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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 9412-9413 OF 2016 (arising out of S.L.P (C) Nos. 2380-2381 OF 2014)

International Confederation  of  Societies of Authors and  Composers (CISAC) … Appellants

Versus

       Aditya Pandey & ors    …Respondents

WITH

CIVIL APPEAL NOs. 9414-9415 OF 2016 (arising out of S.L.P(C) Nos. 21082-21083 OF 2012)

WITH

CIVIL APPEAL NO. 9416 OF 2016 (arising out of S.L.P(C) No. 2379 OF 2014)

J U D G M E N T

Prafulla C. Pant, J.

Leave granted.

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2. All  these  three  appeals  are  directed  against  the  order

dated May 08, 2012 passed by Division Bench of High Court of

Delhi in FAO (OS) Nos. 423-424 of 2011 and FAO (OS) No. 425

of 2011 with CM No. 19128 of 2011, whereby said Court has

dismissed the appeals, and affirmed the order of the learned

Single Judge in Suit CS (OS) No. 1185 of 2006 and Copyright

Infringement Suit CS(OS) No. 1996 of 2009 disposing of the

Interim  Applications  moved  for  temporary  injunction  and

directions.

3. Learned  Single  Judge  had  disposed  of  Interim

Applications in above mentioned suits as under:- “55. In the light of the above conclusions- which are prima  facie  in  nature,  and  do  not  preclude  the plaintiffs  in  both  cases,  from  establishing  and proving  their  case-  the  following  directions  are issued:

(i) In  the  synergy  suit,  (i.e.  CS(OS)  1185/2006) the applications for temporary injunctions, i.e. IA  Nos.,  6486/2006,  7027/2006  and 6487/2006 are disposed of by stating that the defendants  do  not  have  to  secure  a  license from the plaintiffs;

(ii) In the CRI suit,  (i.e.  CS(OS)  No.  1996/2009) the  application,  i.e.  IA  Nos.  13691/2009, 13692/2009  are  disposed  of  with  the directions that in case the defendants wish to perform the sound recording in public, i.e. play

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them, a license from PPRS is essential; in case the musical works are to be communicated or performed  in  the  public,  independently, through  an  artiste,  the  license  of  IPRS  is essential. In case the defendant wishes to hold an  event  involving  performances  or communication of works of both kinds to the public,  the  license  or  authorization  of  both IPRS and PPRS are necessary. The defendant is accordingly restrained from communicating any of such works to the public, or performing them, in the public, without such appropriate authorization,  or  licensing  pending adjudication of the suit.”

4. Issue involved in the present appeals is that where lyric

written by ‘X’ (lyricist) and music composed by ‘Y’ (musician)

are used to  make sound recording  by ‘Z’  (Sound Recording

Company),  whether  ‘A’  (Event  Management  Company/Event

Organizer)  is  required  to  seek  licence  from  ‘X’  and  ‘Y’  for

subsequently playing the song in public even after ‘A’ had paid

for  the  broadcasting  of  the  song  to  ‘Z’  (Sound  Recording

Company) ?

5.  Indian  Performing  Rights  Society  Limited  (For  short

“IPRS”) (appellant before us in two of the three appeals) is the

Society of authors of literary work, and composers of musical

work,  is  the  plaintiff/appellant.   And  International

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Confederation  of  Societies,  is  a  non-governmental

organization, an association of copyright societies, registered

in France, which was not the party before the trial court, is the

appellant in one of the above three appeals.  Respondent No.2

–  Synergy  Media  Entertainment  is  the  Event  Management

Company of  which Respondent  No.1  is  the  Senior  Manager

(Finance).

6. The  case  of  the  plaintiff/appellant  is  that  authors  of

literary  work  and  composers  of  musical  work  are  the  first

owners  of  copyright  in  lyric  and  musical  work  respectively

under the Copyright Act, 1957.  As such they have the right to

get restrained Respondent Nos. 1 and 2 from infringing their

copyright, and licence given to sound recording company does

not affect the rights of lyricist or the musician.  Reference has

been made to the definition of expression “communication to

the  public”  defined  under  Section  2(ff)  and  that  of

‘performance’  defined  in  Section  2(q)  of  the  Act.   Further,

reference  has  been  made  to  the  amendment  introduced  in

1994 in the Copyright Act,  1957 and it  is  pleaded that  the

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right  created  under  Section  14(a)(iv)  cannot  be  read  in

derogation of right created under Section 14(a)(iii) of the Act.

7. The grievance of the International Confederation Society

(IFS)/3rd party appellant is that the petitioner is aggrieved due

to the findings and alleged legal infirmities in the impugned

order  as  it  has  an  immediate  and  direct  impact  on  its

members and the creative community for their interest (which

the petitioner represents), stands to suffer loss and injury as

the impugned judgment deprives them of their exclusive right

to  collect  royalty  in  cases  of  communication  of  sound

recordings to the public.  

8. On behalf of the appellants, it is further argued that the

erroneous  finding  in  the  impugned  judgment  denies  the

members of the appellants the right recognized under various

international conventions to which India is a party, which they

hold  under  copyright  law.  It  is  further  submitted  that  the

impugned judgment  creates  discord between the  manner  of

exploitation  and  treatment  of  same  works,  in  two  different

countries, contrary to what the International Conventions and

Treaties seek to achieve.  It is contended that the erroneous

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interpretation  of  law  in  the  impugned  judgment  stands  in

direct  conflict  with  India’s  obligations  under  the  Berne

Convention  for  the  Protection  of Literary  and  Artistic  Works

(Paris Act, 1971) and the agreement on Trade Related Aspects

of  Intellectual  Property  Rights  Agreement,  1994  (TRIPS

Agreement), to which India has acceded.  It thus places India

out of step with international copyright norms and practice.

Also, it is contended that the impugned judgment places the

reciprocal  agreements  between  IPRS  and  other  collecting

societies under considerable stress as it makes impossible for

the  Indian  Performing  Right  Society  Limited  to  fulfill  its

contractual  obligations  under  the  reciprocal  arrangements,

thus affecting the rights of millions of songwriters, composers

and publishers. 9. On the  other  hand,  on  behalf  of  the  respondent,  it  is

pointed out that with the amendment made in the Copyright

Act, 1957, in the year 2012, the producer of sound recording

has an independent copyright of his work.  Relying on the law

laid down by this Court in Indian Performing Right Society

Ltd.  v.  Eastern Indian Motion Pictures Association and

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others1, it is contended that once the author of a lyric or a

musical  work  parts  with  a  portion  of  his  copyright,  by

authorizing a film producer, or producer of sound recording in

respect of his work, a right exists with the latter to exhibit his

work to the public. Also, it is pleaded that the appeals filed by

Societies, not registered in India, on behalf of the lyricists and

musicians, under Section 33 of the Act, are not maintainable. 10. Before further discussion, we think it just and proper to

reproduce the relevant provisions of The Copyright Act, 1957

to understand the meaning of various words and expressions

relevant for the purposes of this case and to appreciate the

rights of the parties.   Word ‘copyright’ is defined in Section 14

of the Act which reads as under: “214. Meaning of copyright.- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of  a work or any substantial  part thereof, namely:-  

1

(1977) 2 SCC 820 2 Substituted vide Act No. 38 of 1994 w.e.f. 10.05.1995

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(a) in the case of a literary, dramatic or musical work, not being a computer programme, -  

(i) to  reproduce  the  work  in  any  material form  including  the  storing  of  it  in  any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;  

(iii) to  perform  the  work  in  public,  or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;  

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of  the work,  any of  the acts specified  in  relation  to  the  work  in sub-clauses (i) to (vi);

(b) in the case of a computer programme,-

(i) to do any of the acts specified in clause (a);  

3[(ii) to  sell  or  give  on  commercial  rental  or offer for sale or for commercial rental any copy of the computer programme:  

  Provided  that  such  commercial  rental does  not  apply  in  respect  of  computer programmes where the programme itself is not the essential object of the rental.]

3 Substituted by Act No. 49 of 1999 w.e.f. 15.01.2000

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(c) in the case of an artistic work,-

4[(i) to  reproduce  the  work  in  any  material form including –  

(A)  the  storing  of  it  in  any  medium  by electronic or other means; or

(B) depiction in three dimensions of a two dimensional work; or  

(C) depiction in two dimensions of a three dimensional work;]  

(ii) to communicate the work to the public;  

(iii) to issue copies of the work to the public not being copies already in circulation;  

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);  

(d) In the case of cinematograph film, -  

5[(i) to make a copy of the film, including

(A) a photograph of  any image forming part thereof; or

4 Substituted by Act No. 27 of 2012 w.e.f. 21.06.2012 5 Substituted by Act No. 27 of 2012 w.e.f. 21.06.2012

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(B) storing  of  it  in  any  medium  by electronic or other means;]

6[(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;]

(iii) to communicate the film to the public;  

(e) In the case of sound recording, -

(i)   to  make  any  other  sound  recording embodying  it  7[including  storing  of  it  in any medium by electronic or other means];

8[(ii)  to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording.[

(iii) to  communicate  the  sound recording  to the  public.  

Explanation: For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.”  

11. To appreciate the copyrights of author of literary work on

one hand, and that of the producer of sound recording on the

other, it is necessary to refer to the meaning of “author”, given

in clause (d) of Section 2 of the Act.  The same is reproduced

below: -

6 Substituted by Act No. 27 of 2012 w.e.f. 21.06.2012 7 Inserted by Act No. 27 of 2012 w.e.f. 21.06.2012 8 Substituted by Act No. 27 of 2012 w.e.f. 21.06.2012

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“(2)(d) ‘author’ means,-  

(i) in relation to literary or dramatic  work, the author of the work;

(ii)  in  relation  to  a  musical  work,  the composer;

(iii) in relation to an artistic work other than a photograph, the artist;

(iv) in  relation  to  a  photograph,  the  person taking the photograph;

[(v) in  relation  to  a  cinematograph  film  or sound recording, the producer; and

(vi) in  relation  to  any  literary,  dramatic, musical  or  artistic  work  which  is computer-generated,  the  person  who causes the work to be created;]9  

12. The above definition shows that after amendment made

in  the  definition  of  “author”  by  Act  No.  38  of  1994,  the

producer of sound recording is also an author. But his right

would not affect the separate right of any work in respect of

which sound recording is made, as provided in Section 13(4)

quoted below:

“13(4)  The copyright in a cinematograph film or a [sound  recording]  shall  not  affect  the  separate copyright  in  any  work  in  respect  of  which  or  a substantial part of which, the film, or as the case may be, the  [sound recording]10 is made”.  

9 Sub clauses (v) and (vi) are added vide Act No. 38 of 1994 w.e.f. 10.05.1995

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13. It is relevant to mention here that as defined in Section

2(xx),  inserted  vide  Act  No.  27  of  2012,  “sound  recording”

means a recording of sound from which such sounds may be

produced regardless of the medium on which such recording is

the method by which the sounds are produced.  And Section

2(ff),  inserted  by  same  Amending  Act,  explains  expression

“communication to the public” as under: -

“(ff) "communication to the public" means making any  work  or  performance  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 physical copies of it, whether simultaneously or at places and times  chosen  individually,  regardless  of whether  any  member  of  the  public  actually sees,  hears  or  otherwise  enjoys  the  work  or performance 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;”

10 Expression “sound recording” is substituted for “record” vide Act No. 38 of 1994 w.e.f.  10.05.1995

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14. Section 16 of the Copyright Act, 1957 provides that no

person  shall  be  entitled  to  copyright  otherwise  than  in

accordance of the Act, and it reads as follows: -

“16.  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.

15. Now, we have to see who is the first owner of copyright

and how to harmonize the copyrights of author of literary work

and that of the ‘author’ of sound recording.  Clauses (a) and (b)

of Section 17 of the Copyright Act, 1957 and proviso added to

it by Act No. 27 of 2012, read as under: -

“17.  First  owner  of  copyright. –  Subject  to  the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that –

(a) In the case of  a literary,  dramatic  or  artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine  or  similar  periodical  under  a contract  of  service  or  apprenticeship,  for  the purpose  of  publication  in  a  newspaper,

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magazine  or  similar  periodical,  the  same proprietor  shall,  in  the  absence  of  any agreement to the contrary, be the first owner of the  copyright  in  the  work  in  so  far  as  the copyright relates to the publication of the work in  any  newspaper,  magazine  or  similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all  other  respects the author  shall  be the first owner of the copyright in the work;

(b) Subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait  drawn,  or  an  engraving  or  a cinematograph  film  made,  for  valuable consideration  at  the  instance  of  any  person, such  person  shall,  in  the  absence  of  any agreement to the contrary, be the first owner of the copyright therein;

………………………………

Provided that in case of any work incorporated in  a  cinematograph  work,  nothing  contained  in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of Section 13.”

Section  13(1)(a)  of  the  Act  refers  to  copyright  of original  literary,  dramatic,  musical  and  artistic works.”

16. Let us now look into the relevant provisions which govern

the assignment of  work by an author  of  literary or musical

work and licenses in respect thereof to prospective owner of

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the copyright or user of the work.  Last proviso to Section 18

with its main part, makes following reading: -

“18. Assignment of copyright. – (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to  any  person  the  copyright  either  wholly  or partially  and  either  generally  or  subject  to limitations and either for the whole of the copyright or any part thereof:

…………………….

……. Provided also that the author of the literary or musical work included in the sound recording but not  forming  part  of  any  cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the  legal  heirs  of  the  authors  or  to  a  collecting society  for  collection  and  distribution  and  any assignment to the contrary shall be void.11

Needless to say that appellants are the collecting societies.

17. Further,  sub-sections  (3),  (4)  and  (10)  of  Section  19,

which are relevant for the purposes of this case, provide as to

mode of assignment as under: - “19. Mode of assignment. –

…………………………..

(3)  The assignment of  copyright  in any work shall  also  specify  the  amount  of  royalty  and  any other  consideration  payable,  to  the  author  or  his

11 Second, third and fourth (Last) provisos are added by Act 27 of 2012.

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legal  heirs during the currency of  the assignment and  the  assignment  shall  be  subject  to  revision, extension or termination on terms mutually agreed upon by the parties.

(4)  Where the assignee does not  exercise the right  assigned  to  him  under  any  of  the  other sub-sections  of  this  section  within  period  of  one year from the date of assignment, the assignment in respect  of  such  rights  shall  be  deemed  to  have lapsed  after  the  expiry  of  the  said  period  unless otherwise specified in the assignment.

…………………….

[(10)  No  assignment  of  the  copyright  in  any work  to  make  a  sound recording  which  does  not form part of any cinematograph film shall affect the right of  the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.”]12

18. Above quoted sub-section (10) of Section 19 is inserted

with effect from 21.06.2012 vide Act No. 27 of 2012, which did

not exist on the day the plaint was filed before trial court in

the year 2006. As such rights as exist w.e.f. 21.06.2012 were

not the same prior to it.

12 Inserted by Act No. 27 of 2012 w.e.f. 21.06.2012

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19. In  Chapter  VI  of  the  Copyright  Act,  1957,  Section  30

relates  to  licence  granted  by  an owner  of  copyright   which

reads as under :-

“30. Licences by owners of copyright.- 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 licence in [writing by him]13 or by his duly authorised agent:

Provided that in the case of a licence relating to copyright  in any future work,  the licence shall take effect only when the work comes into existence.

Explanation.-  Where  a  person  to  whom  a licence relating to copyright in any future work is granted  under  this  section  dies  before  the  work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the licence.”

“31. Compulsory licence in works withheld from public.-(1)  If  at  any  time  during  the  term  of copyright in any 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) …………………

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

13  Substituted for words ‘writing signed by him’ Vide Act 27 of 2012.

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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 deem 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 such person or  persons  who,  in  the  opinion  of  the  Copyright Board, is or are qualified to do so]  in accordance with  the  directions  of  the  Copyright  Board,  on payment of such fee as may be prescribed.”14

     However, we are not aware if any complaint was made

before Copyright Board in the present matter.

20. At this stage,  it  is necessary to understand distinction

between assignment of a copyright of a work and licence to

use the work. In the assignment, normally, ownership of the

copyright of the work is transferred but in the case of licence

another person is allowed to use the work by the author.

21. A conjoint reading of various provisions of the Act leaves

no doubt that though each of the seven sub-clauses of clause

14 As amended Vide Act 27 of 2012

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(a) of Section 14  relating to literary, dramatic or musical work,

are independent of one another, but reading these sub-clauses

independently cannot be interpreted to mean that the right of

producer of sound recording, who also comes under definition

of  author  under  Section  2(d)(v),  and  has  a  right  to

communicate his work to the public under Section 14(e)(iii) of

the  Act  is  lost.   It  is  nobody’s  case  that  the

defendant/respondents  had  stolen  the  lyric  or  that  sound

recording  is  made  without  licence  from  the  lyricist  or

musician.   Argument  advanced  on  behalf  of  the  appellants

that the permission granted to defendant was sans the right to

communicate  the  sound  recording  to  the  public,  cannot  be

accepted  as  there  appears  no  such  term  and  condition

between  the  parties  depriving  the  defendant  from

communicating his work of making song to the public. As far

as the International Conventions and Treaties are concerned,

the  law  has  been  amended  by  Act  27  of  2012  w.e.f.

21.06.2012.  In the present case the suit was filed in 2006,

and the law as it existed has to be applied, for the period prior

to 21.06.2012.

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22. We agree with the Division Bench of the High Court that

a song is created by three players namely lyricist, musician

and singer.   We have to examine in the present case as to

what extent, if any, identities of above three players break or

get  diluted  when a song is  created and sound recording  is

done.    To understand this and the relevant provisions of law

quoted above, we would like to remind the observations made

by this Court in paragraphs 63, 64 and 69 in Entertainment

Network  (India)  Ltd.  v. Super  Cassette  Industries  Ltd.15,

which reads as under:    

“63. A statute as is well known must be read in its entirety.  It  is  required  to  be  read  chapter  by chapter,  section by  section and clause  by clause. The  definitions  of  the  term  “broadcast”  as  also “sound recording” must be given a wide meaning. Clause  (a)  of  Section  13  protects  original  work whereas clauses (b) and (c) protect derivative works. It provides for commercial manifestation of original work and the fields specified therein. Clause (a) of sub-section  (1)  of  Section  14  deals  with  original work. It is extremely broad. In contrast thereto, the copyright on films or sound recording work operates in restrictive field; they provide for a restrictive right as would appear from the provisions contained in Section 14(1)(e) of the Act.

15 (2008) 13 SCC 30

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64. For a proper construction of the provisions, will it  be  necessary  to  keep  in  mind  the  difference between the right of the original work and right of sound recording? Should we also bear in mind that there  are  various  forms  of  intellectual  property rights. Section 16 provides that a right, inter alia, in respect  of  any  work  must  be  claimed only  under and in accordance  with  the  provisions  of  the  Act unlike  trade  mark  and  passing  off  rights  can  be enforced  even  though  they  are  not  registered.  It must  also  be  noticed that  whereas  the  term of  a copyright in original literary, dramatic, musical and artistic  works  not  only  remains  protected  in  the entire lifetime of the author but also until 60 years from  the  beginning  of  the  calendar  year  next following the year in which the author dies, the term of copyright in sound recording subsists only for 60 years,  but  as  indicated  hereinbefore,  the  same would not mean that the right of an owner of sound recording is in any way inferior to that of right of an owner of copyright on original literary work, etc.

……………………………………..

69. If the right of an author/society is so pervasive, is  it  necessary  to  construe  the  provisions  under Section  31  of  the  Act  having  regard  to  the international  covenants and the laws operating in the  other  countries?  The  answer  to  the  said question  must  be  rendered  in  affirmative. Interpretation  of  a  statute  cannot  remain  static. Different  canons  and principles  are  to  be  applied having regard to the purport and object of the Act. What  is  essential  therefor  is  to  see  that  the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the  international  covenants,  the  law  should  have been amended in terms thereof. Only because laws have  not  been  amended,  the  same  would  not  by

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itself mean that the purport and object of the Act would  be  allowed  to  be  defeated.  If  the  ground realities  change,  the  interpretation  should  also change.  Ground  realities  would  not  only  depend upon the new situations and changes in the societal conditions  vis-à-vis  the  use  of  sound  recording extensively  by a large public,  but  also  keeping in view of the fact that the Government with its eyes wide open have become a signatory to international conventions”.

23. In Indian Performing Rights Society Ltd. vs. Eastern

Indian  Motion  Pictures  Association  and  Other (supra)

(Which  was  decided  long  before  2012  Amendments)  in

paragraph 15, this Court has made following observations: -   

“15.  ……………………….Though  a  conflict  may  at first sight seem to exist between Section 13(4) and Section  14(1)(a)(iii)  on  the  one  hand  and  Section 14(1)(c)(ii)  on  the  other,  a  close  scrutiny  and  a harmonious  and rational  instead  of  a  mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph  film  in  respect  of  his  work  and thereby to have his work incorporated or recorded on  the  sound  track  of  a  cinematograph film,  the latter acquires by virtue of Section 14(1)(c) of the Act on completion of the cinematograph film a copyright which  gives  him  the  exclusive  right  inter  alia  of performing the work in public i.e. to cause the film insofar as it consists of visual images to be seen in public  and  insofar  as  it  consists  of  the  acoustic

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portion including a lyric  or  a musical  work to be heard  in  public  without  securing  any  further permission of the author (composer) of the lyric or musical  work for  the  performance  of  the  work in public. …………………….”

24. In view of the above settled principles of law, and for the

reasons discussed by us, we are unable to find any error in

the impugned order passed by the High Court in a suit filed in

2006. However, we would like to clarify, that with effect from

21.06.2012,  in  view  of  sub-section  (10)  of  Section  19,  the

assignment  of  the  copyright  in  the  work  to  make  sound

recording which does not form part of any cinematograph film,

shall not affect the right of the author of the work to claim an

equal  share  of  royalties  or/and  consideration  payable  for

utilization  of  such  work  in  any  form  by  the

plaintiff/respondent.  

25. Therefore,  all  the  appeals  stand  disposed  of  with  the

observations as above.  No order as to costs.

     .……………….……………J. New Delhi; [Prafulla C. Pant] September 20, 2016.

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Reportable

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.9412-9413 OF 2016 (Arising out of SLP(C) Nos.2380-2381 of 2014)

International Confederation of Societies of Authors and Composers (CISAC) …….Appellant

Versus

Mr. Aditya Pandey & Ors. …....Respondents

With

CIVIL APPEAL Nos.9414-9415 OF 2016 (Arising out of SLP(C) Nos.21082-21083 of 2012)

CIVIL APPEAL NO.9416 OF 2016 (Arising out of SLP(C) No.2379 of 2014)

J U D G M E N T

PER RANJAN GOGOI, J.

1. I have had the privilege of going through the judgment pre-

pared by my learned brother (Prafulla C. Pant, J.). While agreeing

with the conclusions reached by my learned brother, I would like to

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very briefly indicate the reasons for the same which are somewhat

different.

2. The  relevant  provisions  of  the  Copyright  Act,  1957,  as

amended, have been set out in detail in the judgment of my learned

brother. I, therefore, need not extract the same all over again. Suf-

fice it to notice that three classes of works in which copyright sub-

sists under Section 13(1) of  the Act are (a)  original  literary, dra-

matic, musical and artistic works, (b) cinematograph films and (c)

sound recording.  A reading of the provisions of the Act show that

such copyright co-exists. The question in the suit in which the im-

pugned order has been passed by the High Court is one of determi-

nation of the precise extent of such co-existence and the interplay

between the rights in the three classes of works enumerated under

Section 13. The said question has been identified in Para 35 of the

impugned order of the Division Bench which is as follows:

“The  area  of  dispute  is:  what  happens  to  the copyright in an underlying work (literary and musical works) when the derivative work (sound recording) is exploited.  Does  he  who obtains  a  permission  from the  copyright  owner  of  the  derivative  work  to broadcast  by  way  of  communicating  to  the  public said derivative work, additionally requires a similar

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permission from the owner of the underlying works i.e. the literary and musical works?”  

3. The present appeals being against an interim order, naturally,

strong and compulsive reasons exist for exercise of judicial restraint

in the manner and extent of exercise of jurisdiction. Though it is too

elementary  it  must  be  said  that  the  court  must  refrain  from

expressing any opinion,  whatsoever,  touching upon the merits of

the controversy, lest, the same may prejudice either of the parties in

the suit. While there can be no doubt that an order, even interim,

sans any reasons, would not be judicially acceptable, the precise

exercise that a court would be required to undertake at the interim

stage must be left  to  the wise discretion of  the  concerned court

itself. It is not only difficult but also undesirable to lay down the

parameters and contours of  the exercise of  judicial  power at the

interim stage by expressly laying conditions which would be binding

under Article 141 of the Constitution. But it needs to be reminded

that an elaborate reasoning with the “footnote” that the same are

prima facie or tentative is hardly an effective remedy to prevent the

imprint of such observations on the human mind that mans the

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court at different levels.  This is what appears to have happened in

the present case.  

4. The object of an interim exercise by the court is to find a rea-

sonable solution to the matter which should govern the parties until

disposal of the suit where the main controversy is required to be de-

cided. Having perused the order of the learned Single Judge as well

as the Division Bench, I am of the view that the order of the Single

Judge,  set  out  in  opening  part  of  the  judgment  of  my  learned

brother (which has been affirmed in appeal by the Division Bench of

the High Court), strikes a reasonable note to find a workable solu-

tion during the pendency of the suit. I therefore fully agree with the

views expressed by my learned brother that the order of the High

Court needs to be upheld.  

5. However, while saying so I would like to take note of two dis-

turbing trends which have emerged from the facts of the present

cases.  The suits, by now, are over 10 years old; yet, there has been

no substantial progress therein. Parties to the suits seem to have

lost all interest in prosecuting the same, perhaps, because the ex-

haustive orders at the interim stage had virtually foreclosed the is-

sues in the suits.  It is evident from the order dated 24th August,

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2016 passed by the Joint Registrar of the High Court in O.S No.

1185 of 2006 that due to repeated adjournments sought on behalf

of the plaintiff and on account of the failure of the plaintiff to file af-

fidavit evidence of witnesses, the right of the plaintiff to lead evi-

dence has been closed. In the other suits i.e. O.S. No.666 of 2006

and O.S. No.1996 of 2009 there has, again, been persistent defaults

on the part of the plaintiffs and the said suits now stand transferred

to the competent Civil Court from the Delhi High Court. The pen-

dency of the suits, for a period of over 10 years with no progress

and the conduct of the plaintiffs in not filing/placing their evidence

before the learned trial  Judge, though vehemently contesting the

present appeals (against interim orders) are facts which are difficult

to reconcile. Equally difficult is to accept the fact that the Interna-

tional  Confederation  of  Societies  of  Authors  and  Composers

(ICSAC), though not a party to any of the suits but have been al-

lowed to contest the interim matter before this Court on the basis

that  the  order  of  the  High  Court  adversely  affects  the  societies’

rights, has chosen not to implead itself as a party to the suits and

pursue the same.

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6. Having said what was felt required and necessary we dispose

of all the appeals by holding all observations, findings and views ex-

pressed by the High Court in the original as well as appellate pro-

ceedings before it to be of no legal effect, whatsoever, in so far as

the merits of the suits are concerned which will now be expedited

and heard and disposed of within a year from today.         

……………………….J. [RANJAN GOGOI]

NEW DELHI SEPTEMBER 20, 2016.