TaxTMI 
TaxTMI 
2021 (9) TMI 1315
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.... at Madras in a batch of petitions. The writ petitions have been instituted before the High Court under Article 226 of the Constitution to challenge the validity of Rule 29(4) of the Copyright Rules 2013 "Rules". The High Court has, by its interim order, directed that: (i) No copyrighted work may be broadcast in terms of Rule 29 without issuing a prior notice; (ii) Details pertaining to the broadcast, particularly the duration, time slots and the like, including the quantum of royalty payable may be furnished within fifteen days of the broadcast or performance; (iii) Compliance be effected with a modified regime of post facto, as opposed to prior compliance mandated by Rule 29(4) and the statutory mandate of a twenty four hour prior notice shall be substituted by a provision for compliance within fifteen days after the broadcast; and (iii) The interim order will be confined to the petitioners before the High Court and the copyrighted works of the second and third respondents which are sought to be exploited. 3 The primary submission which has been urged on behalf of the appellants is that the interim order of the High Court has the effect of r....
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.... (4) In fixing the manner and the rate of royalty under sub-section (2), the Commercial Court may require the broadcasting organisation to pay an advance to the owners of rights. (5) The names of the authors of the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast. (6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights. (7) The broadcasting organisation shall-- (a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and (b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed. (8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2012." ....
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....which has been fixed by us, the broadcasters shall pay the same to PPL on behalf of their members, rest of the same shall be paid directly to the respective parties. Similarly, the share of author and composer fixed by us for underlying works shall be fixed by IPRS on behalf of the authors and composers being members to be paid. The non-members of the IPRS shall be entitled to receive the royalty directly from the broadcasters. d. The radio broadcasters have to comply with Rule 29 of the Copyright Rules, 2013 to obtain statutory license from the music companies, by giving advance notice to the owner of the copyright along with an advance payment as per the above royalty calculation with effect from 01.02.2021. The same notice copy has to be sent to the Registrar of Copyrights for records. e. In case, the respondents would insist for advance payments as mentioned in the Rules, we are of the view that since COVID 19 pandemic is an unusual thing to happen in the year 2020. The lockdown to tackle the Covid crisis had not only affected the radio industry, but every other industry in the country. Considering the peculiar circumstances till 30.09.2021, we direct all the ....
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....ided that in case of communication to the public by way of broadcast or by way of performance of a newly published literary or musical work or sound recording or any combination thereof, which has been published within the said period of five days of such communication and which do not form part of the scheduled programmes, the notice shall, be given before such communication to the public: Provided further that in case of communication to the public by way of broadcast or by way of performance of any published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances, the notice shall, be given within twenty-four hours of such communication to the public: Provided also that any broadcasting organisation shall give a notice under this chapter only after the royalty to be paid is determined by the Board under Rule 31 and published in the journal and in the website of the Copyright Office and the Board. (2) Every such notice shall be in respect of works belonging to one owner only. (3) Separate notices shall be given for communication to public by way of radio broadcast or television broadcast or by way of....
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....the notice to broadcast under Rule 29(1) is "apparently onerous". Consequently, it directed that the petitioners before it may be permitted to resort to the second proviso to Rule 29(4) as a "routine procedure", instead of an exception, subject to the duration of the ex post facto reporting being enlarged to fifteen days. In other words, the High Court, while maintaining the requirement of a prior notice under Section 31 D, has re-fashioned the rule by stipulating that details pertaining to the broadcasts, particularly the duration, time slots and the like, including the quantum of royalty may be furnished within fifteen days of the broadcast or performance. 15 Mr Mukul Rohatgi and Mr Akhil Sibal, learned Senior Counsel appearing on behalf of the appellants, submitted that: (i) The interim order of the High Court re-writes Rule 29(4), which is impermissible, in any event at the interim stage; (ii) The validity of Rule 29(4) is yet to be adjudicated upon and a presumption would attach to the constitutionality of both - the Rules and the Statute; (iii) There is no challenge to the validity of Section 31D in terms of which Rule 29 has been framed; ....
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....ribed by the IPAB according to the statute at the end of every month and even inspection of records is furnished to copyright owners; and (vii) Whereas Section 31D provides for only the duration and territorial coverage of the intended broadcast, the notice which has been prescribed by Rule 29(4) has gone far beyond the statutory ambit of Section 31D and is ultra vires for that reason. 19 While counsel appearing on behalf of the contesting parties have addressed submissions on merits, we would desist from expressing any opinion on the constitutional challenge which is pending consideration before the High Court of Judicature at Madras where, as noted earlier, the writ petitions are slated for final disposal on 4 October 2021. 20 At this stage, the issue is whether the interim order of the High Court can be sustained. Essentially, as the narration in the earlier part of this judgment would indicate, the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. A Constitution Bench of this Court in In Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881 Suo Mo....
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....rt in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft. That precisely is what the Division Bench of the High Court has done by its interim order. Section 31D(2) speaks of the necessity of giving prior notice, in the manner as may be prescribed, of the intention to broadcast the work stating the duration and the territorial coverage of the broadcast, together with the payment of royalties in the manner and at the rates fixed by the Appellate Board. While the High Court has held the broadcasters down to the requirement of prior notice, it has modified the operation of Rule 29 by stipulating that the particulars which are to be furnished in the notice may be furnished within a period of fifteen days after the broadcast. The interim order converts the second proviso into a "routine procedure" instead of an exception (as the High Court has des....