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COURTS CANNOT ON THE PRETEXT OF JUDICIAL REVIEW UNDERTAKE AN ACT THAT IS LEGISLATIVE IN NATURE : SUP



CASE : Saregama India Limited v. Next Radio Limited & Ors


BENCH : Justices D.Y. Chandrachud and BV Nagarathna


BRIEF :


  • Rule 29 of Copyright Rules, 2013 provides the particulars for broadcasting organisations for communication to the public of any copyright work, which can be any published literary, musical work and sound recording.

  • The rules state that it is mandatory for the broadcasting organisation to send notice to the owner of the copyright holder either 5 days before communicating with the public. Or as per the second proviso, which states that due to unforeseen circumstances the broadcasting company must communicate before 24hrs of broadcast. The said notice shall show the intention of the broadcasting organisation, like radio or television, to publish any work,and shall contain details like the name of the channel, details of copyright owner, territorial coverage, royalties paid, time slots and any other details.

  • In the present case, the Madras High Court in its interim order re-drafted the second proviso of Rule 29(4) of Copyright Rules, 2013. It substituted the statutory compliance in which rather than notifying 24hrs before publication, the broadcasting organisation can notify the owner of the copyright work within 15 days of publication. Aggrieved by the order the appellant reached the Apex Court.


COURT OBSERVED :


The bench observed that the Madras High Court erred in giving this order. By giving this order the judiciary undertook the act of amending the statutory provision, a role that is defined to the legislature. Using the power of judicial review, the court can only declare a provision, a rule or any bye-law as ultra vires or issue directions to the concerned government to change the specific provision, but it cannot amend the rule itself through an interim order. Also, the order was only restricted to the parties in this case, which leaves a room for uncertainty for other broadcasting organisations.


Even though the court upheld that it is necessary to send prior notice to the owner of the copyright, this proviso was to be used in exceptional circumstances.The court observed that because of this order, this proviso will be acted upon in a routine manner. This could lead to doing injustice to the creativity of the owners of the copyright. Thus, the bench set aside the interim order of the High Court.



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