Super Audio Madras Private Limited vs Entertainment Network India Private Limited and Others

R. Subbiah, J.—All the miscellaneous petitions are filed by the Petitioners as ""aggrieved persons"", seeking permission of this Court to file

appeals, as against the order dated 25.08.2010 passed by the Copyright Board, New Delhi, in the complaints filed by the 1st Respondent in these

appeals as against the 2nd Respondent Copyright Society.

There are two sets of petitions before this Court; of which, one set of petitions filed in CMA. SR. Nos. 95165 to 95173 of 2010 are filed by

M/s. Super Audio Madras Private Limited, who is the member of the 2nd Respondent Copyright Society and another set of petitions in CMA.

SR. Nos. 95829 to 95832 of 2010 are filed by The South Indian Music Companies Association (SIMCA), which is registered under the Societies

Registration Act, on behalf of its members. Neither the Super Audio Madras Private Limited nor the SIMCA was a party to the impugned

proceedings before the Copyright Board and hence, the present miscellaneous petitions are filed, seeking permission of this Court to challenge the

order dated 25.08.2010 passed by the Copyright Board as they are the ""aggrieved persons"".

According to the Petitioners in both sets of miscellaneous petitions, Section 72(2) of the Copyright Act (in short ''the Act'') gives a right to them

to file an appeal because this Section envisaged ''any person aggrieved by any final decision or order of the Copyright Board may, within three

months from the date of such decision or order, appeal to the High Court within whose jurisdiction the Appellant(s) actually and voluntarily resides

or carries on business or personally works for gain. These petitions are opposed by the respective 1st Respondent, who are the broadcasters.

The 1st Respondent broadcaster in some of the petitions filed their counter stating that firstly, the Petitioners are only the members of the 2nd

Respondent Society, who are not the parties to the proceedings before the Copyright Board and as such, the Petitioners being the members of the

2nd Respondent Society, had no independent right to challenge the impugned order and it is only the Society entitled to represent as an aggrieved

person and an individual member is not entitled to file an appeal as against the order passed by the Copyright Board in his/her individual capacity.

Secondly, when already the 2nd Respondent Copyright Society has filed appeals against the order dated 25.08.2010 passed by the Copyright

Board, if members of the Copyright Society are allowed to file appeals, it would amount to multiplicity of proceedings that would cause great

prejudice to the 1st Respondent broadcasters. So far as the SIMCA is concerned, it is not an Association registered under the provisions of the

Copyright Act and hence, it is an illegal association. Hence, it is prohibited from advocating the rights of its alleged members and consequently it is

not entitled to challenge any proceedings on behalf of any of the alleged members.

Now, in the above background, let this Court to scrutinize the submissions made on either side. Learned Senior Counsel Mr. T.V. Ramanujam

appearing for the Petitioner/Appellant Society in CMA SR. Nos. 95165 and 95166 of 2010 submitted that the Appellants are the owners of the

copyright content, which is played by the broad-casters, and is also a member of the 2nd Respondent, namely, M/s. Phonographic Performance

Limited (in short ""PPL""). In view of the the Coprovisions u/s 33 ofpyright (Amendment) Act, 38 of 1994, the registration of the Copyright Society

is mandatory. Therefore, the PPL (2nd Respondent Society) came into existence and under the statutory compulsion, the Petitioner has become

the member of the PPL. The proviso to Section 33(1) of the Act permits the copyright owner i.e. the Petitioner herein to continue to have the right

to grant licences in respect of his own works. Therefore, by becoming a member of the Copyright Society, the Petitioner as an owner of copyright

will not be deprived of his right. Hence, the Petitioner is entitled to take care of his personal interest though an appeal has been filed by the

Copyright Society. Moreover, Section 72(2) grants a right to file an appeal by any person aggrieved by any final decision or order of the Registrar

of Copyrights. When there is no bar under the said section that a member of the society can file an appeal apart from the appeal filed by the

society, there cannot be any valid legal objection for filing an appeal by the members of the 2nd Respondent society. Moreover, when the

impugned order passed by the Board is adversely affecting the individual right of the copyright owners and the Petitioners are personally aggrieved,

there cannot be a bar to file an appeal by the Copyright owners. Further, Section 30 of the Act also protects the individual rights of the copyright

owner. Copyright society is only an authorized representative to administer any right in issuing of licence or collection of licence fees and not

beyond that. Therefore, there cannot be any objection in filing the appeals by the copyright owners individually apart from the appeals filed by the

Copyright Society.

The learned senior counsel further submitted that by filing the appeals by the members of the society, no prejudice is going to be caused to the

1st Respondent. By relying upon the definition of the word ""any person"" from Ramanatha Iyer''s Concise Law Dictionary, the learned senior

counsel submitted that a copyright owner, who is the member of the Copyright Society, cannot be excluded from the definition of ''any person''.

The learned senior counsel has also relied upon the decisions reported in K. Ponnalagu Ammal Vs. The State of Madras and Others, ; Dimmiti

Pullayya v. Abdebolu Nagabhushanam AIR 1962 A.P. 140. Smt. Jatan Kumar Golcha Vs. Golcha Properties (P) Ltd., Wipro Limited, Thiru Vi

Ka Industrial Estate and Wipro Chandrika Limited Vs. Oushadha Chandrika Ayurvedic India (P) Limited, Oushadha Chandrika Research Centre

and Narayana Stores,

Mr. Arvind P. Datar, the learned Senior Counsel appearing for the Appellant in CMA SR. No. 95169 of 2010 submitted that the copyright

owners have filed the appeal against the impugned order of the Copyright Board along with the petition seeking leave earlier to the appeals filed by

the Society. Section 72(2) gives right to file an appeal by any person aggrieved by any final decision of the Copyright Board, within the jurisdiction

the aggrieved person actually and voluntarily resides or carries on business or personally works for gain. By inviting the attention of this Court to

Section 20 Code of Civil Procedure, the learned senior counsel submitted that the word ''person carries on business or personally works for gain'',

as found in Section 72(2) of the Copyright Act is similar to Section 20 CPC Section 20(a) CPC defines that the Defendant or each of the

Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or

personally works for gain and Section 72(2) of the Act accords right to an aggrieved person to file an appeal within the jurisdiction of the High

Court, where he resides, even seeking leave may not be necessary. In this regard, the learned senior counsel has relied on the decision reported in

the case of Stridewell Leathers (P) Ltd. and others Vs. Bhankerpur Simbhaoli Beverages (P) Ltd., and submitted that in a similar situation, wherein

the judgment had been delivered under the Companies Act, the Hon''ble Supreme Court held that when there is a special provision under the Act

enabling a person to file an appeal, there is no need to get leave.

Mr. T.R. Rajagopalan, the learned Senior Counsel appearing for the Appellant in CMA SR. No. 95167, 95170 and 95172 of 2010 submitted

that u/s 33 of the Act, the registration of Copyright Society was mandated only by Act 38 of 1994. The Society has been formed only for the

convenience of all the persons who are applying for licence. Though a copyright owner has become the member of the Society, the proviso to

Section 33 says that an owner of copyright, in his individual capacity, continue to have the right. Moreover, as per Rule 14(G) of the Copyright

Rules, the copyright owner can withdraw his authorisation from the Society. When that being so, as a copyright owner, the Petitioner can very well

represent his cause since he was greatly affected individually by the order of the Copyright Board. In fact, if the copyright owner filed an appeal, it

will be giving an assistance to the Court to decide the issue involved in these appeals because they are the persons really aggrieved by the

impugned order. Had the intention of the Legislature to prohibit the copyright owners from filing appeal, they would have used the word ''aggrieved

party'' and not ''aggrieved person'' as found in Section 72(2) of the Act.

Resisting the said arguments advanced by the learned senior counsel for the Petitioners, Mr. G. Masilamani, learned Senior Counsel appearing

for the 1st Respondent in CMA SR. Nos. 95165 and 95166 of 2010, namely, Entertainment Network India Limited, submitted that the issue

involved in this matter relates to the intellectual property. Unlike the right over the other properties, the right over the intellectual property is not

perpetual in nature and it is subject to social control. The law imposes certain limitations on the ownership of this property in the larger public

interest. In this regard, the learned senior counsel submitted that for example, if a work is exposed to public such as music and releasing a book,

the right of the copyright owner is subject to public control and the object behind it is that it should be available freely to the public. That is why,

various provisions have been made in the Copyright Act. Since public interest is involved, the copyright owner cannot claim an absolute right so

that the public interest is preserved, Therefore, the copyright owner cannot be termed as ''individually aggrieved person''. By inviting the attention

of this Court to Sections 33 and 30 of the Act, the learned senior counsel submitted that the owner of the copyright may grant any interest in the

right by licence in writing signed by him or by his duly authorized agent. Here, subsequent to the Amendment Act, the 2nd Respondent Society

was formed, in which the Petitioners are the members. Section 35 impliedly imposes a bar against the copyright owner of intent to act individually

once he has become a member of the society. Moreover, it is incorrect to say that there is a compulsion under the statute to the copyright owner to

become a member of the Society. As per Rule 14(G), the copyright owner can withdraw his authorisation and under such circumstances, if the

Petitioner withdraws his membership from the copyright society and files an appeal, there cannot be any grievance. If the members are allowed to

file an appeal by giving leave, it would amount to multiplicity of proceedings. The learned senior counsel further submitted that the complaint filed

by the 1st Respondent as against the 2nd Respondent was pending before the Copyright Board for more then 8 years; but the Petitioner, who was

watching the proceedings for the past eight years, did not thought it fit to impaled themselves in the proceedings before the Copyright Board and as

such, now they cannot be allowed to file a separate appeal. The learned senior counsel relied on Section 34 of the Act and submitted that the

entire administration of rights of the copyright owners is only under the Society. Therefore, filing an appeal by the Petitioner individually is not

maintainable. In support of his contentions, the learned senior counsel relied on the decisions reported in A.R. Antulay Vs. Ramdas Sriniwas

Nayak and Another, And Hemani Malhotra Vs. High Court of Delhi, .

Mr. R. Krishnamurthy, the learned Senior counsel appearing for the 1st Respondent in CMA SR. No. 95169 of 2010, namely, Music

Broadcast Private Limited, submitted that more than 100 copyright owners are the members of the 2nd Respondent Society and they spread all

over India. If they started to file an appeal individually, it would amount to multiplicity of proceedings and it would cause great hardship to the 1st

Respondent broadcaster. Hence, Section 72(2) of the Act has to be read in the context of Section 33 of the Act, which would be a proper

interpretation of the word ''any aggrieved person''. In this regard, the learned senior counsel further submitted that Section 33 of the Act speaks

about the compulsory registration of the copyright Society and once the copyright owners became the members, their cause has to be agitated only

through the Society. The Society alone has got an exclusive right and they have got every right to challenge the order of Copyright Board as per

the Rules framed thereunder. Under Rule 14(G), a copyright owner can withdraw his membership. A careful reading of Rule 14(G) would show

that it would give a clear meaning that so long he continues to be a member he has to agitate his cause only through the Society, particularly when

the member is not a party before the Board. The learned Counsel has also relied on the decisions reported in State of H.P. v. Surinder Singh

Banolta (2006)12 SCC 484 Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, and Entertainment Newwork (India) Ltd. v.

Super Cassette Industries Ltd. (2008) 13 SCC 30 and submitted that if an intention to produce an unreasonable result, it would defeat the objects

of the Legislation. Therefore the word ''any aggrieved person'' has to be read in the context of Section 33 and Section 72(2) of the Act and should

not be read in isolation.

Mr. V.T. Gopalan, the learned senior counsel appearing for the 1st Respondent in CMA. SR. Nos. 95167 and 95170 to 95173 of 2010,

namely, M/s. Puran Multimedia Private Limited, M/s. Synergy Music Entertainment Limited and M/s. Rajasthan Pathrika Private Limited,

submitted that the formation of a Copyright Society is mandatory in nature. When the statute itself provided the formation of a Society, the

individual copyright owners, who are the members of the Society cannot agitate the issue independently and it would amount to multiplicity of

proceedings. Only if a person, who has not been represented before the Board by the Society, if feels aggrieved, he can file a separate appeal.

Here, the cause of the Petitioners was met out by the Society before the Copyright Board. Therefore, the member of the Society cannot be

represented twice because it is a dual representation as being a member of the society and also independently by the society. The learned senior

counsel has also relied upon the judgment reported in Radhasoami Satsang Sabha Vs. Hans Kumar Kishanchand, and an unreported decision of a

Division Bench of this Court dated 17.04.2009 passed in W.P. No. 23709 of 2008 as an answer to the decision Stridewell Leathers (P) Ltd. and

others Vs. Bhankerpur Simbhaoli Beverages (P) Ltd., relied upon by the learned senior counsel Mr. Arvind P. Datar appearing for the Petitioner in

CMA SR. No. 95169 of 2010.

Mr. R. Amizhdu, the learned Counsel appearing for the 1st Respondent in CMA SR. No. 95168 of 2010, namely, Radio Midday West

Private Limited, submitted that the Petitioner has to satisfy this Court that they have got an independent right to file an appeal. If the independent

members of the Society are allowed to ventilate their grievance by filing this kind of appeals, then there would be more than 100 appeals by all the

members.

With regard to the petitions filed by the SIMCA, the Association registered under the Societies Registration Act, Mr. Vijay Narayan, the

learned Counsel appearing for the Petitioner SIMCA in all the four petitions, submitted that the members of SIMCA are not the members of the

PPL, the 2nd Respondent Society. But the order passed by the Copyright Board is an order in rem and not an order in personam, which affects

the members of SIMCA. The object of SIMCA is to safeguard the interest of their members. Totally there are 84 members and the Association

has also applied for registration u/s 33 as the Copyright Society. SIMCA has also filed for registration as a Copyright Society and the same is

currently pending with the Registrar of Copyright. But the Ministry of Human Resources Department sent a reply stating that since already there

was a Copyright Society in respect of music, the Central Government shall not ordinarily register more than one Copyright Society to do business

in respect of the same class of works. But the SIMCA had sent a reply that since there is no representation for the South Indian Music Industry in

the Panel constituted for discussions to the amendments to the Copy right, their application for registration as a Copyright Society has to be

considered, since the work of the members of the SIMCA is a different class work from the members of the PPL. But the said application is still

pending. Hence, the Association, for the time being, has been registered under the Societies Registration Act and under such circumstances, it

cannot be said to be an illegal. Moreover, there are about 84 members in SIMCA forming an association and agitating the issue is recognized

under law. If leave is not granted merely for the reason that the Association is not registered under the Copyright Act, then each member has to file

nine appeals as against the impugned order passed in 9 complaints, which would be more than 800 appeals. In support of his contentions, the

learned senior counsel has relied on the decisions reported in Bharti Telenet Ltd. Vs. Union of India (UOI) and Others, ; The Warangal Chamber

of Commerce Vs. Director of Marketing, Government of Andhra Pradesh, Hyderabad and Others, ; The Tamil Nadu Hotels Association Vs.

State of Tamil Nadu and Others, ; Vellakoil Vattara Vari Seluthuvor Nalvalvu Sangam Vs. The State of Tamil Nadu and Vellakoil (Selection

Grade) Town Panchayat, . and Indian Performing Right Society Ltd. Vs. Eastern Indian Motion Pictures Association and Others, .

Combating the said submissions, Mr. B. Kumar, the learned Senior Counsel appearing for the 1st Respondent in CMA. SR. Nos. 95829 and

95831 of 2010, namely, Entertainment Network India Private Limited, submitted that Section 33(1) indicates a complete bar in recognizing any

other Association other than the Society registered under the Copyright Act. The copyright is a statutory right and it is not a natural right or

common law right. How it is recognized and how the breach of that right is remedied have to be considered within the four corners of the Act and

not beyond that. Under the Act, all the Associations must have only one organization to represent them; otherwise, the object of the Act will break.

Once the work is published by a copyright owner, it should be available for the enjoyment of the public. Therefore, the broadcasters are

broadcasting the work only for the welfare and enjoyment of the public. Under such circumstances, the word ""any aggrieved person"" as found in

Section 72(2) should not be read in isolation and it should be read along with Section 33(1) of the Act. Therefore, all the petitions filed by the

Petitioner are not maintainable on two grounds, (i) it is an illegal Association and (ii) this Association would not come within the purview of ''any

aggrieved person"" and as such, it has no locus stand to file the appeal.

Mr. R. Krishnamurthy, learned Senior Counsel appearing for the 1st Respondent in CMA. SR. No. 95830 of 2010, namely, Music Broadcast

Private Limited, submitted that some of the members of the SIMCA are also the members of PPL and they have not withdrawn their authorisation

from the PPL, as envisaged u/s 34(1)(b) of the Act and Rule 14-G(2) of the Copyright Rules. Under such circumstances, the SIMCA has locus

stand to expose the cause of its members. The members of the SIMCA have also entered into individual agreements with this Respondent

company and in fact, two of the members have already indicated in their agreements to abide by the order dated 25.08.2010. This Respondent

company has no contractual relationship with the SIMCA. Therefore, leave cannot be granted to them. 16. Mr. R. Amizhdhu, the learned Counsel

appearing for the 1st Respondent in CMA SR. 95832 of 2010, namely, Radio Mid-day West India Private Limited, submitted that SIMCA is not

an Association registered under the Copyright Act and as such, they cannot represent on behalf of the members before the Copyright Board.

When they do not have a right to expose the cause of the members before the Copyright Board, now, they cannot seek leave from this Court to

file an appeal as against the order passed by the Copyright Board. Moreover, this Respondent broadcasters have agreement only with the

members of SIMCA directly and not with SIMCA and there is a clear understanding between the members of the SIMCA and this Respondent

that they would pay licence fee at Rs. 650/- as fixed by the Calcutta High Court as an interim arrangement and there is a promissory estoppels on

the part of the members since they would adhere to the rates as fixed by the Copyright Board finally.

Mr. B. Kumar, the learned senior counsel appearing for the 1st Respondent in CMA SR. Nos. 95829 and 95831 of 2010, by way of reply,

submitted that one of the tests for imp leading a person in the appellate stage is, whether he could have been made a party in the original

proceedings. The Society registered under the Copyright Act is having a right to agitate the issue and not the SIMCA which is registered under the

Societies Registration Act. When that being so, now they cannot seek the leave of this Court to file an appeal.

Heard the learned Counsel for all the parties.

In view of the submissions made by the learned senior counsel on either side, the following questions that arise for consideration are,

(1) When the appeals are filed by the PPL (the 2nd Copyright Society), who is the party to the proceedings before the Copyright Board, is it a bar

to file individual appeals by the members, who are not the parties to the proceedings before the Copyright Board ?

(2) Whether the statute indicates an implied bar to proceed individually by the members of the Copyright Society without withdrawing their

membership from the Society ?

(3) In view of the appeals filed by the registered Copyright Society, whether the SIMCA, which is not registered under the Copyright Act, is

entitled to expose the cause of its members as against the order of the Copyright Board ?

At the outset, it could be appropriate to state the brief facts, which led to the filing of these appeals, so that this Court can decide as to whether

the Petitioners are entitled to get leave from this Court. In March, 2000, the Government of India invited private sector into FM Radio

broadcasting by opening up the frequencies in the FM band. FM Radio broadcasting services were made available to private broadcasters like the

1st Respondent in all these appeals by amendment. The 1st Respondent broadcasters in all the appeals originally filed applications before the

Copyright Board, Hyderabad, u/s 31(1)(b) of the Act for grant of compulsory licence for broadcast of sound recordings and on 19.11.2002, the

Copyright Board had given a detailed order, inter alia, determining an interim standard rate of payment for royalty at Rs. 1,200/- per needle hour

during the prime time broadcast. Challenging the said order, the Radio broadcasting companies such as Music Broadcast Private Limited,

Entertainment Net work India Limited and Radio Mid-Day and the PPL have filed cross appeals before the High Court of Bombay, which

remanded the matters to the Copyright Board for re-determining the amount of compensation/licence fees vide its order dated 13.04.2004 Against

which, PPL, the 2nd Respondent Society, registered under the provisions of Copyright Act, filed an appeal before the Hon''ble Supreme Court

and the Apex Court by its judgment dated 16.05.2008, upheld the order of the Bombay High Court and remitted the matters to the Copyright

Board. The Copyright Board, by its impugned order, dated, 25.08.2010, determined sound recording royalty at 2% of net advertisement earnings

of each FM radio station accruing from the radio business. The said order will have a binding effect over the members of PPL as well as individual

copyright owners and also the members of other Societies registered under the Societies Registration Act. In short, the order passed by the

Copyright Board is an order in rem and not an order in personam. Hence, the petitions are filed by the members of PPL seeking leave of this

Court in their individual capacity and also by the SIMCA, consisting of 84 members stating that the Petitioners being aggrieved persons u/s 72(2)

of the Act are competent to file these appeals, because the words envisaged u/s 72(2) give a wider meaning to enable any person aggrieved over

the order, can file an appeal. Section 72(2) reads as follows:

Appeals against orders of Registrar of Copyrights and Copyright Board: (1)....

(2) Any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order made in an appeal under Sub-

section (1), may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the Appellant

actually and voluntarily resides or carries on business or personally works for gain.

Now, it is the submission of the learned senior counsel appearing for the Petitioners/Appellants that the word ""any aggrieved person"" has to be

scrutinized only in the context of Section 33(1) of the Act, which deals about the registration of the Copyright Society and that under the

substituted Act 38/94, the individual members are compulsorily made to become the members of the Copyright Society. On the contrary, it is the

submission of the 1st Respondent in all the petitions that to become a member of the Copyright Society is not a compulsion and in this regard, the

learned senior counsel for the Petitioners/Appellants relied on Rule 14-G of the Copyright Rules, which enable a person himself to withdraw from

the membership of the Copyright Society and it reads as follows:

14-G. Conditions subject to which a copyright society may accept authorisation and an owner of rights may withdraw such authorisation:

(1)....

(2) The owner of copyrights shall without prejudice to the rights under the agreement and subject to the condition of a prior notice of sixty days be

free to withdraw such authorisation in case the copyright society fails to fulfill its commitments as laid down in the agreement.

Therefore, in my considered opinion, becoming a membership of copyright owner is not a compulsion under the Statute; but at the same time,

under the first proviso to Section 33, the owner of the copyright shall, in his individual capacity, continue to have the right to grant licences in

respect of his own works consistent with his obligations as a member of the registered copyright society. Therefore, his right to continue as a

copyright owner has not taken away by the substituted Act 38 of 1994. Under such circumstances, the question is, will there be a bar for the

copyright owner to file an appeal as against the order passed by the Board in his individual capacity, especially in the circumstances when the

Copyright Society, in which he is a member, alone was a party before the Board ? Under the Act, there is no direct bar for the individual copyright

owner to file an appeal. But the learned senior counsel appearing for the 1st Respondent broadcasters submitted that the act of the individual

copyright owner is subject to social control because the right of the copyright owner is not perpetual in nature like the right over other properties,

because once the work is ready, it will be freely available. Under such circumstances, when he became the member of the Society and when that

Society already represented his cause before the Board, that member cannot individually agitate the issue by taking advantage of the words found

in Section 72(2), namely, ''any aggrieved person''.

But I am not inclined to accept this submission made by the learned senior counsel for the broadcasters because so long as his individual right

of copyright in respect of his own work continues as per the first proviso of Section 33, he can agitate the issue, especially in the circumstances

when there is no direct bar under the Act. Moreover, as per the order of the Copyright Board, the Society is eligible to get 2% royalty which is the

share along with the members. Therefore, when the member feels that he is individually aggrieved, he could very well agitate the issue in his

individual capacity. But Section 72(2) says ''any aggrieved person'' can file an appeal. In this regard, the definition of the word ""any"" ""person "" and

person interested"" as per Ramanatha Iyer''s Concise Law Dictionary, reads as follows:

Any: The word ""any"" may have one of several meanings, according to the circumstances, it may mean ""all"", ""each""., ""every"", ""some"", ""or one or

more out of several"".

ANY is used in the sense of any body, any person.

The word ''any'' means ''one or same or all''.

PERSON"" includes-

(i) an individual

(ii) a Hindu undivided family,

(iii) a company,

(iv) a firm,

(v) an association; of person or body of individuals, whether incorporated or not, and

(vi) every artificial juridical person, not falling within any of the proceeding sub-clauses, but does not include a local authority. (Voluntary Deposits,

Immunities and Exemptions) Act (47 of 1991), Section 2(d))

PERSON"" means-

(i) an individual who is a citizen of India.

Any person interested: The ''person interested in the objection'' would seem to cover primarily persons who are likely to be adversely affected by

the success of the objection. Mohd, Ibrahim Sahib v. Land Acquisition Officer. AIR 1958 AP 226 (Land Acquisition Act (1 of 1894), Section

18)

In this regard, the judgment reported in K. Ponnalagu Ammal Vs. The State of Madras and Others, relied on by the learned senior counsel

appearing for the Appellants, is an answer to the contention raised by the 1st Respondent as to whether a person, who is not a party to the suit, is

entitled to prefer an appeal.

On the immediate question, namely, whether a person who is not a party to a suit or other proceeding is under no circumstance entitled to

prefer an appeal against the decision in that suit or proceeding, there is very little authority in India. In The Indian Bank and The Official Receiver of

Madura Vs. Seth Bansiram Jashamal Firm and Another, Madhavan Nair and Jackson JJ. held that neither under the general principles of law nor

under the CPC can a person who was not a party to a suit prefer an appeal against the decree therein. In that case the Official Receiver

representing the general body of creditors was a Defendant in a suit brought by two Plaintiffs to declare their title to two items of property. The suit

went against the Official Receiver. But he did not file an appeal. One of the creditors thereupon filed an appeal against the decree in the suit and

along with it filed an application praying that in the circumstances this Court may be pleased to permit the applicant to appeal against the decree.

The learned Judges held that under the CPC no person who is not a party to the suit can prefer an appeal u/s 96 because ""the right of appeal is a

special creature of statute and it can be exercised only by those in whom the power is vested expressly or impliedly by the statute.

Two decisions of the Chancery Court in England were relied on by the Appellant in which leave to a person interested in, but not a party to an

action, was given to appeal from an order by which the person was aggrieved. But the learned Judges did not act on those decisions as in their

opinion they related to powers of the appellate Court to grant leave to appeal and such power was vested on the practice prevailing in the English

Courts. No provision of law or rule of practice, they said, has been shown to them entitling the Appellant to claim such leave. But they added that

even if such permission could be asked they were not satisfied that it was a proper case in which the permission should be given. This ruling was

followed by a single Judge (Abdur Rahman J.) in S. Kasi Chettiar Vs. The Rt. Hon''ble the Secretary of State for India in Council and Others,

In Dimmiti Pullayya v. Abdebolu Nagabhushanam AIR 1962 A.P. 140 it has been held as follows:

(31) What emerges from the above discussion is that if a person is deemed to be a party under Order 1, Rule 8 CPC and for purposes of Section

11, Explanation VI CPC leave to appeal could be granted to him by the appellate court in an appropriate case, if the decision rendered in those

proceedings would adversely affect him. It is not in every case where a person may be remotely or indirectly affected that leave should be granted

but it should be granted to persons who though not eon mine parties would be bound by the decree or judgment in the proceeding and who could

not by reason of Explanation 6 to Section 11. CPC agitate the same question in separate proceedings.

It is needless to say that it would be illogical to hold that while a person is deemed to be a party to a proceeding and would be bound by a

judgment rendered against him in a representative capacity, he would not be permitted to file an appeal against the decree if the person who is

actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. We hold that there is no obstacle

created either by the provisions of the CPC or by any practice obtaining either in India or in England in the way of granting leave to file an appeal

to persons who are not eon nominee parties to the proceeding but who at the same time would be bound by the judgment or decree of the court,

granted in such proceeding.

The above cited judgments would show that when a person is not a party and if he is affected by the judgment, leave could be granted. Moreover,

in the instant case, u/s 72(2) of the Act, in the wider sense, right is given to the aggrieved persons to file an appeal.

By relying upon a decision reported in Stridewell Leathers (P) Ltd. and others Vs. Bhankerpur Simbhaoli Beverages (P) Ltd., under the

Companies act, one of the learned senior counsel appearing for the Appellants submitted that when there is a special provision under the Act, there

is no need to obtain leave and the appeal could be numbered directly. But I am of the opinion when a copyright owner is not a party to the

proceedings, he is having a prima facie duty to satisfy the court that he is the aggrieved person by the order of the Copyright Board. Under such

circumstances, I am of the opinion that leave is necessary to challenge the impugned order.

Another submission was made on behalf of the 1st Respondent that the formation of a Copyright Society is mandatory in nature and under the

substituted provision only if a person is not represented before the Board by the Society, he can file a separate appeal. Further, under PPL, more

than 100 persons are members and the members, who are residing in different parts of India, started to file an individual appeal before the various

High Courts by giving an interpretation according to their convenience for the word ''any aggrieved persons'', it would cause great prejudice to the

1st Respondent broadcasters. In support of this contention, the learned senior counsel has relied upon a judgment reported in Padmasundara Rao

and Others Vs. State of Tamil Nadu and Others, and submitted that an intention to produce an unreasonable result should not be accepted. Since I

find that this judgment only deals with the Land Acquisition Act, wherein the special provision provided under the Copyright Act is not available, it

cannot be made applicable to the present case.

Learned senior counsel for the 1st Respondent broadcaster, by relying upon Sections 34 and 35 of the Act, which are dealing with the

administration of rights of owner by copyright society and control over the copyright society by the owner of rights, further submitted that once the

copyright owners become the members, they are part and parcel of the Society and therefore, they cannot individually agitate the issue as against

the order passed by the Copyright Board when the appeals are already filed by the Society. But, a perusal of Section 34, I find that this section

deals about the administering right with regard to the issuance of licence or collection of licence fees or both. So far as the institution of independent

proceedings by a member is concerned, the said provision does not speak anything similar to the one that of the issue involved in this case. As

found earlier, so far as the individual right continues with the copyright owner, there cannot be any bar for filing an appeal. In fact, it will be assisting

the Court along with the appeal filed by the Copyright Society to decide the issue. Moreover, no prejudice would be caused to the 1st Respondent

broadcasters if the leave is granted to the Petitioners/Appellants.

After the orders were reserved, the learned senior counsel appearing for the 1st Respondent Entertainment Network (India) Limited has

produced a copy of the plaint filed by PPL against the 1st Respondent and others before the Bombay High Court as well as the copy of the

agreements entered into between the PPL and its members, which were filed as exhibits in the said suit and submitted that the PPL had stated in

the plaint that the members of PPL entered into written exclusive authorisation agreements in favour of PPL authorising/assigning to the Plaintiffs

their exclusive copy-rights in their works in respect of communication to public by broadcast, telecast or other means their sound recordings.

Similarly, by inviting the attention of this Court to the clauses of the agreements above-mentioned, the learned senior counsel submitted that the

members have assigned and authorized to the Society their communication to public'' rights. Since the communication to public rights was assigned

in favour of the Society, now the Petitioners cannot maintain the appeal.

By way of reply, the learned senior counsel appearing for the Petitioners submitted that what has been assigned by way of agreement is only

the licensing right. The right of ownership always continues with the owner of the copyright. Under such circumstances, when the copyright owners

are directly affected by the order of the Copyright Board, they cannot be prevented from filing an independent appeal because as per the

provisions u/s 72(2), the Petitioners would come within the meaning of ''aggrieved persons''.

Considering the submissions made on either side, I am of the opinion that under the agreements what was conveyed is only an administrative

right of copyright i.e. licensing right to third parties and it does not mean that under the agreements, the litigating right is also conveyed along with

the administrative work.

So far as the ownership continues with the copyright owner, they cannot be prevented from filing an appeal particularly when the order of the

Board directly affects them. Further, I am of the opinion that the statutory right of copyright owner cannot be taken away by an agreement entered

into between the PPL and the Petitioners, in which the broadcasters have no concern. Therefore, I am not inclined to accept the submission made

on behalf of the 1st Respondent.

With regard to the petitions filed by the SIMCA, it is the contention of the learned senior counsel for the 1st Respondent that under the Act,

only one organization could represent, otherwise the object will become restraint. The learned senior counsel for the Appellants submitted that the

object of SIMCA is to safeguard the interest of their members, which are 85 in number and they have applied for registration u/s 33 of the

Copyright Act and since the Ministry of Human Resources Department raised a query that already there was a Copyright Society in respect of

music work, SIMCA is trying to register their Association under the Copyright Act for the different class of work i.e. South Indian music and the

same is pending consideration. Therefore, for the time being, SIMCA is continuing by registering under the Societies Registration Act. But it is the

contention of the 1st Respondent that Section 33(1) of the Act contemplates a complete bar in recognizing any other Association and, as such,

SIMCA cannot represent its members. Further, it is the contention of Mr. R. Krishnamurthy, the learned senior counsel appearing for the Music

Broadcast Private Limited that some of the members of SIMCA are also the members of PPL, but this Court feels that at this stage, the question

as to whether the members of the SIMCA are the members of PPL cannot be dealt with; but the core question that has to be seen is, whether the

SIMCA registered under the Societies Registration Act is entitled to expose the cause of its members? In this regard, it would be useful to rely on

the judgments relied on behalf of SIMCA to the questions raised on behalf of the 1st Respondent. In Vellakoil Vattara Vari Seluthuvor Nalvalvu

Sangam Vs. The State of Tamil Nadu and Vellakoil (Selection Grade) Town Panchayat, a Division Bench of this Court has held as follows:

It is the grievance of the Petitioner/ Sangam that the 3rd Respondent/Selection Grade Panchayat, by Resolution Number-215, dated 7.10.1998,

fixed the basic value for the purpose of levy of property tax. It is also the case of the Petitioner that the said Resolution was passed in accordance

with the Rules and following the procedure, however, it is the grievance of the Petitioner that, by the impugned proceedings dated 11.11.1998, the

earlier Resolution dated 7.10.1998 was cancelled by a fresh Resolution (Resolution No. 240 of 1998), enhancing the basic value for the purpose

of levy of property tax. Several contentions have been raised questioning the proceedings dated 11.11.1998 including non-compliance of statutory

provisions. In such circumstances, we are of the view that the Petitioner/ Appellant Sangam, being registered and formed to safeguard the interest

of its members, can very well question the same by filing the Writ Petition.

The Hon''ble Apex Court in Bharti Telenet Ltd. Vs. Union of India (UOI) and Others, has held as follows:

In the instant case before passing of the order dated 15-6-2001 the issue of BSN Ls refusal to accept intermediate handover of transit calls of

long-distance charging area in Madhya Pradesh Circle (licensed to the Appellant), was specific and confined to the Appellant and therefore the

Appellant directly approached TRAI for appropriate direction to BSNL. Since the order dated 15-6-2001 expressly stated that the order would

have general applicability in similar interconnect scenarios, the Appellant being a member of the Association not only had an option but was also

bound by the spirit of unity to approach the Association and consult other members. In any event being a member of the Association the Appellant

had the option to either challenge the order individually or through the aegis of its Association and neither course of action could be said to be

inexplicable. The Tribunal has erred in holding that the Appellant had abandoned its decision to prefer an appeal or its right of appeal merely

because it conveyed to the Association that it will extend its support to the Association if a review is filed instead of an appeal against the said

order. The Appellants support to the Association in filing review petition is not indicative of its abandonment of its right to file appeal. Mere

acquiescence of the Appellant at one stage to file the review petition instead of the appeal would not amount to the abandonment of its right to file

the statutory appeal or to an estoppels disentitling it from claiming the relief in appeal.

According to the learned senior counsel for the 1st Respondent, the said judgments relied on by the SIMCA cannot be made applicable

because Section 33(1) of the Copyright Act clearly indicates an embargo for registration of the Society other than under the Copyright Act. But a

reading of Section 33, I find that the purpose of the registration of Copyright Society is to administer in any right any work by issue of licences or

collection of licence fees. Therefore, there is no specific bar to agitate the issue collectively by an Association on behalf of its members. Therefore,

I am not inclined to accept the submission that Section 33(1) indicates a bar from exposing the'' cause of the members by other Association.

Moreover, I find that if such a submission made by the 1st Respondent is accepted, then each member has to file at least 9 appeals, which would

cause inconvenience. Hence, by allowing the Association to expose the cause of its members, no prejudice would be caused to the 1st

Respondent broadcasters. Moreover, I find that the Copyright Board has made a reference in its order about SIMCA more than one place.

Further, the fact that the order of the Copyright Board also affected the members of SIMCA cannot be denied. Therefore, I am of the opinion that

SIMCA is entitled to file an appeal on behalf of its members.

In fine, I am of the opinion that so far as the individual right of copyright continues with the copyright owner, leave has to be granted to the

Petitioners/ Appellants for the following reasons:

(1) even if a copyright owner is a member of the Copyright Society, his individual right as a copyright owner continues;

(2) by becoming a member, they are not assigning their rights to the Copyright Society; and

(3) the object of the 2nd Respondent Copyright Society (PPL) is only to administer any right in any work by grant of licences or collection of

licence fees and as such, there is no bar under the statute against the copyright owner to file independent appeal.

So far as the order passed by the Copyright Board is an order in rem and not an order in personam, SIMCA is also entitled to expose the

cause of its members by filing an appeal. Therefore, I am of the opinion that leave could be granted to all the petitions.

Accordingly, leave is granted and M.P. No. 1 of 2010 in all the appeals are allowed.