In an appeal filed by IPRS before Delhi High Court against the single bench decision passed by Justice Endlaw on January 4, 2021, the division bench of Justice Manmohan and Justice Asha Menon on January 14, 2021 issued notice and held that until further orders, the single bench decision shall not be cited or used as a precedent in any proceeding.
As covered in detail here, single bench of Delhi HC had ruled that when a sound recording is broadcasted on radio, separate royalties are not payable for underlying works as the underlying works get communicated as a part of the sound recording and do not have their own independent existence. This decision was diametrically opposite to the IPAB decision which had ruled that when a sound recording is broadcasted on radio, separate royalties are payable for sound recording and underlying works.
Senior counsels Mr. Harish Salve and Mr. Mukul Rohatgi appeared for IPRS and argued the change in the position of law post 2012 Amendment and the legislative intent behind the 2012 Amendment to the Copyright Act which was brought for the welfare of the authors. They contended that if the single bench decision passed by Justice Endlaw was to be applied, authors would be left penniless and the purpose of the Amendment would be defeated. The counsels further argued that the single judge has relied on the interim orders in the Aditya Pandey case without taking into account that the Supreme Court in CISAC vs Aditya Pandey, had held that the observations expressed by the HC in the single and appellate proceedings, were in the context of the position prevailing prior to the 2012 amendment. Further that the learned single judge failed to appreciate the Amendments in Section 17, Section 18 provisos and 19(9) and 10 brought by the 2012 amendment to the Copyright Act.
The court observed that since the impugned judgement of the single judge was reserved three years ago, IPRS had during this period issued thousands of licenses to a diversified platforms.
Acknowledging that the issue requires further deliberation and involves important question of law, the Division bench issued notice and to avoid the single bench decision being applied by other broadcasters and platforms from being used as a precedent, held that until further orders the single bench decision shall not be cited or used as a precedent. The matter has been listed for May 3, 2021.
The order would be a huge respite to IPRS and the publishing industry as the IPAB order setting separate rates for underlying works would now be applicable.
In the meantime, the appeal filed by radio broadcasters against IPAB order is listed before the same division bench of the Delhi High Court on January 18, 2021.
Read order here.
Image source: here
