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Cites 26 docs - [View All]
Section 31 in the Copyright Act, 1957
The Amending Act, 1897
Section 2 in the Copyright Act, 1957
the Copyright Act, 1957
Section 31(1) in the Copyright Act, 1957
Citedby 4 docs
M/S Phonographic Performance ... vs M/S Radio Mid Day (West) India Ltd. on 7 April, 2010
Income-Tax Officer vs Poonawala Estate Stud And ... on 11 December, 1992
Super Cassette Industries Ltd. vs Entertainment Network (India) ... on 30 June, 2004
Music Broadcast Pvt. Ltd. vs Axis Bank & Ors. on 9 February, 2016

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Bombay High Court
Phonographic Performance Ltd. vs Music Broadcast (P) Ltd. ... on 13 April, 2004
Equivalent citations: 2004 (29) PTC 282 Bom
Author: D Deshmukh
Bench: D Deshmukh, D Karnik

JUDGMENT D.K. Deshmukh, J.

1. All these appeals challenge the same judgment of the Copyright Board at Hydrabad dated 19th November, 2002. These appeals have been filed under Sub-section (7) of Section 72 of the Copyright Act, 1957 (hereinafter referred to as the "Act"). The order dated 19-11-2002 has been passed by the Copyright Board under Section 31 of the Act. It appears that the Government of India, in the year 1999, invited tenders for the purpose of granting licence for providing private FM broadcasting services in 40 cities. The complainants before the Copyright Board have been granted licence by the Government for establishing FM broadcasting services in various cities. It appears that these organisations which were granted licences for establishing FM Broadcasting Services approached M/s.Phonographic Performance Ltd. (Hereinafter referred to PPL for the sake of brevity), which holds copyright in sound recording for grant of licence. But the terms or rate demanded by PPL were not acceptable to the persons who were granted licences by the Government for setting up private broadcasting services. (These persons hereinafter referred to as the "Complainants" for the sake of brevity), and therefore, the complainants presented their complaints under Section 31 of the Act before the Copyright Board. It appears that the complainant M/s.Music Broadcast Pvt. Ltd., which is operating a radio broadcasting station at Bangalore and some other places had instituted a suit in this Court, being Suit No. 2138 of 2001. In that suit an interim order was passed by this Court. As a result of which the Plaintiff in that suit was granted right to broadcast sound recording in which the PPL had copyright. The complainant M/s. Entertainment Network (India) Ltd. was allotted time slot on All India Radio at Mumbai and Delhi sometime in 1993. A dispute arose between the complainant M/s. Entertainment Network (India) Ltd. and PPL. Therefore, PPL filed a suit being suit No. 304 of 1993 in the Calcutta High Court. Before the Calcutta High Court, a settlement was reached between the parties and that suit was disposed of in terms of the consent terms, which were filed. The scheme to which the settlement related admittedly is no longer in existence. The complainant M/s. Entertainment Netword (India) Pvt. Ltd. has also been granted licence by the Central Government for setting up a private FM broadcasting Services in 12 cities including Calcutta, Chennai, Mumbai, Delhi & Hyderabad. As PPL refused to grant licence to all the six complainants, six complainants were filed before the Copyright Board. Complaint No. 1 of 2000 was filed by M/s. Music Broadcast Pvt. Ltd. Complaint No. 2 of 2002 was filed by M/s. Entertainment Netword (India) Pvt. Ltd., Complaint No. 3 of 2002 was filed by M.S. Millennium Chennai Broadcast Pvt. Ltd., Complaint No. 4 of 2002 was filed by Millennium Mumbai Broadcast Pvt. Ltd., Complaint No. 5 of 2002 was filed by M/s. Millennium Delhi broadcast Pvt. Ltd. and Complaint No. 6 of 2002 was filed by M/s. Radio Mid Day West (India) Ltd. To all theme complaints PPL was joined as Defendant. As observed above all the six complaints were filed under Section 31 of the Act for grant of compulsory licence for broadcasting sound recording in which the PPL has copyright, as according to the complainants PPL has refused to grant licence to the complainants on terms which the complainants consider reasonable. The matter was heard by the Copyright Board. It appears that before the Copyright Board the Defendant PPL raised an objection to the jurisdiction of the Copyright Board to entertain these complainants mainly on the ground that the sound recording for the broadcast Of which compulsory licence was sought from the Copyright Board have not been withheld from the public by the PPL, in as much as, licence in relation to these sound recording has been granted by the PPL to All India Radio. Both the parties placed material which according to them was relevant for fixing the compensation payable to the PPL for grant of licence. The Copyright Board passed an order dated 19-12-2002. The Copyright Board overruled the objection raised by the PPL to its jurisdiction to entertain the complaint. In so far as fixation of the amount of compensation is concerned, the Copyright Board rejected the material produced by the complainants for determination of the compensation. However, it held that it has power to fix the amount of compensation according to its own valued judgment and proceeded to fix the amount of compensation. The Copyright Board also directed the parties to produce further material before it, so that after considering that material the Copyright Board can make a further order. All the complainants before Copyright Board as also PPL felt aggrieved by the order passed by the Copyright Board. Therefore, all the complainants and the PPL have filed these appeals challenging that order.

2. We have heard the learned Counsel appearing for the complainants as also the learned Counsel appearing for PPL at length. Both the parties have also submitted their written submissions. From the oral and the written submissions submitted by the parties following points arise for consideration:-

(i) Whether a complaint for grant of compulsory licence under Section 31 of the Act can be submitted in relation to grant of licence for broadcasting a sound recording which has not been withheld from the public. If it is held that the wound recording has not been withheld from the public, can a complaint be entertained?

(ii) Whether the Copyright Board could have made an order for grant of licence to more than one complainant in relation to same city, in view of the provisions of Sub-section 2 of Section 31 of the Act.

(iii) Whether the Copyright Board was justified in rejecting the entire material produced by the complainants as totally irrelevant for determination of the compensation and fixing the amount of compensation on the basis of their best judgment or a valued judgment.

3. The learned Counsel for the complainants submits that the provisions of Section 31 of the Act are required to be construed by taking into consideration the entire scheme of the Act and that the Section cannot be construed in isolation. It is submitted that general principle on which copyright is recognised is reflected in Article 27 of the Universal Declaration of Humanrights. It is submitted that the provision in Section 31 for grant of compulsory licence is based on the principle incorporated in Article 27 of the Universal Declaration of Human rights. It is submitted that compulsory licence is provided to ensure that the members of the public are not deprived of the enjoyment of the copyright work. At the same time rights of the owner of the copyright can not be put in jeopardy and the scheme of the Act is that a compulsory licence is granted only when such work is withheld from the public. It is submitted that provisions of Section 31(1)(a) and Section 31(1)(b) are to be read together so that the requirement of the work being withheld from public is made applicable even to compulsory licence for broadcast of a sound recording. It is submitted that the object of compulsory licence is not to ensure that middle men like the complainants are able to make use of the copyrighted work. The object of the provisions is to make minimum inroad on the absolute right of the copyright owner, and therefore, a provision has been made for grant of compulsory licence only in case the work has been withheld from the public. It is submitted that if the exploitation of the work in a particular mode has already taken place and licence in respect of that exploitation is already granted then second licence is not intended to be granted by way of a compulsory licence to exploit that work in that mode. It is submitted that since the sound recording in relation to which the dispute relates is already broadcast by All India Radio pursuant to a licence granted by PPL, which has a wider reach, it cannot be said that the sound recording has been withheld from the public and therefore, there is no question of grant of any compulsory licence. Relying on the judgment of the Supreme Court in the case of London Rubber Co. v. Durex, , it is submitted that the placement of particular words at a particular place in a stature is not decisive. What is to be considered is the intention of the legislature and the provision has to be construed to give effect to the intention of the legislature.

4. It is submitted that the public interest that is contemplated by Section 31 is not the interest of the complainants but the interest of the general public. If the members of the general public are not deprived of enjoyment of the copyrighted work, because it is already available in the same mode to the public then there is no question of the public interest requiring grant of compulsory licence in relation to that work. It is submitted that the entire scheme of the Act and Section 31 is to ensure that the members of the public are not deprived of the enjoyment of that work which is previously published or performed. By grant of compulsory licence what is to be protected in the public interest and for that purpose minimum inroad in to be made on the rights of the owner of the copyright. It is submitted that this interpretation of the provisions of Sub-section 1 of Section 31 is borne out from the provisions Sub-section 2 of Section 31, which lay down that when two or more persons have made complaint under Sub-section 1 of Section 31, compulsory licence can be granted to the complainant, who in the opinion of the Copyright Board would best serve the interest of the general public. In support of the submission the learned Counsel refers to the provisions of Bill No. XV of 1955 and the report of the Joint Committee and the amendment brought out by Amending Act, 38 of 1994. It is submitted that Chapter 7 of the Act was substituted by Amending Act 38 of 1994. Under the provisions of Chapter 7 before its amendment in 1994, the rates prescribed by the Copyright Society were required to be approved by the Copyright Board and on a complaint made to the Copyright Board, the Board had the powers to alter the rate fixed by the society. Those provisions have been substituted by the present provisions which have done away with the decision of the Copyright Board in relation to alteration of the rates fixed by the Copyright Society. According to the learned Counsel appearing for PPL this amendment indicates the intention of the Legislature that the Copyright Society is entitled to charge rates which it wants to charge. But the complaint can be made in relation to the rates fixed by the Copyright Society in relation to only such work which has been withheld from the public. It is submitted that if the construction suggested by the complainant is accepted, then as many compulsory licence as are asked for will have to be granted and that will result in distroying the all the rights of the copyright owner and that will defeat the very intention of the Legislature. In support of this submission reliance is placed on the judgment in the case of Hanfastangel v. Empire Palace, reported in (1894) 3 Chancellory 109 at 128 and the judgment of the Indian Performing Right Society Ltd. v. Eastern Indian Motion Picture Association and Ors. . It is further submitted that the provisions of Section 31(1)(b) and Section 31(1)(a) have to be harmoniously construed. It is submitted that if Section 31 is construed to mean that withholding from the public is not a condition precedent to the grant of a compulsory licence for communicating a work by broadcast, it will render the provision unconstitutional. Because broadcast is one of the modes of communication of work to the public and there is no reason why the mode of broadcasting should be treated differently from other modes of communication. Sub-classification of the modes of communication for the purpose of grant of compulsory licence would violate the guarantee of Article 14 of the Constitution of India. The learned Counsel in support of this submission relied on the judgment of the Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh v. Radhakrishnan and Ors. . It is further submitted that had it been the intention of the Legislature that Section 31(2) is applicable to cases covered by Section 31(1)(a), the Legislature would have so provided. It is submitted that insertion of words by court in A statutory provision is contrary to the first principle of interpretation. It is submitted that the provisions of Sub-section (2) applies when there are more than two applicants for identical mode of exploitation for identical area of exploitation. The provisions of Sub-section (2) cannot apply when a compulsory licence is to be granted in relation to different area of exploitation, It is only when the area in identical and when it is sought to be catered by two applicants that the provisions of Sub-section (2) will be applicable. It in submitted that in the present case the complaints are made by two FM Channels for licence to broadcast a sound recording. For example in Mumbai the provisions of Sub-section (2) of Section 31 would be applicable and licence could be granted to only one of the two complainants. The word "interest of general public" appearing in Sub-section 2 of Section 31 would be applicable and licence could be granted to only one of the two complainants. The word "interest of general public" appearing in Sub-section 2 of Section 31 are required to be construed in the context in which the application is made for grant of compulsory licence. It is submitted that in the present case even if it is held that though licence in favour of All India Radio has been granted, the complainant could also be granted licence. As complainants in Complaint Nos. 1, 2, 4 & 6 of 2002 were seeking licences in relation to Mumbai and complainants in Complaint Nos. 2, 4 & 5 were seeking compulsory licence in relation to Delhi and complaints in Complaint Nos. 2 & 3 were seeking compulsory licence in relation to Chennai, only one of them might have been granted a licence and not all as has been done by the Copyright Board. It is submitted that for the purpose of Sub-section 2 of Section 31 what is relevant is interest of the public and not of the applicants. Relying on the following judgments i.e. (i) Colgate Palmolive v. Dr. K.V. Swaminathan, ; (ii) Stround's Judicial Dictionary 6th Edition, page 2119; (iii) Cartwright vs. Post Officer reported in (1969) 2 Q.B. 62, it is submitted that the words "in the general interest of the public" appearing in Section 2 of Section 31 are required to be construed keeping in mind the object of Section 31. It is submitted that the Copyright Board erred in applying the principles of Best Judgment Assessment on the ground that the functions of the Copyright Board are akin to the functions of certain statutory bodies such as the Telecom Regulatory Authority. It is submitted that the functions of the Telecom Regulatory Authority are making recommendations which are not adjudicatory functions. It is submitted that the power of the Copyright Board under Section 31 of the Act is quasi-judicial in nature and in support of this submission reliance is placed on a judgment of the Supreme Court in the case of State of Himachal Pradesh v. Raja Mahindra Pal, , and therefore according to PPL the decision of the Copyright Board on the amount of compensation should be based on the material produced before it and not on the best judgment disregarding the material produced before it. It is submitted that the comparator that was relied on by the Complainants that the rates charged by the PPL to All India Radio, rates settled in a litigation between M/s.Entertainment Netword (India) Pvt. Ltd. and PPL and the rates charged by Indian Performing Rights Society have been rightly rejected as irrelevant by the Copyright Board. According to PPL, once the material that was produced by the complainant for determination of the amount of compensation is rejected by the Copyright Board the only order that Copyright Board could have made was that, in the absence of any material it is not in a position to determine the amount of compensation and therefore it should have rejected the application filed by the complainants. It is submitted that the work of Indian Performing Rights Society's and the work of PPL are different and therefore the rights of Indian Performing Rights Society and the PPL are incapable of being compared.

5. The learned Counsel appearing for the complainant M/s.Music Broadcasting Pvt. Ltd., who is Appellant in First Appeal No. 294 of 2003 submits that copyright is creation of the statute and therefore subject to the limitations imposed upon such rights by the statute itself. In support of this submission reliance is placed on the provisions of Sections 13, 14 & 16 of the Act and the judgment of the Supreme Court in the case of Krishna v. State of Maharashtra (2001) 2 SCC 441. It is submitted that whenever a statute confers a monopoly, which is inherent in the copyright) the monopoly is to be strictly construed and the copyright holder cannot claim any rights larger than those that are conferred by the statute. It is submitted that the provisions of the Copyright Act should not be so construed as to become an instrument of oppression or extortion by the copyright holder. It is submitted that Section 31 carves out an exception to the monopoly created by the Act in favour of the Copyright holder. It is submitted that Section 31(1) is in two parts (i) Where an Indian work has been once published or performed in public) then the owner of the Copyright is not entitled to withhold that work from the public by refusing to publish himself or refusing any other person permission to republish the work or to perform in public that work; (ii) Where an Indian work has been once published or performed in public, the owner of the Copyright cannot refuse permission to broadcast that work to the public or, in the case of a sound recording, to broadcast the work recorded in such sound recording on terms which the Complainant considers reasonable. It is submitted that so far as the provisions of Sub-section (1) of Section 31 are concerned, words of the section are clear, there in no ambiguity in the words nor does the meaning of the plain words lead to any anomaly or absurdity and therefore the Court must give effect to the plain meaning of the words used in the provisions. In support of this submission reliance is placed on two judgments of the Supreme Court, (i) Lohia Machines v. Union of India, and (ii) in the case of Tractoroexport v. Tarapore & Co., . The heading of Section 31 cannot be allowed to control the meaning of language used in Section 31(1), especially when there is no ambiguity in the language that is used in Sub-section (1) of Section 31. In support of this submission reliance is placed on two judgments of the Supreme Court, one in the case of H.M. Kamaluddin Ansari & Co. v. Union of India, and other in the case of Bhinka v. Charan Singh . From different modes of communication of the work to the public, one mode namely broadcast has been treated differently, in mo far as the question of grant of compulsory licence is concerned. It is submitted that there is a reason for treating the mode of broadcast separately and distinctly from other modes of communication. It is submitted that the right to broadcast which is an ephemeral right is conferred upon every person who wishes to broadcast the work or the work recorded in a sound recording, on terms that are reasonable. This sub-serves the public purpose of dissemination by broadcast of every class of Copyrighted work i.e. literary, artistic, musical, dramatic, cinematograph film and sound recording. In so far as the right to broadcast is concerned, Section 31(1)(b) does not lay down the pre-condition for grant of compulsory licence that the work being withheld from public. That the terms offered by the complainant to the copyright holder are reasonable, is a matter of subjective satisfaction of the complainant. Jurisdiction is conferred on the Copyright Board to determine reasonable terms including as to compensation mo that all those who wish to communicate the work by Broadcast are placed on an equal footing and the element of arbitrariness is completely removed. So far an provisions of Sub-section 2 of Section 31 are concerned, it is submitted that when more than one interpretation of the provision is possible, the Court must choose that interpretation which furthers the object of the Act and avoid an anomaly or absurdity. It is submitted that considering the language used in Sub-section 1(b) of Section 31, there cannot be any limitation on the number of persons, who are to be granted compulsory licence to broadcast on reasonable terms. It is submitted that Sub-section (2) of Section 31 comes into play only where two or more persons make a joint complaint and in that case the Copyright Board would grant licence to one of the two applicants who would best serve the interest of the general public in the opinion of the Copyright Board. It is further submitted, in the alternative that it can be said that under Section 13(2) of the General Clauses Act, singular includes plural, then in terms of the provisions Sub-section 2 of Section 31 the Copyright Board can grant licence either to one complainant or to more than one complainant, if grant of such licence to more than one complainant in the opinion of the Copyright Board would best serve the interest of the general public. It is submitted that the interpretation of Section 31(2) canvassed by PPL has to be rejected because such interpretation runs counter to the plain words of Section 31(1)(a) & (b). It is submitted that that interpretation will also result in absurdity. It is submitted that the Broadcast means communication to the public by wireless diffusion or by wire. Broadcast of a work therefore could be in a dance hall, a restaurant, a hotel and cable TV as also by radio. Complaints may be made that the terms imposed by the Copyright owner are unreasonable in respect of dance halls, restaurants, hotels, cable operators and FM Stations. If interpretation canvassed by the PPL on the provisions of Sub-section (2) of Section 31 is accepted, the Copyright Board would be able to grant compulsory licence to only one of the various complainants. It is submitted that the intention of the legislature in enacting Section 31 is to confer right to broadcast upon all persons who wish to broadcast the work or the work recorded in a sound recording on terms which are reasonable including as to compensation. According to the learned Counsel also the Copyright Board could not have determined the amount of compensation or tariff on best judgment assessment. It is submitted that the determination of the compensation has to be on the basis of material produced before the board. It is submitted that under Section 31, the onus is initially upon the complainant to satisfy the Board that the grounds of refusal are not reasonable. In the present case this onus is discharged by the complainant that the compensation demanded by the Copyright owners is unreasonable. Therefore, now the onus shifted to the Copyright owners to satisfy the Board that the royalty claimed by them is justified. It is submitted that the Copyright Board completely committed an error in rejecting the rates arrived at by consent terms between PPL in a suit before the Calcutta High Court and the rates charged from All India Radio and the rates charged from IPSL as irrelevant. It is submitted that all these three rates were relevant for determining the amount of compensation that might have been charged by the PPL. It is submitted that, therefore, the Copy Right Board should be directed to determine the amount of compensation on the basis of material that has been produced before it.

6. So far as complainants, who are Appellants in Appeal Nos. 291, 293, 281, 282 and 283 of 2003 are concerned, the learned Counsel appearing for the Appellants in these appeals supported the submissions of the learned Counsel appearing for the Appellants in Appeal No. 294 of 2003 on the interpretation of the provisions of Sections 31, 31(1) and 31(2). So far as the aspect of determination of tariff is concerned, even according to the learned Counsel the tariff or compensation could not have been fined by the Copyright Board on the basis of its best judgment assessment. It is submitted that compensation means that which is equivalent to what the owner of the copyright has been deprived of i.e. the loss, if any. It is therefore submitted that the onus was entirely on the PPL to place material before the Copyright Board on the basis of which it has fixed its rates and to justify those rates by pointing out loss suffered by it or the expenditure incurred by it in acquiring those copyright. It is submitted that the material that has been produced by the PPL is doubtful, baseless, speculative and not trustworthy. It is submitted that even if it is assumed that fall in sale of cassettes can be relevant, the PPL was obliged to disclose loss of net profit due to loss of sale. The learned Counsel points out that various factors will have to be taken into consideration by the Board in fixing the tariff. Relying on judgment of the Supreme Court in the case of All India Radio v. Santosh Kumar and Anr., reported in AIR 1998 SC 941, it was submitted that the Copyright Board committed a grave error in rejecting the rates arrived at between PPL and the All India Radio as totally irrelevant. Submissions, in detailed, were made before us regarding the factors to be considered by the Copyright Board in determining the tariff. We are not, however, referring to those submissions in detail, because in the facts and circumstances of this case, in our opinion, it will not be appropriate for us to undertake the exercise of fixing the tariff in these appeals.

7. From the rival submissions, it is clear that first question that is to be considered is what is the correct interpretation of the provisions of Section 31 of the Copyright Act. Section 31 reads as under:-

31. Compulsory licence in works withheld from public.- (1) If at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work-

(a) has refused to republish or allow the republication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public; or

(b) has refused to allow communication to the public by (broadcast) of such work or in the case of a (sound recording) the work recorded in such (sound recording), on terms which the complainant considers reasonable;

the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry, as it may deemed necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by (broadcast), as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of the Copyright Board, on payment of such fee, as may be prescribed.

Explanation.- In this sub-section, the expression "Indian work" includes-

(i) an artistic work, the author of which is citizen of India; and

(ii) a cinematograph film or a (sound recording) made or manufactured in India.

(2) Where two or more persons have made a complaint under Sub-section (1), the licence shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interest of the general public.

Perusal of the above quoted provisions shows that the provision applies in relation to any Indian work. The term "Indian work" has been defined by Section 2(1) of the Act, which reads as under:-

"Indian work" means a literary, dramatic or musical work.-

(i) the author of which is a citizen of India; or

(ii) which is first published in India; or

(iii) the author of which, in the case of an unpublished work, is, at the time of the making of the work, a citizen of India;

Thus, a work can be called "Indian work", if the author of the work is a citizen of India or a work which is published in India. The second condition is that the "Indian work" should have been published or performed in public. So far as the term "publication" is concerned, it is defined by section 3 of the Act. It reads as follows:-

Meaning of publication.- For the purposes of this Act, "publication" means making a work available to the public by issue of copies or by communicating the work to the public.

Thus publication means making copies of the work available or communication of the work to the public. Perusal of the above quoted provision of Section 31 further shows that so far as Clause (a) of Sub-section (1) of Section 31 is concerned, it comes into play if the person holds a copyright in the work refuses to republish or allow the republication of the work or has refused to allow the performance of the work in public and the result of such refusal is that the work is withheld from the public. It means that if the Indian work is already published and if the copyright holder republishes it or allow somebody else to republish it, then a complaint under Section 31 cannot be made. The phrase used by Clause (a) of Sub-section (1) of Section 31 is "publication". Perusal of the definition of the term "publication" quoted above shows that communication of the work to the public is part of publication. Thus, after dealing with publication of the work in Clause Ca) of Sub-section (1) of Section 31, clause deals with the narrower field namely communication to the public. It lays down that if the copyright holder has refused to allow communication to the public of such work by broadcast, then Clause (b) of Sub-section (1) of Section 31 comes into play. Thus legislature by Clause (b) of Sub-section (1) of Section 31 is dealing with communication to the public which is a narrower concept than publication. The term "communication to the public" is defined by Section 2(ff) of the Act as follows:-

"communication to the public's means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public?

Perusal of the above definition of the term "communication to the public" shows that making any work available so that the work is seen or heard by the public by means of display or diffusion amount to communication to the public. In other words, broadcasting of a work is communication to the public. But the phrase "communication to the public" covers other means of communication than broadcast. Perusal of Section 31(1)(b) quoted above shows that to begin with, it deals with, a narrower concept than publication namely the communication to the public, but ultimately it deals with just one of the modes of communication to the public namely broadcast. In other words, Clause (b) of Sub-section (1) of Section 31 deals with extremely narrow field than the field which is covered by Clause (a) of Sub-section (1) of Section 31. It is pertinent to note here that if Clause (b) of Sub-section (1) of Section 31 was not separately enacted then communication to the public by broadcast would also be covered by Clause (a), because Clause (a) of Sub-section 1 of Section 31 deals with publication of the work and the term "publication of work" includes communication to the public and communication to the public includes the concept of communication by broadcast. It is, thus, clear that really speaking Clause (b) of Sub-section (1) of Section 31 is in the nature of proviso or exception to Clause (a) of Sub-section (1) of Section 31. The purpose of enacting Clause (b) of Sub-section (1) of Section 31 was to take out the field of broadcast from Clause (a) and to deal with that field separately. Different treatment that has been given by the Legislature to the field of broadcast is that refusal of the holder of the copyright to rebroadcast the work or allow the rebroadcasting of the work need not result in withholding the work from public. In other words, even if the copyright holder in a work himself rebroadcasts the work or is allowing others to broadcast the work, still a complaint can be made. The Legislature has made its intention of dealing with the mode of communication namely broadcast differently and therefore, in our opinion, as the words of the provisions are clear there is no question of importing the concept of the refusal resulting in withholding of the work from the public into the field of broadcast also, as the intention of the Legislature in that regard is absolutely clear. Perusal of provisions of Sub-section (1) of Section 31 further shows that the complainant in relation to cases covered by both Clauses (a) and (b) of Sub-section 1 of Section 31 is required to first approach the holder of the copyright for permission to republish or rebroadcast the work and offer terms which he considers reasonable and if the permission is refused by the copyright holder, he can approach the Copyright Board. The Copyright Board then holds an inquiry to find out whether the grounds on which the copyright holder has refused permission are reasonable or not and if the Copyright Board finds that the reasons for refusal given by the copyright holder are not reasonable, then, it can decide to grant a licence to the complainant.

8. It is, thereafter, that the question of determination of compensation arises and then the Copyright Board has to hold an inquiry as to what should be the amount of compensation payable by the complainant to the copyright holder as also other terms and conditions on which the licence is to be granted.

9. In so far as the submission on behalf of PPL that if the requirement of the refusal resulting in withholding the work from the public is not made applicable even in relation to broadcast, it will result in abrogating the rate of copyright holder is concerned, in our opinion, the submission is not well founded. All the rights that the copyright holder gets are created by the statute namely the Copyright Act, and therefore, they are governed by the provisions of the Act. Copyright in any work does not exist independently of the Act. In this regard the provisions of Section 16, in our opinion, are absolutely clear. Section 16 of the Act reads as under:-

No copyright except as provided in this Act.-No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

It is thus clear from the perusal of Section 16 of the Act that all the rights than can be claimed by the copyright holder are the rights given to him by the Act and therefore, there is no question of one provision of the Act being narrowly construed or not being given its natural meaning, because it is likely to encroach upon some supposed rights of the copyright holder. The intention of the Legislature from the provision of Section 31 is clear that it did not want to make applicable the requirement of the refusal of the copyright holder resulting in withholding the work from the public to the field of broadcast and in so far as the field of broadcast is concerned, the Legislature wanted to make a provision for grant of licence to all the persons who are seeking the same if they are willing to offer reasonable terms. The Legislature in its wisdom has provided in the scheme of the legislation itself that the field of broadcast is to be treated differently than other modes of communication to the public. In our opinion, treating one of the modes of the communication to the public differently would also not result in violation of Article 14 of the Constitution of India. Though communication by broadcast is included in the concept of communication to the public, far the purpose of grant of compulsory licence broadcast being a totally different mode of communication is capable of being treated differently. In the present appeals we are dealing with the rights in a sound recording. In so far as the sound recording is concerned, in terms of the provision of Section 14 of the Act, copyright in a sound recording authorises the holder of the copyright to make any other sound recording " embodying it, to sell the sound recording on hire or offer for sale and also hire any copy of the sound recording as also to communicate the sound recording to the public. Thus, the rights of a copyright holder in a sound recording includes the right to make the work available to the public by other modes of communication as also by broadcast. What has been done by Sub-section (1) of Section 31 is the rights of copyright holder in the sound recording to republish the work by broadcasting is treated differently and the right of the copyright holder in the sound recording to republish the work by other modes than broadcasting, has been dealt with separately and distinctly. Thus, separate provision has been made by the Legislature dealing with two kinds of rights of the same person namely the copyright holder. It is not that a different person is holding a right to broadcast a sound recording and another person is holding right to republish the work. Same person holds two rights, right to republish the work and right to broadcast the work. Right to republish the work is dealt with by the Legislature separately from the right to broadcast the work. In opinion, therefore by Section 31 the Legislature has treated one mode of communication namely broadcast distinctly and it has been treated as a class by itself from other modes of communication. In our opinion, therefore, the PPL is not right in submitting that because it had granted licence in favour of All India Radio, the work was not withheld from the public and therefore the Copyright Board did not have the jurisdiction to entertain complaints from the complainants for grant of compulsory licence. As we find that the language of the provisions is clear and that clear language manifests the intention of the Legislature, obviously we cannot read the heading of the section to give different meaning to the provisions which is clear and unambiguous. In so far as the provisions of Sub-section 2 of Section 31 are concerned, provisions of Sub-section 2 of Section 31 have been pressed into service on behalf of PPL. Sub-section (2) of Section 31 reads as under:-

31(2) Where two or mare persons have made a complaint under Sub-section (1), the licence shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interest of the general public.

So far as the provisions of Sub-section (2) of Section 31 are concerned, in view of the clear wordings used in Sub-section (1) of Section 31 and the intention of the legislature in so far as right to rebroadcast is concerned, that any person who wishes to have a licence and is willing to offer reasonable terms is entitled to a licence. Provisions of Sub-section (2) of Section 31 will not apply to the cases covered by Clause (b) of Sub-section (1) of Section 31. Operation of Sub-section (2) of Section 31 has to be restricted to the cases covered by Clause (a) of Sub-section 1 of Section 31. To say that the Copyright Board is to select any one of the persons who have made complaints would militate against the principles underlining by Clause (b) of Sub-section (1) of Section 31. Therefore off necessity operation of the provisions of Sub-section (2) of Section 31 has to be restricted to the cases covered by Clause (a) of Sub-section (1) of Section 31. Before us various interpretations of Sub-section (2) of Section 31 were suggested. But in our considered opinion, it is a case of just inadvertent omission to put (a) after Sub-section 1 in Sub-section (2) of Section 31. It was suggested before us that operation of Sub-section 2 can be restricted only where a joint complaint has been made. But it does not stand to reason that if the Copyright Board is to be given however to choose one of the complainants then that power of the Copyright Board would operate only in case it is a joint complaint. Because, in other words, denying of that power to the Copyright Board will be in the hands of the complainants that instead of making a joint complaint they make two separate complainants. It was also suggested before us that relying on the provisions of the General Clauses Act? we read complaint to mean "complainants" and interpret the provisions of Sub-section 2 of section 31 accordingly. But in our opinion, reading the provisions of Sub-section 2 of Section 31 is to give power to the Board to choose one or more amongst the complainants even amongst the persons who have applied for licence for broadcast would militate against the very principles incorporated in Clause (b) of Sub-section 1 of Section 31, because to our mind the idea underlining Clause (b) of Sub-section 1 of Section 31 is to grant licence to everybody to broadcast the work if the complainant is willing to offer reasonable terms. There is no question of the principle choosing one or two persons amongst the complainants who have applied for compulsory licence to broadcast once the Copyright Board finds that the terms offered were reasonable and that the complainant is willing to pay the compensation determined by the Copyright Board and it is also willing to abide by other terms and conditions which have been imposed. In our opinion, therefore, in order to make the scheme contained in Section 31 workable, operation of Sub-section (2) of Section 31 will have to be restricted to the cases covered by Clause (a) of Sub-section 1 of Section 31 of the Act.

10. This leads us to the next aspect that is to be considered namely whether the Copyright Board has committed an error in determining the compensation on its best judgment assessment. The learned Counsels for both sides have contended unanimously that the Copyright Board does not have any power to make any best judgment assessment of the amount of compensation. After having gone through the provisions of the Act, we also find that the Copyright Board acts as a quasi-judicial authority while considering a complaint under Section 31 and therefore, it will have to base its decision on the material that is produced before it. The Copyright Board cannot base its decision an anything except the material that is produced before it. We also find considerable force in the submissions made on behalf of the complainant that the Copyright Board was not justified in rejecting the rates on which the licence is granted by the PPL to All India Radio as totally irrelevant. In our opinion, the Copyright Board could not have found those rates as totally irrelevant, they may not be determinative or decisive, but they were relevant. Because from the material that has been produced before us we find that the All India Radio has also its FM stations and the licence that has been granted by the PPL relates also to FM stations of All India Radio. But we do not want to express any final opinion in this regard, suffice it to say that the rates at which licence is granted by the PPL to All India Radio cannot be said to be totally irrelevant. The rates may be taken into consideration together with the circumstances under which the rates were arrived at, considerations that have weighed with the parties in arriving at those rates etc. Similarly, we find that the approach adopted by the Copyright Board of taking up for consideration the rates on which the licence is granted by PPL to All India Radio separately, considering them and rejecting them as irrelevant. Then taking up rates on which the licence was granted by PPL to one of the complainants under the consent terms arrived at before the Calcutta High Court rejecting them as irrelevant. Then taking up IPSL's rates considering them and rejecting them as irrelevant is not proper. In our considered opinion, all these three rates cannot be said to be totally irrelevant. It is also true that they are also not comparable. However, considering that this type of situation has arisen for the first time, the Copyright Board should have taken into consideration these rates with the surrounding circumstances under which these rates are arrived at and considered them for determining the rate of compensation, not as comparable rates but as the relevant rates and should not have removed them out of consideration by terming them as totally irrelevant. Again we do not want to express any final opinion on this aspect of the matter also. We also find considerable force in the submission made on behalf of the complainants that what is to be determined by the Copyright Board is compensation payable to the PPL and therefore the PPL was also under an obligation to produce entire material on its behalf to justify the rates at which it is claiming the compensation. For example, if it is the case of PPL that because of these FM stations, it sales of cassettes have gone down, then it would not be enough that the PPL produces the data about the how many less cassettes it has been able to sell. The PPL will also have to show how much loss it has suffered because of fall in sale of cassettes. Similarly, the FM stations will also have to produce before the Copyright Board their audited accounts and other materials so that the Copyright Board can arrive at a just figure. We have been informed that now the audited accounts of the complainants will be available and that they are willing to produce them before the Copyright Board.

11. Taking overall view of the matter therefore, in our opinion, it would be appropriate to set aside the order of the Copyright Board determining the amount of compensation and remand the matters back to the Copyright Board for redetermination of the amount of compensation in terms of the provisions of Section 31 of the Act and on the basis of the material produced by both the parties.

12. In the result, therefore, appeals filed on behalf of the complainants and the PPL succeed in part. The order of the Copyright Board determining the amount of compensation and licence fees is set aside. Matters are remitted back to the Copyright Board for redetermining the amount of compensation/licence fees.