Justice Riyaz Chagla said, “Prima facie, I find that there is much merit in the submission on behalf of PPL and Novex that the suits have been filed against the Defendants who are rank infringers” who failed to obtain a license for the musical works they were exploiting.The HC Judge stated, “In my considered view, particularly when the granting of licenses is done by the copyright owner. The term ‘business’ would include the granting of licenses.”
The Copyright Act under section 30 provides for licensing of copyright by owners of copyright. It says, “The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing by him or by his duly authorized agent.”
The disputes filed by PPL and Novex were whether they are exclusive owners of the copyright and whether they have a right to prevent infringement of their exclusive copyright. Justice Chagla said such assertion of right would be “irrespective of whether or not there is a bar under Section 33(1) of the Act preventing them from carrying on business of issuing licenses of their copyright.”
If it is ultimately held that PPL and Novex are the exclusive copyright owners, then it follows that the Defendants must be prevented from infringing on the copyright, as stated in the HC judgment.
Novex and PPL had filed suits via Dua Associates and advocate D P Singh respectively against Trade Wings Hotels Ltd, a lounge bar Bungalow 9, and 99 others. The two owned copyright to a large number of songs which these bars and hotels were playing without first obtaining a requisite license from them. These establishments cannot carry on the business of issuing licenses without being registered as a Copyright Society under Section 33(1) of the Copyright Act, 1957; thus, the suit as filed will not entitle PPL and Novex to any kind of relief.
Thus, the issue which falls for determination prior to going into the merits of each of the above suits, is whether PPL and Novex in the above suits are entitled to seek reliefs as sought for in the plaint without being registered as a Copyright Society under Section 33(1) of the Act.
Senior counsel Darius Khambata, representing Novex Communications, made detailed submissions before Justice Chagla on the structure of the Copyright Act, noting how it is divided into various chapters, each dealing with a different topic. He referred to the meaning of the term “Copyright” and the rights associated with it covered in Chapter III of the Act, under Section 14. This defines a copyright to mean the exclusive right to reproduce a literary, dramatic, or musical work in any material form including storing by electronic means, to make copies of such a work, to perform it in public, and in the case of a sound recording, it includes the right to sell or give on commercial rentals or to communicate the sound recording to the public.
The rights of the owner of copyright and its associate rights are covered in Chapter IV of the Act. Ownership of the copyright can be acquired in 4 broad ways. These include—By the author himself, being the first owner under Section 17; Situations in which the author creates a work in the course of his employment for the benefit or on behalf of someone else, also under Section 17; Through an assignment under Sections 18 and 19; and Through testamentary disposition under Section 20. Khambata said these “categories confer full and absolute ownership on the author/owner/assignee, as the case may be. Thus, the owner of the copyright could be an assignee.” His argument and that of senior counsel Ravi Kadam for PPL was that all rights available to an owner are also available to an assignee.
The hotels and restaurants termed PPL and Novex as “Aggregators.” Justice Chagla, after hearing senior counsel Virendra Tulzapurkar for the defendants, said, “It appears from Dr. Tulzapurkar’s argument on behalf of the Defendant that a distinction has been drawn between granting individual licenses by the owner and carrying on the business of granting licenses by the owner, which makes Section 33(1) applicable. I find no merit in this argument, particularly in view of the aforementioned findings that Section 30 of the Act confers the power on the owner to grant any interest in the copyright by license which in my view would encompass an owner carrying on the business of granting licenses in respect of works in which he has copyright. Thus, there would be no fetter on the owners’ rights under Section 30 of the Act by Section 33(1)
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