India's Copyright Board given royalty-fixing powers

In a recent decision India's Supreme Court has increased the powers of the Copyright Board, ruling that the Board is entitled not only to grant compulsory licences but also to decide on royalty rates. The rates in question are those payable by radio stations for the use of music, these usually being negotiated with the copyright collecting societies. In this instance, however, Phonographic Licence Ltd was seeking a substantial increase in royalties received, to the alarm of the broadcasters. The Board's decision to grant a licence was appealed the Supreme Court on 1 6May 2008.

While affirming that the Board has the power to establish royalty rates, the Court has also said that the Board should consider whether to order that royalties be payable at a fixed rate or on a revenue basis. In doing so, the Board must take into account the interests of copyright owners and the general public [source: note by Merry Pariyaram, ALMT Legal, Mumbai, writing in World Media Law Report].

It seems to me that, as time progresses, the connection between the IP rights owner and the establishment of a royalty rate grows increasingly tenuous. Originally the rights owner would have established the royalty rate himself; next, it is passed to a collecting society; then it is taken from the collecting society and given to the Board (or Copyright Tribunal). In Europe this in turn may be subject to the final word from the Commission and ultimately the European Court of Justice.