BEFORE COPYRIGHT BOARD Sh. Rajendra Kumar Mishra ¢â‚¬â€œ 2018. 2. 3.¢  Sh. Rajendra Kumar Mishra ¢â‚¬â€œ Member

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Text of BEFORE COPYRIGHT BOARD Sh. Rajendra Kumar Mishra ¢â‚¬â€œ 2018....

  • BEF ORE COPYRIGHT BOARD

    Bench : Dr. Raghbir Singh – Chairman Sh. Satish Chandra - Member Sh. Rajendra Kumar Mishra – Member

    Case No. 1 of 2002

    M/s Music Broadcast Pvt. Ltd. Park Plaza, 6th Floor, 71, Park Street, Calcutta-700 016. V/s

    ….. Applicant M/s Phonographic Performance Ltd., 1/3 Bangur Avenue, Block D, 3rd Floor, Kolkata – 700 055 (WB).

    … Respondent Case No. 2 of 2002

    M/s Entertainment Network (India) Ltd., Registered office at 4th Floor,A-Wing,Matulya Centre, Senapati Bapat Marg, Lowerparel(W),Mumbai-400013.

    …..Applicant V/s

    M/s Phonographic Performance Ltd. Registered Office at. Crecent Towers, New Link Road,Andheri(W), Mumbai-400053

    ….. Respondent

    Case No. 6 of 2002

    M/s Radio Mid Day West (India) Ltd., 156-D, J Dadajee Road, Tardeo, Mumbai – 400 034.

    ….. Applicant Vs

    M/s Phonographic Performance Ltd. Flameproof Equipment Building, 2nd Floor, B-39, Opp. New Link Road, Andheri (West) Mumbai – 400 053.

    … Respondent

    Cases Nos. 3-1/2008-CRB(NZ), 3-2/2008-CRB(NZ) & 3-3-/2008-CRB(NZ)

    Puran Multimedia Pvt.Ltd.Regd.Office at 2,Sarvodaya Nagar,Kanpur-208005 and corporate Office at 3rd floor, 8,Balaji Estate,Guru Ravidas Marg, Kalkaji,New Delhi-1110019.

    …Applicant. V/s

  • Phonographic Performance Limited, Crescent Towers,New Link Road, Andheri)West),Mumbai-400053. And also at Branch Office:- G-11,Ground floor.Nizamuddin West, New Delhi-110013..

    … Respondent Case No. 3-5/2008-CRB(WZ)

    Synergy Music Entertainment Ltd., D-143,Sector-63, NOIDA(UP-201301) .

    ..Applicant. V/s

    M/s Phonographic Performance Ltd. Registered Office at. Crecent Towers, New Link Road,Andheri(W), Mumbai-400053.

    …. Respondent Case No. 3-4/2008-CRB(NZ)

    M/s Entertainment Network (India) Ltd., Registered office at 4th Floor,A-Wing,Matulya Centre, Senapati Bapat Marg, Lowerparel(W),Mumbai-400013.

    …… Applicant Vs

    M/s Phonographic Performance Ltd. Registered Office at. Crecent Towers, New Link Road,Andheri(W), Mumbai-400053

    ……. Respondent Case No. 3-6/2008-CRB(NZ)

    Rajasthan Patrika Pvt. Ltd., Kesargaarh,J.L.N. Marg, Jaipur(Rajasthan)

    …….Applicant V/s

    M/s Phonographic Performance Ltd. Registered Office at. Crecent Towers, New Link Road,Andheri(W), Mumbai-400053

    ……. Respondent Present:

    Shri Pravin Anand, Rajiv Nayyar, Krishnendu Dutta, Smt. Pratibha M. Singh, Neil Hildreth & Shri Abhishek Malhotra Counsel for the Applicants. Shri Ashwini Mata, Sr. Advocate, Shri Himanshu Bagai & Shri Thomas George, Counsel for the Respondent

  • ORDER

    These are nine applications under section 31(1)(b) of the Copyright Act, 1957 for

    grant of licence for broadcast of sound recordings. Matters at serial numbers 1 to 3 were

    remitted back to the Copyright Board by the Hon’ble Supreme Court vide its decision

    dated 16th May, 2008 in Entertainment Network (India) Ltd. vs Super Cassette Industries

    Ltd and others (2008)13SCC30. These cases were earlier decided by the Board on

    19.11.2002 consequent upon applications of the petitioners herein in cases numbered as 1

    of 2002, 2 of 2002 and 6 of 2002 and have been reported as Music Broadcast Pvt Ltd. vs

    Phonographic Performance Limited 2003(26)PTC70(CB). Decision of the Copyright

    Board was challenged in the Bombay High Court [Phonographic Performance Limited vs

    Music Broadcast Pvt Ltd.2004(29)PTC282(Bom)]and ultimately in the Supreme Court.

    Hon’ble Supreme Court in its judgment dated 16th May, 2008 did not approve the

    manner in which the Board had dealt with the matter. It observed that the Board

    refused to examine the witnesses and took up the matter on a day for hearing which was

    fixed for production of witnesses. Supreme Court set aside the order of the Board and

    remitted matter to the Board for consideration afresh. Rest six cases bearing numbers 3-

    1/2008, 3-2/2008, 3-3/2008, 3-4/2008, 3-5/2008 and 3-6/2008 are fresh filings during

    2008.

    2. Copyright Board in its sitting held on 29th July, 2008 directed the parties on both

    sides to file the paper books alongwith the list of the witnesses of the respective parties.

    It was followed up with follow up action for updation in this regard during the various

    sittings of the Board. In its sitting held on 26th May, 2009, the Board set a deadline upto

    30th June, 2009 for filing of further documents and furnishing list of witnesses to be

    examined. Hon’ble Delhi High Court in its order dated 4th August, 2009 directed that the

    evidence-affidavits of parties which have already been filed or served upon opposing

    counsel by 28.7.2009 shall be taken on record. Accordingly, examination of witnesses

    began with its sitting on 28th July, 2009 and was followed up through subsequent sittings

    ending up on 12th July, 2010.

    3. In all thirteen witnesses of the applicants were examined. In 1 of 2002, four

    witnesses including one expert witness, Shri Bibek Debroy, were examined. In 2 of

    2002, two witnesses were examined. In 6 of 2002, two witnesses were examined. In 3-1,

  • 3-2 and 3-3 of 2008, four witnesses were examined. In 3-4 of 2008, one witness was

    examined.

    4. In all five witnesses of the common respondent in all cases which included one

    expert witness were examined.

    5. Shri Ashish Shah, PW1, testifying in 1 of 2002 submitted that till 31st March,

    2005 operating expenses which include programming cost, royalty cost and licence fee

    paid to Government of India were higher than staff cost. However, subsequent to 31st

    March, 2005, since the licence fee was to be paid on revenue sharing basis, the operating

    cost has come down as compared to staff cost. He acknowledged the declining trend of

    physical format of music sales and did not offer any reason therefor.

    6. Shri Ayan Chakrborty, PW2, testifying in 1 of 2002 submitted that the expenses

    towards employees, administration, selling, distribution are on higher side because of

    ever increasing number of stations since 2006. But as a percentage of net revenue, they

    fall substantially lower than expenses incurred by the company towards music royalty

    payable to the respondent and other copyright owners.

    7. Ms Apurva Purhoit, PW3, testifying in 1 of 2002 explained as to the term

    ‘closure of the allocated frequencies’ to mean as to the prospective individual players

    who took frequencies by paying to the Government One Time Entry Fee (OTEF) and

    having set up the studio facilities, looking at the operating costs of running the stations,

    did not put stations on air. Witness stated that due to the expansion of radio stations

    under Phase II from approximately 20 to 300 stations the coverage expanded and revenue

    grew by an average of 20% till the beginning of 2008. However, in the second half of

    2008 the revenue growth has gone down to approximately 5% and is expected to be

    negative this year.

    8. Prof Bibek Debroy, PW4, testifying in 1 of 2002 as expert witness, submitted that

    in determining royalty rates one can either have an absolute figure or a percentage of

    revenue figure. He submitted that he would recommend revenue sharing method over the

    absolute figure method for the following reasons:-

    (a) absolute figure method is completely arbitrary; (b) absolute figure method is fixed for the duration of the contract and does not have the flexibility to adjust during economic periods of either upturn or downturn;

  • (c) absolute figure method does not adjust for inflation; (d) absolute figure method cannot handle possibilities of substitution of music from other channels to FM; (e) absolute figure method is normally not used globally; (f) revenue sharing method does take into of complainant’s problems of being an infant industry; (g) revenue sharing method takes care of the problems mentioned by both the sides.

    He submitted that the global range of revenue sharing is 0.4. to 5% with the upper

    end of the range for developed markets. Infant industry argument could be addressed

    with a rate that is towards the lower end of the range. FM advertising rates have been

    declining and that preceded the present economic downturn. This decline is primarily

    because of competition. Complainant has proposed a rate of 0.25%. In the range of

    0.4% to 5%, 0.4% figure was for Australia. So given the differences in level of

    development, 0.25% is reasonable for India. Each and every copy

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