A.S. Naidu, J.@mdashIn both these appeals the challenge is to the same order dated 17.10.2004 passed by the District Judge, Puri in Interim Application No. 425 of 2002 filed under Order 39, Rules 1 and 2 read with Section 151 of the CPC arising out of Civil Suit No. 3 of 2002. Therefore the same were heard together and are disposed of by this common judgment.
The scope and ambit of an ad interim order to be passed during pendency of a proceeding initiated in consonance with Section 60 of Copyright Act, 1957 (hereinafter referred to as "the Act") needs to be decided in these appeals filed under Order 43, Rule of the Code of Civil Procedure.
2. The Hotel Association of Puri, represented through its President, on being demanded licence fee by the Indian Performing Rights Society Limited (for short IPRS) filed aforesaid Civil Suit No. 3 of 2002 in the Court of the District Judge, Puri praying for a declaration that the Plaintiff-Association and its members have not infringed any copyright and for other consequential reliefs. The aforesaid Interim Application had also been filed by the Plaintiff seeking an order of the Court below granting ad interim injunction against the Defendants in the suit, who are the respective Appellants in the present two appeals, restraining them from hurling any threat by issuing letters to the Plaintiff-Association so as to initiate legal proceeding against it or prosecuting it on illegal demand of licence fees.
3. According to the Plaintiff, it is a registered Society of 123 approved/recognized hotels in the district of Puri and record music and/or music broadcast by different bands/channels of radio/television is played in the respective hotels of its members for entertainment of the customers. It is also averred in the plant that in the hotels of the members of the Plaintiff Association pre-recorded music through their own broadcast system is played in their respective commercial places and connection of cable TV channels have been taken from the concerned local agents/dealers/operators on payment of monthly charges. It is submitted that Defendant No. 2 (Appellant in FAO No. 82/05), namely, Indian Performing Right Society Ltd., Mumbai claims to have registered itself with the Registrar of Copyright, New Delhi and similarly Defendant No. 1, namely, Phonographic Performance Ltd., of Mumbai, also claims to be another company having registered itself with the said Registrar of Copyright, New Delhi, and they also claim themselves to be composed of members of copyright owners in musical works, such as, writers, singers, composers and publishers of music and are entitled to realise licence fees on behalf of its members from persons making public performance of musical work, be it of any form. The plaint averments further reveal that the Defendants falsely alleging that the member-hoteliers of the Plaintiff Association were playing pre-recorded music in public inside their commercial places without the required licence therefore from the Defendants are liable to pay licence fees, and in the alternative the members of the Plaintiff-Association are liable for prosecution for purported infringement of Section 51 of the Act. It is the case of the Plaintiff-Association that as per definition u/s 2(ff) of the Act as amended in 1994, since the hotels and restaurants are not broadcasting anything and only provide Cable T.V. channels to their boarders having obtained cable connection to their respective hotels/restaurants on payment of charges therefore to the cable operators concerned and the Defendants having collecting licence fees from the original broadcasters, the members of the Plaintiff-Association are not liable to pay any licence fees to the Defendants. The demand of such licence fees from the members of the Plaintiff-Association is baseless.
4. According to Defendant No. 1, Appellant in FAO No. 438 of 2004, as per the provisions of Section 2(ff) of the Act and the Explanation thereto, the members of the Plaintiff-Association are required to obtain licence from it for communicating music, such as, sound recording of its members to the public through T.V. sets, irrespective of the medium through which the T.V. sets receive the music works and therefore the Plaintiff-Association is liable to obtain licence from Defendant No. 1, failing which it would be liable for legal consequences as enumerated in that Section.
5. Similarly, Defendant No. 2, Appellant in FAO No. 82 of 2004, takes the stand that its primary task as a registered Copyright Society u/s 33(3) of the Amended Act is to collect royalties from users of music and then to disburse the same to the owners of the copyright in music. According to it, the Copyright Act does not permit any party to derive any benefit from its members unless the copyright holders get their dues. It is the averment of Defendant No. 2 that the members of the Plaintiff-Association having not paid any licence fees for allowing public to enjoy the works of the copyright holders in their respective premises are liable for infringing the provisions of Section 51 of the Act and its demand of licence-fee from the Plaintiff-Association is all the more justified.
6. The District Judge after perusing the inter se pleadings and the materials available on record allowed the prayer in the Interim Application and has restrained the Defendants from issuing any letter threatening with legal proceedings to the Plaintiff-Association or its members, from initiating any prosecution against them or demanding any licence-fee on alleged infringement of the provisions of the Act till disposal of the Civil Suit.
7. I have heard learned Counsel for the parties at length. According to the learned Counsel for the Appellants the Court below having completely lost sight of the provisions of the Act, has acted illegally and with material irregularity in injuncting the Appellant-Societies from putting the law into action. He submits that it is the settled law that a statutory authority should not be prevented from taking action and/or from performing any statutory duty and the Appellants are prejudiced by the impugned order. It was submitted by him that the action of the 123 member-hoteliers of the Plaintiff-Association in broadcasting recorded music and or allowing public to enjoy Cable T.V. channels by providing such facility in the rooms of the hotels for their customers grossly violates the provisions of the Copyright Act. He further submitted that the impugned order suffers from the vice of non-consideration of material facts and thus being not sustainable in law, may be set aside.
8. The submission of the learned Counsel for the Appellants are strongly repudiated by the learned Counsel for the Plaintiff-Respondent. He submitted that in fact none of the members of the Plaintiff-Association has installed any equipment for broadcasting the recorded music or Cable T.V. programmes. They only play the Cable T.V. channels connection of which is provided to them by the local Cable T.V. operators and that too on payment of charges therefore. That apart they play the local music broadcast in radio and other music system. Thus they do not violate any of the provisions of the Act.
9. Section 2(ff) of the Copyright Act, 1957 defines "communication to the public" as follows:
Communication to the public" means any work available for being seen or herd 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.
10. Admittedly the members of the Plaintiff-Association provide facility of watching T.V. and/or music system to its customers in the rooms in their hotels. Mostly, this is not their original work, but a recorded wok. Whether such action of the Plaintiff-Association attracts the provisions of Section 14 of the Act or not is a question which needs determination in the suit itself. As he suit is sub judice, any observation by this Court at this stage may amount to pre-judging the issue. Therefore, this Court refrains from either analyzing the points of law involved or making any observation thereon.
11. However, at this juncture it would suffice to discuss only the remedy available to the Plaintiff in case of any threat to it by the Defendants. In this context it would be prudent to refer to Section 60 of the Act which reads as follows:
60. Remedy in the case of groundless threat of legal proceedings.
Where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of the copyright, any person aggrieved thereby may, notwithstanding anything contained in Section 34 of the Specific Relief Act, 1963 (47 of 1963) institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit-
(a) obtain an injunction against the continuance of such threats; and
(b) recover such damages, if any, as he has sustained by reason of such threats: provided that this Section shall not apply if the person making such threats, with due diligence, commences and prosecutes an action for infringement of the copyright claimed by him.
12. In consonance with the aforesaid Section, the Plaintiff having been threatened by the Defendants with legal proceeding or liability for alleged infringement of copyright, it has filed the aforesaid Civil Suit seeking appropriate relief. During pendency of the suit in consonance with Section 60 of the Act it could seek injunction for restraining the Defendants from continuing such threat and/or recovering any damages caused to it by reason of such threat. Such being the ambit of Section 60, this Court feels that the learned District Judge while allowing the Interim Application filed by the Plaintiff exceeded his jurisdiction in restraining the Defendant-Appellants from prosecuting the Plaintiff-Respondent for any criminal action committed by the latter and/or asking it to pay any licence fees for alleged infringement of any copyright till disposal of the suit. Law is well settled that a statutory authority cannot be restrained from discharging its duties stipulated under any Act.
13. In view of the aforesaid discussion, I modify the impugned order restraining the Defendant-Appellants from continuing their threat to the Plaintiff Respondent with regard to demand of any licence fee, but however they may take such other steps which they are otherwise entitled to do under the Act.
However, I direct the Court below to dispose of the Civil Suit as expeditiously as possible.
With the aforesaid observation/direction both the appeals are disposed of.
