Appeal Details
Counselvise Citation
[2014] 140 COUNSELVISE.COM (IT) 81724 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
2 year(s) 11 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
15-09-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
17-06-2014
Assessment Year
2003-2004
Appeal Filed On
27-09-2011
Judgement Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI J. S REDDY, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 1055/DEL/2011 (ASSESSMENT YEAR: 200 6 - 0 7 ) & ITA NO S . 4294 TO 4298 /DEL/2011 (ASSESSMENT YEAR: 2002 - 03 TO 2005 - 06 AND 2008 - 09 ) AGENCE FRANCE PRESSE , C/O. VISHWANATH SINGH & ASSOCIATES, FLAT NO. 10, SHANKAR MARKET, CANNAUGHT CIRCUS, NEW DELHI PAN:AAFCA3976K VS. A D IT, CIRCLE 1(1), INTERNATIONAL TAXATION, NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : T.N. CHOPRA, ADV RESPONDENT BY : SANJEEV SHARMA, CIT DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XI, NEW DELHI DATED 28.12.2010 PERTAINING TO ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE FILED ABRIDGED GROUNDS OF APPEAL FOR ALL THE ASSESSMENT YEAR WH ICH ARE IDENTICAL ARE REPRODUCED AS UNDER: - 1. THAT THE ORDER OF THE LEARNED DISPUTE RESOLUTION PANEL - 1 (HEREINAFTER REFERRED TO AS DRP - 1) IS BAD IN LAW AND ON FACTS. 2. THAT THE LEARNED DRP - 1 HAS ERRED ON FACTS AND IN LAW IN CONFIRMING T HE ADDITION OF R S.3,12,77,885.72 RECEIVED BY THE APPELLANT AS ROYALTY WITHOUT APPRECIATING THE FACT THAT THE PAYMENT HAS BEEN RECEIVED UNDER THE AGREEMENTS FOR SALE OF INFORMATION AND NOT FOR TRANSFER OF ANY COPYRIGHT. 3. WITHOUT PREJUDICE TO GROUND NO.2 ABOVE, THE LEARNED DRP - 1 HAS GROSSLY ERRED IN IGNORING THE SETTLED POSITION THAT NEWS REPORTING IS BEYOND THE PURVIEW OF COPYRIGHT AS STIPULATED IN SECTION 52 OF THE COPYRIGHT ACT. P A G E | 2 4. WITHOUT PREJUDICE TO GROUNDS 2 AND 3 A BOVE, THE LEARNED DRP - 1 IS NOT CORRECT IN LAW AND IN FACTS IN HOLDING THAT NEWS REPORTING IS COVERED UNDER SECTION 13 OF THE COPYRIGHT ACT. 5. THAT THE LEARNED DRP - 1 HAS ERRED IN LAW IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CHARGING INTEREST UN DER SECTION 234B OF THE ACT OF RS.36,67,329/ - BY STATING THAT THE CHARGE OF INTEREST IS CONSEQUENTIAL EVEN THOUGH THE PROVISIONS OF SECTION 234B OF THE ACT DO NOT APPLY AS THE PAYER IS LIABLE TO DEDUCT THE FULL TAX AT SOURCE AND ACCORDINGLY THE APPELLANT ( NON RESIDENT) WAS NOT LIABLE TO PAY ADVANCE TAX ON THE SAID AMOUNT. 3. THE PRINCIPAL ISSUE ARISING IN THE INSTANT APPEAL IS WHETHER ANY COPYRIGHT SUBSISTS IN THE NEWS REPORTS & PHOTOGRAPHS DISTRIBUTED/ CIRCULATED BY THE ASSESSEE WITHIN INDIA IN TERMS OF RELEVANT PROVISIONS OF COPYRIGHT ACT, 1957 , AND ACCORDINGLY, SUCH IMPUGNED COPYRIGHT QUALIFY AS ROYALTIES WITHIN MEANING ASCRIBED UNDER PARAGRAPH 3 OF ARTICLE 13 OF DTAA BETWEEN INDIA AND FRANCE READ WITH EXPLANATION 2(V) TO SECTION 9(1 )(VI) OF THE INCOME TAX ACT DURING THE RELEVANT YEAR. 4. HOWEVER, PRIOR TO ADJUDICATING THIS MATTER ON THE AFORESAID ISSUE , WE ARE REQUIRED TO DETERMINE WHETHER THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE DATED 13.06.2014 AS FILED BY THE REVENUE BEFORE US IN TERMS OF RULE 29 OF THE ITAT RULES, 1963, SHOULD BE ALLOWABLE OR NOT. 5. IN THIS REGARD, W E NOTE THAT THE REVENUE HAS ALONG WITH THE RELEVANT APPLICATION UNDER RULE 29 IN THE FORM OF (PAGES 1 TO 22) OF PAPER BOOK VOLUME I HAS FILED A COPY OF COMPLAINT OF AFP AGAINST GOOGLE INC. FILED IN THE DISTRICT COURT OF COLUMBIA, USA IN 2005 ALLEGING INFRINGEMENT OF COPYRIGHT BY GOOGLE INC. (PG 1 TO 19) AND AFP NEWS AGENCY SUES THE STAR NEWSPAPER, NAIROBI (PG 20 TO 22). THE REVENUE HAS SUBMITTED T HAT BOTH DOCUMENTS ARE AVAILABLE IN THE PUBLIC DOMAIN AND HAVE BEEN OBTAINED FROM THE INTERNET. 6 . IT WOULD BE RELEVANT TO RECOUNT THE BRIEF BACKGROUND FACTS OF INSTANT CASE; AND TOWARD WHICH WE SHALL, FOR THE SAKE OF CONTEXT, ADVERT TO THE FACTS AND FIGU RES FOR A.Y. 2006 - 0 7, I.E., THE YEAR UNDER REFERENCE IN THE INSTANT APPEAL. T HE ASSESSEE [AFP ] IS AN INTERNATIONAL NEWS AGENCY HAVING ITS HEADQUARTERS AT F RANCE. AFP IS OWNED BY GOVERNMENT OF FRANCE. THERE EXISTS A MANDATORY STIPULATION UNDER THE 1956 CABINET RESOLUTION INASMUCH AS FOREIGN NEWS AGENCIES ARE REQUIRED TO DISTRIBUT E NEWS IN TEXT FORM AND PHOTOS WITHIN INDIA P A G E | 3 THROUGH ANY OF THE INDIAN N EWS A GENC IES SUCH AS PT I , UNI, IANS, ETC. SUCH INDIAN N EWS AGENCIES MUST BE OWNED AND MANAGED BY INDIANS WHO ENJOY FULL AND FINAL AUTHORITY IN THE SELECTION OF FOREIGN NEWS FOR DISTRIBUTION. KEEPING IN VIEW THE 1956 CABINET RESOLUTION, AFP HAS BEEN DISTRIBUTING ITS TEXT NEWS AND PHOTOS CONNECTED WITH NEWS IN INDIA THROUGH VARIOUS INDIAN NEWS AGENCIES VIZ. PRESS TRUST OF INDIA ( HEREIN AFTER PTI ) AND IANS INDIA PVT. LTD. (HEREIN AFTER IANS) . THE NEWS ON THE WEB CAN DIRECTLY BE PROVIDED TO THE SUBSCRIBERS IN INDIA ON THEIR WEB SITES BY AFP. 7 . THERE WERE TWO CATEGORIES OF PAYMENTS RECEIVED BY AFP FROM INDIA ONE FOR TRANSMISSION OF NEWS AND THE OTHER FOR TRANSMISSION OF NEWS PHOTOS. IT PROVIDES DAILY REPORTS OF INTERNATIONAL EVENTS OF INTEREST WHICH OCCUR IN THE VARIOUS FIELDS SUCH AS POLITICS, SPORTS, ECONOMIC, ETC. THE AGREEMENTS WITH SUBSCRIBERS INVARIABLY SPEAK OF PROVISION OF INFORMATION. PROMPT KNOWLEDGE AND PUBLICATION OF WORLDWIDE NEWS, TEXTUAL AS WELL AS VISUAL WHICH ARE ESSENTIAL FOR THE CONDUCT OF AN INTERNATIONAL NEWS AGENCY FOR WI DE CIRCULATION OF NEWS 8 . I N THE ASSESSEE S VIEWPOINT , NEWS PER - SE ARE NOT PROPERTY HENCE, ARE NOT COPYRIGHTABLE. THEREFORE , AS PER TERMS OF AGREEMENTS BETWEEN AFP AND IANS & PTI , THE PREDOMINANT OR PRIMARY INTENTION BETWEEN THE CONTRACTING PARTIES INVOLVES CONSIDERATION FOR TRANSMISSION OF PHOTOS, REPORTING OF CURRENT EVENTS ETC. AND DOES NOT SECURE ANY COPYRIGHT IN THE EXPRESSION OF SUCH NEWS REPORTS . ACCORDINGLY, THE PAYMENTS MADE UNDER THE ABOVE SAID AGREEMENTS DID NOT PARTAKE THE NATURE OF ROYALTY IN THE CONTEXT OF THE MEANING OF THE TERM ROYALTY IN COMMON PARLANCE AS WELL AS THE DEFINITION CONTAINED IN EXPLANATION 2 OF SECTION 9 (1) (VI) OF THE INCOME TAX ACT OR ARTICLE 13 (3)OF THE INDO - FRENCH TREATY. THE ASSESSEE HAD FILED A NIL RETURN FOR A.Y. 2006 - 07 . 9 . T HE A.O. AS WELL AS THE LD. CIT(A) , WERE OF THE VIEW THAT VARIOUS TERMS UNDER THE AGREEMENT ENTER ED INTO BETWEEN ASSESSEE AND INDIAN NEWS AGENCIES INASMUCH AS IANS &PTI AND CONSIDERATION OF PLEADINGS AND CONTENTIONS CLEARLY POINTED OUT THAT COPYRIGHT SUBSISTED IN NEWS - REPORTS AS WELL AS PHOTOGRAPHS DISTRIBUTED/CIRCULATED BY THE ASSESSEE IN TERMS OF COPYRIGHT ACT, 1957 AND HENCE, THE PAYMENTS AS RECEIVED BY THE ASSESSEE QUALIFY AS ROYALTIES IN TERMS OF DEFINITION CONTAINED I N EXPLANATION 2 OF SECTION 9 (1) (VI) OF THE INCOME TAX P A G E | 4 ACT OR ARTICLE 13 (3)OF THE INDO - FRENCH TREATY AND, ACCORDINGLY, THE CONSIDERATION OF RS. 65,23,284/ - RECEIVED FROM WEB/ FTP SUBSCRIBERS WAS HELD TO BE TAXABLE @ 15% ON GROSS BASIS . 10 . A BRIEF SHORN OF CONTENTIONS PUT FORTH BY THE LD. DR ON THE ISSUE REGARDING ADMISSIBILITY OF ADDITIONAL EVIDENCE UNDER RULE 29 OF ITAT RULES, 1963 COULD BE SUMMARISED IN THE ENSUING PARAGRAPHS. (II) . THE LD. DR CONTENDS THAT, THE REVENUE DEPARTMENT COULD SEARCH SOME MORE INFORMATION IN THE PUBLIC DOMAIN (INTERNET) ON THE ASSESSEE'S COMPLAINT AGAINST GOOGLE INC. IN US COURT. THIS COMPLAINT RENDERS DETAILS REGARDING THE NATURE OF BUSINESS CARRIED OUT BY THE ASSESSEE, INFORMATION ON ITS PRODUCTS, NATURE OF OWNERSHIP RIGHTS IN THE NEWS ITEM/PHOTOGRAPHS AND CLAIMS OF AFP THAT USE OF ITS PRODUCTS WITHOUT PROPER AUTHORIZATION LEADS TO INFRINGEMENT OF COPYRIGHTS. IN ORDER TO BUTTRESS THE POINT THAT THE SAID DOU BTS ARE RELEVANT TO THE ISSUE IN HAND THE LD DR TOOK US THROUGH VARIOUS PARAGRAPHS OF THE COMPLAINT TO STRESS THE POINT THAT THESE DOCUMENTS CONTAIN IMPORTANT FACTS ON THE ISSUE OF COPYRIGHT OWNED BY THE ASSESSEE. SOME OF THE PARAGRAPHS OF THE COMPLAINT CITED ARE: THROUGH ITS SUBSCRIBERS, AFPS PHOTOGRAPHS AND STORIES WHICH READ MILLIONS OF READERS ON A DAILY BASIS (PARAGRAPH 10); AFPS PHOTOGRAPHS AND NEWS STORIES WHICH ARE ORIGINAL AND CREATIVE W ORKS (PARAGRAPH 1 1 ); AFP LICENSES FOR ITS NEWS PHOTOGRAPHS AND ARTICLES (PARAGRAPH 12); AFP LICENSES USE OF ITS PHOTOGRAPHS TO AFP CLIENTS FOR THE PURPOSE OF ACCOMPANYING NEWS STORIES HEADLINES OR TO CONVEY A NEWS EVENT ON THEIR OWN (PARAGRAPH 14) AFP NEWS STORIES ARE AVAILABLE ONLY BY SUBSCRIPTION (PARAGRAPH 17); STORY HEADLINES AND LEADS ARE QUALITATIVELY THE MOST IMPORTANT ASPECTS OF A STORY AND ARE PAINSTAKINGLY CREATED. THEY CAPTURE THE READERS ATTENTION AND DESCRIBE WHAT THE REST OF THE ARTICLE IS AB OUT (PARAGRAPH 18); AFP HAVING REGISTERED COPYRIGHTS IN ALL OF ITS NEWS WIRES WITH THE US LIBRARY OF CONGRESSS COPYRIGHT OFFICE SINCE AT LEAST JANUARY 1, 2002 (PARAGRAPH 19) DETAILS OF PHOTOG RAPH HEADLINES AND STORY LEADS - P A G E | 5 DEFENDANTS ARE INFRINGING THE HE ART OF AFPS STORIES BY TAKING WHAT QUALITATIVELY ARE THE MOST IMPORTANT ELEMENTS OF THE INDIVIDUAL NEWS STORIES (I.E.) THE PHOTOGRAPHS HEADLINES AND STORY LEADS). PARAGRAPHS 41); DETAILS OF AFP OWNING ALL TITLE AND INTEREST IN THE NUMEROUS COPYRIGHTS OF THE PHOTOGRAPHS (PARAGRAPHS 49, 50); HEADLINES (PARAGRAPH 58); STORY LEADS (PARAGRAPHS 65 AND 66); COPYRIGHTS MANAGEMENT INFORMATION (PARAGRAPH 73) AND DETAILS OF CLAIMS FOR INFORMATION OF COPYRIGHTS PAGES 16 AND 17 OF THE PB) . THE INFORMATION PERTAINING TO ANOTHER COMPLAINT FILED BY AFP AGAINST STAR THAT REITERATES AFPS POSITION THAT ITS PRODUCTS ARE COPYRIGHTED AND ITS PUBLICATION/REPRODUCTION WITHOUT AUTHORIZATION LEADS TO INFRINGEMENT OF COPYRIGHTS. THESE DOCUMENTS, PREPARED AND SUBMITTED B Y AFP TO THE COURTS, ARE FILED AS ADDITIONAL EVIDENCE. BY THE REVENUE (III) . IT WAS FURTHER SUBMITTED THAT, DEPTT. HAD SOUGHT INFORMATION ON ITS CASE WITH GOOGLE INC. BUT INFORMATION WAS NEVER PROVIDED TO THE DEPARTMENT. FURTHER, A COPY OF NEWS ITEM WITH A CREDIT 'AFP' PUBLISHED BY TIMES OF INDIA IN ITS EDITION DATED APRIL 28, 2014 WITH HEADLINES, ' N KOREA CALLS SOUTH'S PREZ 'PROSTITUTE' ' AND' GLAD MANDELA ISN'T ALIVE TODAY: TUTU' WERE SUBMITTED AS ILLUSTRATIONS OF THE NATURE OF NEWS ITEMS LICENSED . THES E NEWS ITEMS PROVE THAT THE HEADLINE AND STORYLINE ARE CREATIVE LITERARY WORK AND COPYRIGHT SUBSISTS IN THESE NEWS ITEMS. THE VALUE IS NOT OF BREAKING/CURRENT NEWS THAT IS REPORTED BY EVERYONE AND CO - COPYRIGHT COULD BE CLAIMED FOR THAT, BUT HOW THE SAME NE WS IS PRESENTED AS A STORY LINE OR NEWS ITEM BY JOURNALISTS/ NEWS WRITER THAT HAS CREATIVE INPUT AND ARE COPYRIGHTED. (IV) . THE LD DR ARGUED THAT AFORESAID DOCUMENTS BELONGING TO THE ASSESSEE GOES TO THE ROOT OF THE ISSUE AND CONTRADICTS THE UNSUBSTANTIAT ED CLAIMS MADE BY THE LD. AR THAT IT IS ONLY PROVIDING CURRENT NEWS, WHICH LACKS THE BASIC INGREDIENTS OF COPYRIGHT AND IS NOT COPYRIGHTABLE. IN THIS BACKGROUND, THE LD. DR URGES THIS TRIBUNAL P A G E | 6 TO ADMIT THESE DOCUMENTS AS ADDITIONAL EVIDENCE AND PASS AN ORD ER OR ANY OTHER ORDER FOR SUBSTANTIAL CAUSE TO THIS EFFECT. THE LD. DR ALSO CONTENDS THAT A COPY OF THESE DOCUMENTS HAS ALREADY BEEN PROVIDED TO THE LD. AR ON THE SECOND DAY OF HEARING. 11 . ON THE OTHER HAND, THE LD. AR S CONTENTIONS ARE SUMMARISED AS BELOW: (I) . THE LD AR MR. T.N. CHOPRA VEHEMENTLY OPPOSED THE ADMISSION OF THE AFORESAID ADDITIONAL EVIDENCE. AS REGARDS THE TIMES OF INDIA, NEWSPAPER, NEWS ITEM DATED 28 TH APRIL, 2014 , T HE LD. AR SUBMITS THAT, THE AFORESAID ADDITIONAL EVIDENCE FILED AT BE LATED STAGE DOES NOT IN ANY CASE HAS A DIRECT RELEVANCE TO THE PRESENT PROCEEDINGS BEFORE US . (II) . WITH REGARD TO THE COPY OF SUIT FILED BY AFP AGAINST GOOGLE, LD. AR SUBMITTED THAT THE REVENUE HA D FILED THE COPY OF THE SUIT DATED 7TH MARCH, 2005 RELATING TO COPYRIGHT INFRINGEMENT. HOWEVER, AN AMENDED COMPLAINT DATED 21 ST APRIL, 2005 WAS SUBSEQUENTLY FILED BY AFP BEFORE THE DISTRICT COURT OF COLOMBIA WHEREIN ADDITIONAL CHARGE FOR MISAPPROPRIATION OF HOT NEWS WAS ALSO MADE. THE GOOGLE'S REPLY DATED MAY 19, 2005, DENYING THE SE ALLEGATIONS ON BOTH COUNTS WERE ALSO ENCLOSED. THE ENTIRE LITIGATION ENDED IN COMPROMISE AND ON GROUNDS OF BUSINESS EXPEDIENCY, THE COMPROMISE DOCUMENT HAS BEEN AGREED TO BE KEPT CONFIDENTIAL BY BOTH PARTIES NAMELY AFP AND GOOGLE (PLEASE NOTE NOT PLACED ON RECORD) . IT IS FURTHER SUBMITTED BY THE LD. AR THAT, WHILE THE US SUPREME COURT ADOPTED THE HOT NEWS APPROPRIATION DOCTRINE AS FEDERAL COMMON LAW, FIVE STATES OF AMERICA HAVE SIN CE ADOPTED THE HOT NEWS AS PART OF STATE UNFAIR COMPETITION LAW. A SERIOUS DEBATE IS GOING ON IN AMERICA BETWEEN NEWS AGGREGATORS AND NEWS AGENCIES REGARDING THE HOT NEWS DOCTRINE AND ALSO THE IMPERATIVE NEED TO AMEND THE COPYRIGHT LAW SO AS TO PROTECT THE RIGHTS OF NEWS AGENCIES. MOST OF THE LITIGATION IN AMERICA ON THE ISSUE OF HOT NEWS DOCTRINE HAS ENDED IN COMPROMISE BETWEEN THE LITIGATING PARTIES. P A G E | 7 (III) . THE LD. AR SHRI . T.N. CHOPRA ARGUED THAT DR HAS MISQUOTED APPELLANT'S COUNSEL BY STATING THAT INFORMATION PROVIDED BY AFP UNDER THE AGREEMENTS WITH PTI, IANS AND WEB SUBSCRIBERS IS INTELLECTUAL PROPERTY ; AND THAT HE SUBSEQUENTLY MODIFIED HIS ARGUMENT TO SAY THAT THE PAYMENTS RECEIVED BY AFP WERE FOR TRANSMISSION OF INFORMATION REGARDING CURRENT EVE NTS AND NOT FOR TRANSFER OF ANY COPYRIGHT. THIS IS INCORRECT. ACCORDING TO THE LD AR SHRI T.N. CHOPRA IT IS THE CONSISTENT STAND OF THE ASSESSEE BEFORE THE REVENUE THAT THE TRUE INTENTION OF THE PARTIES IS TRANSMISSION OF INFORMATION ABOUT CURRENT EVENTS. ( AND REFER RED - SYNOPSIS OF ARGUMENTS FILED BEFORE US AT PAGES 1 TO 9 OF PAPER BOOK 3 WHEREBY THE STAND OF THE APPELLANT ON BASIC ISSUES INVOLVED HAS BEEN CLEARLY INDICATED WHICH IS BASED ON THE DETAILED SUBMISSIONS MADE EARLIER BEFORE THE ASSESSING OFFICER , CIT (APPEALS) AS WELL AS DRP). (IV) . FURTHER IT WAS SUBMITTED BY THE LD AR THAT BEFORE THE AO, APART FROM SUBMISSIONS FILED FROM TIME TO TIME, A DETAILED OPINION NOTE ON THE ISSUE OF NATURE OF PAYMENTS RECEIVED BY THE ASSESSEE FOR PROVISION OF INFORMATION COMPRISING NEWS ITEMS AND NEWS PHOTOGRAPHS INDICATING THE FACTUAL AND LEGAL ASPECTS OF THE QUESTION WERE FILED AT THE ASSESSMENT STAGE. (REFER PAGES 64 TO 90 OF PB I). THE APPELLANT HA D FILED INFORMATION BEFORE THE REVENUE REGARDING BUSINESS BEING CARRIED OUT BY AFP UNDER THE HEADING BUSINESS MODE. IN THE LIGHT OF THESE FACTS, THE LD. AR ASS ERTS THAT THE STAND TAKEN BY LD. DR INASMUCH AS THE PAYMENT S RECEIVED FROM NEWS AGENCIES FOR SUPPLY OF NEWS AND NEWS PHOTOGRAPHS IS MADE FOR TRANSFER OF INTELLECTUAL PROPERTY IS INCORRECT . (V) . AS REGARDS THE N ATURE OF TRANSACTION WITH PTI, IANS AND WEB S UBSCRIBERS , THE LD. AR SUBMITTED THAT, THE AGREEMENTS WITH THE PARTIES PLACED IN PB - I, NOMENCLATURE OF THE TRANSACTION HAS BEEN DIFFERENTLY DESCRIBED BY USING THE WORDS SALE, LICENSE, FEE AS WELL AS INFORMATION PRODUCTS AND SERVICES PROVIDED BY AFP. THE LD. AR STATES THAT, THIS IS NOT DETERMINATIVE FACTOR AND THE TRUE NATURE AND P A G E | 8 CHARACTER OF THE TRANSACTION HAS TO BE ASCERTAINED FROM COVENANTS OF AGREEMENT IN LIGHT OF SURROUNDING FACTS AND CIRCUMSTANCES AND REFER RED TO SUPREME COURT DECISIONS AS UNDER : - THE STATE OF PUNJAB, APPELLANT VS. ASSOCIATED HOTELS OF INDIA LTD. 1972(001) CTR 001 (SC) STATE OF RAJASTHAN, APPELLANT VS. MAN INDUSTRIAL CORPORATION LTD. 1969 (056) AIR 1245 (SC) SENTINEL ROLLING SHUTTERS & ENGG. CO. (PVT.) LTD. 1978 (065) AIR 1747 (S C) M/S. HINDUSTAN SHIPYARDS LTD. VS. STATE A.P. 2000 - 0 - AIR (SC) 2411 PATNAIK AND CO. APPELLANT VS. STATE OF ORRISA 1965 - O - AIR (SC) 1655 (VI) . THE LD. AR SUBMITS THAT, THE THREE AGREEMENTS ENTERED INTO BY AFP WITH INDIAN NEWS AGENCIES CLEARLY INDICATE THA T REPORTS OF CURRENT EVENTS HAD BEEN PROVIDED AS A PART OF AFP NEWSWIRE AND AFP INTERNATIONAL NEWS PICTURE SERVICE COVERING POLITICAL, ECONOMIC, BUSINESS, CORPORATE, SPORTS AND OTHER AREAS. PAGE 33 OF PB 1 REFERS TO AFP NEWS WIRE 'NEWS OF INTEREST TO NEWSP APERS', PAGE 45 REFERS TO 'PHOTO SERVICE FOR RESALE' AS ART OF INFORMATION TO PRINT NEWSPAPERS AND NEWS MAGAZINE. ACCORDING TO THE LD AR, THE SINE QUA NON OF COPYRIGHT IS ORIGINALITY,' ORIGINAL, AS THE TERM USED IN COPYRIGHT, MEANS ONLY THAT THE WORK WAS INDEPENDENTLY CREATED BY THE AUTHOR AND THAT IT POSSESSES AT LEAST SOME MINIMAL DEGREE OF ORIGINALITY. THE FIRST PERSON TO FIND AND REPORT A PARTICULAR FACT HAS NOT CREATED THE FACT HE HAS MERELY DISCOVERED IT. ONE WHO DISCOVERS A FACT IS NOT ITS MAKER OR ORIGINATOR. NEWS OF THE DAY HAS BEEN SPECIFICALLY HELD TO BE COVERED IN THIS CATEGORY IN FEIST'S CASE. (REF ER PARA 15 AT PAGE 100 OF PB 3) AND STRONGLY OPPOSED THE ADMISSION OF THE ADDITIONAL EVIDENCE S. 12 . WE HAVE HEARD BOTH THE PARTIES AT LENGTH AND PER USED THE MATERIAL ON RECORD ON THE ISSUE OF ALLOWABILITY OF FRESH/ ADDITIONAL EVIDENCE IN TERMS OF RULE 29 OF THE ITAT RULES, 1963. P A G E | 9 13 . ON PERUSAL OF APPLICATION FIELD ON 13.06.2014 REQUESTING THE ADMISSION OF ADDITIONAL EVIDENCE W E NOTE THAT THE INFORMATION ADDUCED BY THE REVENUE DEP ARTMENT PARTICULARLY THAT OF CASE DETAILS PERTAINING TO ASSESSEES CASE AGAINST GOOGLE INC. BEFORE U.S. DISTRICT COURT, COLOMBIA WERE TIME AND AGAIN SOLICITED FROM THE ASSESSEE/ APPELLANT AT DIFFERENT STAGES OF LITIGATION I.E. BOTH BY AO AS WELL AS LD. CIT(A). IN THIS REGARD, IT IS IMPERATIVE FOR US TO NOTE THAT THE ASSESSE E W AS PROVIDED WITH SUFFICIENT OPPORTUNITIES TO SUBMIT RELEVANT DETAILS/ DOCUMENTS PERTAINING TO GOOGLE INC. CASE ETC. (WHICH ARE NOW BEING ENLISTED FOR CONSIDERATION AS FRESH/ ADDITIONAL DOCUMENTS BEFORE US ) BUT, SUCH DETAILS/ DOCUMENTS WERE NOT SUBMITTED BEFORE AO AND LD. CIT(A) FOR CONSIDERATION . WE OBSERVE THAT, EVEN TILL DATE THE RELEVANT CASE - PAPERS PERTAINING TO GOOGLES CASE HAS NOT BEEN FURNISHED BY THE LD. AR AND INSTEAD , WHEN THE LD. DR HAS SOUGHT TO FURNISH SAID INFORMATION AND CASE - PAPERS IN THE FORM OF ADDITIONAL EVIDENCE OBTAINED FROM THE INTERNET, T HE LD. AR OPPOS ES THE SAME WITHOUT CIT ING ANY SPECIFIC REASON EXCEPT , STATING ON RECORD THAT THE CASE WITH GOOGLE INC. HA D ENDED IN A CONFIDENTIAL SETTLEMENT. 14 . IN THE INSTANT CASE, IT GOES WITHOUT SAYING THAT THE CASE - PAPERS PERTAINING TO ASSESSE E S DISPUTE WITH GOOGLE INC. IS OF CRUCIAL IMPORTANCE IN DETERMINATION OF THE CENTRAL ISSUE AT HAND I.E. WHETHER COPYRIGHT SUBSIST ED IN THE NEWSPAPER REPORTS, PHOTOGRAPHS DISTRIBUTED/ CIRCULATED BY ASSESSEE IN INDIA, SINCE THE CASE PERTAINS TO SUIT DATED 7TH MARCH, 2005 FILED BY THE ASSESSEE BEFORE DISTRICT COURT, COLOMBIA ALLEGING GOOGLE INC. OF COPYRIGHT INFRINGEMENT . IN THIS REGARD, THE LD. AR CONTEST S THAT THE SUIT WAS LATER MODIFIED ON 21 ST APRIL, 2005 SO AS TO INCLUDE AN ADDITIONAL CHARGE FOR MISAPPROPRIATION OF HOT NEWS HOWEVER, THE SAME DOES NOT SEEM TO HOLD MUCH RELEVAN CE IN DECIDING THE QUESTION OF ADMISSIBILITY OF ADDITIONAL EVIDENCE . SINCE THE LD AR FAILED TO PLACE THE SO - CALLED MODIFIED SUIT (21 ST APRIL 2005) NOR BROUGHT ANYTHING ON RECORD TO SUGGEST THAT CONTENTIONS AND PLEADINGS SET FORTH IN THE SUIT (7 TH MARCH 2005) HAS BEEN MODIFIED. IT MUST BE REMEMBERED THAT WHERE A PARTY HAS THE MEANS IN HIS POWER OF REBUTTING AND EXPLAINING THE EVIDENCE ADD UCED AGAINST HIM, IF IT DOES NOT TEND TO TRUTH THE OMISSION TO DO SO FURNISHES A STRONG INFERENCE AGAINST HIM. P A G E | 10 15 . WE FURTHER OBSERVE THAT THE ADDITIONAL EVIDENCE AS ADDUCED BY THE LD. DR BEFORE US PARTICULARLY THE CASE - PAPERS RELATING TO ASSESSE E S CASE AGAINST GOOGLE INC. BEFORE US DISTRICT COURT, COLOMBIA HAD ALWAYS REMAINED WITHIN THE EXCLUSIVE KNOWLEDGE AND POSSESSION OF THE ASSESS E E AND N OT PRODUCED BEFORE THE AO AS WELL AS LD. CIT(A) DESPITE INSISTENCE BY THE RESPECTIVE AUTHORITIES FOR REASONS BEST KNOWN ONLY TO THE ASSESSEE. THE LD. DR HAS BY WAY OF ADDITIONAL EVIDENCE HAS INTER - ALIA ADDUCED CASE - DETAILS IN PARA 5(K) AS LISTED EARLIER AS AVAILABLE FROM THE INTERNET . FURTHER, THE LD. DR HAS INVITED OUR ATTENTION AND DISCUSSED THE RELEVANCE OF EACH OF THE PARAGRAPH OF THE COMPLAINT THAT CONTAINS INFORMATION ON THE BUSINESS, PRODUCTS OF THE ASSESSEE, COPYRIGHTS OWNED BY IT AND ITS ALLEGATIONS REGARDING INFRINGEMENT OF COPYRIGHTS OF GOOGLE INC. AND THE STAND ADOPTED BY THE ASSESSEE BEFORE THE US DISTRICT COURT OF COLOMBIA ON THE ISSUE OF COPYRIGHT INFRINGEMENT , WHICH IN THE PRESENT CASE HAS A BEARING ON DECIDING THE CENTRAL ISSUE IN THE PRESENT CASE . 16. W E OBSERVE THAT THE COPY OF COMPLAINT WHICH COULD NOT BE CONSIDERED AT ANY PRIOR STAGE OF PROCEEDINGS IN THE INSTANT CASE AND COULD ONLY BE BROUGHT TO LIGHT FROM THE INTERNET DOMAIN BEFORE US HENCE , THE SAME NEEDS TO BE CONSIDER ED . THEREFORE, I T WOULD BE PRUDENT FOR US TO STATE THAT IN ABSENCE OF ANY DIRECT EVIDENCE TO THE CONTRARY WITH RESPECT TO CASE - DETAILS/ COMPLAINT BY THE ASSESSEE , WE ARE LEFT WITH NO OPTION THAN TO CONSIDER THE NEXT BEST EVIDENCE, WHICH IN THE INSTANT CASE HAPPENS TO BE CASE - DETAILS AS OBTAINED FROM THE INTERNET. IN THIS REGARD, IT IS IMPORTANT TO POINT OUT THAT, ADMISSION OF THE SAME SHALL CAUSE NO PREJUDICE TO THE ASSESSEE AS THE SAME PERTAINS TO ASSESSE E S OWN CASE AND EVEN NONE OF ITS CONTENTS HAVE BEEN CONTROVERTED BY THE ASSESSEE . 17 . THUS, WE FIND CONSIDERABLE STRENGTH IN THE REASONING ATTRIBUTED BY THE REVENUE REGARDING ADMISSIBILITY OF THE COMPLAINT DOCUMENT AS IT IS THE NEXT BEST EVIDENCE AVAILABLE BEFORE THIS TRIBUNAL . SINCE THE ADJUDICATION OF ANY DISPUTE INVOLVES QUEST FOR TRUTH, AND AS PER THE INDIAN EVIDENCE ACT, 1872 SECONDARY EVIDENCE COULD BE ADMITTED WHEN PRIMARY EVIDENCE IS NOT PROVIDED BY THE PARTY CONCERNED IN WHOSE POSSESSION IT IS ADMITTEDLY THERE; AND ITAT BEING THE FINAL FACT FINDING BODY, IT IS OUR BOUNDEN DUT Y TO TAKE ON BOARD COMPLETE SPECTRUM OF FACTS FOR ADJUDICATION OF A DISPUTE. THUS , WE ALLOW THE APPLICATION P A G E | 11 FOR ADDITIONAL EVIDENCE MADE BY THE LD. DR IN TERMS OF RULE 29 OF THE ITAT RULES, 1963 AND ADMIT THE SAME ACCORDINGLY . 18 . COMING BACK TO ANALYSING THE PRINCIPAL QUESTION OF LAW INVOLVED IN THE PRESENT CASE , IT IS PERTINENT TO BRIEFLY GO THROUGH THE RELEVANT FACTS IN VOLVED IN THE INSTANT CASE. 19. AT THIS STAGE, WE ARE NOT REITERATING FACTS MENTIONED EARLIER FOR THE SAKE OF BREVITY AND IN ORDER TO AVOID REPETITION. IN THE INSTANT CASE, S INCE THE A SSESSEE HAD FILED A NIL RETURN FOR A.Y. 2006 - 07, VARIOUS NOTICES WERE ISSUED BY THE AO AND REPLIES WERE SUPPLIED BY THE ASSESSEE. THE LD. AO ON A DETAILED PERUSAL OF THE TERMS / CLAUS ES OF VARIOUS AGREEMENTS ENTERED INTO BY THE ASSESSEE WITH THE INDIAN NEWS AGENCIES MADE THE FOLLOWING FACTUAL O BSERVATION S : - ALL STORIES, NEWS, PICTURES WERE AFP PROPERTY AND WERE PROTECTED AGAINST COMMERCIAL EXPLOITATION BY A NY THIRD PARTY. - THE SUBS CRIBERS ACKNOWLEDGE D THAT AFP WAS THE COPYRIGHT OWNER OF ALL THE INFORMATION PROVIDED TO IT AND THAT THE AGREEMENT CONSTITUTES A LICENSE TO USE THE INFORMATION. ] THE NOTICE APPEAR ING ON THE INSTITUTIONAL AGENCE FRANCE - PRESSE WEB SITE AT THE AFP.COM ADDRESS PERTAINS TO MARKETING INFORMATION DISPLAYED TO THE PUBLIC AND DOES NOT CONCERN INFORMATION SERVICES SUPPLIED TO AFP PROFESSIONAL SUBSCRIBERS'. THIS ASPECT WOULD IMPLY THAT, AFP GRAN T S A PARTIAL COPY RIGHT/ RIGHT TO USE THE COPYRIGHT TO ITS SUBSCRIBERS. - IT HAS BEEN ACKNOWLEDGED THAT UNAUTHORISED USE OF TEXT AND PHOTOS COULD BRING OUT A SUIT BASED UPON BREACH OF CONTRACT OR BREACH OF TRUST UPON UNFAIR COMPETITION. - THE INFORMATION SUP PLIED BY AFP IS NOT IN THE NATURE OF RAW MATERIAL AS ARGUED BY THE APPELLANT SINCE, T HE USER OF THE TEXT / PHOTO IS NOT ALLOWED TO CHANGE THE TEXT/PHOTO MATERIALLY AND IS REQUIRED TO MENTION THE SOURCE ALONG WITH THE PRINT IN THE NEWSPAPER / MAGAZINE. WITH OUT ACCEPTING, IF IT COULD BE ASSUMED THAT THE CONTENT OF INFORMATION IS RAW MATERIAL TH EN THE USER SHOULD BE AT LIBERTY TO USE & PROCESS AS PER HIS WILL, SECONDLY, THE FINISHED PRODUCT MUST BE A DISTINGUISHABLE & NEW PRODUCT (IN COMPARISON TO RAW MATERIAL ) AND THIRDLY THE USER IN THAT CASE NEED NOT BE REQUIRED TO MENTION 'AFP' AS THE IR SOURCE. P A G E | 12 - THE CONSIDERATION PAID BY SUBSCRIBERS TO AFP IS NOT FOR THEIR PERSONAL CONSUMPTION, BUT FOR COMMERCIAL EXPLOITATION AND SUCH RIGHTS ARE INBUILT WITHIN THE AGREEMENT . - THE SUBSCRIBER COPIES THE NEWS & PHOTOS FROM THE WIRES OF THE ASSESSEE. - SUCH CONTENT IS ONLY AVAILABLE TO THE SUBSCRIBERS. - THE SUBSCRIBER PUTS THEM ON ITS WEBSITE. - THE WEBSITE OF THE ASSESSEE IS A NEWS WEBSITE. THE TARGET OF THE SUBSCRIBER IS TO ATTRAC T MORE & MORE VISITORS TO ITS WEBSITE. THE MORE THE NUMBER OF VISITORS ON HIS WEBSITE, THE MORE HE GETS IN THE ADVERTISEMENT REVENUES. - THE CONTENT OF VARIOUS SUBSCRIBERS DISPLAYED ON THERE HAS TO MENTION THE SOURCE /CREDIT LINE. SUCH USE OF CONTENT HELPS THE SUBSCRIBER TO EARN MORE & MORE ADVERTISEMENT REVENUE. - SUCH TYPE OF USE IS COVERED BY USE OF COPYRIGHT OR IN CASE OF SUCH USE WITHOUT VALID PERMISSION IT CONSTITUTES INFRINGEMENT OF COPYRIGHT. WHICH IS THE REASON THAT ASSESSEE HAS FILED THE PRESENT COU RT SUIT. - THE END USER WHEN VISITS THE WEBSITE, THE VIEWED PAGES GET STORED IN THE MEMORY OF COMPUTER OF THE END USER. IN THE RESULT, T HE SUBSCRIBER IS GIVEN THE RIGHT TO COPY AND USE THE COPY ON ITS WEBSITE BUT, NOT COMMERCIALLY EXPLOIT THE CONTENT OWNED BY THE ASSESSEE. 20 . ON THE STRENGTH OF FACTS / OBSERVATIONS AS OUTLINED ABOVE AS WELL AS SUBMISSIONS MADE BY THE ASSESSEE , AO HAD OBSERVED THAT, THE CONSIDERATION RECEIVED BY THE ASSESSEE FOR USE OR RIGHT TO USE COPYRIGHT OF A LITERARY, ARTISTIC OR SCIENTIFIC WORK WOULD GET COVERED WITHIN THE DEFINITION OF ROYALTIES AS AVAILABLE IN PARAGRAPH 3 OF ARTICLE 13 OF THE TAX TREATY BETWEEN INDIA AND FRA NCE AND SECTION 9(1)(VI) OF THE ACT. AS A RESULT , THE O RDER FOR ASSESSMENT WAS PASSED BY THE LD. AO IN TERMS OF SEC. 143(3) OF THE INCOME TAX ACT, 1961 WHEREBY ENTIRE CONSIDERATION AS RECEIVED FROM INDIAN NEWS AGENCIES AND WEB/ FTP SUBSCRIBERS WAS HELD TO BE TAXABLE SUBJECTED TO TAX @ 15% ON GROSS BASIS. 21 . BEING AGGRIEVED BY THE AOS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE LD. CIT (A) DETERMINED THAT THE ESSENTIAL QUESTION OF LAW WHICH REQUIRED ADJUDICAT ION WAS WHETHER THE COPYRIGHT SUBSISTED OVER THE WORK BROAD CAST ED BY THE ASSESSEE IN INDIA AND WHETHER IT IS A TRANSFER BY GRANT OF A P A G E | 13 LICENCE OR OTHERWISE, OF THIS RIGHT TO BROAD CAST UNDER THE DISTRIBUTION AGREEMENTS ENTERED INTO BY THE APPELLANT COMPANY WITH THE INDIAN ENT IT IES . 22 . WITH REGARD THE AFORESAID ISSUE UNDER CONSIDERATION, T HE LD. AR CONTENDED THAT, NO COPYRIGHT SUBSIST ED IN THE WORK OF THE ASSESSEE . ALSO, AS THERE IS NO RIGHT TO USE THE COPYRIGHT THE SAME SHOULD NOT GET COVERED BY THE DEFINITION OF ROYALTIES AVAILABLE UNDER PARA 3 OF ART.13 OF DTAA BETWEEN THE TWO COUNTRIES. 23 . RELIANCE WAS PLACED UPON THE LANDMARK CASE UNIVERSITY OF LONDON PRESS LTD V UNIVERSITY TUTORIAL PRESS LTD (1916) 2 CH D 601 , WHEREIN E XAMINERS W ERE APPOINTED BY LONDON UNIVERSITY FOR MATRICULATION EXAMINATION. TWO PROFESSORS WERE APPOINTED AS EXAMINERS FOR SETTING THE QUESTION PAPERS IN MATHEMATICS. EARLIER THE SENATE OF THE UNIVERSITY OF LONDON PASSED A RESOLUTION THAT ' IT BE MADE A CONDITION OF THE APPOINTMENT OF EVERY EXAMINER THAT COPYRIGHT POSSESSED BY HIM IN EXAMINATION PAPERS PREPARED BY HIM FOR THE UNIVERSITY SHALL BE VESTED IN THE UNIVERSITY .' LATER ON THE UNIVERSITY ENTERED INTO AN AGREEMENT WITH THE UNIVERSITY OF LONDON PRESS LTD (HER EINAFTER REFERRED TO AS THE PLAINTIFF ) BY WHICH IT WAS AGREED TO ASSIGN AND MAKE OVER TO THE PLAINTIFF COMPANY ALL EACH COPYRIGHT AND RIGHTS OF PUBLICATION AS THE UNIVERSITY MIGHT HAVE IN SUCH RESPECTIVE PAPERS. THE PLAINTIFF COMPANY PROCEEDED TO PUBLISH T HE EXAMINATION PAPERS IN 1916. THE COURT DECIDED THAT COPYRIGHT IN THE QUESTION PAPER WERE VESTED IN THE PROFESSORS JOINTLY WITH THE LONDON UNIVERSITY AND THE PLAINTIFF COMPANY. HENCE THERE IS NO BAR FOR JOINT OWNERSHIP IN THE COPY RIGHT AS DECIDED IN THE LAND MARK CASE. 24 . FURTHER RELIANCE WA S PLACE D UPON THE CASE OF Z EE ENTERTAINMENT ENTERPRISES LTD V GAZENDRA SINGH 2008 (36) PTC 53 (BOM) , THE HC HAS REITERATED THAT ALTHOUGH THERE IS NO COPYRIGHT IN CONCEPT BUT COPYRIGHT DOES EXISTS, AS A GENERAL PROPOSITION IN A CONCEPT NOTE AND THE SAME IS ENTITLED TO BE PROTECTED UNDER THE COPY RIGHT ACT. IF IT CONTAINS COPYRIGHTABLE WORK, THE AUTHOR/OWNER THEREOF WOULD BE ENTITLED TO THE PROTECTION A CC ORDED UNDER CRA, 1957. 25 . HAVING CONSIDERED THE CONTENTIONS OF THE ASSESSE E , THE LD. CIT(A) OBSERVED THAT, THE APPELLANT RECEIVE D NEW S ITEMS FROM ABROAD AND IS ALLOWED P A G E | 14 TO DISTRIBUTE THE NEWS ONLY THROUGH INDIAN NEWS AGENC IES . IN INDIA, IT IS DISTRIBUTED THROUGH PTI, UNI AND I A NS AND THE APPELLANT HAS ACTUALLY RECEIVED MONEY IN INDIAN C URRENCY FROM THE THREE INDIAN ENTITIES . THE COPY RIGHT IS A BUNDLE OF RIGHTS, AS HAS BEEN HELD UNDER LEADING JUDGMENTS OF VARIOUS INDIAN COURTS RELATING TO CRA , 1957 . FURTHER , ONCE DISTRIBUTION RIGHT HAS BEEN CONFERRED UPON THE APPELLANT, IT IS ENTITLED FO R THE ABRIDGEMENT WITHIN THE MEANING OF SEC. 2(A) OF CRA AND ABRIDGEMENT RIGHT IS WITHIN THE PURVIEW OF CRA AS DECIDED IN MACMILLAN V K. J. COOPER AIR 1924 PC 75 . IT HAS ALREADY BEEN STATED THAT THERE IS NO BAR FOR JOINT HOLDING OF COPYRIGHT UNIVERSITY OF LONDON PRESS LTD (SUPRA). 26 . IN LIGHT OF THE ABOVE , THE LD. CIT(A) OBSERVED THAT, THERE IS NO ESCAPEMENT FROM THE FACT THAT THE RIGHT CONFERRED UPON THE APPELL ANT IS A RIGHT ON WHICH COPY RIGHT SUBSISTS AND UPHELD THE ORDER BY THE AO AS CORRECT INASMUCH AS THE COPYRIGHT IN THE INSTANT CASE FALLS WITHIN THE PURVIEW OF MEANING ASCRIBED UNDER C OPYRIGHT ACT , 1957. AO WAS RIGHT IN HOLDING THAT THE IMPUGNED COPYRIGHT IS COVERED BY THE DEFINITION OF ROYALTIES WITHIN THE MEANING OF PARAGRAPH 3 OF ART.13 OF DTAA READ WITH EXPLANATION 2 (V) TO SEC.9(1)(VI) OF THE ACT. TO THIS EXTENT THE ARGUMENTS MADE BY APPELLANT WERE NOT SUSTAINABLE AND DISMISSED ACCORDINGLY . 27 . IN ORDER TO SUMMARISE, THE OBSERVATIONS MADE BY THE LD. CIT(A) ARE AS UNDER : - T HE ASSESSMENT OF INCOME OF THE APPELLANT AT RS.2,26,49,964/ - BY THE AO WAS UPHELD AS CORRECT AND SUC H ACTION OF THE AO WAS SUSTAINED AND THE GROUND RAISED BY THE ASSESSEE TO THIS EF FECT WAS DISMISSED . - T HE APPLICATION OF RATE OF TAXATION BY AO WAS UPHELD AS CORRECT AND THE ACTION BY THE AO WAS SUSTAINED HENCE, GROUND RAISED BY ASSESSEE TO THIS EFFECT WAS DISMISSED . - T HE CHARGE FOR INTEREST WAS DEEMED TO BE CONSEQUENTIAL AND THE GROUND RAISED BY ASSESSEE TO THIS EFFECT WAS DISMISSED . - T HE A PPELLANT S CLAIM TO THE EFFECT THAT THE CONCERNED AO DID NOT ALLOW CREDIT OF T DS IN RESPECT OF RS.14 , 91, 7211/ - , THE AO WAS DIRECTED TO LOOK INTO THE MATTER AND ALLOW THE CREDIT AS PER CLAIM ADMISSIBLE. THE GROUND RAISED BY THE ASSESSEE TO THIS EFFECT WAS ALLOWED FOR STATISTICAL PURPOSES. P A G E | 15 28 . HAVING OUTLINED THE RELEVANT FACTS IN THE INSTANT CASE , WE NOW PROCEED TO CONSIDER THE ARGUMENTS / SUBMISSIONS MADE BY RESPECTIVE PARTIES BEFORE US FOR DETERMINATION OF THE PRINCIPLE ISSUE UNDER CONSIDERATION. AT FIRST, THE ARGUMENTS PUT FORTH BEFORE US BY THE LD. AR HAVE BEEN SUMMARISED BELOW : (I) . S HIFTING OF STAND BY THE REVENUE : THE BASIC STAND OF THE ASSESSEE BEFORE THE REVENUE DEPARTMENT HAS BEEN THAT THE NEWS REPORTS AS WELL AS PHOTOGRAPHS PROVIDED BY THE ASSESSEE UNDER THE AFP NEWS WIRE CONTAINING REPORTS OF CURRENT EVENTS LACK ORIGINALITY AND ARE DEVOID OF MODICUM OF CREATIVI TY. THIS BASIC CONTENTION HAS NOT BEEN CONTROVERTED BY THE LD. DR P AND THE PANEL HAS OBSERVED AT PAGE 17 OF ITS ORDER FOR ASSESSMENT YEAR 2008 - 09 THAT ' NOWHERE HAS THE AO INVOKED THE PROVISIONS OF SECTION 13(L)(A) AND EVEN OTHERWISE ORIGINALITY IS NOT A CO NDITION AND THE WORD 'ORIGINAL' HAS NOT BE PREFIXED BEFORE THE WORD 'LITERARY' EITHER IN THE ACT OR IN THE TREATY '. A SIMILAR OBSERVATION HAS BEEN MADE VIDE PARA 8.1.5.1 AT PAGE 19 OF ITS ORDER. THUS, THE CONSISTENT STAND OF THE AO, THE LEARNED CIT (A) AND THE LEARNED DR HAS BEEN THAT ORIGINALITY IS NOT REQUIRED FOR QUALIFYING AS LITERARY WORK. IT WAS ON THIS BASIS T HAT THE REVENUE HAS TREATED NEWS REPORTS CONTAINING NARRATION OF CURRENT EVENTS AS COPYRIGHTABLE. THERE IS NO SUCH FINDING BY THE DEPARTMENT THAT NEWS REPORTS CONTAIN ORIGINALITY OR THAT ANY CREATIVE INPUT HAS BEEN MADE IN SUCH NEWS REPORTS BY THE ASSESSEE . HEADLINES GIVEN BY AFP ARE OFTEN CHANGED BY NEWSPAPERS AS PER THEIR CHOICE. THE LD. DR AT THIS BELATED STAGE BEFORE THE HON'BLE TRIBUNAL SPUN OUT AN ENTIRELY NEW STORY CLAIMING THAT ' AFP PROVIDES THE NEWS ITEMS AND PHOTOGRAPHS AND NOT THE CURRENT NEWS AS IS CLAIMED ' [PARA 4 AT PAGE 2 OF LEARNED DR'S SUBMISSION). IN PARA 28, THE LD. DR CLAIMED ON THE BASIS OF SUITS FILED AGAINST GOOGLE AND STAR AND ALSO THE CONTENTS OF NEWS ITEM IN THE TIMES OF INDIA THAT THE ASSESSEE'S INFORMATION ' CONSIST OF NEWS ARTICLE S/NEWS STORY WHICH POSSESSED LITERARY QUALITY '. AGAIN IN PARA 9, IT IS STATED THAT ' THE DERIVATIVES OF NEWS WHICH ARE NEWS ITEM/HEADLINE/STORY LINE AND PHOTOGRAPHS ARE CREATIVE WORKS AND MEET ALL THE REQUIREMENTS OF COPYRIGHT . THIS SHIFTING OF STAND BY TH E REVENUE BEFORE THE HON'BLE TRIBUNAL IS SOUGHT TO BE SUPPORTED ON THE BASIS OF ADDITIONAL EVIDENCE AS INDICATED ABOVE. P A G E | 16 (II) . WITHOUT PREJUDICE TO OBJECTIONS BY ASSESSEE AGAINST ADMISSION OF ADDITIONAL EVIDENCE, LD. AR SUBMIT S THAT AFP VS. STAR AND TIMES OF INDIA NEWS ITEMS REFERRED BY THE LD. DR IN PARA 1 OF HIS SUBMISSIONS DO NOT JUSTIFY THE TURN - AROUND OF ITS STAND BY THE REVENUE. THE HEADLINES IN THE TIMES OF INDIA CITED BY THE LD. DR DO NOT HAVE ANY TRACE OF CREATIVITY AND ARE NOT PROTECTED UNDER THE COPYRIGHT. NO COPYRIGHT PROTECTION IS AVAILABLE FOR NAMES, TITLES OR SHORT PHRASES AS STATED BY UNITED STATES COPYRIGHT OFFICE. ( III ) AFP VS. GOOGLE : THE LD. CIT DR SANJEEV SHARMA HAS CITED ASSERTIONS MADE IN THE COMPLAINT BY AFP TO SUPPORT HIS ARGUMENT THAT AFP'S NEWS STORIES AND PHOTOGRAPHS ARE ORIGINAL AND CREATIVE WORKS PROTECTED UNDER THE COPYRIGHT LAW. IT IS SUBMITTED THAT THE CLAIMS MADE BY THE LITIGANT IN A LITIGATION WITH A THIRD PARTY WOULD NOT IPSO - FACTO ALTER THE ESSENCE OF THE AGREEMENTS WITH PTI, IANS AND WEB SUBSCRIBERS AND CONCLUDE THE LEGAL ISSUE OF NATURE OF PAYMENTS UNDER THESE AGREEMENTS. THE SUIT IS NOT MERELY FOR INFRINGEMENT BUT ALSO HOT NEWS MISAPPROPRIATION. THE STAND TAKEN BY GOOGLE IN ITS REPLY AS ANNEXED HEREWITH CONTAINS DENIAL OF THE VIOLATION ON BOTH THE COUNTS. THE DISPUTE HAS ENDED INTO A COMPROMISE BY BOTH THE PARTIES ON THE BASIS OF THE PREVAILING FACTS AND ISSUES INVOLVED. IT IS LEGALLY INCORRECT TO SAY THAT SUCH LITIGATION IN THE USA WOULD AUTOMATICALLY CONCLUDE THE ISSUE INVOLVED IN THE PRESENT APPEALS. ( A ) THE EXAMPLE OF CURRENT NEWS GIVEN IN PARA 12 BY THE LD. CIT DR IN HIS SUBMISSION DOES NOT HELP THE REVENUE. THE AGREEMENTS WITH PTI, ETC. MERE LY ENVISAGE PROVIDING CURRENT NEWS CONTAINING REPORTS OF CURRENT EVENTS. THERE IS NO INDICATION OF ANY ARTICLES ON VARIOUS SUBJECTS BEING PROVIDED UNDER THE NEWSWIRE BY AFP. AS INDICATED ABOVE, THIS POSITION HAS BEEN ACCEPTED BY THE DEPARTMENT EARLIER AND SHIFTING OF STAND BY THE DEPARTMENT AT THIS BELATED STAGE IS FACTUALLY AND LEGALLY UNSUSTAINABLE. ( IV ) THE L D. CIT DR HAS REFERRED IN PARA 8 OF HIS SUBMISSIONS TO THE STATEMENT BY AFP IN THE COMPLAINT AGAINST GOOGLE REGARDING 'INFRINGING THE HEART OF AFP' S STORIES WHAT QUALITATIVELY THE MOST IMPORTANT ELEMENTS OF THE INDIVIDUAL NEWS STORIES (I.E. THE PHOTOGRAPH, HEADLINES AND STORY LEADS).' THIS STATEMENT HAS BEEN RELIED UPON BY THE REVENUE IN SUPPORT OF ITS STAND P A G E | 17 THAT NEWS ITEMS OF AFP ARE COPYRIGHTABLE. THIS IS CLEARLY AT VARIANCE WITH THE STAND OF THE DRP THAT THERE IS NO COPYRIGHT IN NEWS BUT ONLY IN LITERARY FORM IN WHICH IT IS EXPRESSED. (E) IT NEEDS TO BE POINTED OUT HERE THAT IN THE AGREEMENT WITH THE PTI, THERE IS NO MENTION REGARDING COPYRIGHT OW NED BY THE AFP FOR THE NEWS REPORTS TRANSMITTED AS 'INFORMATION'. WHEREAS IN THE AGREEMENT WITH IANS, PAGES 39 TO 44 ARE THE GENERAL AGREEMENT AND PAGE 45 TO 47 OF PB 1 IS THE ADDENDUM CONTAINING THE SPECIFIC OF THE REDISTRIBUTION ARRANGEMENT OF THE NEWS PHOTOGRAPHS. ADDENDUM IS MENTIONED VIDE CLAUSE 1 (A) AT PAGE 39 OF PB 1. IT IS ONLY IN ADDENDUM THAT CLAUSE RELATING TO COPYRIGHT HAS BEEN INCLUDED. CLAUSE 17 REFERS T O COPYRIGHT AND CLAUSE 18 (B) PROVIDES THAT AFP INFORMATION IS USED IN A NEWS CONTEXT AND IN ACCORDANCE WITH THIS AGREEMENT. THUS , PHOTOGRAPHS ARE BEING PROVIDED FOR THE PURPOSE OF REPORTING CURRENT EVENTS AND NOT FOR ANY NON - NEWS USER. THIS PROVISION IS TO BE VIEWED IN THE CONTEXT OF S ECTION 52 (1 ) ( B ) (II ) OF THE COPYRIGHT ACT. ( V ) REPORTING OF CURRENT EVENTS IS OUTSIDE THE PURVIEW OF COPYRIGHT ACT [SECTION 52]. SECTION 52(B) CLEARLY SPEAKS OF THE EXCEPTION FOR REPORTING OF CURRENT EVENTS. PLEASE REFER TO PARA 8 AND 9 OF THE DETAILED NOTE SUBMITTED TO THE AO, PLACED AT PAGES 72 AND 73 OF PAPER BOOK 1. FAIR DEALING ENVISAGES THAT THE PURPOSE SHOULD BE BONA - FIDE REPORTING OF CURRENT EVENTS AND THE SOURCE OF THE REPORT SHOULD BE ACKNOWLEDGED. THE FACT THAT NEWS IS TO BE REPORTED IN A NEWSPAPER CLEARLY MEANS THAT COMMERCIAL PURPOSE UNDER THIS EXCEPTION IS NOT A DISABLING FACTOR. FURTHERMORE, PHOTOGRAPH WHICH IS USED FOR REPORTING OF CURRENT EVENTS AND NOT FOR NON - NEWS CONTEXT AND ACKNOWLEDGEMENT IS GIVEN WOUL D SATISFY THE EXCEPTION UNDER SECTION 52(B)(II). THE CONCEPT OF FAIR DEALING HAS TO BE CONSTRUED IN THE CONTEXT OF THE SUBJECT MATTER OF THE EXCEPTION. ( VI ) PARA 16 IN THE SUBMISSIONS OF LD. CIT DR STATES THAT UNDER THE AGREEMENTS WITH AFP, THE PARTIES ARE USING THE INFORMATION FOR COMMERCIAL EXPLOITATION AND FAIR DEALING IS NOT INVOLVED. SECTION 52 OF THE COPYRIGHT ACT PROTECTS RIGHTS OF CONSUMERS. IF LITERARY AND ARTISTIC WORKS ARE USED FOR PURP OSES P A G E | 18 INDICATED IN SECTION 52 OF THE COPYRIGHT ACT, CONSUMERS ARE PROTECTED FROM THE OFFENSE OF COPYRIGHT INFRINGEMENT. THIS IS THE ESSENCE OF S ECTION 52. REPORTING OF CURRENT EVENTS AND PRINTING OF PHOTOGRAPHS FOR REPORTING CURRENT EVENTS IS THE PROTECTION FLOWING OUT OF COPYRIGHT LAW. IT IS NOT A RIGHT FLOWING OUT OF THE AGREEMENT ENTERED INTO BY AFP. SINCE THE INFORMATION HAS BEEN GATHERED BY AFP AND IS NOT IN PUBLIC DOMAIN, IT IS BEING PROVIDED UNDER THE AGREEMENT TO THE PARTIES ON PAYMENT OF CONSIDERATI ON. HAD THE INFORMATION BEEN IN PUBLIC DOMAIN AND AVAILABLE TO THE CONSUMERS, SECTION 52 WOULD HAVE ENABLED THE CONSUMERS TO USE THE INFORMATION FOR NEWS REPORTING PURPOSES. THIS IS THE RATIONALE AND NOT WHAT THE LEARNED DR HAS CLAIMED IN PARA 16 OF HIS SU BMISSIONS. ( VI ) WITH REGARD TO THE ADDITIONAL EVIDENCE CONCERNING DANIEL MOREL, IT IS STATED ABOVE THAT THE SAME MAY NOT BE ADMITTED BEING INCOMPLETE, UNVERIFIED AND FILED AT THE BELATED STAGE. WITHOUT PREJUDICE TO THE OBJECTION AGAINST ADMISSION, IT IS SUBMITTED THAT IN A CASE WHERE PHOTOGRAPHS TAKEN BY A PROFESSIONAL PHOTOGRAPHER OF OUTSTANDING STATURE HAS UNIQUE AESTHETIC MERIT ELOQUENTLY DEPICTING HUMAN SUFFERING, SUCH A PHOTOGRAP H HAS INTRINSIC VALUE IN A NON - NEWS CONTEXT. IF IT IS USED FOR NON - NEWS CONTEXT AND NOT FOR REPORTING CONTEMPO RANEOUS NEWS AND FURTHER ACKNOWLEDGEMENT OF THE SOURCE IS DELIBERATELY REMOVED SUCH A CASE WOULD OBVIOUSLY BE OUTSIDE THE PURVIEW OF S ECTION 52. ( VII ) AN ARRAY OF JUDICIAL AUTHORITIES HAVE BEEN CITED IN SUPPORT OF A PP ELLANT'S CASE THAT NEWS BEING REPORTS OF CURRENT EVENTS DOES NOT HAVE THE TRAPPINGS OF PROPERTY AND COURTS ARE UNANIMOUS THAT NEWS BEING NARRATION OF CURRENT EVENTS IS NOT COPYRIGHTABLE. INS VS. ASSOCIATED PRESS (PAGE 107 TO 122 OF PB 2 ) IS A LAND MARK JUD GMENT WHICH TREATED NEWS REPORT AS QUASI PROPERTY. HOWEVER , THE INS DOCTRINE HAS NOW BEEN UNDERMINED WITH THE COURTS VEERING ROUND THE VIEW THAT CREATING PROPERTY OR QUASI - PROPERTY RIGHTS IN INFORMATION STANDS TO UPSET THE STATUTORY BALANCE CAREFULLY CREAT ED THROUGH THE COPYRIGHT ACT. THE LA TEST DECISION IS IDEA CELLULAR ( 174 TO 248 OF PB 3) . P A G E | 19 ( VIII ) PARA 30 OF LD. DR'S SUBMISSIONS RUNS CONTRARY TO THE INTERPRETATION PLACED ON THE EXPRESSION IN THE OECD COMMENTARY , I T ALLUDES TO THE CONCEPT OF KNOWHOW BEING UNDIVULGED INFORMATION NECESSARY FOR THE INDUSTRIAL REPRODUCTION OF A PRODUCT OR PROCESS. CURRENT NEWS CANNOT BE COVERED UNDER THIS CATEGORY. 29 . ON THE OTHER HAND, THE LD. DR , SHRI SANJEEV SHARMA HAS PASSIONATELY DEFENDED BEFORE US THE ORDERS PASSED BY THE LOWER AUTHORITIES AND SUBMITTED THAT COPYRIGHT SUBSISTS IN THE NEWS REPORTS AS WELL AS PHOTOGRAPHS SUPPLIED BY THE ASSESSEE TO VARIOUS INDIAN NEWS AGENCIES. A SUMMARY OF LD. DRS SUBMISSIONS COULD BE OUTLINED AS UNDER: ( I ) ISSUE OF SALE/ LICENSE : THE LD. DR ARGUED THAT THE PRIMARY INTENTION BETWEEN AFP AS WELL AS THE INDIAN NEWS AGENCIES IS TO MAKE PAYMENTS FOR REGULAR AND UNINTERRUPTED SUPPLY OF INFORMATION AS OUTLINES IN THE AGREEMENTS . THE PAYMENT IS NOT BEING MADE TOWARDS SALE OF FACTS AND PASSING OF INFORMATION. IN THIS REGARD, IT WAS CONTENDED THAT EVEN PHOTOGRAPH WERE COVERED UNDER THE SAID AGREEMENTS SINCE THEY ARE SPECIES OF SAME GENRE AND HAVE NO VA LUE INDEPENDENTLY. ( II ) THE LD. AR CONTENDED THAT, INFORMATION BEING SOLD UNDER THE SAID AGREEMENTS IS INTELLECTUAL PROPERTY AND IS NOT SOMETHING TANGIBLE. WHEN THE BENCH SOUGHT CLARIFICATION REGARDING, HOW IS IT SALE? THE LD. AR MODIFIED HIS ARGUMENTS AND SUBMITTED THAT THE PAYMENTS RECEIVED IS FOR TRANSMISSION OF 'CURRENT EVENT' FACTUAL INFORMATION AND NOT FOR TRANSFER OF ANY COPYRIGHT RIGHTS UNDER THE COPYRIGHT ACT. IT WAS ALSO ARGUED THAT NATURE OF CONTRACT HAS TO BE DETERMINED WITH REFERENCE TO THE PREDOMINANT AND PRIMARY INTENTION BETWEEN THE PARTIES. ( B ) IN THIS REGARD, THE LD. DR CONTENDS THAT, THE ARGUMENTS OF THE LD. AR INASMUCH AS PAYMENT BEING RECEIVED IS ATTRIBUTABLE TOWARDS SALE OF INFORMATION IS FACTUAL LY INCORRECT AND OVERLOOKS EXPLICIT PROVISIONS UNDER THE SAID AGREEMENTS AND ARE CONTRARY TO THEIR LINE ARGUMENTS. REFERENCE IS MADE TO ARTICLE 17 ON PAGE 47 (IANS), ARTICLE 5 ON PAGE 49 (HT MEDIA), ARTICLE 6 ON PAGE 28 ARTICLE 16(A) ON PAGE 29 OF THE PB - 1 FILED BY THE P A G E | 20 ASSESSEE. FURTHER, THE PAYMENTS ARE RECEIVED FOR ALLOWING THE USE OF LICENSED INFORMATION. THESE PROVISIONS ARE EXPLICITLY STATED IN THE AGREEMENTS (PAGE 34 - AND 35 (PTI), PAGES 45 TO 48 (IANS) AND PAGES 56 AND 57 (HT MEDIA SERVICES). ( C ) NA TURE OF INFORMATION : AS REGARDS THE CLAIM OF THE LD. AR TO THE EFFECT THAT, ONLY INFORMATION PERTAINING TO CURRENT EVENTS/ CURRENT NEWS HAS BEEN PROVIDED IS NOT TRUE. THREE AGREEMENTS FILED BY THE ASSESSEE IN THE PB - 1 PROVIDES FOR THE PERSON TO RECEIVE AFP 'S INFORMATION AS CLEARLY DEFINED IN THE AGREEMENT. SCHEDULE A OF AGREEMENT WITH PTI DEFINES THE INFORMATION AS MATERIAL DERIVED FROM THE AFP SERVICES ( PAGE 33, PB - 1). IN THE IANS AGREEMENT THE DEFINITION OF INFORMATION IS AVAILABLE ON PAGE 44 OF THE PB - 1 AND READ AS: ' AFP INTERNATIONAL NEWS PICTURE SERVICE COVERING POLITICAL, ECONOMIC, BUSINESS, CORPORATE, ORTS AND OTHER AREAS . IN RESPECT OF HT MEDIA SERVICES DEFINITION OF INFORMATION IS AVAILABLE ON PAGE 5 O F PB - 1 AND READS AS: INFORMATION SHALL BE DEFINE D AS MATERIAL DERIVED FROM THE FOLLOWING AFP SERVICE(S); TEXT - A SELECTION OF ALL NEWS ITEMS .PHOTOS. THEREFORE, THE LD. DR CONTENDS THAT, AFP PROVIDES THE NEWS ITEMS AND PHOTOGRAPHS AND NOT CURRENT NEWS AS IS CLAIMED. IT PROVIDES MATERIAL DERIVED FROM INFORMATION . NEWS ITEM IS A STORY THAT IS WRITTEN BY THE REPORTER/JOURNALIST IN REGARD TO PARTICULAR NEWS AND THAT IS NOT RESTRICTED TO CURRENT NEWS AND THESE PRODUCTS ARE COPYRIGHTED. THE SUBSCRIBERS USE THIS INFORMATION TO COMMERCIALLY EXPLOIT THE SAME BY PUBLISHING THE SAME IN THEIR NEWSPAPERS/WEB PRODUCTS. ( II ) WHETHER COPYRIGHT SUBSISTS IN THE INFORMATION PROVIDED : LD. AR HAS CLAIMED THAT RESTRICTIONS ON USE OF INFORMATION DOES TANTAMOUNT TO MAKING INFORMATION COPYRIGHTABLE. IT WAS FURTHER ARGUED TH AT, DIFFERENT COURTS HAVE HELD THAT IDEAS AND THOUGHTS ARE NOT COPYRIGHTABLE AND NEWS IS ALSO NOT COPYRIGHTABLE. HENCE, NO COPYRIGHT SUBSISTS IN THE INFORMATION PROVIDED BY AFP TO VARIOUS SUBSCRIBERS INCLUDING VARIOUS NEWS AGENCIES. IN THIS REGARD, THE LD. DR CONTENDS INTENDS TO PLACE RELIANCE UPON THE FOLLOWING: P A G E | 21 REFER PAGE 89 AND 90 OF THE REVENUE'S PAPER BOOK. ARTICLE 9 (CREDIT) ON PAGE 46 OF PB - 1 OF THE ASSESSEE, ARTICLE 17(COPYRIGHT) ON PAGE 47 IN RELATION TO IANS AGREEMENT; ARTICLE 5 (COPYRIGHT ON PAGE 49); AND ARTICLE 8 (CREDIT ON PAGE 56) IN RESPECT OF HT MEDIA SERVICES AGREEMENT. 30 . IN LIGHT OF THE ABOVE, IT WAS CONTENDED THAT THE AGREEMENT WITH HT MEDIA SERVICES IS FOR TEXT AND PHOTOS AND EXPLICIT PROVISIONS EXIST WHICH LEADS TO AN UNAMBIGUOUS AND INESCAPABLE CONCLUSION THAT AFP IS THE COPYRIGHT OWNER OF INFORMATION. THEREFORE, BY ENTERING INTO AGREEMENT WITH ITS SUBSCRIBERS, THEY GET A RIGHT TO USE AND COMMERCIALLY EXPLOIT THE INFORMATION, AND ANY USAGE OF SUCH INFORMATION WITHOUT THE LICENSE AGREEMENT COULD LEAD TO INFRINGEMENT OF COPYRIGHTS OF AFP. ( A ) PARAGRAPH 7 (ON PAGE 8) OF THE ASSESSMENT ORDER REFERS TO SETTLEMENT OF DISPUTES WITH GOOGLE INC., WHICH MENTIONED THAT AFP AGREED TO WITHDRAW A LAWSUIT FILED IN MARCH 2005 ACCUSING THE WORL D'S NUMBER ONE INTERNET SEARCH ENGINE OF COPYRIGHT INFRINGEMENT FOR ALLEGEDLY POSTING AFP HEADLINES NEWS SUMMARIES AND PHOTOGRAPHS WITHOUT PERMISSION. ( B ) PAGES 20 TO 22 OF THE ADDITIONAL EVIDENCE ARE A NEWS ITEM, ' AFP NEWS AGENCY SUES THE STAR NEWSPAPER OVER UNAUTHORIZED USE OF ITS STORIES '. THE NEWS ITEM READS THAT, 'THE NEW AGENCY IS ACCUSING THE STAR, OWNED BY RADIO AFRICA, OF INFRINGING ITS COPYRIGHT BY REPRODUCING AND AUTHORIZING THE REPRODUCTION OF SUBSTANTIAL PORTION OF ITS LITERARY WORK WITHOUT SEEKING PRIOR WRITTEN AUTHORITY'. (C) THE LD. DR CONTENDS THAT, WHETHER THE ASSESSEE COULD NOW TURNAROUND AND CLAIM (AS LD. AR HAS BEING CLAIMING REPEATEDLY) THAT THERE DOES NOT EXIST ANY CREATIVITY, COPYRIGHT IN ITS INFORMATION AND THE SAME IS NOT IN THE NATURE OF LITERARY WORK IN ABSENCE OF ANY ORIGINALITY SOLELY FOR THE PURPOSES OF AVOIDING TAXATION IN INDIA. HOW WILL IT DEAL WITH ITS OWN ADMISSION AND AVERMENT IN THE COMPLAINT AGAINST GOOGLE INC., WHICH HAS LED TO A SETTLEMENT WITH GOOGLE INC. E NTERED INTO LICENSING AGREEMENT AND CONSEQUENT WITHDRAWAL OF COMPLAINT BY AFP? P A G E | 22 ( D ) THE LD. AR HAS PLACED RELIANCE UPON THE HANDBOOK OF COPYRIGHT LAW IN INDIA AS APPEARING IN PAGES 52 TO 72 OF THE PB SUBMITTED BY THE REVENUE. IT IS CONTENDED BY THE LD. DR THAT THIS IS AN IMPORTANT GOVERNMENT DOCUMENT ON COPYRIGHT. AT PAGE 59, IN RESPONSE TO A QUESTION WHETHER A PHOTOGRAPH IS AN ARTISTIC WORK OR NOT? IT IS REPLIED THAT, ' THERE IS NO COPYRIGHT OVER NEWS. HOWEVER, THERE IS COPYRIGHT OVER THE WAY IN WHICH A NEW S ITEM IS REPORTED. ' SINCE, IT IS NOT NECESSARY TO REGISTER A WORK TO CLAIM COPYRIGHT, ANY ACQUISITION OF COPYRIGHT IS AUTOMATIC AND DOES NOT REQUIRE ANY FORMALITY. IN THIS REGARD, RELIANCE COULD BE PLACED UPON PAGE 59 OF PB WHICH CLEARLY SHOWS THAT, COPYR IGHT COMES INTO EXISTENCE AS SOON AS A WORK IS CREATED AND NO FORMALITY IS REQUIRED TO BE COMPLETED FOR ACQUIRING COPYRIGHT. ( E ) FURTHER, PAGE S 62 AND 63 OF REVENUES PB IS EXPLANATIVE ABOUT COPYRIGHT OF FOREIGN WORKS IN INDIA, AS IF SUCH WORKS ARE INDIAN WORKS. AS REGARDS, COPYRIGHT OF NATIONALS OF COUNTRIES WHO ARE MEMBERS OF BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS, UNIVERSAL COPYRIGHT CONVENTION AND THE TRIPS AGREEMENTS ARE PROTECTED IN INDIA THROUGH THE INTERNATIONAL COPYRIGH T ORDER. ( F ) THE LD. DR AS AN ILLUSTRATION SUBMITS THAT, IT RAINED TODAY MORNING IS A CURRENT NEWS AND ONE CANNOT CLAIM COPYRIGHT OVER THIS BY CLAIMING THAT IT REPORTED THE EVENT FIRST THEREFORE, NONE ELSE CAN REPORT THIS FACT. BUT IF A NEWS ITEM OR A S TORY IS PUBLISHED BY ANYONE, INDICATING THE BACKGROUND OF ONGOING HEAT WAVE, RECORDS OF TEMPERATURE, AND HISTORICAL RECORDS OF RAIN IN THE FIRST WEEK OF JUNE AND ALSO THE RESPITE FROM POWER SHORTAGE OR PROGRESS OF MONSOON, THEN THIS NEWS ITEM/STORY CANNOT BE REPRODUCED OR USED BY ANYONE WITHOUT PROPER AUTHORIZATION. UNAUTHORIZED USE OF THE SAME WILL AMOUNT TO INFRINGEMENT OF COPYRIGHTS OF THE NEWS STORY PUBLISHER. IN FACT, IT IS THE CASE OF THE ASSESSEE AGAINST GOOGLE INC. THAT, THE PHOTOS AND NEWS ITEMS B EING PART OF INFORMATION LICENSED BY THE ASSESSEE ARE LITERARY (NEWS TEXT) AND ARTISTIC WORK (PHOTOGRAPHS) AND THE COPYRIGHT IN RESPECT OF THESE WORKS ARE PROTECTED UNDER COPYRIGHT ACT 1957. P A G E | 23 ( III ) WHETHER EXCEPTION, IF ANY, UNDER SECTION 52 OF COPYRIGHT A CT, 1957 IS APPLICABLE IN CASE OF THE ASSESSEE : THE LD. DR SUBMITS THAT, LICENSED INFORMATION OF THE ASSESSEE IS A LITERARY AND ARTISTIC WORK AS PER PROVISIONS OF SECTION 2(0) OF COPYRIGHT ACT, 1957. HE FURTHER CONTENDS THAT, COPYRIGHT SUBSISTS IN THE INFO RMATION LICENSED BY THE ASSESSEE AS PER SECTION 13 (A) OF COPYRIGHT ACT BEING AN ORIGINAL LITERARY WORK. IN THE INSTANT CASE, THE LICENSE ALLOWS THE SUBSCRIBER (USER) TO USE THE INFORMATION TO REPRODUCE THE WORK, ISSUE COPIES OF THE WORK TO PUBLIC AND MAKE TRANSLATION OF THE WORK AND ADAPTATION OF THE WORK. WITHOUT GRANT OF SUCH LICENSING RIGHTS WHICH ARE OTHERWISE EXCLUSIVE RIGHT OF THE INFORMATION OWNER (AFP), ANY USAGE WOULD LEAD TO INFRINGEMENT OF COPYRIGHT. ( A ) THE LD. AR ARGUES THAT, EVEN IF THE ARGUMENT OF THE REVENUE IS ACCEPTED THAT INFORMATION PROVIDED IS A LITERARY WORK, SECTION 52(B) OF THE COPYRIGHT ACT, 1957 WOULD APPLY TO CURRENT EVENTS AND FAIR DEALING WITH THE CURRENT EVENT (LITERARY WORK) WILL NOT LE AD TO INFRINGEMENT OF COPYRIGHT ACT, 1957. THE LD. AR CLAIMS THAT PROVISIONS OF SECTION 52 OVERRIDE SECTIONS 13 AND 14. LD. AR CLAIMS THAT AFP IS ALLOWING THE USER TO DEAL WITH THE CURRENT EVENT AND SUCH USE DOES NOT LEAD TO INFRINGEMENT OF ITS RIGHT. IN T HIS REGARD, THE REVENUE SUBMITS THAT THE POSITION ADOPTED BY THE ASSESSEE IS CONTRARY TO THE PROVISIONS UNDER DIFFERENT AGREEMENTS AND ALSO RUN CONTRADICTORY TO ITS ASSERTION IN COMPLAINT AGAINST GOOGLE INC. AND STAR. ( B ) SECTION 52(B) OF THE COPYRIGHT A CT, 1957 PROVIDES THE PURPOSES OF FAIR DEALING. THESE ARE SITUATIONS IN WHICH THE LAW ALLOWS USE OF A WORK WITHOUT PERMISSION OF THE OWNER OF COPYRIGHT. (REFER PAGE 26 OF THE PB - 1 OF THE ASSESSEE AND PAGE 53 OF THE REVENUES PB). THESE EXEMPTIONS ARE VERY SPECIFIC AND DO NOT INCLUDE THE ACT OF USING THE LICENSED INFORMATION OF THE ASSESSEE. THE SUBSCRIBERS DO NOT USE THE INFORMATION PROVIDED BY THE ASSESSEE FOR THE PURPOSE OF RESEARCH, STUDY, CRITICISM, REVIEW AND NEWS REPORTING BUT USE THE SAME (TEXT AND P HOTOS) AS SUCH IN ITS PUBLICATIONS TO COMMERCIALLY EXPLOIT THE SAME. THE ASSESSEE IS LICENSING THE INFORMATION NOT FOR THE PURPOSE OF FAIR DEALING BUT TO ENABLE THEM TO COMMERCIALLY EXPLOIT THE SAME. P A G E | 24 ( C ) AT PAGE 86 OF THE REVENUE'S PB, IS A DOCUMENT OBTAI NED FROM THE WEBSITE OF THE UK GOVERNMENT WHICH DEALS WITH THE ISSUE OF FAIR DEALING UNDER UK COPYRIGHT LAW, WHICH AS PER CLAIM OF THE LD. AR IS SIMILAR TO INDIAN COPYRIGHT LAW, AND MENTIONS THAT FACTORS THAT HAVE BEEN IDENTIFIED BY THE COURTS AS RELEVANT IN DETERMINING WHETHER A PARTICULAR DEALING WITH A WORK IS FAIR DEAL INCLUDE: - DOES USING THE WORK AFFECT THE MARKET FOR THE ORIGINAL WORK? IF A USE OF A WORK ACTS AS A SUBSTITUTE FOR IT, CAUSING THE OWNER TO LOSE REVENUE, THEN IT IS NOT LIKELY TO BE FAIR. - IS THE AMOUNT OF THE WORK TAKEN REASONABLE AND APPROPRIATE? WAS IT NECESSARY TO USE THE AMOUNT THAT WAS TAKEN? USUALLY ONLY PART OF A WORK MAY BE USED. ( D ) IT HAS BEEN OBSERVED IN M/S BLACKWOOD AND SONS LTD V. A.N. PARASURAMAN (REFER PAGE 96 AND 97 OF R EVENUE'S PB) THAT IN ORDER TO CONSTITUTE FAIR DEALING THERE MUST BE NO INTENTION ON THE PART OF THE ALLEGED INFRINGER, TO COMPETE WITH THE COPYRIGHT HOLDER OF THE WORK AND TO DERIVE PROFITS FROM SUCH COMPETITION AND ALSO, THE MOTIVE OF THE ALLEGED INFRINGE R IN DEALING WITH THE WORK MUST NOT BE IMPROPER. THEREFORE, LICENSING THE USE OF INFORMATION IN THE CASE OF THE ASSESSEE IS NOT COVERED BY FAIR DEALING CLAUSE OF SECTION 52 OF THE COPYRIGHT ACT AND THIS IS EVIDENT FROM THE AGREEMENTS. ( IV ) INCOME TAX ACT V. COPYRIGHT ACT : THE LD. AR CLAIMS THAT QUESTION OF TAXATION HAVE TO BE DECIDED UNDER THE TAX STATUTES AND NOT UNDER COPYRIGHT ACT. HE FURTHER CLAIMS THAT, EVEN IF COPYRIGHT PROTECTION IS CLAIMED IN THE AGREEMENTS BY AFP, THE PROVISIONS IN THE AGREEMENT DOES NOT AUTOMATICALLY ALTER THE NATURE OF PAYMENT AND ALSO DOES NOT OBLITERATE THE PROVISIONS OF ANY STATUTE. ON THE ONE HAND, HE CLAIMS THAT THE DEFINITION OF LITERARY WORK IN SECTION 2(0) OF COPYRIGHT ACT CANNOT BE USED FOR THE PURPOSE INCOME TAX ACT BE CAUSE BOTH THE STATUTES ARE NOT PAR I - MATERIA . WHILE, ON THE OTHER HAND, LD. AR SEEKS PROTECTION UNDER THE COPYRIGHT ACT, 1957 BY INVOKING SECTION 52 (B) OF COPYRIGHT ACT. AS MENTIONED ABOVE, THE LICENSING OF INFORMATION AND USE OF THE 'SAME BY P A G E | 25 THE SUBSCRI BERS IS NOT COVERED BY THE FAIR DEAL CLAUSE IN SECTION 52 OF THE COPYRIGHT ACT. ( A ) THE TERMS OF COPYRIGHT, LITERARY WORK, ARTISTIC WORK OR SCIENTIFIC WORK IS NOT DEFINED IN THE TAX TREATY BETWEEN INDIA AND FRANCE (DTAA). ARTICLE 3(2) OF THE DTAA READS AS : 'AS REGARDS THE APPLICATION OF THE CONVENTION BY A CONTRACTING STATE, ANY TERM NOT DEFINED THEREIN, SHALL UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE MEANING WHICH IT HAS UNDER THE LAW OF THAT CONTRACTING STATE CONCERNING THE TAXES TO WHICH CONVENTION AP PLIES'. THE CONVENTION IN INDIA APPLIES TO INCOME TAX (ARTICLE 2, DTAA). IT IS APPARENT THAT THESE TERMS ARE ALSO NOT DEFINED IN THE INCOME TAX ACT. IN VIEW OF EXPLICIT PROVISIONS OF THE DTTA, THE MEANING OF UNDEFINED TERMS CANNOT BE SOUGHT FROM OTHER SOUR CES INCLUDING OTHER LAWS OF INDIA. THE REVENUE SUBMITS THAT THE TERM COPYRIGHT HAS BEEN USED IN THE AGREEMENTS OF ASSESSEE WITH INDIAN NEWS AGENCIES AND THESE AGREEMENTS HAVE GIVEN MEANING TO THESE TERMS . CONSIDERING THE EXTENT AND RESTRICTION OF USE OF INFORMATION, DUE TO OWNERSHIP OF COPYRIGHT, AS STATED IN THE AGREEMENT WITHOUT DOUBT REFERS THAT COPYRIGHT IN LITERARY AND ARTISTIC WORK ONLY THAT HAS BEEN LICENSED. THEREFORE, AS FAR IS CHARACTERIZATION O F PAYMENT FOR THE PURPOSE OF TAXATION IS CONCERNED, THERE IS NO NEED TO LOOK FOR MEANING OF THE TERM COPYRIGHT. AGREEMENT STATES THAT AFP IS THE COPYRIGHT OWNER OF THE INFORMATION AND THE AGREEMENT CONSTITUTES A LICENSE TO USE THE INFORMATION. THE INFORMAT ION (NEWS ITEM/PHOTOS) IS LITERARY AND ARTISTIC WORK. ( B ) THE LD. DR SUBMITS THAT THOUGH THE MEANING OF THE TERMS COPYRIGHT, LITERARY AND ARTISTIC IS NOT GIVEN IN THE DTAA OR INCOME TAX ACT , HOWEVER, FOR THE PURPOSE OF SEARCHING FOR MEANING OF THE TERMS A PRIORITY TO ANOTHER INDIAN LAW NEED TO BE GIVEN IN PLACE OF ANY NORMAL MEANING O R MEANING UNDER THE LAW OF FOREIGN COUNTRIES. THESE WORDS HAVE BEEN DEFINED IN THE COPYRIGHT ACT 1957 AND MEANING UNDER THIS LAW WILL PREVAIL OVER NORMAL MEANING. THE ITAT IN THE CASE OF GRACEMAC CORPORATION (SUPRA) HAD HELD THAT A REFERENCE TO INDIAN COPYRIGHT ACT 1957, HAS TO BE MADE FOR THE LIMITED PURPOSE OF FINDING OUT THE MEANING OF THE WORD 'COPYRIGHT' AND P A G E | 26 THAT TOO FOR THE REASON THAT THE TERM 'COPYRIGHT' IS NOT DEFINED IN THE INCOME TAX ACT OR THE DTAA (PARAGRAPH 113, GRACEMAC OR DER). IN THAT CASE, THE ITAT AFTER CONSIDERING THE PROVISIONS OF ARTICLE 14 OF THE COPYRIGHT ACT HELD THAT EVEN GRANT OF ONE RIGHT IN RESPECT OF A COPYRIGHT OR WORK WOULD AMOUNT TO TRANSFER OR US E OF COPYRIGHT. REFERRING TO SECTION 30 OF THE COPYRIGHT ACT, THE HON'BLE COURT HELD THAT AN INTEREST IN THE RIGHT CAN BE GRANTED BY LICENSE IN WRITING SIGNED BY THE OWNER OF THE COPYRIGHT OR BY HIS DULY AUTHORIZED AGENT. THE PROVISIONS OF COPYRIGHT ACT CA N BE REFERRED FOR LIMITED PURPOSES OF DEFINITION OF TERM 'COPYRIGHT' (PARAGRAPHS 86 TO 88, GRACEMAC ORDER). ( C ) FURTHER, LITERARY WORK IS ALSO DEFINED IN THE BERN CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORK. (REFER PAGES 23 TO 51 OF THE RE VENUE'S PB). WHILE, ARTICLE 2 OF THE BERN CONVENTION PROVIDES AN INCLUSIVE DEFINITION TO THE EXPRESSION 'LITERARY AND ARTISTIC WORK'. (E.4) THE ASSESSEE IN ITS COMPLAINT AGAINST GOOGLE HAS STATED THAT IT HAS REGISTERED ITS COPYRIGHTS (PARAGRAPH 16 ON PAGES 3, PARAGRAPH 19 ON PAGES 4, AND PARAGRAPH 49 ON PAGE 12) IN THE USA . SECTION 101 OF TITLE 17 OF THE UNITED STATES CODE IS AVAILABLE ON PAGES 76 TO 82 OF THE REVENUE'S PAPER BOOK. LITERARY WORK, IS DE FINED AS: 'LITERARY WORKS' ARE WORK, OTHER THAN AUDIO - VI SUAL WORK, EXPRESSED IN WORDS, NUMBERS, OR VERBAL OR NUMERICAL SYMBOLS OR INDICIA, REGARDLESS OF THE NATURE OF MATERIAL OBJECTS, SUCH AS BOOKS, PERIODICALS, MANUSCRIPTS, PHONE RECORDS, TAPES, DISKS, OR CARDS, IN WHICH THEY ARE EMBODIED. THE NEWS ITEMS/ NEW S STORIES OF THE ASSESSEE ARE EXPRESSED IN WORDS. THE ASSESSEE HAS ITSELF REGISTERED COPYRIGHT IN ITS WORKS IN THE USA AND MUST HAVE BEEN REGISTERED AS LITERARY WORKS. ITS COMPLAINT AGAINST STAR MENTIONS ITS WORK IS LITERARY WORK (REFER PAGE 20 OF THE REVE NUE'S PB). SIMILARLY, PHOTOGRAPHS ARE ARTISTIC WORK IS AND ALSO SUBJECT TO COPYRIGHT PROTECTION. IN THIS REGARD THE REVENUE REFERRED TO A CASE WHEREIN AFP WAS ASKED TO PAY USD 1.22 MILLION FOR INFRINGING THE COPYRIGHT OVER THE PHOTOGRAPHS OF PHOTOJOURNALIST DANIEL MOREL. PHOTOGRAPHS CAPTURED THE DEVASTATION AFTER THE 2010 EARTHQUAKE THAT STRUCK HAITI. AFP HAD LIFTED PHOTOGRAPHS FROM THE INTE RNET AND P A G E | 27 TRANSMITTED THE IMAGES TO LARGE NETWORK OF SUBSCRIBERS, WHICH INCLUDED NEWS ORGANIZATION AROUND THE WORLD. COPY OF THIS NEWS ITEM WAS FILED. ( D ) AGREEMENTS OF THE ASSESSEE MENTION THAT IT IS THE COPYRIGHT OWNER OF ALL INFORMATION. IF ITS CONTENTI ONS THAT THE INFORMATION IS NOT LITERARY WORK ARE CORRECT THEN THE BURDEN OF PROVING THAT WHATEVER IS STATED IN THE AGREEMENT IS FALSE OR OTHERWISE PROVE WITH DOCUMENTARY EVIDENCE THAT THE INFORMATION IS NOT OF THE NATURE OF LITERARY, ARTISTIC OR SCIENTIFI C WORK. IF IT IS TRUE THAT ITS INFORMATION DOES NOT ENJOY COPYRIGHT PROTECTION THEN IT WOULD REQUIRE EXPLAINING UNDER WHAT LAW IT REGISTERED ITS COPYRIGHTS IN THE USA. FURTHER, IF ITS WORK IS NOT PROTECTED BY COPYRIGHT LAW THEN IT NEEDS TO MAKE A STATEMENT WITH DOCUMENTARY EVIDENCE IN THIS REGARD AND THE INDIAN SUBSCRIBERS ARE FREE TO USE ITS INFORMATION WITHOUT ANY AGREEMENTS AND RESTRICTIONS. ( E ) KLAUS VOGEL ON DOUBLE TAXATION CONVENTION (THIRD EDITION) ON THE ISSUE OF THE SCOPE OF COPYRIGHTS OF LITERARY , ARTISTIC AND SCIENTIFIC WORK NOTES THAT, COPYRIGHTS INCLUDE THOSE UNDER STATUTORY PROVISIONS OR COMMON LAW. THE WIDE CONCEPT OF COPYRIGHT ROYALTIES WITHIN THE MEANING OF ART 1 OF THE MULTILATERAL CONVENTION AND PROPOSED BY UNESCO AND WIPO, SHOULD YOUR CO MMENTATORS THINK, ALSO APPLY TO THE OECD MODEL CONVENTION. THAT ARTICLE MENTIONS PAYMENT FOR THE USE OF, OR THE RIGHT TO USE, COPYRIGHT OF A LITERARY, ARTISTIC, OR SCIENTIFIC WORK (IN ACCORDANCE WITH THE DEFINITION CONTAINED IN THE INTERNATIONAL COPYRIGHT CONVENTION), INCLUDING SUCH PAYMENTS MADE IN RESPECT OF LEGAL OR COMPULSORY LICENSE. (F) PAYMENT IS ALSO ROYALTY UNDER CLAUSE (IV) OF EXPLANATION 2 TO SECTION 9(1) (VI) OF THE ACT AND ARTICLE 13 OF TAX TREATY : WITHOUT PREJUDICE TO THE CLAIM OF THE REVENUE THAT INCOME CONSTITUTE COPYRIGHT ROYALTY , THE CONSIDERATION IS ALSO ROYALTY AS THE SAME IS FOR IMPARTING OF INFORMATION CONCERNING COMMERCIAL EXPERIENCE. THE INFORMATION IN THE FORM OF NEWS STORIES AND PHOTOGRAPHS IS INTANGIBLE ASSET AS ADMITTED BY THE ASS ESSEE. THE INFORMATION IS NEW AND UNDIVULGED. THE CONSIDERATION IS RECEIVED FOR THE USE OF OR RIGHT TO USE THE INFORMATION CONCERNING COMMERCIAL EXPERIENCE. P A G E | 28 31 . THE ASSESSMENT ORDER CONTAIN PROPER ANALYSIS OF THE AVAILABLE FACTS AND THE AO CAME TO A CORRECT DECISION OF TAXING THE PAYMENTS RECEIVED BY THE ASSESSEE AS ROYALTY BOTH UNDER THE PROVISIONS OF THE ACT AND DTAA. THE LD. CIT (A) HAS CONFIRMED THE ORDER. THE REVENUE DEPARTMENT STRONGLY SUPPORTS THESE ORDERS. 32 . WE HAVE HEARD BOTH THE PARTIES A T CONSIDERABLE LENGTH AND GONE THROUGH CASE RECORDS AND RELEVANT CASE - LAWS CITED BY THEM. WE ARE NOT REITERATING THE COMPLETE SET OF FACTS AT THIS STAGE FOR THE SAKE OF BREVITY. THE ISSUE HOTLY DEBATED BY THE PARTIES BEFORE US IS WHETHER NEWS REPORTS AND P HOTOGRAPHS COULD BE SUBJECT MATTER OF COPYRIGHT IN TERMS OF SECTION 13 OF THE COPYRIGHT ACT, 1957 AND WHETHER THE CONSIDERATION RECEIVED BY THE ASSESSEE UNDER THE DISTRIBUTION AGREEMENTS QUALIFY AS ROYALTIES IN TERMS OF ARTICLE 13 OF IND O - FRENCH DTAA AND ALSO SECTION 9(1)(IV) OF THE INCOME TAX ACT, 1961 . THE RELEVANT PORTION OF ART 13 IS REPRODUCED BELOW: ARTICLE 13: ROYALTIES AND FEES FOR TECHNICAL SERVICES AND PAYMENTS FOR THE USE OF EQUIPMENT 1. ROYALTIES, FEES FOR TECHNICAL SERVICES AND PAYMENTS FOR THE USE OF EQUIPMENT ARISING IN A CONTRACTING STATE AND PAID TO A RESIDENT OF THE OTHER CONTRACTING STATE MAY BE TAXED IN THAT OTHER CONTRACTING STATE. 2. HOWEVER, SUCH ROYALTIES, FEES AND PAYMENT S MAY ALSO BE TAXED IN THE CONTRACTING STATE IN WHICH THEY ARISE AND ACCORDING TO THE LAWS OF THAT CONTRACTING STATE, IN WHICH THEY ARISE AND ACCORDING TO THE LAWS OF THAT CONTRACTING STATE, BUT IF THE RECIPIENT IS THE BENEFICIAL OWNER OF THESE CATEGORIES OF INCOME, THE TAX SO CHARGED SHALL NOT EXCEED 10 PER CENT OF THE GROSS AMOUNT OF SUCH ROYALTIES, FEES AND PAYMENTS.] [WITH EFFECT FROM 1 - 4 - 1997) 3 . HOWEVER, SUCH ROYALTIES, FEES AND PAYMENTS MAY ALSO BE TAXED IN THE CONTRACTING STATE IN WHICH THEY ARISE A ND ACCORDING TO THE LAWS OF THAT CONTRACTING STATE, THE RECIPIENT IS THE BENEFICIAL OWNER OF THESE CATEGORIES OF INCOME, THE TAX SO CHARGED SHALL NOT EXCEED: (A) IN THE CASE OF ROYALTIES AND FEES 20 PER CENT OF TILE GROSS AMOUNT OF SUCH ROYALTIES OR FEES : AND (B) IN THE CIL5T OF PAYMENTS REFERRED TO IN PARAGRAPH 5 OF THIS ARTICLE, 10 PER CENT OF THE GROSS AMOUNT OF SUCH PAYMENTS. (EFFECTIVE BETWEEN 1 - 4 - 1995 AND 31.3.1997) 4 . THE TERM 'ROYALTIES' AS USED IN THIS ARTICLE - MEANS PAYMENTS OF ANY KIND RECEIVE D AS A CONSIDERATION FOR THE USE OF, OR THE RIGHT TO USE, ANY COPYRIGHT OF LITERARY, ARTISTIC OR SCIENTIFIC WORK INCLUDING CINEMATOGRAPH FILMS, OR FILMS OR TAPES USED FOR RADIO OR TELEVISION BROADCASTING, ANY PATENT, TRADE MARK, DESIGN OR MODEL, PLAN, SECR ET FORMULA OR PROCESS, OR FOR INFORMATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXPERIENCE. P A G E | 29 6. THE PROVISIONS OF PARAGRAPH 1 AND 2 SHALL NOT APPLY - IF THE BENEFICIAL OWNER OF THE ROYALTIES, FEES FOR TECHNICAL SERVICES OR THE PAYMENTS FOR THE USE OF EQUIPMENT BEING A RESIDENT OF A CONTRACTING STATE, CARRIES ON BUSINESS IN THE OTHER CONTRACTING STATE IN WHICH THE ROYALTIES, FEES FOR THE TECHNICAL SERVICES OR THE PAYMENTS FOR THE USE OF EQUIPMENT ARISES, THROUGH PERMANENT ESTABLISHMENT SITUATED THERE IN, OR PERFORMS IN TH AT OTHER CONTRACTING STATE INDE PENDENT PERSONAL SERVICES FROM A FIXED BASE SITUATED THEREIN, AND THE ROYALTIES, FEES FOR TECHNICAL SERVICES OR THE PAYMENTS FOR THE USE OF EQUIPMENT ARE EFFECTIVELY CONNECTED WITH SUCH PERMANENT ESTABLIS HMENT OR FIXED BASE. IN SUCH CASE THE PROVISIONS OF ARTICLE 7 OR ARTICLE15, AS THE CASE MAY BE, SHALL APPLY. 7. ROYALTIES, FEES FOR TECHNICAL SERVICES OR PAYMENT FOR THE USE OF EQUIPMENT SHALL BE DEEMED TO ARISE IN A CONTRACTING STATE WHEN THE PAYER IS THAT CONTRACTING STATE ITSELF, A POLITICAL SUB - DIVISION, A LOCAL AUTHORITY OR A RESIDENT OF THAT CONTRACTING STATE. WHERE HOWEVER, THE PERSON PAYING THE ROYALTIES, FEES FOR TECHNICAL SERVICES OR THE PAYMENTS FOR THE USE OF EQUIPMENT, WHETHER HE IS A RESIDE NT OF A CONTRACTING STATE OR NOT, HAS IN A CONTRACTING STATE A PERMANENT ESTABLISHMENT OR A FIXED BASE IN CONNECTION WITH WHICH THE CONTRACT UNDER WHICH THE ROYALTIES, FEES FOR TECHNICAL SERVICES OR THE PAYMENTS FOR THE USE OF EQUIPMENT ARE PAID WAS CONCLU DED, AND SUCH ROYALTIES, FEES FOR TECHNICAL SERVICES OR PAYMENTS FOR THE USE OF EQUIPMENT ARE BORNE BY SUCH PERMANENT ESTABLISHMENT OR FIXED BASE, THEN SUCH ROYALTIES . 33 . ON A PERUSAL OF ARTICLE 13 EXTRACTED ABOVE, IT COULD BE SEEN THAT, THE WORD ROYALT IES IS BEING DEFINED TO INCLUDE PAYMENTS RECEIVED FOR THE USE OF, OR THE RIGHT TO USE, ANY COPYRIGHT OF LITERARY, ARTISTIC OR SCIENTIFIC WORK ETC. IT IS EVIDENT FROM A READING OF THE SAID ARTICLE 13 THAT, ROYALTIES COVERS WITHIN ITS FOLD PAYMENTS PERTAINING TO COPYRIGHT OF LITERARY, ARTISTIC WORK ETC. AND SINCE, THE ABOVE TERMS I.E. COPYRIGHT OF LITERARY, ARTISTIC WORK ETC. HA S N EITHER BEEN DEFINED OR ILLUSTRATED UNDER INCOME - TAX ACT NOR UNDER PRESENT DOUBLE TAXATION AVOIDANCE AGREEMENT BE TWEEN INDIA AND FRANCE , WE NEED TO PLACE RELIANCE FROM RELEVANT PROVISIONS OF INDIAN COPYRIGHT ACT, 1957 IN ORDER TO UNDERSTAND THE TRUE MEANING AND CONTEXT FOR USAGE OF THE EXPRESSION COPYRIGHT OF LITERARY, ARTISTIC WORK ETC. IN TH IS REGARD WE SEEK SUPPORT FROM THE CASE OF GRACEMAC CORPORATION (SUPRA) WHEREIN IT HAS BEEN OBSERVED BY THE ITAT THAT, IN ABSENCE OF MEANING OF COPYRIGHT UNDER INCOME - TAX ACT OR DOUBLE TAXATION AVOIDANCE AGREEMENT RELIANCE NEEDS TO BE PLACED UPON THE INDIAN COPYRIGHT ACT, 1957 FOR THE LIMITED PURPOSE OF FINDING OUT THE TRUE MEANING AND CONTEXT FOR USAGE OF EXPRESSION COPYRIGHT . MOREOVER, WE FIND THAT T HE JURISDICTIONAL HIGH COURT IN THE CASE OF SUPER CASSETTES IN DUSTRIES LIMITED V. MR. CHINTAMANI RAO AND ORS., 2012(49)PTC1(DEL) HAD HELD THAT, COPYRIGHT IS A STATUTORY RIGHT, AND NO PERSON IS P A G E | 30 ENTITLED TO CLAIM COPYRIGHT OR ANY SIMILAR RIGHT IN ANY WORK, OTHERWISE THAN IN TERMS OF SECTION 16 OF THE COPYRIGHT ACT, 195 7. HENCE , WHATEVER RIGHTS ARE CLAIMED BY THE PARTIES, MUST SPRING FROM THE ACT AND THERE ARE NO EQUITABLE RIGHTS WHICH EITHER PARTY CAN CLAIM UNDER THE LAW OF COPYRIGHT . THEREFORE, IN LIGHT OF THE ABOVE OBSERVATIONS, THE ASSESSEES SUBMISSION THAT, THE MEANING IN RESPECT TO T HE WORDS COPYRIGHT OF LITERARY, ARTISTIC WORK SHOULD BE GIVEN THE ORDINARY LITERAL MEANING INSTEAD OF LENDING IT FROM THE COPYRIGHT ACT CANNOT BE ACCEPTED AND WE NEED TO LOOK INTO COPYRIGHT ACT FOR THE LIMITED PURPOSE OF FIND ING OUT THE TRUE MEANING AND CONTEXT OF THE WORDS COPYRIGHT OF LITERARY, ARTISTIC WORK . 34. IN THE PRESENT CASE, THE STAND ADOPTED BY THE ASSESSEE HAS BEEN THAT NEWS REPORTS AND PHOTOGRAPHS DISTRIBUTED BY IT IS IN THE NATURE OF REPORTING MERE FACTS OR CURRE NT NEWS WHICH AT BEST COULD QUALIFY AS WORKS HAVING LITERARY QUALITY IN ITS GENERIC OR DICTIONARY MEANING BUT NOT THE LEGAL CONNOTATION AS IS RENDERED FOR ORIGINAL LITERARY WORK HAVING ANY COPYRIGHTABLE VALUE IN TERMS OF COPYRIGHT ACT 1957. IN THIS REGARD, UPON A READING OF SECTION 13(1)(A) OF THE COPYRIGHT ACT 1957 IT IS EVIDENT TO NOTE THAT, ANY A CQUISITION OF COPYRIGHT FOR ANY KIND OF EXPRESSION OF AN EVENT OR FACTUAL SCENARIO IS AN AUTOMATIC PROCESS AND DOES NOT REQUIRE ANY RIGOURS OF FORMALITY FOR REGISTRATION OR EVEN CLAIM BY THE AUTHOR OF SUCH WORK. IN TERMS OF OUR DISCUSSION IN THE EARLIER PA RAS, SINCE THE LIMITED PURPOSE OF IMPORT OF RELEVANT CLAUSES OF COPYRIGHT ACT 1957 INTO THE INSTANT CASE IS CLEAR, THE POINT WHICH REQUIRED DUE ATTENTION IS THAT IN ORDER TO QUALIFY AS ORIGINAL LITERARY WORK IN WHICH COPYRIGHT SUBSISTS SUCH WORKS NEED TO SATISFY THE TEST OF DE MINIMIS. THE PRINCIPLE OF DE MINIMIS IS GENERALLY USED TO COURTS TO DETERMINE INFRINGEMENT OR COPYRIGHT VIOLATION DISPUTES. TO PUT IT SIMPLY, THE EXPRESSION DE MINIMIS MEANS THAT LAW WILL NOT RESOLVE PETTY OR UNIMPORTANT DISPUTES. 35 . THE JURISDICTIONAL HIGH COURT IN THE CASE OF INDIA TV INDEPENDENT NEWS SERVICE PVT. LTD. & ORS V YASHRAJ FILMS REPORTED IN 192 (2012) DLT 502 HAS OBSERVED THAT DE MINIMIS COULD BE TRANSLATED AS (I) THE LAW DOES NOT CONCERN ITSELF WITH TRIFLES (II) TH E LAW DOES NOT REGARD TRIFLES AND (III) THE LAW CARES NOT FOR SMALL THINGS. FURTHER, THE WORLD TRIFLE IS BEING UNDERSTOOD BY THE COURTS AS P A G E | 31 UNIMPORTANT OR UNSUFFICIENT. IN VIEW OF THE ABOVE GUIDELINES, IT REQUIRES TO BE ASCERTAINED WHETHER IN THE INSTANT CA SE THE NEWS STORIES/ CURRENT NEWS DISTRIBUTED BY THE ASSESSEE SATISFY THE DE MINIMIS RULE. 36 . COPY - RIGHT IS REFERRED TO (IN SALMOND'S JURISPRUDENCE, 11TH EDITION, P. 462) AS AN IMMATERIAL FORM OF PROPERTY RECOGNISED BY LAW, BEING THE PRODUCT OF HUMAN SKILL AND LABOUR OR OF A MAN'S BRAINS. IN ALL THE ENGLISH TEXT BOOKS AND WHICH IT IS UNNECESSARY TO REFER AT LENGTH, COPYRIGHT HAS BEEN REGARDED AS INCORPOREAL MOVABLE PROPERTY AND THAT VIEW HAS BEEN ADOPTED IN OUR COUNTRY AS WELL. THE AFORESAID POSITION H AS BEEN EXPLAINED IN THE CASE OF SAVITRI DEVI V. DWARAKA PRASAD, AIR1939ALL305 . 37 . IN THE CASE OF R.C. COOPER V. UNION OF INDIA , 1970 3 SCR 530 , AN ELEVEN - JUDGE BENCH AT PAGE 67 OF THE JUDGMENT IT HAS BEEN OBSERVED THAT: - BY ENTRY 42 IN THE CONCURRENT LIST POWER WAS CONFERRED UPON THE PARLIAMENT AND THE STATE LEGISLATURES TO LEGISLATE WITH RESPECT TO 'PRINCIPLES ON WHICH COMPENSATION FOR PROPERTY ACQUIRED OR REQUISITIONED FOR PURPOSE OF THE UNION OR FOR ANY OTHER PUBLIC PUR POSE IS TO BE DETERMINED AND THE FORM IN WHICH SUCH COMPENSATION IS TO BE GIVEN'. POWER TO LEGISLATE FOR ACQUISITION OF PROPERTY IS EXPENDABLE ONLY UNDER ENTRY 42 OF LIST III, AND NOT AS AN INCIDENT OF THE POWER TO LEGISLATE IN RESPECT OF A SPECIFIC HEAD O F LEGISLATION IN ANY OF THE THREE LISTS. UNDER THAT ENTRY PROPERTY CAN BE COMPULSORILY ACQUIRED. IN ITS NORMAL CONNOTATION PROPERTY MEANS THE 'HIGHEST RIGHT A MAN CAN TO ANYTHING BEING THAT RIGHT WHICH ONE HAS TO LANDS OR TENEMENTS, GOODS OR CHAT TE LS WHICH DOES NOT DEPEND ON ANOTHER'S COURTESY ; IT INCLUDES OWNERSHIP, ESTATES AND INTERESTS IN CORPOREAL THINGS, AND ALSO RIGHTS SUCH AS TRADE - MARKS COPYRIGHTS, PATENTS AND EVEN RIGHTS IN PERSON CAPABLE OF TRANSFER . OR TRANSMISSION, SUCH AS DEBTS ; AND SIGNIFIE S A BENEFICIAL RIGHT TO OR A THING CONSIDERED AS HAVING A MONEY VALUE ESPECIALLY WITH REFERENCE TO TRANSFER OR SUCCESSION, AND TO THEIR CAPACITY OF BEING INJURED . 38 . IT HAS BEEN OBSERVED BY THE HONBLE PRIVY COUNCIL IN THE CASE OF AIR 1924 PC 75 (MACMILLAN & CO. VS . K&J. COOPER THAT, COPYRIGHT IS THE PRODUCT OF THE LABOUR, SKILL AND CAPITAL OF ONE MAN WHICH MUST NOT BE APPROPRIATED BY ANOTHER, NOT THE ELEMENTS, THE RAW MATERIAL, IF ONE M A Y USE THE EXPRESSION, UPON WHICH THE LABOUR A ND SKILL AND CAPITAL OF THE FIRST HAVE BEEN EXPENDED. TO SECURE COPYRIGHT FOR THIS PRODUCT IT IS NECESSARY THAT LABOUR SKILL AND CAPITAL EXPENDED SHOULD BE SUFFICIENT TO IMPART TO THE PRODUCT SOME QUALITY OR CHARACTER WHICH THE RAW MATERIAL DID NOT POSSESS , AND WHICH DIFFERENTIATES THE PRODUCT FROM THE RAW MATERIAL. P A G E | 32 39 . IN HALSBURY'S LAWS OF ENGLAND BY LORD HAILSHAM FOURTH EDITION THE FOLLOWING OBSERVATIONS ARE MADE: ONLY ORIGINAL WORKS ARE PROTECTED UNDER PART I OF THE COPYRIGHT ACT 1956, BUT IT IS NOT REQUISITE THAT THE WORK SHOULD BE THE EXPRESSION OF ORIGINAL OR INVENTIVE THOUGHT, FOR COPYRIGHT ACTS ARE NOT CONCERNED WITH THE ORIGINALITY OF IDEAS, BUT WITH THE EXPRESSION OF THOUGHT, AND, IN THE CASE OF A LITERARY WORK, WITH THE EXPRESSION OF THOUGHT I N PRINT OR WRITING .... THERE IS COPYRIGHT IN ORIGINAL DRAMATIC WORKS AND ADAPTATIONS THEREOF, AND SUCH COPYRIGHT SUBSISTS NOT ONLY IN THE ACTUAL WORDS OF THE WORK BUT IN THE DRAMATIC INCIDENTS CREATED, SO THAT IF THESE ARE TAKEN THERE MAY BE AN INFRINGEMEN T ALTHOUGH NO WORDS ARE ACTUALLY COPIES. THERE CANNOT BE COPYRIGHT IN MERE SCIENCE EFFECTS OR STAGE SITUATIONS WHICH ARE NOT REDUCED INTO SOME PERMANENT FORM. 40 . SIMILARLY, IT WAS POINTED OUT BY COPING ER IN HIS BOOK ON COPYRIGHT 11 TH EDITION THAT WHAT IS PROTECTED IS NOT THE ORIGINAL THOUGHT BUT EXPRESSION OF THOUGHT IN A CONCRETE FORM. IN THIS CONNECTION, THE AUTHOR MAKES THE FOLLOWING OBSERVATIONS BASED ON THE CASE LAW: WHAT IS PROTECTED IS NOT ORIGINAL THOUGHT OR INFORMATION, BUT THE ORIGINAL EXPRESSION OF THOUGHT OR INFORMATION IN SOME CONCRETE FORM . CONSEQUENTLY, IT IS ONLY AN INFRINGEMENT IF THE DEFENDANT HAS MADE AN UNLAWFUL USE OF THE FORM IN WHICH THE THOUGHT OR INFORMATION IS EXPRESSED. THE DEFENDANT MUST TO BE LIABLE, HAVE MADE A SUBSTANTIAL USE OF THIS FORM; HE IS NOT LIABLE IF HE HAS TAKEN FROM THE WORK THE ESSENTIAL, IDEAS HOWEVER ORIGINAL, AND EXPRESSED THE IDEA IN HIS OWN FORM, OR USED THE IDEA FOR HIS OWN PURPOSES . 4 1 . IN ARTICLE 418 COPINGER STATES THUS: - IN MANY CASES THE ALLEGED INFRINGEMENT DOES NOT CONSIST OF AN EXACT, OR VERBATIM COPY, OF THE WHOLE, OR ANY PART, OF THE EARLIER WORK, BUT MERELY RESEMBLES IT IN A GREATER OR LESSER DEGREE. 42 . THERE CAN BE NO COPYRIGHT IN AN IDEA, SUBJECT MATTER, THEMES, PLOTS O R HISTORICAL OR LEGENDARY FACTS WHILE, COPYRIGHT WOULD SUBSIST ON THE FORM, MANNER, ARRANGEMENT AND EXPRESSION OF THE IDEA BY THE AUTHOR OF A COPYRIGHT WORK. 43 . THE POSITION HAS BEEN PUT BEYOND ANY DOUBT OR DEBATE BY THE MOST RECENT DECISION OF THE SUPRE ME COURT OF INDIA IN EASTERN BOOK COMPANY V D.S MODAK [(2008) 1 SCC 1] . AFTER EXHAUSTIVE REVIEW OF CASE LAW, THE APEX COURT HELD THAT THE TEST OF ORIGINALITY IS ONE THAT SHOULD CONSIST OF SKILL, LABOUR AND JUDGMENT COUPLED WITH SOME INTELLECTUAL EFFORT OR IN THE WORDS OF FEIST 'A MODICUM OF CREATIVITY ' . P A G E | 33 44 . IN TERMS OF THE EMERGING PRINCIPLES FROM THE ABOVE DISCUSSION, WE NOTE THAT IT IS A SETTLED LEGAL PROPOSITION THAT IN ORDER TO DETERMIN E A COPYRIGHTABLE WORKS OR ORIGINAL LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS ETC. ( AS I N THE INSTANT CASE ) THE KEY TEST TO BE ADOPT ED IS THAT SUCH WORKS SHOULD HAVE A MODICUM OF CREATIVITY INVOLVING CONSIDERABLE SKILL, LABOUR, CAPITAL AS HELD IN MACMILLAN & CO. V. K&J. COOPER (SUPRA) . 45 . IN THE ABOVE LIGHT, IT IS RELEVANT TO GO INTO KEY CLAUSES OF THE DISTRIBUTION AGREEMENTS ENTERED INTO BY THE ASSESSEE : 1. AGREEMENT WITH PTI 5. EXCLUSIVELY A. AFP UNDERTAKES THAT DURING THE TERM OF THIS AGREEMENT, NEITHER ITSELF NOR THROUGH ANY AGENT OR OTHER PERSON/ENTITY LAWFULLY ACTING FOR IT WILL DIRECTLY OR INDIRECTLY SUPPLY THE INFORMATION TO ANY OTHER NEWS AGENCY IN INDIA IN RESPECT OF THE SALE AND REDIST RIBUTION RIGHTS GRANTED TO PTI AS LIMITED AND SET FORTH IN SCHEDULE B 3.A. B. AFP UNDERTAKES NOT TO SELL DIRECTLY OR INDIRECTLY ANY INFORMATION OUTSIDE INDIA TO ANY PERSON KNOWING OR HAVING REASON TO BELIEVE THAT SUCH INFORMATION WOULD BE RESOLD, EITHER D IRECTLY OR INDIRECTLY, TO ANY NEWS AGENCY IN INDIA, OTHER THAN PTI. IF CONTRAVENTION IS BROUGHT TO THE NOTICE OF AFP, AFP SHALL IMMEDIATELY STOP PROVIDING INFORMATION TO COMPETING ENTITY OTHER THAN PTI FOR INDIAN TERRITORY 6. SCOPE OF THE AGREEMENT PTI AC KNOWLEDGES THAT AFP IS THE OWNER OF ALL INFORMATION PROVIDED TO IT , AND THAT PTI UNDER THIS AGREEMENT IS AUTHORISED TO USE THE INFORMATION ONLY FOR THE TERM OF THIS AGREEMENT. AII RIGHTS WITH RESPECT TO THE INFORMATION, NOT, EXPLICITLY GRANTED TO PTI ARE R ESERVED TO AFP. CONTINUED USE OF THE INFORMATION AFTER TERMINATION OR EXPIRATION OF THIS AGREEMENT IS FORBIDDEN. 8. DISTRIBUTION RESTRICTIONS AFP HAS RESERVED THE EXCLUSIVE RIGHT TO DETERMINE WHO RECEIVES ITS INFORMATION AND TO RESTRICT THE RETRANSMISS ION, DISTRIBUTION OR METHOD OF DISTRIBUTION OF ITS INFORMATION. THESE RESTRICTIONS ARE SET FORTH IN SCHEDULE B. SCHEDULE B LICENSED USES OF THE INFORMATION 1. ONLY THE SPECIFIC USES ENUMERATED IN THIS SCHEDULE ARE GRANTED. THIS LICENSE SHALL BE STRICTLY CONSTRUED . IT IS UNDERSTOOD THAT ANY USE THAT EXCEEDS THE LICENSE GRANTED HEREIN SHALL VIOLATE AFP RIGHTS. 2. A LICENCE FOR THE PURPOSE SPECIFIED IN SCHEDULE B 3 ONLY ALLOWING PTI TO DISTRIBUTE THE AFP INFORMATION DESCRIBED IN SCHEDULE A 1. 3.A. PTI MAY DISTRIBUTE AS PART OF ITS SERVICES IN ENGLISH AND HINDI (BHASHA) FOR RESALE WITHIN THE REPUBLIC OF INDIA ANY PART OF THE INFORMATION (AS DEFINED ABOVE) TO ONLY THE FOLLOWING: P A G E | 34 PRINT NEWSPAPERS AND NEWS MAGAZINES; AND RADIO & . TV BROADCASTERS. SUCH RIGHTS OF SALE - AND DISTRIBUTION SHALL EXCLUDE THE FOLLOWING: THE INTERNET OR ANY WEB SITE. ANY STORAGE DEVICE INCLUDING BUT NOT LIMITED TO CD ROMS, ARCHIVAL SYSTEMS OR DATABASES; ANY ONLINE PUBLICATION SERVICE. ADVERTISING, PROMOTIONAL OR PR COMPA NIES. PUBLISHERS OF BOOKS AND PERIODICALS. TELECOMMUNICATIONS COMPANY FOR DISTRIBUTION VIA MESSAGING SERVICES INCLUDING BUT NOT LIMITED TO THE FOLLOWING FORMATS: TEXT, HTML, XML, WML IN ANY WAP, MMS, I - MODE OR LIKE SERVICES. DISTRIBUTORS, AGGREGATORS AN D OTHER PROFESSIONAL INTERMEDIARIES. ANY OTHER USE NOT SPECIFICALLY ENDORSED IN THIS AGREEMENT. 3.B PRINT NEWSPAPERS AND NEWS MAGAZINES, RADIO & TV BROADCASTERS MAY SUBSCRIBE THROUGH PTI TO THE FULL AFP NEWS SERVICE IN ENGLISH ON THE TERMS SPECIFIED IN S CHEDULE D1.B 3.C PTI SHALL ENDEAVOR TO PROMOTE, AND AFP SHALL GIVE ITS FULL SUPPORT TO SELL THE FULL WIRE DESCRIBED IN SCHEDULE A 1. TO PRINT NEWSPAPERS, NEWS MAGAZINES AND RADIO AND TV BROADCASTERS. 9. ARCHIVING PTI OR PTI'S CUSTOMER MAY ARCHIVE ONLY THAT SUBSET OF AFP INFORMATION THAT HAS APPEARED IN THE PTI'S OR PTI'S CUSTOMER PUBLICATION. SUCH ARCHIVES MAY BE USED BY PTI OR PTI'S CUSTOMER FOR INTERNAL, CONSULTATION PURPOSES ONLY FOR THE DURATION OF THIS AGREEMENT. IF PTI WISHES TO USE THE ARCHIVES W HICH COMPRISE AFP INFORMATION FOR COMMERCIAL PURPOSES, AFP SHALL CHARGE A FEE. AFP INFORMATION MAY NOT BE POSTED, COPIED OR INCLUDED IN ANY PRODUCT OF ANY KIND EXCEPT FOR THOSE SET FORTH IN SCHEDULE B3. ADD AGREEMENT WITH HT MEDIA LTD. CLAUSE 5 COPYRIGHT S UBSCRIBER ACKNOWLEDGES THAT AFP IS THE COPYRIGHT OWNER OF ALL INFORMATION PROVIDED TO IT, AND THAT THIS AGREEMENT CONSTITUTES A LICENSE TO USE THE INFORMATION ONLY FOR THE TERM OF THIS AGREEMENT SUBSCRIBER FURTHER ACKNOWLEDGES THAT NOTING IN THE AGREEMENT SHALL CONSTITUTE A SALE OR OTHER TRANSFER OF TITLE OR ANY RIGHTS FROM AFP TO SUBSCRIBER FOR ANY OF THE INFORMATION. ALL RIGHTS WITH RESPECT TO THE INFORMATION NOT EXPLICITLY GRANTED TO SUBSCRIBER ARE RESERVED TO AFP. ANY USE OF THE INFORMATION PROVIDED BY AFP NOT SPECIFICALLY GRANTED TO SUBSCRIBER HEREUNDER SHALL BE DEEMED, IN ADDITION TO A BREACH OF CONTRACT, A COPYRIGHT INFRINGEMENT. CONTINUED USE OF THE INFORMATION AFTER TERMINATION OR EXPIRATION OF THIS AGREEMENT SHALL BE DEEMED A COPYRIGHT INFRINGEMENT IN ADDITION TO A BREACH OF CONTRACT, AND AFP SHALL BE ENTITLED TO AVAIL ITSELF TO THE FULL REMEDIES AT LAW PROVIDED FOR BOTH COPYRIGHT INFRINGEMENT AND BREACH OF CONTRACT WITHOUT LIMITATION. SCHEDULE B - CLAUSE 8 8. CRED IT A. IN ANY DISPLAY OR REPUBLICATION OR REDISTRIBUTION OF ANY OF THE INFORMATION RECEIVED BY SUBSCRIBER FROM AFP, SUBSCRIBER SHALL ENSURE THAT AFPS COPYRIGHT NOTICE OR CREDIT LINE (AFP) SHALL APPEAR ON AFPS P A G E | 35 INFORMATION. COPYRIGHT NOTICE SHALL READ AS FOLLO WS: (C) AFP 2004 OR IN THE ALTERNATIVE, COPYRIGHT AFP, 2004. THE CREDIT LINE FOR PHOTOS SHALL READ AFP OR AFP PHOTO AND THE NAME OF THE PHOTOGRAPHER EXCEPT AS OTHERWISE INDICATED BY AFP. AFP SHALL NOTIFY SUBSCRIBER WHICH METHOD OF CREDIT ACKNOWLEDG EMENT IS TO BE USED. B. IN THE EVENT OF PUBLICATION AFP MATE RIAL IN ELECTRONIC FORM, THE AFP CREDIT LINE AND COPYRIGHT NOTICE MUST APPEAR WITH EACH STORY. THE COPYRIGHT NOTICE SHALL BE HYPERTEXT LINK TO THE AFP END - USER LANGUAGE AS SET FORTH IN SCHEDULE E . ADDITIONALLY, WHERE HEADLINES LINK TO AFP STORIES, AN AFP CREDIT LINE OR LOGO MUST APPEAR IN CONJUNCTION WITH THE HEADLINE. SCHEDULE E - CLAUSE 3 3. SUBSCRIBER WILL MAKE THE FOLLOWING LANGUAGE (OR LANGUAGE ACCEPTABLE TO BOTH PARTIES) A PART OF ITS SUBSC RIBER/ END - USER AGREEMENT AND WILL MAKE IT AVAILABLE TO SUBSCRIBER S AND END - USERS OF ITS WEB SITE BY EFFECTING A HYPERTEXT LINK FROM EACH WEB PAGE TO A PAGE DISPLAYING SUCH LANGUAGE. COPYRIGHT AFP OR AGENCE FRANCE - PRESSE,2004/2005) AFP TEXT, PHOTOS, GRAP HICS AND LOGOS SHALL NOT BE REPRODUCED , PUBLISHED, BROADCAST, REWRITTEN FOR BROADCAST OR PUBLICATION OR REDISTRIBUTED DIRECTLY OR INDIRECTLY IN ANY MEDIUM. AFP SHALL NOT BE HELD LIABLE FOR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN ANY AFP CONTENT, OR FOR ANY ACTIONS TAKEN IN CONSEQUENCE. ADD AGREEMENT WITH PTI CLAUSE 5 5. EXCLUSIVELY A. AFP UNDERTAKES THAT DURING THE TERM OF THIS AGREEMENT, NEITHER ITSELF NOR THROUGH ANY AGENT OR OTHER PERSON/ ENTITY LAWFULLY ACTING FOR IT WILL DIRECTLY OR INDIRECTLY SUPPLY THE INFORMATION TO ANY OTHER NEWS AGENCY IN INDIA IN RESPECT OF THE SALE AND REDISTRIBUTION RIGHTS GRANTED TO PTI AS LIMITED AND SET FORTH IN SCHEDULE B.3.A B. AFP UNDERTAKES NOT TO SETT DIRECTLY OR INDIRECTLY ANY INFORMATION OUTSIDE INDI A TO ANY PERSON KNOWING OR HAVING REASON TO BELIEVE THAT SUCH INFORMATION WOULD BE RESOLD, EITHER DIRECTLY OR INDIRECTLY, TO ANY NEWS AGENCY IN INDIA, OTHER THAN PTI. IF CONTRAVENTION IS BROUGHT TO THE NOTICE OF AFP, AFP SHALL IMMEDIATELY STOP PROVIDING IN FORMATION TO COMPETING ENTITY OTHER THAN PTI FOR INDIAN TERRITORY. CLAUSE 16 WARRANTY A. AFP HEREBY WARRANTS AND PRESENTS WITH RESPECT TO ITS INFORMATION THAT IT IS THE SOLE OWNER OR HAS THE RIGHT TO LICENSE THE INFORMATION PROVIDED TO PTI UNDER THIS AGRE EMENT. NORMAL INDUSTRY PRACTICE REQUIRES AFP TO EXERCISE APPROPRIATE JOURNALISTIC EFFORTS, BUT THE PARTIES ACKNOWLEDGE THAT IN NORMAL INDUSTRY PRACTICE, ERRORS OCCUR, AND AFP MAKES NO GUARANTEES AS TO THE SEQUENCE, COMPLETENESS, ABSENCE OF ERRORS IN ITS IN FORMATION, BUT UNDERTAKES TO CORRECT ANY INACCURACIES OR ERRORS WHICH MAY OCCUR WHEN BROUGHT TO ITS NOTICE. B. PTI WARRANTS IT HAS THE RIGHTS TO ENTER THIS AGREEMENT AND BY ENTERING THIS AGREEMENT OR CARRYING OUT THE TERM OF THIS AGREEMENT, IT WILL NOT CA USE AFP TO BE LIABLE TO ANY INDIVIDUAL OR ENTITY FOR ANY REASON WHATSOEVER. P A G E | 36 C. NO WARRANTY OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION AND ABOVE ARE MADE. THESE CONSTITUTE THE ONLY WARRANTIES MADE BY THE PARTIES WITH RESPECT HE RETO AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. ADD AGREEMENT WITH IANS SCHEDULE C (CLAUSE 5, CLAUSE 6) 5. THIS LICENSE IS NON - EXCLUSIVE 6. AFPS INFORMATION IS PROVIDED TO IANS AS DIRECT NEWS COY FROM ITS REAL - TIME NEWSWIRES. AS SUCH, THE INFORMATION WITHIN THE NORMAL CONTEXT OF A NEWSWIRE WILL COMPRISE CONTEMPORANEOUS NEWS COVERAGE THAT BY THE NATURE OF DEVELOPING EVENTS MAY CONTAIN ERRORS INCLUDING SEQUENCE, COMPLETENESS, ACCURACY AND/ OR RELIABILITY. IN PROVIDING THE INFORMATION TO IANS FOR PUBLISHING. AFP EXPECTS THAT THE INFORMATION MAY REQUIRE EDITORIAL INTERVENTION BY THE IANS ON A TIMELY BASIS WHEN NOTIFIED BY AFP, AND THAT IAMS WILL BE SOLELY RESPONSIBLE FOR THE TECHNICAL IMPLEMENTATION AND PRESENTATION OF THE INFORMATION BOTH ON AN AUTOMATED OR EDITORIAL BASIS. CLAUSE 9 9. CREDIT IN ANY DISPLAY OR REPUBLICATION OR REDISTRIBUTION OF ANY OF THE INFORMATION RECEIVED BY IANS FROM AFP, IANS SHALL ENSURE THAT AFPS COPYRIGHT NOTICE OR CREDIT LINE (AFP) SHALL APPEAR ON AFPS INFORMATION. COPYRIGHT NOTICE SHALL READ AS FOLLOWS: (C) AFP 2005/6 OR IN THE ALTERNATIVE, COPYRIGHT AFP. 2005/6. THE CREDIT LINE FOR PHOTOS SHALL READ AFP OR AFP PHOTO AND THE NAME OF THE PHOTOGRAPHER EXCEPT AS OTHERWISE INDICATED BY AFP. AFP SHALL NOTIFY IANS WHICH METHOD OF CREDIT ACKNOWLEDGEMENT IS TO BE USED. CLAUSE 17 COPYRIGHT IANS ACKNOWLEDGES THAT AFP IS THE COPYRIGHT OWNER OF ALL INFORMATION PROVI DED TO IT AND THAT THIS AGREEMENT CONSTITUTES A LICENSE TO USE THE INFORMATION ONLY FOR THE TERM OF THIS AGREEMENT. IANS FURTHER ACKNOWLEDGES THAT NOTING THE AGREEMENT SHALL CONSTITUTE A SALE OR OTHER TRANSFER OF TITLE OR ANY RIGHTS FROM AFP TO IANS FOR AN Y OF THE INFORMATION. ALL RIGHTS WITH RESPECT TO THE INFORMATION PROVIDED BY AFP NOT SPECIFICALLY GRANTED TO IANS HEREUNDER SHALL BE DEEMED, IN ADDITION TO A BREACH OF CONTRACT, A COPYRIGHT INFRINGEMENT. CONTINUED USE OF THE INFORMATION AFTER TERMINATION O R EXPIRATION OF THIS AGREEMENT SHALL BE DEEMED A COPYRIGHT INFRINGEMENT IN ADDITION TO A BREACH OF CONTRACT AND AFP SHALL BE ENTITLED TO AVAIL ITSELF TO THE FULL REMEDIES AT LAW PROVIDED FOR BOTH COPYRIGHT INFRINGEMENT AND BREACH OF CONTRACT WITHOUT LIMITA TION. CLAUSE 19 MODIFICATION A) IN THIS REGARD AFPS INFORMATION PROVIDED TO IANS, IANS WILL NOT MODIFY, TRANSLATE, AND/ OR EDIT THE INFORMATION IN ANY MANNER THAT DISTORTS THE MEANING OR CAUSES OTHERWISE NON - DEFAMATORY, NON - INFRINGING INFORMATION TO DEFA ME OR INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON, OR OTHERWISE VIOLATE ANY PERSONS PERSONAL PROPRIETARY OR PRIVACY RIGHTS. P A G E | 37 B) IN REGARD TO PHOTOGRAPHS, IANS WILL LIMIT ITS MODIFICATION OF ANY PHOTOGRAPHS TO LIGHTENING, DARKENING OR COPPING. HOWEVER, NONE OF THE ABOVE EDITS MAY DISTORT THE CONTENT OF THE PHOTOGRAPHS. 4 6 . ON A READING OF RELEVANT CLAUSES OF VARIOUS DISTRIBUTION AGREEMENT S EXTRACTED ABOVE , WE OBSERVE THAT AFP EXERCISE S A GREAT DEGREE OF CONTROL AND STRICTLY REGULATES ITS NEWS - CONTENT SUPPLIED BY IT TO INDIAN NEWS AGENCIES AND MOST OF ITS INFORMATION IS PROPRIETARY - IN - NATURE AND COPYRIGHTED INASMUCH AS ACCESS TO ARCHIVED DATA, DISTRIBUTION RIGHTS, COMMERCIAL RIGHTS, CREDIT TO AFP ALONGWITH COPYRIGHT SYMBOL AFP OR WITHOUT COPYRIGHT SYMBOL AFP (AS MAY BE DETERMINED BY AFP IN TERMS OF ITS INTERNAL POLICY ) , WHICH CAN BE USED EXCEPT AS PER TERMS OF AFP . 47 . FURTHER, WE NOTE THAT IN THE INSTANT CASE THE NEWS THAT IS DISTRIBUTED BY THE ASSESSEE TO VARIOUS NEWS AGENCIES ARE OBTAINED FROM DIFFERENT SOURCES INCLUDING AFP S OWN PERSONNEL, DOMESTIC AS WELL AS INTERNATIONAL NEWS CORRESPON DENTS , AND OTHER AGENCIES ETC . WHO HAVE A GOOD AMOUNT OF EXPERIENCE IN NEWS REPORTING. SUCH NEWS STORIES AS OBTAINED BY AFP IS FURTHER EVALUATED AND PROCESSED BY ITS E DITORIAL TEAM WHICH COMPRISES OF A NETWORK OF SENIOR JOURNALISTS WHO ARE THE BEST JOURNALISTIC MINDS IN NEWS BUSINESS POSSESSING SPECIALIZED SKILLS AND A RE CAPABLE OF COMING OUT WITH NEWS - STORIES HAVING A DISTINCT FEATURE AND INNATE QUALITY . IT IS FOR THIS VERY DISTINCT FEATURE AND INNATE QUALITY THAT AFP NEWS IS PREFERRED AND IS REVERED TO AS ONE OF THE MOST RELIABLE NEWS AGENC IES IN THE WORLD SINCE ITS YEAR OF INCEPTION I.E. 1835 . 48 . ON A PERUSAL OF CLAUSE OF THE AGREEMENT WE UNDERSTAND THAT AFP INVEST S SUBSTANTIAL AMOUNT OF ITS CAPITAL IN ITS PERSONNELS, CORRESPONDENT, EDITORS ETC. AND CREATE ITS OWN UNIQUE QUALITY IN NEWS REPORTING . THIS UNDERSTANDING COULD BE EXPLICATED ON THE PREMISE OF TWO MAIN POINTS I.E. (A) THE NEWS STORY SUPPLIED BY IT CANNOT BE ALTERED BY THE INDIAN NEWS AGENCIES OR OTHER DISTRIBUTORS AND ANY CHANGE IN THE NEWS REPORT S CAN ONLY BE CARRIED OUT BY AFP ITSELF ; (B) THE VOLUME OF NEWS - STORIES SUPPLIED TO EACH INDIVIDUAL USER IS STRICTLY REGULATED INASMUCH AS NEWS - STORIES ABOVE A CERTAIN FIGURE PER DAY WOULD COST MORE AND DEPENDS UPON THE PACKAGE OBTAINED BY A USER . ALSO, NEWS - REPORTING FOR SPECIAL EVENTS SUCH AS COMM ONWEALTH GAMES, OLYMPICS ARE CARRIED OUT FOR SPECIAL RATES P A G E | 38 INSTEAD OF ORDINARY/ REGULAR RATES SINCE AFP HAS TO INCUR COSTS BY WAY OF PLACING SPECIAL CORRESPONDENT I.E. SKILLED HUMAN CAPITAL TO COVER NEWS REPORTING AND MOBILIZATION COSTS F OR VARIOUS RESOURCES/ CREATI ON OF NECESSARY INFRASTRUCTURE IN ORDER TO CAPTURE PHOTOGRAPHS DURING SUCH MEGA EVENTS . IN VIEW OF THE DISCUSSION ABOVE, WE OBSERVE THAT THE INSTANT CASE SATISFIES THE ELEMENTS OF LABOUR, SKILL AND CAPITAL AS ENUNCIATED IN THE CAS E OF AIR 1924 PC 75 (MACMILLAN & CO. VS . K&J. COOPER (SUPRA) . 49 . APROPOS THE QUESTION OF NEWS AND PHOTOGRAPHS BEING THE SUBJECT MATTER OF COPYRIGHT, WE NOTE THAT THE ENTIRE GAMUT OF NEWS SERVICES PROVIDED BY THE ASSESSEE COULD BE SPLIT INTO THREE CATEGORIES FOR THE SAKE OF BREVITY . THE SAID CATEGORIES AS WELL AS OUR COMMENTS ARE OUTLINED BELOW : (A) FIRST CATEGORY NE WS : NEWS PER SE OR HOT NEWS IS NOT COPYRIGHTABLE. THIS POSITION HAS NOT BEEN CONTROVERTED BY EITHER OF THE PARTIES BEFORE US. THE LD. DR HAS ARGUED BEFORE US THAT, IT RAINED TODAY MORNING IS A CURRENT NEWS AND ONE CANNOT CLAIM COPYRIGHT OVER THIS BY CLAIMING THAT IT REPORTED THE EVENT FIRST THEREFORE, NONE ELSE CAN REPORT THIS FACT. IN ADDITION TO THE ABOVE, THE LD. AR SUBMITS BEFORE US THAT REPORTING OF NEWS OR HOT NEWS BEING IN THE NATURE OF A COMMERCIAL PURPOSE COULD NOT BE A DISABLING FACTOR. WE NOTE THAT, THE ASSESSEE IN HIS OWN WORDS HAS TAKEN A DIAMETRICALLY OPPOSITE STAND IN ITS CASE AGAINST GOOGLE INC. BEFORE DISTRICT COURT, COLOMBIA WHEREIN IT HAS ARGUED THAT, STORY HEADLINES AND LEADS ARE QUALITATIVELY THE MOST IMPORTANT ASPECTS OF A STORY AND ARE PAINSTAKINGLY CREATED. 50. IN LIGHT OF THE ABOVE DISCUSSION, APROPOS NEWS PER SE WE ARE OF THE CONSIDERED VIEW THAT THE SAME CONSTITUTES REPORTING OF MERE FACTS CURRENT EVENTS ETC AND THUS CANNOT BE COPYRIGHTED AS IT DOES NOT FULFIL THE REQUIREMENTS ENLISTED UNDER SECTION 13(1)(A) OF THE INDIAN COPYRIGHT ACT 1957. FURTHER, ALSO TAKING NOTICE OF THE FACT THAT THE PARTIES BEFORE US HAVE ADOPTED THE SAME STAND ON COPYRIGHTABLITY OF NEWS PER SE, WE HAVE NO HESITATION IN HOLDING THAT NEWS PER SE IS NOT COPYRIGHTABLE. P A G E | 39 51. FURTHER IT WOULD BE PRUDENT FOR US TO TAKE NOTICE REGARDING A SERIOUS DEBATE GOING ON IN AMERICA BETWEEN NEWS AGGREGATIONS AND NEWS AGENCIES ON THE DOCTRINE OF NOT NEWS WHICH HAS BEEN BROUGHT TO OUR ATTENTION BY THE LD AR HOWEVER WE DO NOT WISH TO EXPRESS ANY VIEWS WITH REGARD TO ITS APPLICABILITY LEAVE IT OPEN. ( B) SECOND CATEGORY - NEWS STORY INCLUDING ARCHIVED NEWS : SINCE IT IS ESTABLISHED ABOVE THAT NEWS PER SE DOES CANNOT BE COPYRIGHTED IT COULD BE STATED THAT, 'THERE IS NO COPYRIGHT OVER NEWS. HOWEVER, THERE IS COPYRIGHT OVER THE WAY IN WHICH A NEWS ITEM IS REPORTED.' IN CONTINUATION TO THE EXAMPLE PUT FORTH BY THE LD DR IN THE FIRST CATEGORY ABOVE, IF A NEWS ITEM OR A STORY IS PUBLISHED BY ANYONE, INDICATING T HE BACKGROUND OF ONGOING HEAT WAVE, RECORDS OF TEMPERATURE, AND HISTORICAL RECORDS OF RAIN IN THE FIRST WEEK OF JUNE AND ALSO RESPITE FROM POWER SHORTAGE OR PROGRESS OF MONSOON, THEN THIS NEWS ITEM/ STORY CANNOT BE REPRODUCED OR USED BY ANYONE WITHOUT PROP ER AUTHORIZATION. 52. FURTHER, SO AS TO APPRECIATE THE DISTINCTION BETWEEN MERE REPORTING OF FACTS FROM NEWS STORIES WHICH CONSTITUTES A FORM OF EXPRESSION , IT WOULD BE WORTHWHILE TO ANALYSE THE RECENT REPORTING ABOUT, MALAYSIA AIRLINES FLIGHT 370 FLIGHT WHICH WAS ON A SCHEDULED INTERNATIONAL PASSENGER FLIGHT FROM KUALA LUMPUR TO BEIJING THAT DISAPPEARED ON 8 MARCH 2014 AFTER LOSING CONTACT WITH AIR TRAFFIC CONTROL LESS THAN AN HOUR AFTER TAKEOFF. IN ONE OF THE NEWSPAPERS I.E. STRAIT TIMES BEING ONE OF THE MOST WIDELY READ NEWSPAPERS IN SINGAPORE, THE CATCHLINE READ AS MALAYSIAS MH 370 REPORT SHOWS DELAYED RESPONSE, OFFERS NO NEW CLUES WHILE, ANOTHER NEWSPAPER THE NEW YORK TIMES REPORTED THIS INCIDENT WITH THE CATCHLINE QUESTIONS OVER ABSENC E OF CELLPHONE CALLS FROM MISSING FLIGHTS PASSENGERS . IT IS TO BE POINTED OUT THAT, THE PIECE REPORTED BY THE FIRST NEWSPAPER CONSISTED OF NEWS INPUTS AS WELL AS PHOTOGRAPHS FROM AFP WHILE, THE LATTER CONSISTED OF NEWS INPUTS FROM NEW YORK TIMES NEWS SE RVICE . 53. FROM A READING OF THE ABOVE NEWS - ITEM, IT IS EVIDENT THAT, EVEN THOUGH THE FACT UM OR NEWS REMAINS TO BE IMBEDDED IN A FACT ITS REPORTING OR FORM AN EXPRESSION MAKES IT UNIQUE. HAVING DISCUSSED THE ABOVE ILLUSTRATION AS WELL AS P A G E | 40 UPON READING OF RELEVANT CLAUSES FROM THE SUBSCRIPTION AGREEMENTS, WE OBSERVE THAT NEWS ARTICLES/NEWS STORY WHICH ARE DISTRIBUTED BY VARIOUS NEWS AGENCIES AROUND THE WORLD INCLUDING THE ASSESSEE POSSESS LITERARY QUALITY AND DOES NOT QUALIFY AS NEWS PER AND SHOULD RIGHTFULLY BE TREATED AS DERIVATIVE OF NEWS IN THE FORM OF A NEWS ITEM/ HEADLINE/ STORY LINE INCLUDING PHOTOGRAPHS (INDEPENDENTLY IN A NEWS CONTEXT OR OTHERWISE.) 54. FURTHER TAKING CUE FROM THE OBSERVATION BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF I NDIA TV INDEPENDENT NEWS SERVICE PVT LTD & ORS V YASHRAJ FILMS REPORTED IN 192(2012) DLT 502, WE NOTE THAT A NEWS ITEM OR NEWS STORY AS DISTRIBUTED BY THE ASSESSEE TO INDIAN NEWS AGENCIES WOULD, IF LOOKED IN CONTRAST TO THE FIRST CATEGORY DISCUSSED ABOVE I S GREATER IN CONTENT AS WELL AS ORIGINAL LITERARY EXPRESSION AND EVEN POSSES INDEPENDENT COMMERCIAL VALUE VI - A - VIS SUBSCRIPTION AGREEMENTS AND HENCE, MOST DEFINITELY DOES NOT CONSTITUTE TRIFLE DETAILS OR NEWS AS COVERED UNDER THE FIRST CATEGORY. 55. IN THE RESULT, WE OBSERVE THAT SUCH NEWS - REPORTS AS WELL AS ARCHIVED DATA BEING IN THE NATURE OF ORIGINAL LITERARY WORKS DOES NOT FALL FOUL TO THE DOCTRINE OF DE MINIMI AND MEET AT STATUTORY REQUIREMENTS FOR COPYRIGHT OUTLINES UNDER SECTION 13(1)(A) OF THE IND IAN COPYRIGHT ACT, 1957. HENCE, IN LIGHT OF FOREGOGING FACTS AND CIRCUMSTANCES INVOLVED IN THE INSTANT CASE IT COULD BE CONCLUDED THAT COPYRIGHT SUBSISTS IN SUCH NEWS ITEM/ NEWS STORY UNDER CONSIDERATION. (C) THIRD CATEGORY - PHOTOGRAPHS : THE LD. DR HAS BRO UGHT TO OUR NOTICE THAT, AFP AND GETTY IMAGES WERE ORDERED TO PAY COMPENSATION TO FREELANCE PHOTOJOURNALIST DANIEL MOREL FOR USING HIS IMAGES POSTED ON TWITTER RELATED TO THE 2010 HAITI EARTHQUAKE WITHOUT HIS PERMISSION, IN VIOLATION OF COPYRIGHT AND TWITT ER'S TERMS OF SERVICE . IN LIGHT OF THE ABOVE FACTUAL CONTEXT, IT COULD BE NOTED THAT WHERE PHOTOGRAPHS TAKEN BY A PROFESSIONAL PHOTOGRAPHER OF OUTSTANDING STATURE HAS UNIQUE AESTHETIC MERIT ELOQUENTLY DEPICTING HUMAN SUFFERING, SUCH A PHOTOGRAPH HAS INTRINSIC VALUE . SIMILARLY, IN THE PRESENT CASE THE PHOTOGRAPHS AS DISTRIBUTED BY THE ASSESSEE IS TAKEN BY A PROFESSIONAL PHOTOGRAPHER OF HIGH LEVELS OF COMPETENCE THUS, ON A READING OF THE SUBSCRIPTION AGREEMENT, IT P A G E | 41 EMERGES THAT THE IMAGES OR PHOTOGRAPHS AS UPLOADED IN THE ASSESSES WEBSITE CANNOT BE ALTERED WITH EXCEPT MINOR FADING EFFECT AND RESIZING. THE CREDIT LINE FOR ASSESSEES PHOTOGRAPHS IS REQUIRED TO DISPLAY A SPECIFIC CREDIT LINE I.E. AFP. 56. IN THE LIGHT, TAKING CUE FROM SECTION 2(C) (I) OF THE INDIAN COPYRIGHT ACT, 1957 CATEGORICALLY INCLUDES PHOTOGRAPHS AS ARTISTIC WORK. IN VIEW OF THE TOTALITY OF FACTS IN THE INSTANT CASE AS WELL AS TERMS OF USAGE OF ASSESSEES PHOTOS FOR NEWS ITEMS OR NON - NEWS ITEMS, IT CANNOT BE DENIED THAT IT HAS AN INTRINSIC VALUE OF ITS OWN AND WHEN USED FOR NEWS ITEMS IT HELP S ASSIST IN CONVEYING THE MESSAGE IN THE NEWS STORY. 57. IN THE RESULT, WE OBSERVE THAT ON A READING OF SECTION 2(C)(I) OF THE INDIAN COPYRIGHT ACT 1957 WHICH DEEMS PHOTOGRAPHS AS ARTISTIC WORKS KEEPING IN VIEW OF THE TERMS OF USE OF SUCH PHOTOGRAPHS VIS - A - VIS SUBSCRIPTION AGREEMENT AS DISCUSSED ABOVE AS WELL AS SEPARATE COMMERCIAL VALUE BEING ASCRIBED TO SUCH PHOTOGRAPHS THE SAME VERY CLEARLY FITS INTO THE SWEEP OF SECTION 13(1) (A) OF THE INDIAN COPYRIGHT ACT 1957 HENCE IT COULD BE CONCLUDED THAT COPYRIGHT SUBSISTS IN SUCH PHOTOGRAPHS/ IMAGE UNDER CONSIDERATION. 58. HAVING DISCUSSED THE FACTUAL POSITION AS WELL AS OUR COMMENTS ABOVE, SINCE THE ASSESSEES IN ITS OWN WORDS HAS DE SCRIBED ITS SERVICES AS ALA CARTE WE OBSERVE THAT DOES NOT EXIST ANY ARTIFICIAL SPLIT OR OTHERWISE FOR NEWS ITEMS WHICH UNDER THE FIRST CATEGORY FROM THOSE FALLING UNDER SECOND OR THIRD CATEGORY AS DISCUSSED IN DETAIL IN EARLIER PARAS. IT HAS NEITHER BEEN ARGUED BEFORE US BY THE ASSESSEE REGARDING ANY ARTIFICIAL SPLIT OR OTHERWISE FOR FIRST CATEGORY ITEMS IN ORDER TO CULL OUT VALUES PERTAINING TO NEWS PER SE. IN ABSENCE OF ANY SPLIT AVAILABL E FROM THE RECORDS IN THIS CASE AND ANY ARGUMENT FOR REMAND WE DO NOT REMAND BACK THIS CASE TO THE FILE OF THE AO. 59 . SINCE WE HAVE ALREADY CONCLUDED IN OUR EARLIER DISCUSSION THAT FIRST CATEGORY ITEMS DOES NOT POSSES THE MINIMUM MODICUM OF CREATIVITY W HILE, KEEPING IN MIND THAT THE ASSESSEE IN THE INSTANT CASE IS PROVIDING A GAMUT OF SERVICE COVERING ALL THREE CATEGORIES WITHOUT ANY SPLIT, ALL OF THE THREE CATEGORIES IN THE CASE OF THE ASSESSEE IS INTERLINKED HENCE, SHOULD BE CONSTRUED AS P A G E | 42 COMPOSITE SERV ICE POSSESSING THE MODICUM OF CREATIVITY . UNDER POINT (B) AND (C) THAT, COPYRIGHT SUBSISTS IN THE NEWS REPORTS AND PHOTOGRAPHS SUPPLIED BY THE ASSESSEE, WE HOLD THAT THE SAME RIGHTFULLY POSESS THE MINIMUM MODICUM OF CREATIVITY. 60 . WE FURTHER OBSERVE T HAT THE LD. AR HAS VOCIFEROUSLY ARGUED BEFORE US THAT , REPORTING OF CURRENT EVENTS IS AN EXCEPTION TO COPYRIGHT INFRINGEMENT AND DRAWS SUPPORT FROM THE BERNE CONVENTION AS WELL AS THE VARIOUS MODELS OF COPYRIGHT LAWS PREVAILING IN COMMON LAW COUNTRIES LIKE UK AS WELL AS USA. IN THIS REGARD, WE NOTE THAT SECT ION 52 OF THE COPYRIGHT ACT STIPULATES CERTAIN ACTS NOT TO BE INFRINGEMENT OF COPYRIGHT . FURTHER, CLAUSE B OF SECTION 52 STIPULATES AS UNDER: (B) A FAIR DEALING WITH A LITERARY, DRAMATIC, MUSICAL OR ARTISTIC WORK FOR THE PURPOSE OF REPORTING CURRENT EVEN TS - (I) IN A NEWSPAPER, MAGAZINE OR SIMILAR PERIODICAL, OR (II) BY [BROADCAST] OR IN A CINEMATOGRAPH FILM OR BY MEANS OF PHOTOGRAPHS. 61 . FROM A READING OF THE ABOVE OUTLINED CLAUSES, IT COULD BE NOTED THAT THE ABOVE CLAUSE IS BEING BUILT INTO THE COPYRIGH T SCHEME IN ORDER TO PROTECTS RIGHTS OF USER OF COPYRIGTABLE WORK. IN OTHER WORDS, FAIR DEALING IS THE RIGHTS OF USER AND NOT OF AN AUTHOR OR OWNER OF COPYRIGHT. THE WHOLE PREMISE OF THE ASSESSEES ARGUMENT IN THE PRESENT CONTEXT BY DRAWING THE CONTOURS OF COPYRIGHTABILITY OVER ITS NEWS - REPORTS OR CURRENT EVENTS IN CONTRADISTINCTION TO NATURE OF RIGHTS POSSESSED BY ITS USERS I.E. INDIAN NEWS AGENCIES IS MISPLACED. 62. THE ASSESSEE HAS IN THE INSTANT CASE BY WAY OF GRANT OF LICENCE TO ITS USERS OBTAINED A COMMERCIAL VALUE FOR DISTRIBUTION OF ITS NEWS WHICH CANNOT COME INTO THE PUBLIC DOMAIN EXCEPT BY VIRTUE OF A LICENSE AGREEMENT. THEREFORE, THE QUESTION OF FAIR DEALING BY THE USER OF INFORMATION COVERING BUNDLE OF FIRST, SECOND AS WELL AS THIRD CATEGORY OF INFORMATION DOES NOT COME INTO PLAY AS IT IS STRICTLY GOVERNED BY THE TERMS OF THE SUBSCRIPTION AGREEMENT AND COMES FOR A COMMERCIAL VALUE HENCE, WE FEEL THAT THE RE FERENCE TO FAIR DEALING IN TERMS OF SECTION 52(1)(B) IS MISPLACED TO THIS EXTENT. P A G E | 43 63 . WE ALSO OB SERVE THAT, WE ARE NOT IN THE INSTANT CASE BEFORE US HERE TO DETERMINE WHETHER THERE HAS BEEN A COPYRIGHT INFRINGEMENT OR NOT BY ANY OF THE CONSUMERS OF THE ASSESSEE IN INDIA , SINCE S ECTION 52 OF THE COPYRIGHT ACT ONLY ENTITLES A DEFENCE TO C ONSUMERS FROM THE PROSECUTION OF THE OF FENSE OF COPYRIGHT INFRINGEMENT; AND IN THIS CASE, THE INFORMATION / NEWS UNDER CONSIDERATION IN THE INSTANT CASE INFRINGEMENT IF ANY DOESNT ARISE, SINCE NEWS CONTENT TRANSMITTED BY AFP / ASSESSE IS NOT IN THE PUBLIC DOMAIN AND IS ADMITTEDLY ACCESS IBLE ONLY BY WAY OF A LICENSE AGREEMENT IN SITUATION WHEREIN SUCH INFORMATION/ NEWS TRANSMITTED BY ASSESSEE TO INDIAN NEWS AGENCY ARISES ONLY IF THE SAME IS PUBLISHED WITHOUT ASSESSES PRIOR PERMISSION IS N OT FOR CONSIDERATION BEFORE US AND SO IS NOT RELEVANT TO SOLVE THE ISSUE BEFORE US. 64 . THUS, IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, WE ARE INCLINED TO AGREE WITH THE VIEW AS ADOPTED BY THE LD CIT(A). AS A RESULT, THIS ISSUE IS ANSWERED IN THE NEGATIVE AND THESE GROUNDS OF APPEAL NOS. 1 TO 4 AS FILED BY THE ASSESSEE IS DISMISSED WITH NO ORDER AS TO COSTS. 65. GROUND NO.5 IS AGAINST THE ACTION OF THE AO IN CHARGING INTEREST U/S 234BOF THE ACT. THE ASSESSEE SUBMITS THAT SECTION 195 PLACES AN OBLIGATION ON THE PAYER TO DEDUCT TAX AT SOURCE AT THE RATES IN FORCE FROM THE PAYMENTS MADE AND THE DEPARTMENT CAN ALWAYS TAKE ACTION AGAINST THE PAYER FOR NON DEDUCT ION OF TAX AT SOURCE . HOWEVER, IF THE PAYER MAKES A NY DEFAULT BY NOT DEDUCTING TAX AT SOURCE , IT WOULD BE THE LIABILITY OF THE PAYER TO MAKE GOOD THE SHORT FALL AND IT WOULD NOT BE PERMISSIBLE TO LEVY INTEREST U/S 234B IN THE CASE OF PAYEE. RELIANCE WAS PLACE ON THE FOLLOWING CASES: - 1. JACOBS CIVIL INCORPORATED 330 ITR 578 (DEL) 2. SEDCO FOREX INTERNATIONAL DRILLING CO. LTD. 264 ITR 320 (UTTARANCHAL) 3. HALLIBURTON OFFSHORE SERVICES INC. 140 TAXMANN 405 4. NGC NETWORKS ASIA LLC 222 CTR 86 (BOMBAY) . 66 . THE LD CIT DR ON THE OTHER HAND SUBMITTED THAT THE CASE LAWS CITED BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AS THE ASSESSEE HAD DENIED ITS LIABILITY TO PAY TAX IN INDIA AND UNDER THOSE CIRCUMSTANCES IT CANNOT BE CLAIMED THAT THE PAYER SHOULD HAVE DED UCTED TAX AT SOURCE. HE RELIED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF DIT - I, INTERNATIONAL TAXATION VS. ALCATEL P A G E | 44 LUCENT USA, INC. IN ITA NO. 327/2012, ITA NO.330/2012, ITA 338/2012 & ITA NO.339/2012 AND OTHER S, JUDGEMENT DATED 07.11.2013. 67. AFTER HEA R ING RIVAL CONTENTIONS WE FIND THAT THE ASSESSEES CASE IS SIMILAR TO THE FACTS OF THE CASE OF M/S ALCATEL LUCENT USA, INC (SUPRA). IN THIS CASE ALSO THE ASSESSEE DID NOT ADMIT TO ANY INCOME IN ITS RETURNS. THE CONTENTION OF THE ASSESSEE BEFORE US IS THAT , NO PART OF ITS INCOME IS TAXABLE IN INDIA. 68. WHEN THE ASSESSEE DENIES ITS LIABILITY TO PAY TAX ON A N INCOME IN QUESTION THE N THE INFERENCE WOULD BE THAT THE PAYER D ID NOT DEDUCT TAX AT SOURCE BECAUSE OF ITS REQUEST MADE TO TH E THE PAYER, NOT TO DEDUCT WHICH IS CONS IS TANT WITH ITS STAND THAT THE INCOME IS NOT LIABLE TO TAX. 69. THE HONBLE DELHI HIGH COURT IN THE CASE OF ALCATEL LUCENT USA, INC HELD AS FOLLOWS: - 16. IN THE LIGHT OF THE JUDGMENT OF THIS COURT IN JACABS (SUPRA), THE INTERPRETATION TO BE PLACED ON SECTION 209(1)(D) IN JUXTAPOSITION WITH SECTION 195(1) IS THAT WHICH IS CANVASSED BEFORE US ON BEHALF OF THE ASSESSEE. HOWEVER, WE FIND MERIT IN THE SUBMISSION OF THE LEARNED STANDING COUNSEL FOR THE INCOME TAX DEPARTMENT THAT ON THE FACTS OF THE PRESENT CASE, THE AFORESAID LEGAL POSITION CANNOT BE APPLIED. AS POINTED OUT BY HIM, IN THE CASE OF JACABS (SUPRA) THE ASSESSEE FILED ITS RETURN OF INCOME ADMITTING TAX LIABILITY ON INCOME OF `296,83,278/ - . ON THIS INCOME IT DID NOT PAY ADVANCE TAX ON THE DUE DATES. THE ASSESSING OFFICER PROCEEDED TO CHARGE INTEREST UNDER SECTION 234B, OVERRULING THE ASSESSEES OBJECTION THAT TAX WAS 'DEDUCTIBLE' BY THE NATIONAL HIGHWAY A UTHORITY OF INDIA FOR WHOM THE ASSESSEE WAS EXECUTING THE PROJECTS. THE PLEA WAS, HOWEVER, ACCEPTED BY THE CIT (APPEALS) AND THE INCOME TAX APPELLATE TRIBUNAL. IT WAS IN THOSE FACTS THAT THIS COURT HELD THAT SINCE IT WAS THE DUTY OF NHAI TO DEDUCT TAX UNDE R SECTION 195(1) FROM THE PAYMENTS MADE TO THE ASSESSEE, AND EVEN THOUGH NO TAX WAS ACTUALLY DEDUCTED AND PAID BY THE NHAI, THE ASSESSEE WAS ENTITLED TO TAKE CREDIT FOR THE TAX WHICH WAS 'DEDUCTIBLE' BY THE NHAI WHILE COMPUTING ITS ADVANCE TAX LIABILITY. I N THE PRESENT CASE, THE FACTUAL POSITION IS QUITE DIFFERENT. HEREIN THE ASSESSEE DID NOT ADMIT ANY INCOME IN THE RETURNS. IN THE NOTE APPENDED TO THE RETURN (WHICH WE HAVE EXTRACTED EARLIER) THE ASSESSEE DENIED ITS LIABILITY TO BE TAXED IN INDIA ON THE GRO UND THAT IT HAD NO PE IN INDIA. THE ASSESSEE ALSO POINTED OUT THAT NO INCOME FROM THE SUPPLY OF TELECOM EQUIPMENT TO THE INDIAN DEALERS AROSE IN INDIA SINCE ALL SALES WERE MADE FROM OUTSIDE INDIA (IN THE USA). THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM MADE IN THE NOTE AND PROCEEDED TO ASSESS THE ASSESSEE IN RESPECT OF THE INCOME ARISING IN INDIA FROM THE SUPPLY OF THE TELECOM EQUIPMENT ON ESTIMATE BASIS. THE ASSESSMENT WAS NOT ACCEPTED AND APPEALS WERE FILED BUT IN P A G E | 45 THE APPEALS THE ASSESSEE DID NOT PRES S THE GROUND OF APPEAL AGAINST THE COMPUTATION OF THE INCOME, BUT PRESSED THE APPEALS ONLY AGAINST THE LEVY OF INTEREST UNDER SECTION 234B. THUS IT WAS AT THE STAGE OF THE CIT (APPEALS) THAT THE ASSESSEE ACCEPTED ITS TAX LIABILITY IN INDIA. IT WOULD BE INC ONGRUOUS, AS POINTED OUT ON BEHALF OF THE REVENUE, TO HOLD THAT EVEN THOUGH THE ASSESSEE DID NOT ADMIT ANY TAX LIABILITY IN INDIA WHILE FILING THE RETURN AND EVEN UP TO THE STAGE OF FIRST APPEAL, AND CORRESPONDINGLY THE PAYERS WERE ALSO NOT LIABLE TO DEDUC T TAX UNDER SECTION 195(1), STILL IT CAN TAKE CREDIT FOR THE TAX 'DEDUCTIBLE', THOUGH NOT DEDUCTED, BY THE INDIAN PAYERS FROM THE REMITTANCE MADE TO THE ASSESSEE. IN OUR OPINION THIS FACTUAL POSITION MAKES A CRUCIAL DIFFERENCE TO THE LEGAL POSITION ALSO AN D, THEREFORE, THE BENEFIT OF THE DECISION OF THIS COURT IN JACABS (SUPRA) CANNOT BE EXTENDED TO THE ASSESSEE. 21. WE ARE UNABLE TO UPHOLD THIS PART OF THE DECISION OF THE TRIBUNAL. IT MUST BE REMEMBERED THAT IN THE NOTE APPENDED TO THE RETURN THE ASSESSE E WAS QUITE CATEGORICAL IN DENYING ITS LIABILITY TO BE ASSESSED IN INDIA. IT RELIED ON THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND USA AND POINTED OUT THAT THERE WAS NO PERMANENT ESTABLISHMENT IN INDIA. IT FURTHER STATED THAT THE TELECOM EQUI PMENTS WERE SOLD OUTSIDE INDIA AND THE PAYMENTS WERE ALSO RECEIVED OUTSIDE INDIA AND THUS THE ASSESSEE DID NOT HAVE ANY TAXABLE PRESENCE IN INDIA SO AS TO BE LIABLE FOR TAX ON ITS INDIAN INCOME. IF THIS WAS THE STAND OF THE ASSESSEE, IT IS NOT IMPERMISSIBL E OR UNREASONABLE TO VISUALISE A SITUATION WHERE, THE ASSESSEE WOULD HAVE REPRESENTED TO ITS INDIAN TELECOM DEALERS NOT TO DEDUCT TAX FROM THE REMITTANCES MADE TO IT. ON THE CONTRARY IT WOULD BE SURPRISING IF THE ASSESSEE DID NOT MAKE ANY SUCH REPRESENTATI ON; SUCH A REPRESENTATION WOULD ONLY BE CONSISTENT WITH THE ASSESSEE'S STAND REGARDING ITS TAX LIABILITY IN INDIA. MOREOVER, NO PURPOSE WOULD HAVE BEEN SERVED BY THE ASSESSEE TAKING SUCH A CATEGORICAL STAND REGARDING ITS TAX LIABILITY IN INDIA AND AT THE S AME TIME SUFFERING TAX DEDUCTION UNDER SECTION 195(1). THEREFORE, IN OUR OPINION, EVEN THOUGH THERE MAY NOT BE ANY POSITIVE OR DIRECT EVIDENCE TO SHOW THAT THE ASSESSEE DID MAKE A REPRESENTATION TO ITS INDIAN TELECOM DEALERS NOT TO DEDUCT TAX FROM THE REMI TTANCES, SUCH A REPRESENTATION OR INFORMAL COMMUNICATION OF THE REQUEST CAN BE REASONABLY INFERRED OR PRESUMED. THE TRIBUNAL OUGHT TO HAVE ACCORDED DUE WEIGHTAGE TO THE STRONG POSSIBILITY OR PROBABILITY OF SUCH A REQUEST HAVING BEEN MADE BY THE ASSESSEE TO THE INDIAN PAYERS SINCE OTHERWISE THE DENIAL OF ITS TAX LIABILITY ON ITS INDIAN INCOME WOULD HAVE SERVED LITTLE PURPOSE FOR THE ASSESSEE. 23. THE TRIBUNAL, KEEPING IN MIND THE ABOVE OBSERVATIONS, UNDERLINED BY US, OUGHT TO HAVE DRAWN THE INFERENCE THAT THE INDIAN PAYERS DID NOT DEDUCT THE TAX UNDER SECTION 195(1) BECAUSE OF THE REQUEST MADE BY THE ASSESSEE, CONSISTENT WITH ITS STAND THAT IT WAS NOT LIABLE TO BE TAXED IN INDIA. 70 . RESPECTFULLY FOLLOWING THE BINDING DECISION OF THE JURISDICTIONAL HIGH COURT WE DISMISS THE GROUND NO. 5 OF THE ASSESSEE. P A G E | 46 71 . IN THE RESULT THE APPEAL OF THE ASSESSEE FOR ALL THE ABOVE ASSESSMENT YEARS ARE DISMISSED. ORDER P RONOUNCED IN THE OPEN COURT ON 15 . 09 . 2014. - SD/ - - SD/ - ( J.S.REDYY ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :15 / 09 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI
Other Referred Cases
-
Laws Referred To
-
1:1 Consultation on Legal Requirements
₹1
1:1 Consultation on Startup Fundraising
₹5000
Tax Holiday Secrets for Startups
₹0
Non-Compete Agreement
₹0
Social Media Brand Kit
₹100
Budget 2026: 5 Major Personal Tax Changes Every Taxpayer Must Know
Team Counselvise - February 05, 2026
Residency Rules: Income Tax Act, 1961 vs Income Tax Bill, 2025 — A Subtle Yet Significant Shift!
Team Counselvise - February 18, 2026
Transfer Pricing and International Tax Reforms under Finance Bill, 2026: A Practical Overview
Team Counselvise - February 07, 2026