 31 of the Copyright Act of 1957 envisages two situations that allow a party to approach the Copyright Board of a compulsory licence.
First, he says, is where the copyright owner withholds work from the public by not exploiting the copyright and also disallowing others to do so. Second, where the copyright owner has refused another from publishing or broadcasting the material on terms that the applicant for a compulsory licence considers unreasonable.
The apex court’s May judgement “has the potential of making an exclusive licence granted...meaningless, since it would be open for other potential users of music to approach the Copyright Board seeking a compulsory licence (at substantially lower royalty) for the same music covered under the exclusive licence,” says Rajagopal.