The 'rights' and 'wrongs' of a controversial Bill

The Supreme Court denies the Copyright Board the power to grant temporary licences.

Ever since arts and music left the privileged precincts of temples and palaces, they have become crassly commercial, much like education and health care. Copyright laws have become inadequate with advances in technology that propel frantic transmission of creative work to everyone's palm.

Even as court battles are being fought on new frontiers in cyber piracy, the old-fashioned disputes over playing recorded music on radio or in public places have not been settled. Two judgments of recent weeks dealt with them.

The Supreme Court dealt with the power of the Copyright Board to grant interim compulsory licence in the judgment, Super Cassettes Industries Ltd vs Music Broadcast Ltd. As in most of the copyright cases, there was a clash of commercial and public interest.

The owner of a work owns the intellectual property and can withhold its publication or broadcast for various reasons. He might be a hard bargainer seeking high royalty. Or the author might fear for his life in these intolerant days when books, films and now even cartoons attract extreme reaction from unexpected quarters. In such situations, the public is deprived of its right to entertainment and enrichment of life.

Since this is a universal dilemma, most democratic countries have passed laws that provide for compulsory licensing of art work. In India, Section 31 of the Copyright Act confers on the Copyright Board the power to grant licence on the following conditions: the work should have been published or performed in public, the owner of the copyright should have refused to republish or allow performance in public of the work, thus, withholding it from the public, and has refused to broadcast it on reasonable terms.

In England, compulsory licensing is traced to the Statute of Anne, 1709. Under the latest statutes, copyright is not infringed if a reasonable royalty is paid. Australian law is similar to Section 31 of the Indian law. In the United States, free-to-air broadcasting is totally exempt from copyright requirement.

Even in China, which follows the Berne Convention for international recordings, domestic recordings can be broadcast on radio and television without any licence or payment.

In the Supreme Court case, the issue was whether the Copyright Board can issue an interim order. This question is important because often it is the one that really matters. After an interim order, the inordinate time taken to settle the disputes will take away the core of the complaint.

The songs or films become old and diminished in commercial value. Their maximum value is for a few months before release and a few months after that. In the present case, the board felt that it had no power to pass an interim order granting compulsory licence. However, the Delhi High Court reversed it. This led to the appeal to the Supreme Court.

The court held that the board has no power to grant compulsory licence. There is no provision in the Act granting the board the power and, therefore, it could not be read into it, though it is a quasi-judicial body, the judgment said. Moreover, such an interim order will have the colour of a final order in copyright disputes.

Another judgment of some importance was delivered by the Delhi high court in the case, Indian Performing Rights Society Ltd vs CRI Events Ltd. Dealing with a complex issue, the high court ruled that FM channels, hotels, event managers and others playing music with licence from the film copyright owners did not require separate authorisation from the lyricists or composers of the soundtracks.

A song that is recorded is the result of the merger of the creative talent of three people: the lyricist, the composer of the musical score and the singer. The issue was whether they required separate authorisation.

Rejecting the arguments of the society, which is an organisation of copyright holders, the high court held that there was no need for separate authorisation. The high court largely relied on the 1977 Supreme Court judgment in IPRS vs East India Motion Pictures that interpreted Section 13 (4). It says "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 is made".

Several judgments have dealt with this complex provision, and as the Supreme Court stated, "the copyright law in our country is fairly complicated because of the involved language in which some of its provisions are couched".

Often, judicial interpretation also eludes easy understanding. What would one, who is semantically or ontologically weak, make of the high court's remarks like "integration is not fusion just as differentiation is not fission"? Or, "integration is a difficult concept and has been used in different contexts and senses: totalization, aggregation, unification, fusion, assimilation, synthesis, composition etc".