Event and Entertainment Management Association Vs Union of India & Ors.

2012(52)PTC380(Del)

IN THE HIGH COURT OF DELHI

W.P. 6410/2008 and CM No. 12254/2008 (for Stay)

Decided On: 02.05.2011

Appellants: Event and Entertainment Management Association

Vs.

Respondent: Union of India & Ors.

Judges/Coram:

Dr. S. Muralidhar, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Mr. S.K. Bansal with Mr. Vikas Khera, Mr. Ajay Amitabh Suman, Mr. R.K. Jha and Mr. Akshay Shrivastav, Advocates

For Respondents/Defendant: None

ORDER

S. Muralidhar, J.

1. The Petitioner is a Society registered under the Societies Registration Act, 1860. It is an association of members from all over India engaged in the business of organising events, functions and entertainment shows like road shows, music concerts/shows, brand promotion activities, dealer meet and other social events. It is stated that while organising the aforementioned events and functions the members of the Petitioner association on instructions from their respective clients make arrangements for playing music recorded on tapes, compact discs, DVDs and other storage devices. They also makes arrangements for performance of live music as well as singing of literary works in the forms of songs by well known artistes. It is stated that Super Cassettes Industries Ltd. ("SCIL"), Respondent No. 5, is in the business of, inter alia, distributing public performance licences and sound recordings, songs, musical titles, etc. in which SCIL claims copyright. SCIL issues licences in respect of such works and collects licence fees/royalties from members of the Petitioner association. The Petitioner's case is that SCIL is not a registered copyright society in terms of Section 33 of the Copyright Act, 1957 ("the Act") and without such licence cannot carry on the business of issuing and granting public performance licences.

2. The immediate provocation for the present writ petition is a Circular dated 4th March 2008 issued by the Commissioner of Police, Delhi in which, after reproducing Section 51 of the Act, the following directions were issued:

It is emphasized upon all concerned that whenever any complaint is received from M/s. Super Cassettes Industries Ltd., in respect of violation of the provisions of Copyright Act, 1957, the same may be attended to and police assistance may be provided as we are doing in cases of Phonographic Performance Ltd., and Indian Performance Right Society Ltd.

3. The Petitioner's case is that the said Circular is without the authority of law and has been issued at the behest of SCIL. It is not based on any particular provision of the Act. It is unconstitutional inasmuch as the power of the Police under Section 64 of the Act is sought to be invoked by SCIL for interfering with the legitimate business activities of the Petitioner and its members. Elaborating on the above submission, Mr. S.K. Bansal, learned counsel appearing for the Petitioner refers to the provisions of the Act and in particular to Sections 51, 52 and 64 thereof. It is submitted that the power vested in the Police officer under Section 64(1) to seize without warrant all copies of a work in respect of which infringement of copyright is being or is likely to be committed has to be based on a prima facie satisfaction that there is such infringement. It cannot be a mechanical exercise based only on the written complaint of the owner of a copyright. It is pointed out that during the preliminary investigation by the police, the alleged infringer might rely on Section 52 of the Act to show that in fact there is no infringement. It is further submitted that the Police machinery cannot be made to act at the behest of certain privileged copyright owners. Every complaint under the Act has to be dealt with by the Police in accordance with law. It is pointed out that on account of the impugned Circular, the Petitioner and its members are subjected to harassment by the Police at the behest of SCIL. It is submitted that the impugned Circular violates the fundamental rights of the members of the Petitioner association under Articles 14, 19(1)(g) and 21 of the Constitution. It is submitted that the impugned Circular is without the authority of law.

4. Pursuant to the notices issued in this writ petition, a counter affidavit has been filed on behalf of Respondent Nos. 1, 3 and 4 where apart from a bare denial of the aforementioned writ petition no attempt is made to provide a legal justification for the impugned Circular. The counter affidavit merely reproduces Sections 33, 34, 34A and 35 of the Act.

5. In the counter affidavit filed on behalf of SCIL, it is stated that SCIL collected licence fees/royalties when approached by event managers for issuance of a licence. It is denied that SCIL has illegally or unauthorisedly collected royalty for use of copyrighted works by the members of the Petitioner association. Referring to the proviso to Section 33 of the Act, it is contended that there is no restriction or mandatory requirement for the owner of a copyright to become either the member of the society or form a society for carrying on the business of grant of licence. It is stated that SCIL seeks help of the Police only in terms of the Act to prevent piracy of its copyrighted works.

6. None has appeared on behalf of the Respondents. Consequently, this Court has gone by the stand taken in their respective counter affidavits.

7. The Act provides both for civil and criminal remedies for infringement of copyright. While Section 55 deals with the civil remedies, the criminal remedies are provided under Sections 63 and 64 of the Act. Section 63 postulates filing of the criminal case before a criminal court followed by a trial and resultant punishment, if any. Section 64 empowers the Police to seize infringing copies which are then produced before a Magistrate. In terms of Section 64(2) of the Act, a person having an interest in any copy of the work so seized, may within 15 days of such seizure make an application to a Magistrate for restoration to him of such copies. Upon such application, the Magistrate is required to hear the application and the complainant and make such further inquiry before passing any order on the application.

8. In order that the power to seize in terms of Section 64 of the Act is not exercised in an arbitrary and whimsical manner, it has to be hedged in with certain implied safeguards that constitute a check on such power. Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure.

9. The impugned Circular is in the form of a direction to "all concerned" which necessarily means members of the police force. It is to the effect that whenever a complaint is received from SCIL "the same may be attended to and police assistance may be provided." A reference is also made in the impugned Circular to a similar practice being adopted in receipt of complaints from the Phonographic Performance Ltd. and the Indian Performance Rights Society Ltd. The impugned Circular has to be understood as requiring the Police to act in accordance with law and nothing more. The impugned Circular is bad in law inasmuch as it impliedly directs the police force to treat complaints received from SCIL as class requiring special attention. To the extent the impugned circular privileges the complaints from SCIL over other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution.

10. The Police is not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action. Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no different as regards the complaints or information received under the Act. The apprehension of the Petitioner that the impugned Circular is not an innocuous one and that it privileges complaints received from SCIL over other complaints of violations of the Act cannot be said to be unfounded. As long the police are discharging their statutory duties in accordance with law, there is no need for circulars such as the impugned one.

11. Accordingly, this Court set asides the impugned Circular dated 4th March 2008 to the extent that it requires the Police force in Delhi to treat complaints received from SCIL about violation of the Act as a class requiring a special treatment. The complaint received from SCIL will be treated as any other complaint received from any other copyright owner under the Act. The writ petition and the pending application are allowed in the above terms, but in the circumstances, with no order as to costs.