The Delhi HC, in its recent judgment in Music Broadcast Pvt Ltd vs Super Cassette Industries Ltd, held that the Copyright Board could issue interim orders under S.31 even in the absence of an express empowering statutory provision. Barring certain lacunae, I must note that it is a fairly reasoned judgment.
Considering common law cases dating back to 17th century, the judgment rightly noted that the power to grant interim orders was firmly grounded in common law. Further, as observed in Polini -vs- Gray ((1879) L.R. 12 Ch. D. 438), refusal or failure to grant interlocutory relief could preclude a “successful party from reaping the fruits of litigation”.
The Court perused the Supreme Court judgment in ManoharLal Chopra v. Seth Hiralal, AIR 1962 SC 527 which held that the courts had the inherent jurisdiction to issue temporary injunction in circumstances which were not covered by the provisions of Order XXXIX CPC. Futher, in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409, the Supreme Court held that “….when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective." In other words, the grant of power included ancillary or incidental powers which were inevitable for the effective delivery of justice.
If the Copyright Board could not issue interim orders under S.31, it might compel a licensee to succumb to the demands of the copyright owner especially when there was a delay. This would negate the purpose of the enactment. For instance, consider a situation where ‘A’ was granted licence by ‘B’ for an unreasonable fee. If ‘A’ had approached Copyright Board alleging exorbitant fees, ‘B’ might have cancelled the contract resulting in irreparable loss for ‘A’. Evidently, this possibility would always compel a licensee to succumb to the unreasonable demands of copyright owner - negating the very purpose of the enactment.
In the light of aforesaid case laws and reasoning, it was held that the Copyright Board could issue interim orders under S. 31 of the Act provided all the three factors viz., prima facie case, balance of convenience and irreparable injury were satisfied.
Lacunae in reasoning
Firstly, the judgment did not make any attempt to discern the intention of the statute. It could have done it while negating the argument of petitioner viz., interim order could not be granted unless expressly provided in the statute. Unfortunately, the argument was negated only with the help of aforesaid case laws. In the light of absence of an adverse statutory intention, one might be inclined to dismiss it as a mere academic exercise. But this reasoning would have made the judgment stronger. A vibrant judgment, or say a write up / article, blunts criticisms or counter arguments which may be raised against it.
Secondly, the judgment rightly referred to Single Bench decision in Music Choice India Pvt. Ltd. - vs- Phonographic Performance Limited where it was held that “There is nothing in the Act to prevent the Copyright Board from passing any interim order of determination of reasonable fee by way of royalty or compensation payable by the Plaintiff, if an application in that behalf is made and a prima facie case is made out.”(para 22). According to the judgment, the aforesaid Single Bench decision was upheld by the Division Bench of Bombay High Court in Music Choice India Pvt. Ltd. -vs- Phonographic Performance Limited. Unfortunately, this is a factually incorrect position since the Division Bench judgment refused to express an opinion on the aforesaid matter - “Be that as it may, we refrain from expressing any opinion on the issue whether an application for interim relief can be filed and entertained by the Copyright Board.” (para 20).