India: Radio Today Broadcasting Entitled To A “Quia Timet” Relief Against IPRS

Last Updated: 28 April 2009

Radio Today Broadcasting Ltd. (hereinafter referred to as 'RTB') had instituted a suit against the Indian Performing Rights Society Ltd. (hereinafter referred to as 'IPRS'), vide Radio Today Broadcasting Ltd. v. Indian Performing Rights Society Ltd & Ors. (A.P.O. NO. 109 of 2006 in C.S. No. 90 of 2006) in order to seek a declaration to the effect that IPRS and/or its members had no right to issue licences or claim payment of licence fees in relation to the broadcasting of works embodied in sound recordings administered by Phonographic Performers Ltd. (PPL) and other music companies.

RTB averred in its plaint was that it had incurred a substantial expenditure of around Rs. 30.5 crores towards setting up of radio stations in seven cities, including Kolkata and broadcast was to commence when the present suit was instituted.

RTB contended that IPRS, registered as a copyright society under section 33 of the Copyright Act, 1957, was claiming the exclusive right to grant a licence on behalf of lyricists, composers, etc. and without such licence, sound recordings cannot be broadcast by any radio station. In this event, RTB alleged that they were issuing threats to companies owning radio stations intending to commence their business of broadcasting, prompting RTB to move to Court. A declaration was sought to the effect that IPRS had no copyright in respect of any work comprising of and/or the sound recordings in relation to which licences were granted by PPL. Further, they sought to be declared free from any obligation to obtain a licence from IPRS or to make payment of any fees in relation to works broadcast by them. This was also accompanied by a prayer to declare that in doing so no infringement action would accrue upon RTB and injunct IPRS from claiming any payment or proceeding against them in matters related to the present suit. Further, a decree of perpetual injunction restraining the IPRS and/or its members from in any way or manner claiming any payment from the plaintiff for the proposed broadcasting of sound recordings administered by Phonographic Performance Ltd. and other recording companies.

RTB was granted leave under Order 1 Rule 8 of the Code of Civil Procedure, 1908 and after an advertisement six companies were added as parties to the suit. RTB moved for the grant of an interlocutory application ex parte, for grant of injunction, to which the Counsel for IPRS intervened. Subsequently, a suit was instituted before the Delhi High Court by IPRS against RTB, claiming for damages for infringement of its copyright. In the said suit an interlocutory application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 was also filed, wherein IPRS prayed for an injunction restraining RTB from commencing and/or causing broadcast to be made without obtaining a licence from it.

RTB at the Delhi High Court averred that in so far as broadcasting was concerned, licence was yet to be issued by the Government of India, though the letter of intent had been issued in January, 2006 and the formalities to be completed before the broadcast were estimated to take about four months. RTB further contended that there was an immediate threat for which an interim order would be required and in case it proposed to start broadcasting an advance intimation of at least fifteen (15) days would be given to the court with intimation to the IPRS so that consideration of the interlocutory application could be taken up expeditiously in that eventuality. On this basis, an interim order was not passed by the Delhi High Court.

The counsel appearing on behalf of RTB reiterated the facts of the case in detail and submitted that the Hon'ble First Court, despite noticing the law laid down by the Hon'ble Supreme Court in the Indian Performing Rights Society's case whereby it was held that a composer can claim copyright in his work only if there is an express agreement between him and the owner of the film preserving his right, held in the order impugned that IPRS was entitled to royalty from broadcasters unless it was shown that its members' rights, were expressly assigned in favour of members of Phonographic Performance Ltd. Also alluding the contradiction to the earlier held Eastern India Motion Pictures and Others v. Performing Right Society Ltd. and Others [AIR 1978 CAL 477] he submitted that the respondent and/or its members can have a right in some works, only if the same had been specifically reserved in relation to individual songs/works under agreements entered into by them. It was pointed out that in the instant case, no such agreement had been disclosed, hence IPRS had failed to disclose that they had retained rights over any works embodied in specific sound recordings.

It was also submitted that assuming that the lyricists and composers had preserved their rights by agreement, the same would, at the highest, be restricted to "public performance rights" in relation to which no royalty could be claimed from radio stations as they are not involved in any "public performance". He also submitted that since the rights of the lyricists and composers were vested in the producers, who in turn authorized the sound recording companies to make sound recordings and publish the same, obtaining a licence from PPL (which represents the sound recording companies) or the sound recording company themselves, where they are not members of PPL, would be sufficient for the purpose of broadcast of sound recordings. Placing reliance on the judgments referred, the learned senior counsel for RTB submitted that the lyricists' and composers' rights, if any, could be preserved only by a specific agreement or contract to the contrary and this question could not be gone into, in the absence of proper materials. It was also submitted that IPRS could not claim any right on a factual basis either, more particularly so, as whether or not there was any agreement to the contrary, would only be within the special knowledge of IPRS or its members.

It was also submitted that, in the facts and circumstances of the instant case, a fortiori, quia timet action would be maintainable and a person must be held to have access to justice, if his right in any manner, whether to carry on business is infringed upon, or there is a future threat to such liberty which he enjoys. Several precedents to support his contention were cited. He, thus, submitted that the fact that RTB did not have a licence from PPL was immaterial.

Several supporting contentions were averred by counsels of either side including that IPRS was giving threats and such threats were wrongful threats within the meaning of Section 60 of the Copyright Act, 1957. Facts regarding RTB' approach to the Court to render intimation of broadcast were contraverted by IPRS stating that RTB was neither broadcasting nor had any intimation to the effect given The present suit was stated to be premature and speculative in nature. Several provisions and dicta in the Copyright Act were also deliberated upon including the standing of IPRS as a copyright society.

The Court stated that what was required to be considered and decided was if RTB had any legal right to be granted an order of injunction, as prayed for, before the Hon'ble First Court, in its interlocutory application. Taking note of the facts of the case and contentions furthered, that IPRS' submission regarding a threat was groundless because of the institution of the subsequent suit by IPRS against RTB before the Delhi High Court. IPRS was, stated to in fact, be conscious of the fact that RTB had instituted the present suit before this High Court, and that it was a deliberate action on the part of IPRS to institute the subsequent suit against RTB at Delhi High Court. They also opined that in view of the subsequent suit filed before the Delhi High Court by IPRS, a quia timet relief based on the provision of section 60 of the Copyright Act, 1957 may not be germane any more. The Court averred that a quia timet relief could be granted in favour of RTB having regard to the facts and circumstances of the instant case.

The Court further stated that although it may not be open to RTB to invoke section 60 of the Copyright Act, 1957, and seek quia timet relief as contemplated under that provision of law, consequent to filing of the suit at Delhi High Court by IPRS, they held the prima facie opinion that in the facts and circumstances of the instant case, RTB was entitled to a quia timet relief in the nature of an injunction restraining the respondent IPRS from initiating any proceeding against RTB until disposal of the present suit.

© Lex Orbis 2009

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