B.C.Basak, J. - (1.) This appeal under Section 72 of the Copyright Act, 1957 (hereinafter referred to as the said Act) is directed against an order of the Copyright Board constituted under the said Act (hereinafter referred to as the Board) passed under Section 35 of the said Act. The facts of this case are shortly as follows: The Performing Right Society Ltd., London, the respondent No. 1, herein, is a Performing Right Society within the meaning of the said Act (hereinafter referred to as the Society). The Society is an association of Composers, authors and publishers of Music having its Head Office in London. On the 13th of Feb. 1971 an advertisement was published in the Gazette of India dated 13th of Feb. 1971 the relevant portion of which is to the following effect. "Tariffs For India The following is notified for general information :-- Revision of Tariff. The Performing Right Society's Tariff (Statement of Fees, Charges or Royalties) relating to item No. 2 (Cinema) has been revised. The revised tariff erroneously published in the Statesman Calcutta and Indian Express Bombay dated the 9th Jan. 1971 and the Gazette of India Part IV dated 23rd Jan. 1971 is hereby withdrawn and substituted by the revised tariff and hereby published as required by Sub-section (1) of Section 33 of the Copyright Act, 1957. The said revised tariff will be effective as from 1st March 1972. Accordingly, the performing Right Society proposes to collect, until further notice fees, charges or royalties for the grant of licences for performances in public in India of the copyright musical works in its repertoire, in accordance with the undermentioned revised tariff as from 1st March 1971. Cinemas : Tariff C for Cinemas published in the Gazette of India dated 28th June 1969 is withdrawn, and the following is substituted : Tariff C for Cinemas. For the annual licence the royalty shall be calculated by taking one-half per centum (0.5%) of the total monetary seating capacity of the Cinema at full evening prices (less only entertainment tax) multiplied by the number of performances during the year of the feature film or films (Excluding Indian films) plus the supporting programme (if any). Minimum annual charge 100 rupees." The position prior to publication of the said notification would appear from the order of the Board dated 30th of Jan. 1973 in the case No. 14 of 1969. From the same it appears that from 1947 to 1959 the Society was recovering the minimum annual license fee for a cinema at Rs. 40/- in accordance with the Tariff published by it in 1947. In 1958 the Society revised the scale which was challenged in Case No. 2 of 1958. The parties, however, arrived at a compromise in 1959 whereby the Society gave up the revised scale and therefore the objectors withdrew their objections. As a result the Original Tariff of 1947 was allowed to go on till 31st of March 1969. On 28th of June 1969 a fresh Tariff was published whereby the minimum annual licence fee for a cinema was raised from Rs. 40/- to Rs. 100/-. Against the fresh Tariff objections were filed. The Tariff and objections covered Case No. 14 of 1969. While this case was pending the Society appears to have published a fresh Tariff changing the basis. The new basis was published in various newspapers and also in the Gazette of India. On Feb. 7, 1971 the Society withdrew the fresh Tariff and had the revised Tariff published in official Gazette dated the 13th of Feb. 1971. On 22nd Dec. 1970 the Performing Right Society Ltd. London addressed a letter to the Secretary, Copyright Board, New Delhi stating therein that the Board had been notified of the amendments of two tariffs, one of which was the tariff for cinemas which is the subject of Case No. 14 of 1969. It was stated that in view of the fact that the Society had promulgated a revised tariff for cinemas, it would be pointless to pursue the proceedings in Case No. 14 of 1969. The Society's letter came up before the Board at its meeting held on 12th of May 1971 and was considered by the Board. By an order dated the 2nd June 1971 the Board directed that in as much as changes have been effected in the Tariff and some of those changes are material in nature, it was necessary that an opportunity be given to the objectors to file a further objection which they should consider necessary in view of the amendments. Thereafter the Board directed that Case No. 14 of 1969 should stand withdrawn. It was further directed that the case which would then start will be numbered as 5 of 1973. Objections were filed by various associations in India including the appellants herein. Reply was filed against the same by the Society and counter-reply by the objectors. By its decision dated 1st April 1974 the Board passed the following order :-- "For all the above reasons we are not inclined to revise the tariff as published in the Gazette of India dated 13th of Feb. 1971. In view of the partial success and failure of both the parties, the costs have to be borne by the parties themselves. Counsel fee for each party was Rs. 1,000/- (Rupees one thousand only)."
(2.) Regarding the first preliminary point raised by the objectors that the Society had no standing to require objectors to obtain licence, it was pointed out by the Board that the issue is whether the musical work that automatically is exhibited and performed in public when the Soundtrack and cinematograph film Is exhibited requires licensing as there is copyright on such musical work. If was pointed out that the question before the Board was whether it can be said that when the Soundtrack or Cinematograph film was exhibited in the public, there should be a taxation because of the exhibition of the music incorporated in it, i.e. whether a musician who has undoubtedly a copyright in his work can claim that his copyright is being infringed when a cinematograph film or soundtrack is exhibited with his music, that is whether the cinema owners who have also a copyright in the cinematograph or the Soundtrack can ignore the copyright in the musical works.
(3.) In this context it was observed by the Board as follows: "Once a film is exhibited, along with it the music is also played, whether it forms an integral part, is not very material. The question is when the whole is being shown. Whether the owner of the copyright of a part of the whole can say that his copyright is being infringed." "The only question that is in dispute is, whether the composer of the music who has got a copyright undoubtedly in the musical work, can say that the owner of a cinematograph film cannot show his film unless the licence fee is paid to the composer or the Performing Right Society who is acting on behalf of the composer (for the (sic) being we are taking that the Performing Right Society is a representative of the composer of the music and has been duly authorized) for the music incorporated in the film-track or whether the owner of a film can exhibit the film without caring for the composers of music incorporated in the film.";