M/S. Entertainment Network (India) Ltd vs M/S. Super Cassettee Industries Ltd

We may notice the factual matrix of the matter.

Appellant herein was awarded the license for running a private FM broadcasting service in 12 cities on payment of a hefty license fee. Several other bidders were also granted licenses. Respondent, however, was not a member of the appellant - society. It was found to have been using the broadcasting songs in respect whereof Super Cassettes Industry Limited (SCIL) had an ownership over the copyright. It was a member of the copyright society being Phonographic Performance Ltd. (PPL). Indisputably, there had been an infringement of the copyright of Super Cassettes. Allegedly, appellant was under the belief that it was a part of PPL and whereupon the music belonging to the repertoire of SCIL was played during the period from October 2001 to May, 2002 in its stations 5 at Indore and Ahmedabad. Royalty was paid by ENIL to PPL at the rate of Rs.400/- per needle hour pursuant to the order passed by the Calcutta High Court dated 28.9.2001. Attempts were made to obtain a licence from SCIL when ENIL came to know that it was not a part of the copyright society PPL. Negotiations failed between the parties.

It, however, appears that several broadcasters including ENIL by a letter dated 17.4.2001 addressed to PPL stated as under:

In a letter to the respondent, appellant stated, "We had no intention to infringe your copyright as in fact we had been regularly paying royalty to PPL including the T-Series needle time played on our station."

The Board also held that the same shall be operative for a period of 2 years and the matter shall be reconsidered again in September- October, 2004. Super Cassettes was not a party therein. The Board fixed 12 royalties initially for a period of two years. An appeal thereagainst was preferred before Bombay High Court and it is the subject matter of C.A. No. 5181 of 2005.

On being noticed, respondents filed an objection contending that as the suit for infringement was pending before the Delhi High Court, no application for compulsory license could be entertained. The High Court, on an application filed by the appellant, clarified that the respondent was free to canvas its submissions before the Copyright Board that the person infringing the Copyright should not be granted compulsory license. The Board directed the parties to come with their respective witnesses. However, when respondent intended to present oral evidence, it was declined. Submissions were directed to be made on 14 or about 20.10.2003. Application No. 10 of 2003 was allowed granting a compulsory license.

Both the parties have preferred these appeals before us, the particulars whereof are as under:

entered into, when they are not in conflict with the existing domestic law;

(b) above.

ROYALTY AND COMPENSATION Are the terms "royalty" and "compensation" are not synonymous?

(See Aharon Barak, Purposive Interpretation in Law (2007) at pg.

However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up 89 the matter on a day for hearing which was fixed for production of witnesses. We, therefore, are of the opinion that the order of the Board should be set aside and the matter be remitted to the Board again for the consideration of the matter afresh on merit.

These appeals are allowed with the aforementioned directions. In the facts and circumstances of the case, the parties shall pay and bear their own costs.

...J. [Lokeshwar Singh Panta] New Delhi;

May 16, 2008