Bombay High Court, copyright assignees such as PPL and Novex are considered ‘owners’ & have the authority to issue music licenses

According to the Bombay High Court, copyright assignees such as PPL and Novex are considered ‘owners’ and have the authority to issue music licenses without being registered as Copyright Societies under Section 33(1) of the Copyright Act.

here below is the judgement

Varsha COMP-264-2022 AND COMP-363-2019 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL IP SUIT NO. 264 OF 2022
Novex Communications Pvt Ltd. …Plaintiffs
Versus
Trade Wings Hotesl Limited …Defendant
WITH
COMMERCIAL IP SUIT NO. 304 OF 2018
WITH
COMMERCIAL IP SUIT (ST) NO. 3544 OF 2023
WITH
COMMERCIAL IP SUIT NO. 278 OF 2018
WITH
COMMERCIAL IP SUIT NO. 281 OF 2018
WITH
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
INTERIM APPLICATION(ST) NO. 5417 OF 2021
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 267 OF 2022
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
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2024:BHC-OS:1428
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WITH
INTERIM APPLICATION(ST) NO. 5992 OF 2023
IN
COMMERCIAL IP SUIT (ST) NO. 5500 OF 2023
WITH
INTERIM APPLICATION(ST) NO. 21044 OF 2021
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUITS(ST) NO. 39541 OF 2022
IN

COMMERCIAL IP SUIT NO. 332 OF 2021

Mr. Darius Khambata, Sr. Adv, a/w Mr. Rashmin Khandekar, Apurva
Manwani a/w Mr. Ali Antulay a/w Mr. H. N. Thakore, Mr.Kunal Parekh
Ms. Nirali Atha i/b Dua Associates for Plaintiff in COMIP/264/2022
and Applicant in IA(L)/5368/2021.
Abhiraj Parab a/w Pooja Mishra, Anjali M. for Defendant No. 8 in
COMIP/345/2019
Adv. Mr. Hiren Kamod Adv.Mr. Prem Khullar, Adv. Rahul Punjabi, Adv.
Anees Patel for Defendant in IA(L)/5992/2023 in
COMIP(L)/5500/2023
Mr. Sameer Pandit a/w Ms. Sarrah Khambati Mr Mihir Govande i/b
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Wadia Ghandy & Co. For Plaintiff in NMCD/577/2018 &
NMCD/721/2018 IN COMIP/304/2018
Mr. Sameer Pandit a/w Ms. Sarrah Khambati Mr Mihir Govande i/b
Wadia Ghandy & Co. For Defendant in NMCD/725/2019 &
NMCD/1388/2018 IN COMIP/363/2019 AND NMCD/525/2018 &
NMCD/664/2018 IN COMIP/281/2018
Dr. Virendra Tulzapurkar Sr. Adv. Mr. Ramesh Soni a/w Mr. Sameer
Pandit, Ms. Sarrah Khambati, Mr. Mihir Govande i/b Wadia Ghandy &
Co. For Defendant No. 1 in IA/2102/2023 IN COMIP/157/2023 &
NMCD/523/2018 & IA/1533/2020 IN COMIP/278/2018
Mr. Durgaprasad Poojari i/b PDS Legal, for Plaintiff in
COMIP/278/2018
Mr. Rashmin Khandekar a/w Mr. H. N. Thakore a/w Mr. Kunal Parekh
Ms. Nirali Atha i/b Dua Associates for Plaintiff in IA(L)/5417/2021,
COMIP/332/2021.
Mr. Rashmin Khandekar a/w Mr. H. N. Thakore, Mr. Kunal Parekh Ms.
Nirali Atha i/b Dua Associates for Plaintiff in IAL/5880/2021 IN
COMIP/267/2022
Mr. Rashmin Khandekar, a/w Mr. H. N. Thakore, Mr. Kunal Parekh Ms.
Nirali Atha i/b Dua Associates for Plaintiff in IAL/5992/2023 IN
COMIP(L)/5500/2023
Mr. Rashmin Khandekar, Ms. Apurva Manvani a/w Mr. H. N. Thakore,
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Mr. Kunal Parekh Ms. Nirali Atha i/b Anil T Agarwal for Plaintiff in

COMIP(L)/3544/2023

COMMERCIAL IP SUIT NO. 363 OF 2019
Phonographic Performance Ltd …Plaintiff
Versus
Bunglow – 9 And 99 Ors …Defendants
WITH
COMMERCIAL IP SUIT (ST) NO. 3997 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
INTERIM APPLICATION(ST) NO. 4038 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT SUITS NO. 114 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 221 OF 2021
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
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WITH
COMMERCIAL IP SUIT NO. 938 OF 2018
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 914 OF 2018
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 966 OF 2018
IN
COMMERCIAL IP SUITS NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 1051 OF 2018
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 922 OF 2018
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 126 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 123 OF 2019
IN
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COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 119 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 116 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 120 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 122 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 117 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 115 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 127 OF 2019
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IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 121 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 118 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 358 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 345 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 359 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 291 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
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COMMERCIAL IP SUIT NO. 290 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 347 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 350 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 343 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 303 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 304 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 292 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
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WITH
COMMERCIAL IP SUIT NO. 145 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 306 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 319 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 321 OF 2019
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT (ST) NO. 35265 OF 2022
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 40 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 157 OF 2023
IN
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COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 156 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 147 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT (ST) NO. 37130 OF 2022
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT (ST) NO. 37136 OF 2022
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 148 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT (ST) NO. 37964 OF 2022
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 155 OF 2023
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IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 235 OF 2023
IN
COMMERCIAL IP SUIT NO. 332 OF 2021
WITH
COMMERCIAL IP SUIT NO. 154 OF 2023
IN

COMMERCIAL IP SUIT NO. 332 OF 2021

Mr. Ravi Kadam Sr. Advocate, Mr. Amogh Singh, Asmant Nimbalkar,
Neeraj Nawar, Shivani Rane, Apurva Manwani i/b Mr. D P Singh For
Plaintiff in COMIP/363/2019 for Plaintiff.
Counsel Hiren Kamod, Prem a/w Ms. Madhu Gadodia, Deepak
Deshmukh, Suyog Mukherjee, T Kulkarni i/b Naik & Co. for Defendant
in COMIP (L) No. 37964/2022
Mr. Amit Jamsandekar a/w Mahua Roy Chowdhury, Akshay Kapadia,
Jahnavi Singh, Angel Mary Aju i/b Royzz & Co. For Defendant No.1 in
COMIP/221/2021, IA(L)/2633/2021
Huzefa Nasikwala a/w Idris M B i/b Nasikwala Law Office for
Defendant No.3 in COMIP/117/2019 with NMCD/331/2018.
Huzefa Nasikwala a/w Idris M B i/b Nasikwala Law Office for
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Defendant No.2 in COMIP/966/2018 with NMCD/1741/2018.
Huzefa Nasikwala a/w Idris M B i/b Nasikwala Law Office for
Defendant No.3 in COMIP/1051/2018 with NMCD/1793/2018.
Mr. Sameer Pandit a/w Ms. Sarrah Khambati Mr Mihir Govande i/b
Wadia Ghandy & Co. For Plaintiff in NMCD/577/2018 &
NMCD/721/2018 IN COMIP/304/2018.
Mr. Sameer Pandit a/w Ms. Sarrah Khambati Mr Mihir Govande i/b
Wadia Ghandy & Co. For Defendant in NMCD/725/2019 &
NMCD/1388/2018 IN COMIP/363/2019 AND NMCD/525/2018 &
NMCD/664/2018 IN COMIP/281/2018.
Dr. Virendra Tulzapurkar Sr. Adv. Mr. Ramesh Soni a/w Mr. Sameer
Pandit, Ms. Sarrah Khambati, Mr. Mihir Govande i/b Wadia Ghandy &
Co. For Defendant No. 1 in IA/2102/2023 IN COMIP/157/2023 &
NMCD/523/2018 & IA/1533/2020 IN COMIP/278/2018.
Mr. Prasad Shenoy a/w Abhishek Salian i/b Vidhi Partners.
Mr. Prasad Shenoy a/w Karishma Rao i/b vidhi Partners COMM.
S/148/2023.
Mr. Amogh Singh, Apurva Manwani, Asmant Nimbalkar, Neeraj Nawar,
Shivani Rane, i/b Mr. D P Singh for Applicant/Paintiff in
COMIP/221/2021.
Mr. Ashish Kamat Senior Advocate, Mr. Amogh Singh, Asmant
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Nimbalkar, Neeraj Nawar, Shivani Rane, Apurva Manwani i/b. Mr. D P
Singh for Applicant/Plaintiff in COMIP/1051/2018
Mr. Amogh Singh, Asmant Nimbalkar, Neeraj Nawar, Shivani Rane i/b
Mr. D P Singh for Applicant/Plaintiff in all Matters.
Adv. Jainil Vashi i/b M P Vashi & Associates for Respondent in
MNCD/332/2019 IN COMIP/116/2019

Adv. Ayush Chaddha for Plaintiff.

CORAM : R.I. CHAGLA, J.
RESERVED ON : 10TH NOVEMBER 2023.
PRONOUNCED ON: 24TH JANUARY 2024.
JUDGMENT : (PER R.I. CHAGLA, J)

  1. In the above suits Novex Communications Pvt. Ltd and
    Phonographic Performance Ltd. (for short “Novex and PPL”)
    respectively are the Plaintiffs. Identical relief has been sought in the
    above suits namely a perpetual injunction restraining the Defendant
    from publicly performing or in any manner communicating the sound
    recordings of the songs assigned and authorized to PPL and Novex
    respectively without obtaining licences from PPL and Novex.
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  2. A preliminary issue has been raised by the Defendants in
    the above suits namely that Novex and PPL cannot carry on the
    business of issuing licenses without being registered as a Copyright
    Society under Section 33(1) of the Copyright Act, 1957 (“the Act”) and
    thus, the Suit as filed will not entitle PPL and Novex to any kind of
    relief.
  3. Thus the issue which falls for determination prior to going
    into merits of each of the above suits, is whether PPL and Novex in the
    above suits are entitled to seek reliefs as sought for in the plaint
    without being registered as a Copyright Society under Section 33 (1)
    of the Act.
  4. Mr. Darius Khambata, learned Senior Counsel has made
    submissions on behalf of Novex which are supported by the Counsel
    whose appearances have been mentioned above. Whereas Mr. Ravi
    Kadam, learned Senior Counsel for PPL has made submissions on
    behalf of the PPL supported by the Counsel whose appearances are
    referred above.
  5. Mr. Darius Khambata, has made submissions with regard to
    the scheme of the Copyright Act, which is divided into various chapters
    and each chapter deals with a different topic. He has referred to the
    meaning of the term “Copyright” and the rights associated with it
    covered in Chapter III of the Act, under Section 14. This defines a
    copyright to mean the exclusive right to reproduce a literary, dramatic
    or musical work in any material form including storing by electronic
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    means, to make copies of such a work to perform it in public and in the
    case of a sound recording it includes the right to sell or give on
    commercial rentals or to communicate the sound recording to the
    public. He has submitted that the rights of the owner of copyright and
    its associate rights are covered in Chapter IV of the Act. Ownership of
    the copyright can be acquired in 4 broad ways. These are as under:-
    i) By the author himself, being the first owner
    under Section 17;
    ii) Situations in which the author creates a work in
    the course of his employment etc. for the benefit or on
    behalf of someone else, also under Section 17;
    iii) Through an assignment under Sections 18 and
    19 and
    iv)Through testamentary disposition under Section 20.
  6. Mr. Khambata has submitted that the aforementioned
    categories confer full and absolute ownership on the
    author/owner/assignee, as the case may be. Thus, the owner of the
    copyright could be an assignee. All the incidents of rights that are
    available to an owner are also available to an assignee. The rights are
    not higher or lower merely by virtue of the ownership rights being
    acquired through assignment. The Defendants termed the Plaintiffs as
    “Aggregators” whatever their characterization, in law, the Plaintiffs are
    as much owner as any other form of owner.
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  7. Mr. Khambata has referred to Section 18(2) of the Act
    wherein it is provided that the assignee shall be treated for the
    purposes of this Act as the owner of copyright and the provisions of
    this Act shall have effect accordingly.
  8. Mr. Khambata has also referred to Section 18 (1) of the Act
    which specifically recognizes the owner’s right to assign his copyright
    either wholly or partially, to any person.
  9. Mr. Khambata has referred to the Right of an owner of
    copyright to license its work under Chapter VI of the Act. Under
    section 30 of the Chapter VI of the Act the Licences by owners of
    copyright have been provided. The owner of the copyright in any
    existing work or the prospective owner of the copyright in any future
    work may grant any interest in the right by licence in writing by him
    or by his duly authorised agent:
  10. Mr. Khambata has submitted that Section 30 of the Act is
    the source, which gives an “owner” of a copyright the power to grant
    any interest in the copyright by license. Section 30 applies to an
    “owner”. An “owner” as is clear from Section 18(2) and as mentioned
    above includes an “assignee”. Further, Section 30 also specifically
    empowers “duly authorized agent” of the owner, to grant license. He
    has referred to Section 30 (A) of the Act and has submitted that this
    makes it very clear that the provisions of Section 30 apply to licensing
    in the same way as the provisions of Section 19 apply to an
    assignment. Therefore, the Act allows an “owner” to grant a license
    directly or through an agent under Section 30 and then sets out the
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    procedure for licensing by specifying that what applies to assignment
    would apply to licensing as well.
  11. Mr. Khambata has referred to Sections 31, 31(A) to 31(D)
    of the Act which give a whole scheme of regulations for granting
    licenses compulsorily to the public. These sections fetter the right of
    the owner in the matter of grant of licences. He has submitted that the
    scheme of these sections contemplates notice to be issued to the
    “owner” to secure such licences thereby recognizing the primacy of the
    “owner’s right to licence” . The term owner is used in these sections not
    a “registered copyright society”. These Sections of the Act envisage that
    it is the “owner” of the Copyright who is entitled to grant licenses for
    consideration and if he charges an exorbitant consideration, there is a
    remedy provided in the Act itself. It is the “owner” who is also entitled
    to be heard and to be paid.
  12. Mr. Khambata has submitted that such a scheme provided
    under the Act would have been totally unnecessary if the Defendants
    were correct in their contention that it was only a “registered copyright
    society” which could carry on such business of issuing or granting
    licences. Accepting the Defendant’s submission as pleaded and argued
    would amount to rendering this scheme meaningless.
  13. Mr. Khambata, thereafter, referred to the Scope and object
    of the 1994 Amendment. By the 1994 Amendment a new chapter –
    Chapter VII was introduced, which deals with ‘copyright society’. He
    has submitted that the object of 1994 Amendment was to promote the
    Collective administration of rights through a Copyright Society, both
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    for the benefit of the owner as well as general public. The copyright
    societies, on an “authorization” from the owners could administer
    rights that were either licensed and/or assigned to them. As such, a
    Copyright Society fundamentally operated to administer rights in
    respect of works that belong to “others”. He has submitted that by its
    very nature therefore, a copyright society may wear two hats i.e. (i) an
    authorized agent and (ii) an assignee. It administers the rights of
    “owners” by operating as an agent. He has submitted that reading of
    Clause 11 of the Notes on Clauses together with Sections 33 to 36
    which have been introduced by 1994 Amendment Act was was merely
    to provide for registration and to regulate functioning of copyright
    societies. The amendments so introduced did not in any manner affect
    and/or circumscribe the rights of an owner to conduct its own affairs
    including granting of licenses by such owner. The “sea change” as
    sought to be contended by the Defendants is absolutely not evident
    from the 1994 Amendment or Notes on Clauses in this regard.
  14. Mr. Khambata has submitted that it is necessary to refer in
    this context to Section 33 of Chapter VII of the Act, which is
    reproduced as under:-
    Section 33 of the Act provides as follows;
    “33. Registration of Copyright society.— (1) No
    person or association of persons shall, after coming into
    force of the Copyright (Amendment) Act, 1994 (38 of
    1994) commence or, carry on the business of issuing or
    granting licences in respect of any work in which
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    copyright subsists or in respect of any other rights
    conferred by this Act except under or in accordance
    with the registration granted under sub-section (3):
    Provided that an owner of 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:
    Provided further that the business of issuing or
    granting licence in respect of literary, dramatic, musical
    and artistic works incorporated in a cinematograph
    films or sound recordings shall be carried out only
    through a copyright society duly registered under this
    Act:
    Provided also that a performing rights society
    functioning in accordance with the provisions of section
    33 on the date immediately before the coming into
    force of the Copyright (Amendment) Act, 1994 (38 of
    1994) shall be deemed to be a copyright society for the
    purposes of this Chapter and every such society shall
    get itself registered within a period of one year from
    the date of commencement of the Copyright
    (Amendment) Act, 1994.
    (2) Any association of persons who fulfils such
    conditions as may be prescribed may apply for
    permission to do the business specified in sub-section
    (1) to the Registrar of Copyrights who shall submit the
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    application to the Central Government.
    (3) The Central Government may, having
    regard to the interests of the authors and other owners
    of rights under this Act, the interest and convenience of
    the public and in particular of the groups of persons
    who are most likely to seek licences in respect of the
    relevant rights and the ability and professional
    competence of the applicants, register such association
    of persons as a copyright society subject to such
    conditions as may be prescribed:
    Provided that the Central Government shall not
    ordinarily register more than one copyright society to
    do business in respect of the same class of works.
    (3A)…
    (4)…
    (5)…
  15. Mr. Khambata has submitted that the heading of Section 34
    is clear that it deals with ‘Administration of rights of an owner by a
    copyright society’. Thus, it it is somebody else’s rights which are being
    administered and that owner can be an author, employer, proprietor,
    an assignee or someone who inherits it. Therefore, the copyright
    society is acting in a capacity similar to a manager/agent while
    administering the rights of the owner.
  16. Mr. Khambata has referred to Section 34(1)(a) which deals
    with the manner in which a copyright society would obtain
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    authorization for administration which clearly conveys the intention to
    include both, the author and other owners of right which would
    include an ‘assignee’. Further, Section 34(1)(b) of the Act contemplates
    that an author or other owner will have the right to withdraw
    authorization given to the copyright society. This shows that an author
    or other owner does not have to carry out the business of licensing his
    works only through a copyright society. Since, once an owner
    withdraws its authorization from a copyright society, the owner can
    independently exercise his rights as he deems appropriate. It could
    never have been the intention of the legislature that once an author
    withdraws the authorization from a copyright society then that work
    cannot be licensed by anyone especially an owner. Such an
    interpretation would undermine the public interest in making available
    the copyrighted work to members of the public. In any event the
    provisions of Section 31, 31A-D would continue to operate to bind all
    owners to grant compulsory and statutory licenses even after
    withdrawal of authorization under Section 34(1)(b).
  17. Mr. Khambata has submitted that Section 34(3) of the Act
    clarifies that a copyright society is licensing the works of an “owner”
    under section 30. This means that a copyright society is licensing the
    works of the “owner” as a duly authorized agent under Section 30.
    Therefore, this is not a new right created in favour of a copyright
    society independent of the owner or independent of it being a duly
    authorized agent.
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  18. Mr. Khambata has then referred to Section 35 (1) of the
    Act, wherein it is provided that “Every copyright society shall be
    subject to the collective control of the owners of rights under this Act
    whose rights it administers … ”
  19. Thus, both Sections 34 and 35 draw a clear distinction
    between the author/ owner of the right on the one hand and the
    administrator of that right on the other (i.e. the copyright society) as
    such has been drawn.
  20. Mr. Khambata has referred to the decision of the Supreme
    Court in the “Entertainment Network India Ltd. v. Super Cassette
    Industries Ltd”.
    1
    He has submitted that the Supreme Court has held
    that Chapter VII was incorporated into the Act so as to enable an
    author to commercially exploit his intellectual property through a
    Copyright Society. A Copyright Society steps into the shoes of the
    author, it issues licenses on behalf of the author and files litigation on
    his behalf. The Supreme Court goes on to hold that as per Section 34
    of the Act, a Copyright Society is a virtual agent authorized to act on
    behalf of the owner. Therefore, Chapter VII does not take away the
    rights of the author/ owner, it only gives a choice to the author/ owner
    to either exploit its copyright on its own or to exploit its copyright
    through a Copyright Society. The idea of a Copyright Society is to assist
    the owner and not take away rights from an owner.
  21. The Supreme Court has concluded that Section 34 of the
    Act provides for administration of rights of owners by a copyright
    1 (2008) 13 SCC 30 Para 66
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    society for all intent and purport creates a virtual agency so as to
    enable the society to act on behalf of the owner…(emphasis supplied).
  22. Mr. Khambata has referred to the decision of the The Delhi
    High Court in the case of Phonographic Performance Ltd. vs Lizard
    Lounge & Ors.
    2
    The Delhi High Court whilst discussing the role of
    Copyright Society and the rights that such Copyright Society can
    exercise observed that the author being the first owner of the
    Copyright under section 17 can certainly appoint an agent (Copyright
    Society) to institute legal proceedings. The Delhi High Court held
    that :-
    “24.…The Copyright Society may not have exclusive
    rights inasmuch as the owner continues to
    simultaneously have rights to deal with his Copyright
    in the work…
    25..…The Copyright Society is an agent appointed
    under the agreement by the owner of the Copyright
    and specific powers have been conferred on the agent
    to institute legal proceedings. The said Act does not
    contain any provision prohibiting the institution of
    legal proceedings in derogation to the general law of
    agency. The author being the first owner of Copyright
    under Section 17 of the said Act can certainly appoint
    an agent to institute legal proceedings.
    2 (2009) ILR 2 Delhi 726 Para 24-27.
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  23. …The creation of Copyright Society is to serve all
    the three objectives without denuding the author of its
    own individual rights” (emphasis supplied)”.
  24. Mr. Khambata has referred to extract from Copinger and
    Skone James at Page 1540, wherein it is stated that the norm is that
    copyright licensing is done individually by the owners. It is only in
    situations where it becomes difficult or impossible for an owner to
    license his works individually that the need for Copyright Societies
    arises. The rationale for Copyright Societies is that it is the best means
    of protecting owners rights. Such Societies offer a facility to owners;
    they do not denude the owners of any of their rights.
  25. Mr. Khambata has submitted that Owner’s right under
    Section 30 cannot be curtailed by Section 33 (1) of the Act. He has
    submitted that Defendants have alleged that “no person” in Section
    33(1) includes an “owner” of copyright and therefore even an owner of
    copyright cannot commence or carry on the business of granting
    copyright licenses. He has submitted that such an interpretation is ex
    facie incorrect because :
    i) If the interpretation as sought to be canvassed by
    the Defendant is accepted, then Section 33(1)
    completely takes away the right granted by Section 30
    of the Act. In such a case, Section 33(1) would
    effectively emasculate Section 30;
    ii) Further, if Defendant’s interpretation is accepted
    then a section in a chapter dealing with copyright
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    societies would completely subordinate and emasculate
    the right of an owner under Section 30, a section which
    falls in a different Chapter dealing with licensing. If
    Parliament had intended to take away any part of the
    owner’s right under Section 30 (even by subjecting it to
    the compulsory agency of a registered copyright society)
    then an express amendment to Section 30 would have
    been essential.
  26. Mr. Khambata has submitted that the decision of the
    Supreme Court in the case of “K.M. Nanavati v. State of Bombay”
    3
    recognizes the well settled rule of interpretation that two apparently
    conflicting provisions operating in two different fields should be
    reconciled, by restricting each to its own object or subject.
  27. Mr. Khambata has then referred to the decision in the case
    of “Leopold Café & Stores & Anr. Vs. Novex Communications Pvt. Ltd,
    4
    wherein the Supreme Court has held that the prohibition as
    contemplated under Section 33(1) is on conducting business of
    licensing by a person in its own name for works in which ‘others’ hold
    Copyright.
  28. Mr. Khambata has submitted that the word ‘business’ has
    no technical meaning but is to be read with reference to the object and
    context of the Act in which it occurs. The interpretation necessarily has
    to be “contextual”. He has submitted that for this purpose it is
    3 AIR 1961 SC 112
    4Order dated 17th July 2014 in NOM (L) No.1451 of 2014 in Suit (L) No.603 of 2014; 2014 SCC
    OnLine Bom 1324.
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    necessary to note the heading of Section 33 which is “Registration of
    copyright society”. He has submitted that the heading of a section can
    be used to interpret the object and purpose of a Section. It is well
    settled that the headings of sections are substantive parts of the act
    and limit or explain their operation. He has placed reliance upon the
    decision of the Supreme Court in “K.M. Nanavati” (supra) which is
    the authority for this proposition. He has also referred to the heading
    of Section 34 of the Act which is “Administration of rights of owner by
    copyright society”. He has submitted that Sections 33 and 34 of the Act
    must be read as respectively restricted to the subject described by these
    headings. Therefore, if a copyright society wants to do the business of
    issuing licenses, then it must do so as per the provisions of Section 33;
    this is all that the section contemplates. It cannot purport to curtail the
    owner’s right to license given under Section 30 falling under Chapter
    VI of the Act.
  29. Mr. Khambata has submitted that it is also well settled that
    a statute is required to be harmoniously construed so that each
    provision is given effect to without defeating and/or destroying
    another.
  30. He has placed reliance upon the decision of the Supreme
    Court in “Godavat Pan Masala Products I.P. Ltd. vs. Union of India”
    5
    .
    The Supreme Court has held as under:
    “It is an accepted Canon of Construction of Statutes
    that a statute must be read as a whole and one
    5(2004) 7 SCC 68 Para 29.
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    provision of the Act should be construed with
    reference to other provisions of the same act so as
    to make a consistent, harmonious enactment of the
    whole statute. The Court must ascertain the
    intention of the legislature by directing its attention
    not merely to the Clauses to be construed but to the
    Scheme of the entire statute. The attempt must be
    to eliminate conflict and to harmonize the different
    parts of the statute for. It cannot be assumed that
    Parliament had given by one hand what it took
    away by the other. (emphasis supplied).
    The same principle has been enunciated by the
    Constitution bench of the Supreme Court in K.M.
    Nanavati’s (Supra).
  31. Mr. Khambata has submitted that applying these principles,
    the only interpretation and the way to look at the term ‘business’ that
    harmonizes Section 33 with the other sections in the Act would be to
    construe business as “business of trading or granting licenses in respect
    of works which are not owned by such person” as held by this Court in
    “Leopold Cafe” (Supra). The meaning of “business” has to be
    necessarily such that would not cause violence to other provisions of
    the Act including Sections 18, 19, 30 and 34.
  32. Mr. Khambata has submitted that the Defendants have
    contended that “business” must be given the widest possible meaning
    and as such anything that is “business”, including the grant of licenses
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    by the owner is covered by Section 33 (1). He submitted that such a
    contention is completely counterproductive and in fact militates
    against the case of the Defendants. The wider the interpretation of the
    term “business”, the greater the intrusion on the right available to the
    owner under Section 30. If business is interpreted as put forth by the
    Defendants, then in that case, 99% of the ownership rights would be
    taken away and the only right left with the owners would be to license
    its rights for philanthropy.
  33. Mr. Khambata has referred to the definition of Copyright
    under Rule 2 (c)of the Copyright Rules, 2013. He has submitted that
    this definition is in wide terms although it also references sub-section
    (3) of Section 34, which deals with functions that a copyright society
    may perform qua works of others. He has submitted that definition in
    Rule 2(c) in any event applies only to the rules. It cannot be applied to
    interpret Section 31(1), a provision of the primary statute and one that
    came 19 years before Rule 2(c). He has submitted that if the term
    “business” is given the wide meaning, then, there would necessarily be
    a conflict between Section 30 and 33 of the Act.
  34. Mr. Khambata has submitted that in any case, the Rules are
    a piece of subordinate legislation. They cannot be considered to control
    the provisions of the Act especially if they cause conflict or absurdity in
    reading of the substantive provision of the Act.
  35. Mr. Khambata has submitted that the different chapters in
    an Act cover different demarcated aspects. Chapter VII of the Act
    covers ‘Copyright Societies’ and further expounds on the conditions of
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    the registration and other associated aspects, whereas Chapter VI of
    the Act creates a statutory right of licensing. He has submitted that a
    section which comes under Chapter VII dealing with copyright societies
    cannot in effect, take away a right granted under a completely
    different chapter. Particularly when the “clearest of language” in this
    regard as used in the second proviso is absent.
  36. Mr. Khambata has submitted that the contention of the
    Defendants that the later provision i.e. Section 33 would prevail over
    an earlier provision i.e. Section 30 of the Act has become obsolete in
    England. Even under Indian law the Supreme Court in K.M. Nanavati’s
    case (supra) made it clear that the rule is to be applied along with
    several other rules. The Supreme Court has treated the rule of the later
    provision as one amongst a basket of rules which must operate
    together with other rules and which moderate and temper each other.
    It cannot be said that this last rule supersedes every other rule and the
    only thing that matters for harmonizing or resolving ambiguity is to
    see which is the latter provision as sought to be argued by the
    Defendant. The Supreme Court has also held that if there is a conflict
    between two provisions of a statute then it has to be determined which
    is the leading provision and which is the subordinate provision and
    which provision must give way to the other. If this test is applied the
    positive clear provision conferring statuary rights upon an owner to
    grant license is Section 30. Section 33(1) does not deal with owner’s
    right of licensing.
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  37. Mr. Khambata has submitted that interpretation leading to
    unreasonable results must be eschewed. He has in this context placed
    reliance upon the decision of the UK Supreme Court in “Gill v Donald
    Humberstone & Co. Ltd”.
    6
    In the said decision the UK Supreme Court
    has elucidated the principle that if the language of a section is capable
    of more than one interpretation then, the Court should avoid natural
    meaning if it leads to an unreasonable result.
  38. Mr. Khambata has submitted that the Defendants
    interpretation on 33 (1) must be eschewed as it will lead to absurd
    and unreasonable results. If such interpretation is accepted on
    withdrawal of authority by the owner from the registered copyright
    society (as is permissible under Section 34(1)(b)) no one will be able
    to license the work- not even the owner himself. The first proviso to
    Section 33(1) will place the owner who is a member of a copyright
    society in a better place (i.e. being able to license) then one who had
    never been a member at all (who could not, on the Defendants’
    interpretation, license its own work).
  39. Mr. Khambata has referred to the first Proviso to Section
    33(1) which recognizes right of an owner to grant licenses even after
    such owner becomes a member of a registered Copyright Society. The
    only embargo in such a case is that the owner can grant a license
    consistent with its obligation qua such registered society. He submitted
    that what flows from the first proviso to Section 33 is that if as a
    member of a copyright society an owner can license his own works,
    6[1963] 1 WLR 929
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    surely a non-member cannot be prevented from licensing his own
    works.
  40. Mr. Khambata has submitted that the the first proviso to
    Section 33(1) uses the phrase ‘individual capacity’. He has submitted
    that the term individual capacity should not be considered to be
    equivalent to exercise of rights by individual authors or owners
    personally. It should rather be understood to mean any method other
    than collective management whereby right holders make their own
    decisions about exercise of the rights in the works.
  41. Mr. Khambata has submitted that the defendants have
    contended that the words ‘individual capacity’ in Section 33(1) is the
    opposite of business and therefore an owner licensing his works in his
    individual capacity would not be doing business as per Section 33(1)
    of the Act. He has submitted that this argument is also completely
    untenable since there is nothing in the Act to suggest that the words
    individual capacity is the opposite of business. He has submitted that a
    company can also do business in its individual capacity. He has
    submitted that the use of the expression ‘carrying on business’ must be
    interpreted contextually. The same would not cover the owners’
    activity of carrying on business and include carrying on business of
    issuing licenses in its own name but in which others hold copyright.
    Hence, the expression “individual capacity” in Section 33(1) must be
    interpreted as meaning only anything opposed to “collective capacity”
    i.e. through a society. That is collective administration of owner’s
    rights.
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  42. Mr. Khambata has thereafter referred to the second Proviso
    to Section 33 (1) of the Act. He has submitted that prior to 2012
    Amendment by which the second proviso was added to Section 33(1),
    the authors of the underlying work lost their rights to their works to
    the owners of the sound recording or the owners of the cinematograph
    film who had employed them to create the underlying work. In order
    to correct this specific mischief a proviso was added to Section 17 as
    well as Section 18 as per the 2012 Amendment Act. These provisos
    stated that even if an individual who has authored a work has been
    employed by someone else i.e. the owner of the copyright, the authors’
    rights to the underlying work would not be affected by the ownership
    of the copyright by the employer. He has referred to Minister’s speech
    tabling the 2012 Amendment and has submitted that the second
    proviso was introduced to assuage the grievances and/or concerns of
    the “author” community and this can also be culled out from the
    statement of objects and reasons to the said amendment.
  43. He has also referred to the speech of the Minister of
    Information and Broadcasting whilst tabling this amendment, which is
    in this context. Further he has also referred to Parliamentary
    Committee 227th Report- 2011 Bill from which the discussion on the
    amendment to Section 33 can be ascertained. He has submitted that it
    is clear therefrom that the object of the amendment was to augment
    /strengthen the eco system with respect to the “author” community
    and ensuring equal representation of “authors” and “composers” on
    one hand, and “owners” on the other, in copyright societies.
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  44. Mr. Khambata has submitted that what is significant to note
    in the 2nd proviso is that there is a complete embargo on carrying on
    the business of issuing or granting license in respect of the underlying
    work and this business can be carried out “only” through a copyright
    society. Therefore, it is clear that when the legislature specifically
    wanted rights of owners / authors to be curtailed, there was a specific,
    clear and unambiguous provision. This language is absent in Section
    33(1). He further submitted that if the Defendants argument is
    accepted that Section 33(1) prevented all owners, including authors,
    from doing the business of granting license of copyright, then there
    would be no need of the second proviso.
  45. Mr. Khambata has submitted that the second proviso was
    needed since the Parliament was clear that Section 33(1) did not
    prevent all owners including authors from licensing their copyrights for
    profit and since parliament wanted to draw distinction between the
    authors and the owners the second proviso became necessary. Hence it
    is specifically mentioned that licensing by the authors of the
    underlying works will only be done by the copyright society.
  46. Mr. Khambata has submitted that if the second proviso to
    Section 33(1) is clarificatory (as argued by the Defendants), this would
    mean that the Parliament only wished to clarify this position for
    underlying works and not for any other works. Therefore even this
    case as canvassed by the Defendants militates against the
    interpretation sought to be propounded by them. He has submitted
    that the Supreme Court in “Shree Bhagwati Steel Rolling Mills vs.
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    Commissioner of Central Excise”.
    7
    at Paragraph 21 held that
    ‘Parliament is deemed to know the law and therefore the fact that the
    Parliament has amended Section 33(1) in 2012 by adding the second
    proviso shows that Parliament itself did not think Section 33(1) barred
    every owner of a copyright from carrying on the business of licensing
    his works’.
  47. Mr. Khambata has submitted that the Division Bench of this
    Hon’ble Court in the case of Phonographic Performance Limited v.
    Avion Hospitality Pvt Ltd & Ors. has set aside the view taken by a
    Learned Single Judge of this Court in “Phonographic Performance Ltd
    vs City Organisers Pvt. Ltd.”.
    8
    which had accepted the interpretation as
    sought to be canvassed by the Defendants. The Division Bench in
    “Avion Hospitality Pvt. Ltd.” (supra) accepted the interpretation placed
    by counsel for the Plaintiff on Section 33 read with Section 34 of the
    Act and had found that the learned Judge’s attention was not invited to
    several provisions of the Act from which it can be construed that the
    Plaintiff-Novex has locus to file the suit or claim injunction.
  48. Mr. Khambata has submitted that the decision of the
    Madras High Court in “Novex Communications Vs. DXC Technology
    Pvt. Ltd.”.
    9 does not assist the Defendant. He has submitted that the
    Madras High Court in the said decision has erroneously framed an
    issue whether Novex is entitled to grant licenses or not. The subject
    matter of the dispute before the Madras High Court was whether DXC
    Technology was infringing Novex’s copyright or not, it wasn’t whether
    7[2016) 3 SCC page 643
    8[Comm. Suit No. 740/2017 dated 21.12.2017
    9[2021) SCC online MHC 6266
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    Novex was entitled to grant licenses or not. He has submitted that the
    Madras High Court had relied heavily upon the reasons for introducing
    the 2012 amendment, in support of its decision. The Madras High
    Court held that a careful examination of Section 18, 30 and 33 show
    that while the right of the owner in his individual capacity is retained,
    the right to carry on the “business of issuing and granting licenses” is
    taken away on account of the bar contained in Section 33(1) read with
    the second proviso. The judgment also holds that the word “only”
    occurring in the second proviso can be done only through a registered
    copyright society.
  49. Mr. Khambata has submitted that the Madras High Court
    has in the said decision misconstrued the judgment of this Court in the
    case of Leopold (supra) and completely misapplied the ratio contained
    therein. The Madras High Court failed to appreciate that in Leopold
    (supra), Novex was merely an agent acting on behalf of undisclosed
    principle (which this Court held was prohibited by Section 33). The
    Madras High Court has conflated the first and the second proviso to
    Section 33(1) and applied its interpretation of the second proviso
    which deals with the authors of the underlying works to the first
    proviso which deals with assignees/ owners of the entire sound
    recording.
  50. Mr. Khambata has submitted that the argument of the
    Defendants is that the assignment is obtained by the plaintiff for the
    purpose of issuing and granting licenses and therefore cannot be
    enforced before this Court in view of Section 33(1). Since there is no
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    bar in the Act in obtaining an assignment, at best and without
    prejudice to the argument elucidated above and, in the alternative, the
    bar would kick in only in respect of the actual grant or issuance of
    licenses. That will not affect the right of an owner independently to
    bring a suit for infringement of copyright and seek reliefs.
  51. Mr. Khambata has submitted that another fact is that the
    Defendants have no independent right of its own. They are rank
    infringers. The Defendants have not even attempted to justify their
    entitlement in exploiting the subject sound recordings and has merely
    sought to assail Novex’s entitlement to seek reliefs on the ground that
    Novex is not a registered copyright society. Once it is observed that the
    right to seek relief for infringement is not jeopardized, the relief as
    sought by Novex must follow. This is clear from a reading of Sections
    13, 14 r/w. 51 (a)(i).
  52. Mr. Khambata has submitted that the Defendants’
    contentions are that the Assignment Agreements are illegal and
    erroneous. The Assignment Deeds have been executed for a substantial
    consideration between the music labels and Novex for transferring the
    ‘on ground performance rights’ in consonance with Section 18 of the
    Act. He has submitted that all that the Suit is concerned, is whether
    Novex is the exclusive owner of the Copyright and whether Novex has
    a right to prevent the infringement of its exclusive Copyright.
    Therefore, if it is held that Novex is the exclusive owner of the
    Copyright then what logically follows is that the Defendants have to be
    injuncted from infringing upon Novex’s exclusive Copyright. This
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    would be irrespective of whether or not there is a bar under Section
    33(1) of the Act preventing Novex from carrying out the business of
    issuing licenses of its Copyrights.
  53. Mr. Khambata has submitted that when an owner takes an
    assignment of copyright, the object is to take ownership of the
    copyright. The consideration which prompted that is not the object or
    purpose of the contract. Analysis of the contracts entered into by
    Novex will show that the contracts have not even said anything about
    the assignment being taken for the purpose of business of granting
    license. Even assuming the contract did say that the contract was for
    the purpose of doing the business of granting license that would only
    describe the motive of the contract i.e. the reason Novex desired to
    take the assignment but that motive would still not be the object of the
    contract. Thus, Defendants’ contention that if Novex has taken an
    assignment solely for the purpose of doing business, in licensing, then
    the assignment is for an unlawful object and therefore void, under
    Section 23 of the Contract Act, is misconceived.
  54. Mr. Khambata has submitted that the the Assignment Deeds
    are extremely specific and meet the requirements of Section 19. The
    Assignment Deeds categorically state that the ownership rights in the
    works are being assigned to Novex and there is no mention in the
    Assignment Deeds of the assignment being for the purpose of doing
    business in licensing. Therefore, the argument of the Defendants that
    the assignment is solely for the purpose of doing business in licensing
    must be rejected.
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  55. Mr. Khambata has accordingly submitted that there is no
    question of there being any impediment in the Plaintiff’s entitlement to
    the reliefs as sought. Equally, the fact that the Plaintiff is not a
    registered copyright society does not impair its ability to the reliefs as
    sought.
  56. Mr. Ravi Kadam, learned Senior Counsel appearing for the
    PPL has submitted that PPL owns and controls (by Exclusive
    Licenses) the public performance rights of various music labels
    which include both, international and domestic recordings. The
    repertoire of the recordings in which rights are assigned to PPL
    extend to around 400 labels and more than 45 lakh recordings. PPL
    issues licenses for public performances / communication to the
    public of sound recordings on the basis of exclusive rights assigned
    to it under various assignment agreements by these music labels.
    He has submitted that PPL has Assignment agreements with 60%
    of the labels in its repertoire whereby the following rights have
    been assigned exclusively to PPL. These Agreements can be
    found on the official website of PPL. Further, he has submitted
    that with respect to 11 labels, PPL is the ‘Exclusive Licensee’ of
    the copyright in the sound recordings. Barring these 11 labels, for
    all the other labels i.e. 393 of 404, PPL has Assignment Deeds
    executed for the copyright in the sound recordings.
  57. Mr. Kadam has placed reliance on the relevant
    definitions under the Copyright Act namely Section 2(d) which
    defines Author; Section 2(f) which defines Cinematograph film;
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    Section 2(ff) which defines Communication to the public; Section
    2(j) which defines Exclusive licence; Section 2(uu) which defines
    Producer; Section 2(xx) which defines sound recording; Section
    2(y) which defines work and Section 2(ffd) which defines
    Copyright society. He has also referred to relevant provisions of the
    Act which includes Sections 13, 14, 17, 18 ,19, 30 and 33.
  58. Mr. Kadam has submitted that one of the objections
    raised by the Defendant is that PPL cannot sue without joining
    the owner in respect of the exclusively licensed works. He has
    referred to Section 54 of the Act, which provides that unless the
    context otherwise requires, the expression “owner of copyright”
    shall include an “exclusive licensee”. Further Section 55 provides
    that where the copyright in any work has been infringed, the owner
    of the copyright shall be entitled to all such remedies including an
    injunction. From a reading of Section 55 with Section 54, an
    exclusive licensee would be entitled as an owner of copyright for
    the purposes of Chapter XII to institute a Suit and seek an
    injunction in relation to an infringement of copyright in any work
    covered by the exclusive license.
  59. He has further referred to Section 61 of the Act which
    provides Owner of copyright to be party to the proceeding. He
    has submitted that in the present case, the infringement by
    failure to obtain license by the various Defendants is not only in
    relation to works of which the Plaintiff/PPL is an exclusive
    licensee but also in respect of works of which it is itself an
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    owner. Thus and for that reason, Section 61(1) would not
    apply.
  60. Mr. Kadam has submitted that PPL’s repertoire has a
    majority of works over which it is the owner. These are two
    compelling reasons and factors because of which the Court ought to
    exercise its discretion under Section 61(1) to hold that it is not
    necessary to make the 11 music labels who are Licensors/Owners of
    the works as party Defendants to the Suit.
  61. Mr. Kadam has submitted that upon reading of the
    aforementioned provisions of the Act, when an owner is monetizing
    copyright in any work, the owner is doing so for gain or for profit.
    Regardless of the scale at which such activity resulting in
    monetization of copyright takes place, it is a commercial or a
    business activity as it is being done for gain. Any restriction or
    curtailment of exercise of ownership rights whether by selfexploitation; assignment; license, depending upon scale or
    motive/manner of exercise or regularity of exercise of such
    ownership rights would be reading into the Act facets or nuances
    relating to the primary right of ownership of a copyright, which
    the Act does not in its language provide for at all.
  62. Mr. Kadam has placed reliance upon provisions of the
    Bern Convention (1896), to which India is a signatory and
    particularly Article 2 (6), which provides that the protection of
    works mentioned in this Article shall shall operate for the benefit of
    the author and his successors in title. Article 5 (1), which provides
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    that Authors shall enjoy, in respect of works for which they are protected
    under this Convention, in countries of the Union other than the country
    of origin, the rights which their respective laws do now or may hereafter
    grant to their nationals, as well as the rights specially granted by this
    Convention. Further, under Article 5(2) it is provided that, t he
    enjoyment and the exercise of these rights shall not be subject to any
    formality; such enjoyment and such exercise shall be independent of
    the existence of protection in the country of origin of the work.
    Further Article 9, which is Right of Reproduction, provides that
    Authors of literary and artistic works protected by this Convention
    shall have the exclusive right of authorizing the reproduction of
    these works, in any manner or form. It shall be a matter for the
    legislation in the countries of the Union to permit the reproduction
    of such works in certain special cases, provided that such
    reproduction does not conflict with a normal exploitation of the
    work and does not unreasonably prejudice the legitimate interests of
    the author.
  63. Mr. Kadam has submitted that in view of the
    aforementioned, the primary objective of copyright and provisions
    relating to copyright is being for the benefit and enjoyment and
    protection of the owner. He has also placed reliance on an extract from
    Copinger and Skone & James on Copyright Volume I, page 1503,
    Paragraphs 18-28 in this context.
  64. Mr. Kadam, has supported the submissions of Mr. Kambata
    as to the interpretation of Chapter VII of the Act brought by the 1994 as
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    well as 2012 Amendments, by which the second proviso to Section
    33(1) was added. He has submitted that the embargo or prohibition on
    a person or association of persons commencing or carrying on the
    business of issuing or granting licenses in respect of any work in which
    copyright subsists other than by registering such association of persons
    as a copyright society [ Section 33(1) r/w Section 33(3)] has no
    application to the issuing or granting of licenses in respect of any work
    by an owner or by an exclusive licensee who by the terms of the
    exclusive license is entitled to issue further licenses in respect of the
    work. This interpretation is supported by the provisions of the Act
    pertaining to ownership analysed. It is also in consonance with the
    first proviso to Section 33(1). This proviso clarifies that an owner of
    copyright shall in his individual capacity, continue to have the right
    to grant licenses in respect of his own works.
  65. Mr. Kadam has submitted that there is nothing in the
    language of Chapter VII or the relevant rules appearing in Chapter XI of
    the Copyright Rules 2013 that mandates or forces owners who may in a
    given case own copyright in a large repertoire of sound recordings to
    become members of a registered copyright society. He has also placed
    reliance in this context on Section 34(1)(b) of the Act.
  66. Mr. Kadam has further submitted that the expression in
    his individual capacity appearing in the first proviso to Section 33 has
    nothing to do with whether the owner of copyright in a sound recording
    is granting licenses on a small or large scale so as to constitute such
    activity as a business. The expression ‘capacity’ when used in the
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    context of a particular status applies where a person enjoys two
    statuses simultaneously. He has supported this interpretation placed
    by Mr. Khambata on the first proviso to Section 33 (1) in this context.
  67. Mr. Kadam has submitted that the decision of the Madras
    High Court in “Novex Communications Pvt. Ltd. Vs. DXC Technology
    Pvt. Ltd” (supra) has overlooked Section 30 which only speaks of
    the owner’s rights to license and does not talk about any capacity or
    does not talk about whether the activity is done at an individual
    level or as a business. He has submitted that the Madras High Court
    has completely lost sight of the phrase individual capacity
    appearing in the first proviso to Section 33(1), applies in the
    context of that proviso where the owner of a copyright in a work
    becomes a member of a Registered Copyright Society for that
    category of works. This subjectivity of ‘individual capacity’
    transcending into the realm of business is a notion introduced by the
    judgment and brings about a whole world of uncertainty and
    ambiguity in the application of the provisions of the Act in
    paragraph 55. Further, the Madras High Court has concluded that
    the entity like the plaintiff therein which is involved in the business
    of issuing licenses falls within the net of the second proviso of
    Section 33 (1). There is no reasoning as to how the granting of
    licenses in respect of sound recordings which is not covered by the
    second proviso of Section 33(1) would take the activity of the
    Plaintiff within that second proviso.
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  68. Mr. Kadam has submitted that if the argument of the
    Defendants that the ‘business’ of licensing can be conducted only
    through a copyright society is to be accepted then, it would only be
    the Copyright Society who would be in a position to maintain a suit
    for infringement. The Defendants’ have failed to address the issue
    that no conditions have been introduced in Section 51 and Section
    19 for exercise of rights by the Copyright Owner at the time when
    the Copyright Society chapter was introduced in the Act. He has
    accordingly submitted that the PPL in the present case has exercised
    its rights as an owner and is not administering the rights of others.
    This has been overlooked by the Defendants in their arguments. He
    has accordingly submitted that PPL by exercising its rights as owner
    is able to seek reliefs as sought for in the above suits.
  69. Dr. Virendra Tulzapurkar, learned Senior Counsel
    appearing for the Defendants in the above suits has submitted that
    the prohibition imposed by Section 33(1) applies if the following
    two conditions are satisfied: (i) Plaintiff is a “person or association
    of persons”; and (ii) Plaintiff carries on business of issuing or
    granting licenses. He has submitted that both PPL and Novex in the
    above suits are limited companies and therefore, fall within the
    meaning of “persons”. He has submitted that there is nothing in the
    language of Section 33(1) to suggest that the word “persons”
    excludes owners of copyright. On the contrary, “persons” as used in
    Section 33(1) must include owners because Section 33(1) refers to
    issuing of licenses. Admittedly, only an owner can issue a license
    under Section 30 of the Act.
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  70. Dr. Tulzapurkar has submitted that since there is no
    ambiguity in the language of the section, the first rule of statutory
    interpretation, i.e., of literal interpretation, would demand that the
    word “persons” be given its natural grammatical meaning without
    any artificial limitations or restrictions.
  71. Dr. Tulzapurkar has submitted that Section 33(1)
    prohibits “any person or association of persons” from carrying on the
    “business of issuing or granting licenses” without registration as a
    copyright society. PPL and Novex as aforementioned are covered by
    Section 33(1) as they are clearly “persons” as well as carry on a
    commercial activity that qualifies as “business”.
  72. Dr. Tulzapurkar has submitted that Section 30 and
    Section 33(1) operate in separate fields and do not conflict which
    each other. While Section 30 deals with the general right of an
    owner to grant a license, Section 33(1) regulates the business of
    licensing. The law is plain and clear – an owner has the right to issue
    a license. When his licensing activity enters the realm of “business”,
    he is subject to statutory regulation under Chapter VII and must
    carry on his activities either by seeking registration as a copyright
    society or by doing it through a registered copyright society.
    Assuming without admitting there is a conflict, even then Section
    33(1) is a special provision and must prevail over the general one.
    Moreover, the object of copyright law and legislative intent behind
    Chapter VII is to balance the rights of owners and public interest by
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    protecting the rights of users. This would mean owners too are
    covered by Section 33(1).
  73. Dr. Tulzapurkar has submitted that Section 33(1) does
    not efface or make Section 30 redundant. An owner’s right to
    monetise his copyright through licensing is not taken away at all, it
    is merely regulated by Section 33(1). Such regulation is perfectly
    permissible when done by way of statute. In fact, Section 34(3)
    expressly preserves the right of licensing available under Section 30.
  74. Dr. Tulzapurkar has submitted that the First Proviso to
    Section 33(1) does not come to the aid of PPL and Novex because
    (I) it applies only to members of a Copyright Society; (ii) Assuming
    the First Proviso applies to non members, even then PPL and Novex
    are not covered as they do not issue licenses in their “individual
    capacity” or in respect of their “own works”.
  75. Dr. Tulzapurkar has submitted that the purported
    assignment agreements relied upon by the Plaintiffs are void and do
    not validly transfer actual ownership rights to the Plaintiffs as: (i)
    they do not identify the “work” as required under Section 19(2); (ii)
    they fall foul of the requirement to specify payment of royalty to
    authors; (iii) they do not confer actual ownership rights but are
    designed only to circumvent Section 33(1); and (iv) in case of PPL,
    there is no assignment/transfer of ownership in respect of 40% of
    the sound recordings.
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  76. Dr. Tulzapurkar has further submitted that the Second
    Proviso to Section 33(1) has no relevance to the present matter. It
    was brought in by way of amendment in 2012 to correspond to the
    changes made to Section 18 to protect owners of underlying works.
    It does not impact Section 33(1), which has been on the statute
    books since 1994.
  77. Dr. Tulzapurkar has submitted that the Division Bench of
    this Court in PPL vs. Avion Hospitality Pvt. Ltd.
    10
    , disposed off the
    appeals against a set of ad-interim orders by clarifying that the
    Defendant may raise “appropriate contentions including raising the
    issue of maintainability of the Suits at the instance of the present
    Plaintiff.”
  78. Dr. Tulzapurkar has submitted that PPL and Novex have
    not filed a simpliciter suit for injunction on grounds of infringement.
    On the contrary, their entire case is that they are entitled to issue
    licenses and collect license fees. On this basis, they have sought a
    limited injunction against the Defendants from playing sound
    recordings without taking a license from the Plaintiffs. This is
    evident from the Plaintiffs’ own pleadings. He has relied upon
    Paragraphs Nos. 6,9,11,13,28 and 32 of the plaint in Suit No. 157 of
    2023 and Paragraphs Nos. 4, 6, 9 of Legal Notice dated October 4,
    2022 issued by Plaintiff’s advocate in respect of the alleged
    infringement at page no. 59 of the plaint in Suit No. 157 of 2023
    and Paragraph no. 8 of Legal Notice dated October 4, 2022 issued by
    10 Order dated 22nd December 2017 in Commercial Appeal (L) no. 100 of 2017.
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    Plaintiff’s advocate in respect of the alleged infringement at page no.
    76 of the plaint in Suit No. 157 of 2023.
  79. Mr. Tulzapurkar has submitted that all the ad-interim
    orders obtained by PPL and Novex in the matters under
    consideration were limited to directing the Defendants to deposit the
    license fees in court if they wanted to play the sound recordings or
    directing the Defendants to take a license from PPL and Novex on a
    without prejudice basis. Neither did PPL/Novex seek nor did the
    Court grant them an injunction simplicitor.
  80. Dr. Tulzapurkar has submitted that argument of PPL and
    Novex runs contrary to the well-settled principle of ex turpi causa
    non oritur actio or ex dolo malo non oritur actio i.e., a Plaintiff
    cannot find his cause of action on an illegal act or amounts to
    transgression of a positive law. This principle finds its modern
    origins in the classic passage of Lord Mansfield C.J. in the 1775 case
    of Holman vs. Johnson: He has submitted that this passage has been
    cited with approval by the Supreme Court and High Courts in
    several cases where the plaintiff’s cause of action emanated out of
    an illegal act.
  81. Dr. Tulzapurkar has submitted that the Supreme Court in
    “Narayanamma & Anr. Vs. Govindappa & Ors”.
    11 has recently
    reviewed the entire law on ex turpi causa, including Lord Mansfield’s
    seminal passage, and reiterated that if the plaintiff’s cause of action
    11 [(2019) 19 SCC 42]
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    is based on an illegality, it will not grant any relief to the plaintiff,
    even if the defendant is guilty.
  82. Dr. Tulzapurkar has submitted that the decision relied
    upon by PPL and Novex namely the English Supreme Court’s
    decision in “Patel v Mirza”
    12 to counter the above does little to assist
    the Plaintiffs. The said decision actually supports the Defendants’
    case as it makes clear that ex turpi causa is indeed a valid defence
    and that courts must examine the underlying purpose of the
    prohibition and the public policy involved.
  83. Dr. Tulzapurkar has submitted that the Plaintiffs reliance
    on Gurumukh Singh v Amar Singh [(1991) 3 SCC 79] is also
    misplaced. The said case dealt with an allegation that the object of
    the contract was harmful to public policy. There was no
    contravention of any law involved. In the instant case, however, the
    Plaintiff’s actions are in direct contravention of Section 33(1) of the
    Copyright Act. As per the law laid by the Supreme Court, it would
    be impermissible to grant relief to such a plaintiff.
  84. Dr. Tulzapurkar has submitted that PPL’s and Novex’s
    activities fall under Section 33 (1) of the Act and which is apparent
    from Clauses 3(a), 3(y), 3(z), 3(aa) and 3(ab) of its Memorandum
    of Association as well as 3.20 and 12 of its Articles of Association.
    This is also apparent from PPL’s Annual Report for the year ended
    March 31, 2022 which shows that its principal activity is granting
    12 [(2016) UKSC 42]
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    public performance licenses. Further, a holistic reading of the
    purported Assignment Deeds relied upon by PPL also points to the
    fact that PPL is in fact engaged in the business of issuing licenses.
  85. Dr. Tulzapurkar has further submitted that the clinching
    factor on this issue is PPL’s antecedents. PPL was previously
    registered as a copyright society under Section 33 of the Copyright
    Act and admittedly carried on the business of issuing licenses. It
    applied for re-registration in 2013 but withdrew its application in
  86. It once again applied for re-registration in 2018, which was
    rejected by the Government on grounds of delay. PPL challenged this
    rejection before the Delhi High Court. The High Court directed the
    Government to consider PPL’s application on merits. Vide order
    dated June 9, 2022, the Government rejected PPL’s application on
    the ground that PPL “has no professional competence to carry on its
    business and manage its affairs in accordance to the provisions of
    the Copyright Act 1957 and Copyright Rules, 2013”. Pertinently, PPL
    has been carrying on exactly the same business of issuing licenses
    and collecting license fees. More importantly, the very fact that PPL
    was previously registered as a society and continued to fight for
    registration shows that PPL itself is aware that registration is
    required to carry on the business of licensing.
  87. Dr. Tulzapurkar has submitted that similar is the case
    with Novex namely that they carrying on business of issuing /
    granting licenses. This is apparent from Clauses 1, 4 and 11 of the
    Memorandum of Association of Novex which makes it clear that the
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    main object of Novex is to carry on business of granting licenses.
    Further, Novex’s Annual Report for the year ended 31st March, 2022
    which clearly shows that Novex’s principal activity is granting public
    performance licenses. Further, Novex’s website while referring to
    public performance rights states “Novex is engaged in the business
    of giving public performance rights in sound recordings”. Further, a
    holistic reading of the purported Assignment Deed dated August 11,
    2015 executed with Zee Entertainment Enterprises Ltd. clearly
    shows that Novex is in fact engaged in the business of issuing
    licenses.
  88. Dr. Tulzapurkar has thereafter, referred to the definition
    of “copyright business” in Rule 2(c) of the Copyright Rules, 2013
    namely “business of issuing or granting licence in respect of any
    class of works in which copyright or any other right conferred by the
    Act subsists, and includes the functions referred to in sub-section (3)
    of section 34”. He has submitted that the legislature has consciously
    chosen to define this term widely and has not excluded the business
    of licensing carried out by owners.
  89. Dr. Tulzapurkar has placed reliance upon the decisions of
    Courts on what is meant by “business” or “carrying on business”,
    which are as under:-
    i) ‘Smith vs. Anderson’
    13
    ii) ‘Bata Shoe Co. Ltd. vs. Union of India’‘
    14
    13 [1879 Vol. XV Ch. Div. (CA) 247]
    14 [AIR 1954 Bom. 129]
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    iii)’Sri Gajalakshmi Ginning Factory Ltd. vs. Commissioner
    of Income Tax’
    15
    iv) ‘Barendra Prasad Ray vs. Income Tax Officer’
    16
    v) ‘State of Tamil Nadu vs. Board of Trustees of the Port of
    Madras’
    17
    .
    vi) ‘State of Andhra Pradesh vs. H. Bakhi’
    18
    .
    vii) ‘State of Gujarat vs. M/s. Raipur Manufacturing Co.
    Ltd.’
    19
    .
  90. Dr. Tulzapurkar has submitted that PPL and Novex have
    relied upon “S Mohan Lal v R Kondiah
    20
    ” and “P K Kesavan Nair v
    C K Babu Naidu
    21
    ” to contend that the word “business” should be
    interpreted as per context. However, reference to these cases does
    not assist PPL and Novex in any manner. There is no justifiable
    reason given by PPL and Novex to discard the definition of ‘business’
    in the Copyright Rules namely Rule 2(c) of the Copyright Rules,
  91. Further, PPL and Novex have not denied that they indeed
    carry on business. Their own documents as aforesaid clearly show
    that PPL and Novex are in the business of licensing.
  92. Dr. Tulzapurkar has submitted that PPL and Novex have
    based their argument on an incorrect assumption that an assignment
    from the original owner takes them out of the regulatory ambit of
    15 [AIR 1953 Mad 343]
    16 [(1981) 2 SCC 693]
    17 [(1999) 4 SCC 630]
    18 [AIR 1965 SC 531]
    19 [AIR 1967 SC 1066]
    20 [(1979) 2 SCC 616]
    21 [1953 SCC OnLine Mad 368]
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    Chapter VII of the Copyright Act and Chapter XI of the Copyright
    Rules.
  93. Dr,. Tulzapurkar has submitted that the plain language of
    Section 33(1) does not exclude owners/assignees. There is nothing
    in the language to suggest that an assignment from an owner
    entitles an assignee to carry on the business of licensing to public at
    large without any regulatory fetters.
  94. Dr. Tulzapurkar has submitted that there is nothing to
    suggest that this “contract” or “agreement” referred to in Section 34
    and Rule 54 excludes an agreement of assignment. The trigger for
    regulation is the nature of the activity, i.e., business of licensing, and
    not the mode of acquisition of the right to carry on such business.
  95. Dr. Tulzapurkar has submitted that there is no conflict
    between Section 30 and Section 33(1). Alternatively, assuming
    without conceding there is any conflict, even then Section 33(1)
    would prevail over Section 30. Section 30 is a general provision that
    deals with an owner’s general right to license his copyright. Section
    33, on the other hand, is part of Chapter VII of the Copyright Act,
    which is a special provision and self-contained chapter that
    elaborately governs the business of granting and issuing licenses.
    Moreover, the present Section 33 is a latter provision that was
    brought in by way of an amendment in 1994. Thus, the legislature
    had notice of Section 30 when it enacted Section 33(1).
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  96. Dr. Tulzapurkar has submitted that it is well settled law
    that the general law must yield to the special law. The Supreme
    Court in a catena of cases has reiterated this well settled Latin
    maxim “generalia specialibus non derogant”. In “Commercial Tax
    Officer, Rajasthan vs. Binani Cements Ltd. & Anr.”
    22
    , the Supreme
    Court exhaustively reviewed the judicial precedents on the subject
    and noted that this principle is applicable not only amongst two
    statutes but also finds utility in resolving a conflict between a
    general and specific provision of the same statute. Further, it is also
    an accepted principle of interpretation that in case of conflict
    between two provisions of the same statute, the latter provision will
    prevail over the former. See K.M. Nanavati vs The State of Bombay
    23
    and In Re: W. G. Ambekar
    24
    . He has further submitted that both
    above principles are squarely applicable to the facts of the present
    case and would mandate that Section 33(1) must prevail over
    Section 30.
  97. Dr. Tulzapurkar has submitted that it is now well
    accepted that copyright law is not designed for protecting the
    interest of owners alone. It is intended to balance the rights of the
    owners with the rights of end users. He has placed reliance upon
    Article 27 of the Universal Declaration of Human Rights where this
    principle finds its origins. This is also noted by P. Narayanan in Law
    of Copyright and Industrial Designs 4
    th Edition where Article 27 is
    reproduced. Further, “Copinger and Skone & James on Copyright”
    25
    22 [(2014) 8 SCC 319]
    23 [AIR 1961 SC 112]
    24 [MANU/MH/0148/1952]
    25 (15
    th
    Edition)
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    explains the rationale for copyright societies (also known as
    collecting societies). The author notes that collecting societies
    benefit rights owners and users alike, and in principle operates for
    the benefit of the public.
  98. Dr. Tulzapurkar has submitted that India is not alone in
    regulating the business of collective administration of copyright.
    Among common law countries, the UK has adopted the ‘Collective
    Management of Copyright (EU Directive) Regulations 2016.’
    Singapore too has an entire chapter on the subject in Part 9 of its
    Copyright Act, 2021. Thus, given the strong public interest involved
    in the collective administration of copyrights, governmental
    regulation of such business is commonplace across jurisdictions.
  99. Dr. Tulzapurkar has submitted that after noticing the
    problems with the activities of copyright societies introduced by the
    1994 Amendment, the Act was further amended in 2012 to
    incorporate additional provisions for regulation of copyright
    societies. Elaborate rules were also framed under Chapter XI of the
    Copyright Rules 2013. He has placed reliance upon the provisions of
    the Copyright Act and Rules that regulate the business of granting
    license. He has submitted that it is evident that the Chapter VII of
    Copyright Act and Chapter XI of the Copyright Rules put in place an
    elaborate regime to regulate the business of issuing licenses. The
    Statement of Objects and Reasons to the 2012 Amendment also
    notes that one of the objects for the amendment was to “make
    provision for formulation of a tariff scheme by the copyright
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    societies subject to scrutiny by the Copyright Board”. He has also
    placed reliance upon the 227th Report of the Parliamentary Standing
    Committee dated November 2010 on the Copyright (Amendment)
    Bill 2010 that ultimately led to the 2012 Amendments to the
    Copyright Act. He has submitted that reference to the above material
    is appropriate and necessary to ascertain the legislative intent
    behind Chapter VII of the Copyright Act. Such reference to
    legislative history has been approved by the Supreme Court in “R. S.
    Nayak vs. A. R. Antulay”
    26 wherein it was held that the function of
    the court is to give effect to the real intention of Parliament. These
    materials are permissible aids to construction and their denial would
    deprive the court of substantial and illuminating aid to construction.
  100. Dr. Tulzapurkar has placed reliance upon the decision of
    the Supreme Court in “Entertainment Network (India) Ltd. vs. Super
    Cassette Industries Ltd”.
    27 wherein the Supreme Court has noted
    that the provisions of Chapter VII of the Copyright Act serve the dual
    objective of having copyright societies, i.e., to maintain a balance
    between the protection of owners’ rights and interest of the public to
    have access to the works.
  101. Dr. Tulzapurkar has submitted that the expansive words
    of Section 33(1), i.e., “no person or association of persons shall
    commence or carry on the business of issuing or granting licenses”
    clearly underline the intention of the legislature that business of
    26 [(1984) 2 SCC 183]
    27 [(2008) 13 SCC 30]
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    issuing licenses can only be undertaken by a registered copyright
    society. These words are required to be construed in the context of
    its use in the Copyright Act and Rules which require that: (i) such
    business can be carried on only by a registered copyright society; (ii)
    such society is regulated by the Government; and (iii) there is only
    one society for one category of work. Thus, allowing PPL to carry on
    the business of licensing without registration would result in
    escaping the intended regulation and would be contrary to the
    scheme and object of Chapter VII of the Copyright Act.
  102. Dr. Tulzapurkar has submitted that if the Plaintiff’s
    argument is accepted and an assignee/owner is permitted to carry
    on the business of issuing licenses without registration, then Section
    33 itself would be rendered redundant and nugatory. This would be
    contrary to the clear intention of the legislature to regulate the
    business of licensing, even if the business is carried out by an
    assignee/owner. Since only an owner (which term includes an
    assignee) can issue licenses, it is quite obvious that the intent of
    Section 33(1) was to regulate owners of copyright who can
    potentially carry on the business of licensing. Thus, there is no
    logical basis in the Plaintiffs’ argument that Section 33(1) applies to
    persons other than owners. He has submitted that the law intends
    that there must be a single copyright society for one class of work to
    ensure a single window for end-users.
  103. Dr. Tulzapurkar has submitted that the law clearly seeks
    to address a mischief, i.e., of a person carrying on the business of
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    licensing without regulation. He has submitted that the statute must
    be interpreted to avoid this mischief by following the Heydon’s Rule
    or mischief rule. He has referred to the following cases on this point:
    a. The Supreme Court in “Godawat Pan Masala Products
    (I) Pvt. Ltd. & Anr. vs. Union of India & Ors”
    28 it was
    held that for construing a statute, all sections will have
    to be read together to ascertain what is the mischief
    sought to be avoided.
    b. In “Ameer Trading Corporation Ltd. vs. Shapoorji Data
    Processing Ltd”.
    29 the Supreme Court reiterated that
    the Heydon’s Rule or Mischief Rule must be applied to
    suppress the mischief that was intended to be
    remedied, especially when Parliament has consciously
    made an amendment to the law.
    c. In “S. Mohan Lal vs. R. Kondiah”
    30 it was held that the
    expressions used in the Act must take their colour from
    the context in which they appear.
    d. In “Badshah vs. Urmila Badshah Godse”
    31 the Supreme
    Court relied on the Heydon Rule to hold that courts
    must avoid a construction that “would reduce the
    legislation to futility and should accept the bolder
    construction based on the view that Parliament would
    legislate only for the purpose of bringing an effective
    result”.
    28 [(2004) 7 SCC 68]
    29 [(2004) 1 SCC 702]
    30 [(1979) 2 SCC 616]
    31 [(2014) 1 SCC 188]
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  104. In “District Mining Officer vs. Tata Iron & Steel Co. &
    Anr.”32 the Supreme Court explained that legislation is primarily
    directed to the problems before the legislature and to cover similar
    problems arising in future. Thus, the legislative intent is to be
    derived by considering the words in the enactment “in light of any
    discernable purpose or object which comprehends the mischief and
    its remedy to which the enactment is directed”.
  105. Dr. Tulzapurkar has submitted that Chapter VII of the
    Copyright Act requires that the business of licensing be carried on in
    a particular manner. The Plaintiffs cannot be permitted to
    circumvent the entire regulatory regime and carry on the business of
    licensing in a manner other than what is prescribed by law. This
    would go against the well accepted rule laid down in “Taylor vs
    Taylor Taylor”
    33 that if the law requires something to be done in a
    particular manner, it must be done only in that manner or not at all.
    He has referred to the decision of the “Nazir Ahmad vs. The KingEmperor”
    34 and State of “Uttar Pradesh vs. Singhara Singh”
    35
    ,
    which follows the Taylor Rule.
  106. Dr. Tulzapurkar has submitted that the principles of
    construction propounded by PPL and Novex are misconceived and
    not applicable to instant case. He has submitted that the decisions
    relied upon by them in support of “harmonious construction” would
    32 [(2001) 7 SCC 358]
    33 [(1875) Vol.1Ch.D 426]
    34 [1936 LXIII Indian Appeals 372]
    35 [(1964) 4 SCR 485]
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    require the court to read down Section 33(1) such that “owners” are
    excluded from the word “persons”. This is contrary to the plain
    language used in Section 33(1) of the Act. Further, harmonious
    construction applies only if there is an ambiguity in the language of
    the statute and cannot be used if the language is clear. In the present
    case, the language of Section 33(1) is plain and unambiguous.
    Hence, it would be impermissible to ignore the rule of literal
    interpretation and apply the rule of “harmonious construction”
    instead.
  107. Dr. Tulzapurkar has submitted that Section 33(1) does
    not take away the general rights of owners to license their works. On
    the contrary, it retains and preserves that right but only regulates the
    manner in which the business of licensing is to be carried on. Thus,
    all that Section 33(1) requires is that if an owner wishes to carry on
    the business of licensing, he must do it in the legally mandated
    manner, i.e., through a registered copyright society.
  108. Dr. Tulzapurkar has submitted that PPL and Novex have
    relied upon the decisions in “Union of India vs. Dileep Kumar
    Singh”
    36 to contend that the court must give precedence to the
    leading provision over the subordinate provision. However, this case
    too is inapplicable in the present situation. PPL and Novex have been
    unable to explain how Section 30 is a leading provision and Section
    33 is a subordinate provision. On the contrary, the two operate in
    separate fields altogether.
    36 [(2015) 4 SCC 421]
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  109. Dr. Tulzapurkar has submitted that PPL and Novex have
    relied upon decisions in support of their contention that absurd or
    unintended results of interpretation should be avoided. In the
    instant case, there is no ambiguity in the language of Section 33(1).
    There is no absurdity or unintended consequence by adhering to the
    plain meaning of Section 33(1).
  110. Dr. Tulzapurkar has submitted that constant refrain of
    PPL and Novex was that giving literal interpretation to Section 33(1)
    would lead to “effacement” of Section 30 and take away the right of
    an owner to monetise his copyright is completely incorrect.
  111. Dr. Tulzapurkar has submitted that Section 33 does not
    take away an owner’s right to license for commercial purposes. All
    that Section 33 postulates is that the business of licensing should be
    carried out in a regulated manner by registration under the
    Copyright Act. If an owner wishes to carry on business, he has to
    either be registered as a copyright society himself or must carry on
    the activity through a copyright society. Quite contrary to the
    Plaintiffs’ submission, Section 33(1) would be effaced if the
    Plaintiffs’ submissions are accepted. Since only an owner can issue
    licenses, exclusion of an owner from its purview would render
    Section 33(1) completely meaningless and redundant.
  112. Dr. Tulzapurkar has submitted that the First Proviso to
    Section 33(1) does not exempt PPL and Novex from the prohibition
    of Section 33(1). Apart from claiming to be owners, PPL and Novex
    have not satisfied the conditions of the Proviso viz. (i) Person is an
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    owner of Copyright; ii) Person is acting in his ‘individual capacity’;
    iii) Person grants licenses in respect of his “own works”; iv) the grant
    is “consistent with his obligations as a member of the registered
    society”.
  113. Dr. Tulzapurkar has placed reliance upon the decision of
    the Supreme Court in “Dwarka Prasad vs. Dwarkadas Saraf”
    37
    wherein it is held that a proviso does not travel beyond the main
    provision. Further, in “Delhi Metro Rail Corporation Limited vs.
    Tarun Pal Singh and Ors”
    38 the Supreme Court went on to explain
    that a proviso cannot be interpreted as stating a general rule. He has
    submitted that there is nothing exceptional in the language or
    scheme of Section 33(1) or the first proviso to suggest that the
    proviso warrants a deviation from the general rule of interpretation.
    It cannot therefore be construed as creating an independent right in
    favour of the Plaintiff beyond the main enacting section.
  114. Mr. Tulzapurkar submitted that it is the contention of PPL
    and Novex that Section 33(1) is not a prohibition at all and that
    copyright facilities were merely a facility and option created for the
    benefit of owners. They have further contended that the 1994
    Amendments to the Copyright Act introduced the concept of
    copyright societies for the first time as facility for owners by enacting
    Section 33(1). These contentions are plainly incorrect. He has
    submitted that copyright Societies existed long before the 1994
    Amendment. In fact, PPL was founded in 1941 and has been
    37 [(1976) 1 SCC 128]
    38 [(2018) 14 SCC 161]
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    carrying on the same business ever since. The facility of collective
    management was always available to owners even prior to 1994. Till
    1994, there was no regulation on the business of licensing. Section
    33(1) that was introduced by the 1994 Amendment brought
    copyright societies within the regulatory purview and mandated that
    the business of licensing should only be carried out through a
    registered entity. He has submitted that the material relied upon
    through the course of the hearing including the Supreme Court’s
    decision in “Entertainment Network”
    39, the Parliamentary Debates
    and extracts from Copinger make it amply clear that the object of
    copyright societies is not just to promote rights of owners but to
    balance it with public interest by protecting the interests of users.
  115. Dr. Tulzapurkar has submitted that the contention of PPL
    and Novex that copyright societies are “agencies” or administrators
    of rights does not take that case any further. The decision of the
    Supreme Court’s in “Entertainment Network and Delhi High Court’s
    decision in Lizard Lounge” (Supra) relied upon by PPL and Novex in
    this context deal with the question whether business of licensing can
    be carried out by an owner without registration. Further, Section 33
    requires a particular activity, i.e., business of licensing, to be done
    only by regulated entity/through a regulated entity.
  116. Dr. Tulzapurkar has submitted that the contention of PPL
    and Novex that the authorization granted to a copyright society can
    be withdrawn by an owner under Section 34(1)(b) would suggest
    that it is not mandatory for an owner to carry on business only
    39 [(2008) 13 SCC 30]
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    through a society ought to be rejected. All that Section 34(1)(b) says
    is that an owner is not perpetually bound to be a member of a
    copyright society and the section enables him to withdraw from a
    collective management system should he choose to. This is a
    voluntary act. Once he withdraws, he is in the same position as any
    other person who is not a member of a copyright society. He can
    exercise all rights under Section 14 and also issue a license under
    Section 30 in an individual capacity. But he cannot carry on the
    business of licensing. If he wishes to recommence the business of
    licensing, he has to once again join a registered copyright society.
  117. Dr. Tulzapurkar has submitted that argument canvassed
    by PPL and Novex was that Section 31 provides for compulsory
    licensing. Thus, there is no need to regulate owners who carry on
    the business of licensing by requiring them to register as copyright
    societies is wholly fallacious and an incorrect reading of Section 31.
    Compulsory licensing is a completely different concept from
    regulation of the business of licensing carried on by copyright
    societies. He has submitted that Section 31 (1) (a) does not allow a
    user to challenge a Tarriff Scheme, whereas under Section 33 A this
    is allowed to a user. Further under Section 31, compulsory license
    can only be granted to a person whom the board/court finds
    “qualified” to receive a license. There is no such restriction under
    Section 33A. A decision for compulsory licensing under Section 31
    creates a right in rem only in favour of the complainant/prospective
    licensee. On the other hand, an appeal under Section 33A results in
    modification of the Tariff Scheme for the public at large. Merely
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    because the Copyright Act provides two remedies for two different
    scenarios, it cannot mean that one of the remedies available in law
    should be given a complete go-by to.
  118. Dr. Tulzapurkar has submitted that there is no valid
    assignment in favour of the PPL and Novex and thus this cannot be
    the basis for a suit filed by the Plaintiffs in their capacity as
    assignees.
  119. Dr. Tulzapurkar has submitted that the argument of PPL
    and Novex is that the second proviso to Section 33(1) uses the word
    ‘business’ and applies only to owners of underlying works. The
    consequence must be that owners of sound recordings such as PPL
    and Novex are entitled to carry on business without regulation.
  120. Dr. Tulzapurkar has submitted that this argument is
    highly flawed. He has submitted that the second proviso is of no
    relevance to the present matter as it only applies to underlying
    works incorporated in films or sound recordings. Sound recordings,
    that are the subject matter of the present dispute, are directly
    covered by the main enacting provision, i.e., Section 33(1) which
    refers to “any work in which copyright subsists”. Thus, the
    prohibition against owners of sound recordings from carrying on
    business except through a copyright society can be found in the main
    section itself without any reference to the second proviso.
  121. Dr. Tulzapurkar has submitted that the main section
    33(1) and the First Proviso have been in the statute since the 1994
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    Amendments. The Second Proviso was brought in only in 2012. This
    is relevant because the 2012 Amendment Act also amended Section
    18(1) and added provisos therein which prohibited authors of
    underlying works from assigning or waiving the right to receive
    royalties except to their legal heirs or copyright societies. Thus, it
    was necessary to make corresponding clarificatory changes to
    Section 33(1).
  122. Dr. Tulzapurkar has placed reliance upon the decision of
    the Madras High Court in “Novex Communications (P) Ltd. Vs DXC
    Technology (P) Ltd”. (Supra). He has submitted that the Madras
    High Court extensively considered all issues relating to Section 33
    including the arguments raised by the Plaintiffs in the instant matter.
    He has submitted that the Madras High Court has correctly holds
    that Section 33 distinguishes between granting licenses in an
    individual capacity and carrying on the business of licensing. The
    Court holds that “once the grant of license moves from the owner in
    his individual capacity and transcends into the realm of a business”
    Section 33(1) applies. On this basis, the Court concluded that since
    Novex was statutorily barred from issuing licenses, the very
    substratum for the relief sought by Novex must crumble like a pack
    of cards.
  123. Dr. Tulzapurkar has submitted that this Court be pleased
    to answer the aforementioned issue in favour of Defendants and
    dismiss the Plaintiffs’ Interim Applications.
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  124. Mr. Hiren Kamod and Mr. Amit Jamsandekar, amongst
    other Counsel have made submissions for the Defendants in their
    respective Suits which are in support of the submissions of Dr.
    Tulzapurkar, and in line with his submission.
  125. Mr. Rajiv Narula has made submissions on behalf of the
    Defendants in Commercial Notice of Motion No. 331 of 2019 in
    Commercial Suit No. 117 of 2019. He has supported the submissions
    of Dr. Tulzapurkar on interpretation of the relevant provisions of the
    Copyright Act including Section 33 and its Proviso. He has placed
    reliance upon the legislative debate which had also been relied upon
    by the Madras High Court in “Novex Communications Vs. DXC
    Technology Pvt. Ltd”. (supra). He has in particular has placed
    reliance upon Paragraph Nos. 38 to 40 and 42 of the said judgment.
    He has also referred to the 227th Report on Copyright (Amendment)
    Bill, 2010 by the Parliamentary Committee.
  126. Mr. Narula has submitted that in interpreting any statute,
    the role of the Court is to give effect to the will of the legislature.
    Where ambiguities exist, the Courts, no doubt, have the power to
    take recourse to external and internal aids to construe a provision in
    line with the intention of the legislature. Having examined the
    background leading to the Copyright (Amendment) Act, 2012, in
    view of Section 33(1) and its second proviso, the business of
    granting or issuing licenses in respect of any work in which
    copyright subsists, can be undertaken only through a copyright
    society registered under Section 33(3) of the Act.
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  127. Mr. Narula has submitted that the second Proviso to
    Section 33(1) and proviso to Section 33 (3A), being the
    consequence and effect of the amendments to Section 17, 18 and 19
    read with Section 30A, provides that the business of issuing or
    granting licence (being collection and distribution) of sound
    recording or cinematograph film, which comprises of the nonassignable and non-waivable rights in literary and musical work
    “shall be carried out only through a copyright society duly registered
    under this Act”.
  128. Mr. Narula has submitted that the legislative intent to
    remove the basis of the Supreme Court Judgment in “Indian
    Performing Rights Society vs. Eastern India Motion Pictures
    Association”
    40 and provide independent and non-assignable and nonwaivable right of the authors can be best understood from four
    paragraphs of the Report of the Standing Committee, 227th Report
    on Copyright ( Amendment) Bill, 2010. These are paragraphs 9.14
    to 9.16 and 9.18 of the Report.
  129. Mr. Narula has thereafter referred to the Copyright
    (Second Amendment) Bill, 1992 introduced in Loksabha is on 16th
    July 1992. He has in this context referred to the statement of objects
    and reasons and the Notes on Clauses appended to the 1992 Bill
    which clearly shows the intent of 1992 Bill. This was revised and
    modified by the Legislature before the enactment of the 1994
    Amendment. He has submitted that it is important to note that
    Section 33(1) as proposed in the 1992 Bill did not contain the 1st
    40 [(1997) 2 SCC 820]
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    proviso to Section 33(1). The same was introduced subsequently.
    Therefore, it is obvious that the legislative intent initially was to
    impose a complete prohibition on any person or association to carry
    on the business of issuing or granting license except in accordance to
    the registration granted under Section 33(3) of the Act.
  130. Mr. Narula has submitted that the insertion of the
    definition “copyright society” and “Chapter VIII-Copyright Society”
    and the deleting the term “performing rights society” is reflected
    from 1992 Bill. This was in order to widen the scope of collective
    administration consistent with Clause 11 of the Bill 1992 Bill. He has
    referred to Clause 2 of the Notes on Clauses of the 1992 Bill in this
    context. Therefore, the copyright society was not only for the
    benefits of authors and owners, but also for the general public/users
    (like the defendants) for whom it is not convenient to obtain
    licenses.
  131. Mr. Narula has joined in the submission of Dr.
    Tulzapurkar that Novex and PPL have no right to maintain the
    present suits.
  132. Mr. P. Shenoy, learned counsel for the Defendant in
    Commercial Suit No. 37362 of 2022, has supported the submissions
    of Dr. Tulzapur and has relied upon the ‘Mischief Rule’ of Statutory
    Interpretation, which has also been highlighted by Mr. Khambata in
    his submissions on behalf of Novex. He has also referred to the
    functions associated with the business of “Collective Administration
    of Copyright” and has submitted that what PPL did when they were
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    registered as a copyright society and what they continue to do today
    (when not registered as a Copyright Society), through the artifice of
    taking limited partial assignments, is the same. He has referred to
    “Copinger and Skone James” (supra) on Copyright, which articulates
    the difference between “Individual Exercise of Rights” and
    “Collective Administration of Rights”. He has submitted that an
    “Individual Exercise of Rights” is where each rightholder of
    copyright enters into agreements with prospective users of his work
    without “banding together” with other rightholders. Moreover, when
    it comes to certain categories of copyright, individual right holders
    may “band together to exercise rights on a Collective basis” This
    would involve all the individual rightholders pooling in their
    individual works to create a common repertoire of works in a single
    entity, which repertoire is then provided to a prospective user
    through that single entity. Any entity which manages this repertoire
    of works pooled together by individual rightholders, whether
    through assignment of ownership, licensing or agency in common
    parlance is considered to be a “collecting society” or a “licensing
    body”,
  133. Mr. Shenoy has submitted that Section 33(1) of the
    Copyright Act provides that no person or association of persons shall
    “commence or, carry on the business of issuing or granting licenses”.
    It is necessary for this Court to give meaning to what is meant by the
    “business of issuing or granting licenses”.He has submitted that these
    words are used by the Legislature to mean the “Collective
    Administration of Copyright”. The same is borne out of the
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    statement and objects and reasons of the Copyright (Amendment)
    Act, 1992 as well as Clause 11 of Notes on Clause. Further, the title/
    heading of Chapter VII is “Copyright Societies”.
  134. Mr. Shenoy has also joined in the submission of Dr.
    Tulzapurkar and other counsel for Defendants in submitting that the
    Plaintiffs have no right to maintain the present suit and that this
    Court dismiss the Plaintiffs Interim Application.
  135. Having considered the submissions, for determining the
    issue that arises in the above suits viz. whether the plaintiff is
    entitled to seek reliefs sought for in the plaint without being
    registered as a copyright society under section 33(1) of the Act, it
    would be necessary to refer to certain provisions of the Act. In the
    present case, that PPL and Novex have been partially assigned the
    copyright under the Sound Recording Agreements i.e. to
    communicate the sound recordings to the public.
  136. Section 14 of the Act defines a copyright to mean the
    exclusive right to reproduce a literary, dramatic or musical work in
    any material form including storing by electronic means; to make
    copies of such a work; to perform it in public and in the case of a
    sound recording it includes the right to sell or give on commercial
    rentals or to communicate the sound recording to the public.
    Further, ‘Owner’ of Copyright is provided in Chapter IV of the Act. As
    submitted by Mr. Khambata, Ownership of copyright can be acquired
    in 4 broad ways including through an assignment under Sections 18
    & 19 of the Act which is relevant in the present case. These confer
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    full and absolute ownership on the author/owner/assignee, as the
    case may be.
  137. Further Section 18(2) of the Act provides as under :
    “where the assignee of a copyright becomes entitled
    to any right comprised in the copyright, the assignee
    as respects the rights so assigned, and the assignor as
    respects the rights not assigned, shall be treated for
    the purposes of this Act as the owner of copyright
    and the provisions of this Act shall have effect
    accordingly”.
  138. Whereas Section 18 (1) of the Act specifically
    recognizes the owner’s right to assign his copyright either
    wholly or partially, to any person. This is a substantive right
    which has been provided to an owner under the Act and can
    be exercised without restrictions except as provided in the
    section.
  139. Thus, in my view a partial assignment created as in
    the present case in favour of PPL and Novex i.e. to
    communicate sound recording to the public, to the extent of
    the right so created, the assignee is an ‘owner’ of the copyright
    in the work.
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  140. PPL and Novex as assignees/owners of copyright
    license their work under section 30 of the Act. This Section
    falls under Chapter VI of the Act and reads as under:
    “30. Licences by owners of copyright.:-The
    owner of the copyright in any existing work or
    the prospective owner of the copyright in any
    future work may grant any interest in the right
    by licence in writing by him or by his duly
    authorised agent:
    Provided that in the case of a licence
    relating to copyright in any future work, the
    licence shall take effect only when the work
    comes into existence.
    Explanation.— Where a person to
    whom a licence relating to copyright in any
    future work is granted under this section dies
    before the work comes into existence, his
    legal representatives shall, in the absence of
    any provision to the contrary in the licence,
    be entitled to the benefit of the licence”.
  141. Thus, Section 30 of the Act is the source,
    which gives an “owner” of a copyright who may be an
    assignee, the power to grant any interest in the
    copyright by license. Further, Section 30 also
    specifically empowers a “duly authorized agent” of the
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    owner, to grant license. Thus, it follows that PPL and
    Novex as owners/assignees have the power to grant
    any interest in the copyright by license which would
    include the interest of communicating the sound
    recordings to the public.
  142. Now turning to the scope and object of the
    1994 Amendment which added Chapter VII and in
    particular sections 33 to 36 in the Act. Clause 11 of the
    Notes on Clauses reads as follows:
    “This clause seeks to substitute new
    provisions for Chapter VII to make provision
    for copyright societies in respect of any kind
    of right (and not merely “performer’s rights”)
    and to make adequate general provision for
    the registration and management of such
    societies in the interests both of authors and
    of other copyright owners for whom it would
    be impractical or uneconomical to licence the
    use of their work individually to all users,…”
  143. Thus, from a reading of Clause 11 of the Notes on
    Clauses Sections 33 to 36 have been introduced as part of Chapter
    VII for promoting the collective administration of rights through
    copyright societies, both for the benefit of the owner as well as the
    general public. These societies, on an “authorization” from the
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    owners could administer rights that were either licensed and/or
    assigned to them. A copyright Society fundamentally operates to
    administer rights in respect of works that belong to “others”.
  144. In my view, by its very nature, a copyright society may
    wear two hats i.e. (i) as an authorized agent and (ii) as an assignee.
    It administers the rights of “owners” by operating as an agent. It is
    necessary to note that under section 34 of the Act and in particular
    Section 34 (1) (b) it is provided that an owner will have the right to
    withdraw authorization given to the copyright society. This also
    shows that an author or other owner/assignee does not have to carry
    on the business of licensing his works only through a copyright
    society. Since, once an owner withdraws its authorization from a
    copyright society, the owner can independently exercise his rights
    under Section 30 of the Act to grant licenses as he deems
    appropriate. It could never have been the intention of the legislature
    that once an author/owner withdraws the authorization from a
    copyright society then that work cannot be licensed by anyone
    especially an owner. Such an interpretation would undermine the
    public interest in making available the copyrighted work to members
    of the public. In any event the provisions of Section 31, 31A-D would
    continue to operate to bind all owners to grant compulsory and
    statutory licenses even after withdrawal of authorization under
    Section 34(1)(b).
  145. Thus it is clear that the 1994 Amendment which
    introduced these provisions was brought in to protect and facilitate
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    the exercise of “owner’s” rights, not to restrict or diminish them in
    any way.
  146. The other relevant provision namely Section 34(3) of the
    Act clarifies that a copyright society is licensing the works of an
    “owner” under section 30. This means that a copyright society is
    licensing the works of the “owner” as a duly authorized agent under
    Section 30. Therefore, this is not a new right created in favour of a
    copyright society independent of the owner or independent of it
    being a duly authorized agent. Section 35(1) of the Act provides that
    “Every copyright society shall be subject to the collective control of
    the owners of rights under this Act whose rights it administers … ”.
    Thus, both Sections 34 and 35 draw a clear distinction between the
    author/ owner of the right on the one hand and the administrator of
    that right on the other (i.e. the copyright society).
  147. The decision relied upon by Mr. Khambata on behalf of
    Novex namely “Entertainment Network India Ltd. v. Super Cassette
    Industries Ltd” (Supra) is apposite. The Supreme Court has held that
    Chapter VII was incorporated into the Act so as to enable an author
    to commercially exploit his intellectual property through a Copyright
    Society. The Supreme Court holds that as per the Section 34 of the
    Act, a Copyright Society is a virtual agent authorized to act on behalf
    of the owner. Paragraph 66 of the said decision reads as under:
    “66. …It may, however, be of some importance to
    note that Chapter VII deals with Copyright society,
    the concept whereof was incorporated in the Act so
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    as to enable an author to commercially exploit his
    intellectual property by a widespread dispersal in a
    regulated manner. It for all intent and purport steps
    into the shoes of the author. The society grants
    license on behalf of the author, it files litigation on
    his behalf, both for the purpose of enforcement as
    also protection of the enforcement of his right. It not
    only pays royalty to the author but is entitled to
    distribute the amount collected by it amongst its
    members. Section 34 providing for administration of
    rights of owners by a copyright society for all intent
    and purport creates a virtual agency so as to enable
    the society to act on behalf of the owner…”.
  148. Thus, this decision of the Supreme Court makes it
    clear that Chapter VII does not take away the rights of the
    author/ owner. It only gives a choice to the author/ owner to
    either exploit its copyright on its own or to exploit its copyright
    through a Copyright Society. The idea of a Copyright Society is
    to assist the owner and not take away rights from an owner.
  149. This is further made clear by Delhi High Court in
    “Phonographic Performance Ltd. vs Lizard Lounge & Ors”.
    (supra) which has also been relied upon by Mr. Khambata on
    behalf of Novex. The Delhi High Court has held thus:
    “the owner continues to simultaneously have rights to
    deal with his Copyright in the work…
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    25..…The Copyright Society is an agent appointed
    under the agreement by the owner of the Copyright
    and specific powers have been conferred on the
    agent to institute legal proceedings. However, this
    does not denuding the author of its own individual
    rights”.
  150. The function of a Copyright Society has been
    highlighted by Copinger at Page 1540 which has been relied
    upon by Mr. Khambata for Novex, wherein copyright society is
    referred to as a collecting society. Collecting societies provide a
    service to enable rights owners to enforce and administer certain
    of their copyrights effectively and cheaply, and secondly to
    provide a service to users by facilitating access to copyright
    works and making it possible for users to comply with their
    obligations under the law to obtain licences for the use of
    copyright works. Advantages of collecting societies has also been
    mentioned. Collecting societies are practically, economically and
    legally both viable and essential: Practically, because copyright
    owners cannot be in an indefinite number of places at the same
    time exercising individual rights. Further, “collecting
    administration bodies provide the best available mechanism for
    licensing and administering copyrights and is to be encouraged
    wherever individual licensing is not practicable. They represent
    the best means of protecting the rights owners’ interests”,
    enabling copyright owners to license and monitor the use of
    their works, to collect and distribute together and to bring
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    actions for infringement. At the same time, they facilitate access
    to copyright protected works for the consumer and minimize the
    number of persons with whom users must negotiate licensing
    contracts.
  151. I am of the considered view that Section 33 (1) of the
    Act cannot curtail the power of the owner to grant any interest
    in the copyright by license under Section 30 of the Act. This
    provision has not at all being denuded by the 1994 Amendment,
    which has brought in Chapter VII in the Act.
  152. I do not find any merit in the interpretation placed by
    the Defendant that “no person” in Section 33(1) includes an
    “owner” of copyright and therefore even an “owner” of copyright
    cannot commence or carry on the business of granting copyright
    licenses. If such interpretation is accepted, Section 33(1) of the
    Act would take way the power of owner and / or the right of the
    owner to grant any interest in the copyright by license. This
    would emasculate right of the owner under Section 30. This was
    not contemplated by the Parliament by way of the 1994
    Amendment Act. In my view, Chapter VII which deals with
    copyright society is operating in a different field than that of
    Chapter VI which is the source for granting of licenses by the
    owner of copyright.
  153. It is a settled rule of Interpretation that two
    apparently conflicting provisions operating in two different
    fields should be reconciled by restricting each to its own object
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    or subject. This has been expressly held by Supreme Court in
    “K.M. Nanavati v. State of Bombay”
    41.
    I find much merit in the
    interpretation placed by counsel on behalf of PPL and Novex
    that the prohibition as contemplated under Section 33(1) is on
    carrying on business of licensing by a person or association of
    persons in its own name for works in which “others”. hold
    copyright. This has also held by this Court in Leopold Cafe and
    Stores and Anr. (supra). Thus in other words carry on “business’
    of granting licenses can be authorised to an agent such as a
    copyright society under Section 30 read with Section 18, 19 and
    34 of the Act.
  154. Further, the heading of Section 33 is “Registration of
    copyright society” and which could only mean that where a
    copyright society wants to carry on the business of issuing
    licenses on behalf of “others”, then it must do so as per the
    provisions of Section 33. This is all that the section
    contemplates. It cannot purport to curtail the owner’s right to
    license given under Section 30 falling in Chapter VI of the Act.
  155. The Interpretation placed on “business” in Section
    33(1) of the Act by learned counsel on behalf of the Defendants
    by referring to Rule 2(c) of the Copyright Rules, 2013 which
    defines ‘Copyright Business’ is in my view misconceived. This
    definition is in wide terms although it also references subsection (3) of Section 34, which deals with functions that a
    copyright society may perform qua works of others. However, if
    41 AIR 1961 SC 112 (Para 77(1)) (Sr. No. 41/ Page 737, Volume IV of Defendant’s Compilation).
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    the term “business” is given the wide meaning, then, there
    would necessarily be a conflict between Sections 30 and 33 of
    the Act. The definition in Rule 2(c) in any event applies only to
    the rules and it cannot be applied to interpret Section 33(1), a
    provision of the primary statute and one that came 19 years
    before Rule 2(c). Further, the Rules are a piece of subordinate
    legislation. They cannot be considered to control the provisions
    of the Act especially if they cause conflict or absurdity in reading
    of the substantive provision of the Act.
  156. Much has been said by the counsel for the
    Defendants that Section 33 of the Act is a later provision and
    prevails over Section 30 of the Act. I find in “K.M. Nanavati’
    (supra), the Supreme Court has treated the rule of the later
    provision as one amongst a basket of rules which must operate
    together with other rules and which moderate and temper each
    other. Further, the Supreme Court has held that if there is a
    conflict between two provisions of a statute then it has to be
    determined which is the leading provision and which is the
    subordinate provision and which provision must give way to the
    other. I find that from the two provision viz. Sections 30 and
    33(1) of the Act, Section 30 is the leading provision which is the
    source of power i.e. licensing rights conferred rights upon an
    owner . Section 33(1) does not deal with owner’s right of
    licensing.
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  157. Although, there have been arguments on the First
    Proviso and Second Proviso to Section 33(1) of the Act as well
    as reference to the legislation of 2012 Act as well as
    parliamentary debates and Speeches on this legislation, these
    provisos are inapplicable to the present case. The Second Proviso
    is confined to authors of underlying works which requires
    protection and thus inapplicable to the present case which
    concerns the owner of sound recordings. The Second Proviso to
    Section 33(1) in fact militates against the interpretation sought
    to be propounded on behalf of the Defendants. By amending
    section 33(1) in 2012 i.e. by adding the second proviso it would
    show that the Parliament itself did not contemplate that Section
    33(1) barred every owner of a copyright from carrying on the
    business of licensing his works. Thus, the business of issuing or
    granting licence in respect of literary, dramatic, musical and
    artistic works incorporated in a cinematograph films or sound
    recordings shall be carried out only through a copyright society
    duly registered under the Act. Hence, it cannot be accepted that
    the Second Proviso to Section 33(1) of the Act is clarificatory.
  158. The Madras High Court in “Novex Communications
    vs DXC Technology Pvt Ltd”. (supra) has in my view overlooked
    Section 30 of the Act where the owner has a right to grant any
    interest in the copyright by way of license. The Madras High
    Court has applied the second proviso of section 33(1) of the Act
    to the right to communicate the sound recordings to the public,
    although such right does not fall within that proviso. The second
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    proviso as mentioned is confined to underlying works. Further,
    the Madras High Court has held that Novex is not entitled to
    issue licenses which according to the Court falls into the second
    proviso after considering legislative history and speeches in
    parliament. However, no reason has been provided as to how the
    licenses in respect of sound recording is covered by the second
    proviso to section 33(1).
  159. Thus in my view the Madras High Court has not
    considered Section 33(1) in light of other provisions of the Act
    namely Section 30 read with Section 18 and 30 of the Act which
    enables the Plaintiff- Novex as owner to grant licenses to the
    public.
  160. In my considered view carrying on business of
    granting licences cannot be excluded from section 30 of the Act,
    particularly when such granting of licenses is by the owner of
    the copyright. The word “business” would include the grant of
    Licenses. If the interpretation of the Defendants on business is to
    be accepted then in that case 99% of the ownership rights would
    be taken away and the only right left with the owners would be
    to license its rights for philanthropy. Thus, this interpretation of
    the Defendant cannot be accepted.
  161. The decisions on business relied upon by the Counsel
    on both sides only support the above view.
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  162. The first proviso of Section 33(1) of the Act only
    recognizes the right of an owner to grant licenses even after
    such owner becomes a member of a registered Copyright
    Society. The first proviso has nothing to do with granting of
    Licenses by an owner of copyright under section 30 of the Act. If
    a member of the copyright society can grant license surely a
    non-member cannot be prevented from licensing his own works.
    Thus, the first proviso to Section 33(1) cannot in any manner
    prevent a non member from exercising his rights under Section
    30 of the Act.
  163. It appears from the argument of Dr. Tulzapurkar on
    behalf of Defendant that a distinction has been drawn between
    the granting of individual licenses by the owner and the carrying
    on of business of granting licenses by the owner which makes
    section 33 (1) applicable. I find no merit in this argument,
    particularly in view of aforementioned findings that Section 30
    of the Act confers the power on the owner to grant any interest
    in the copyright by license which in my view would encompass
    an owner carrying on business of granting licenses in respect of
    works in which he has copyright. Thus, there would be no fetter
    on the owners rights under Section 30 of the Act by Section
    33(1) of the Act which falls under a separate chapter. Thus, in
    my view it is not necessary for PPL and Novex as
    owners/assignees of copyright to be registered as copyright
    societies for carrying on the business of granting licenses of their
    works.
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  164. Merely because PPL was at one time registered as a
    copyright society will make no difference to the above findings
    as PPL is granting Licenses as an owner and thus entitled under
    Section 30 of the Act to grant its interest in the copyright by
    license. Further, it will not make any difference that Novex is
    carrying on the business of granting licenses of their works as
    there is no restriction placed on an owner to grant any interest
    in the copyright by License. Thus, in my view the power under
    Section 30 to grant license by an owner has in no manner been
    denuded by section 33(1) of the Act. Accordingly, PPL and
    Novex as owners of copyright in respect of their works are
    entitled to file the present suits and seek reliefs sought for
    therein.
  165. The above findings will also apply to those Suits
    where PPL and /or Novex are exclusive Licensees as Section 54
    of the copyright Act, provides that an ‘owner of copyright’
    includes an ‘exclusive licensee’.
  166. I further find no merit in the submission of Dr.
    Tulzapurkar on behalf of Defendant that the cause of action in
    the above suits is on an illegal act or amounts to transgression of
    a positive law as the plaintiffs have been generally assigned the
    business of granting licenses which activity they seek protection
    without having themselves registered as copyright society and
    thus violative of the statutory protection in Section 33(1) of the
    Act. The decisions relied upon on the well settled principle of of
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    ex turpi causa non oritur actio or ex dolo malo non oritur actio
    are inapplicable in the present case. This is in view of my finding
    that PPL and Novex have the power as owners to grant interest
    in the copyright by license under section 30 of the Act
    irrespective of whether they are carrying on the business of
    granting licenses or not. Further, there is no bar under section
    33(1) of the Act from an owner carrying on the business of
    licensing, or collecting license fees. Accordingly, I do not find
    that the Assignment Agreements and/or Exclusive License
    Agreements are illegal as contended on behalf of Defendants.
  167. Prima facie, I find that there is much merit in the
    submission on behalf of PPL and Novex that the above suits have
    been filed against the Defendants who are rank infringes as they
    have failed to obtain a license in respect of the works which they
    are exploiting. The present suits concern whether PPL and
    Novex are exclusive owners of the copyright and whether they
    have a right to prevent infringement of their exclusive copyright.
    This in my view would be irrespective of whether or not these is
    a bar under Section 33(1) of the Act preventing them from
    carrying on business of issuing licenses in respect of their
    copyright. In the event it is held that PPL and Novex are
    exclusive owners of the copyright then it would follow that the
    Defendants have to be prevented from infringing the copyright.
  168. Accordingly, the issue as to whether PPL and Novex
    as Plaintiffs in the above suits are entitled to seek reliefs as
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    sought for in the plaint without being registered as a copyright
    society under section 33(1) of the Act is answered in the
    affirmative.
    (R.I. CHAGLA, J)
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