2012(52)PTC380(Del)
IN THE HIGH COURT OF DELHI
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
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.
