Royalties, broadcasts and underlying works: an Indian epic

From Amit Jamsandekar comes news of an epic Indian copyright ruling, all the way from the Bombay High Court, Music Broadcast Private Limited v Indian Performing Right Society Limited, before S. J. Vadzifdar J. Let Amit explain:

"After a very long time we have witnessed a trial of an Intellectual Property dispute in the Bombay High Court. Most of the reported judgments on Intellectual Property disputes in India are decisions on interim application for injunction. Therefore there was a general direction by the Supreme Court to all Courts to finish the trial within six months instead of deciding an interim application. In practice this decision of the Supreme Court is not followed because it is practically not possible to finish a trial within a period of six months.

The radio broadcasters and the Indian Performing Rights Society (IPRS) are in a fight over the issue of payment of royalty to IPRS when the ‘sound recording’ is ‘communicated to the public’ in many proceedings before various courts in India. The members of the IPRS are the authors of literary and musical works. The IPRS has always claimed that they are entitled to claim royalty in respect of their ‘work’ which is embodied in the sound recording when such sound recording is communicated to the public through broadcast on radio. IPRS claims that, in the absence of a licence from IPRS, such communication of sound recordings amounts to infringement of copyright of the members of the IPRS in the underlying works embodied in the sound recording, i.e. the literary and musical works. The radio broadcasters have valid licences to broadcast the sound recordings from Phonographic Performance Limited (PPL). The sound recordings owners are the members of the PPL.

The claim of the IPRS has always been that, even after a valid licence from PPL, the radio broadcasters are also required to take a licence from IPRS because, when the sound recording is communicated to the public, the underlying works embodied in the sound recording are communicated to the public.

This issue came up before the Bombay High Court in a civil suit filed by Music Broadcast Private Limited against the IPRS seeking relief, inter alia, by a declaration that IPRS is not entitled to claim and that the Plaintiff is not liable to pay any royalty to the IPRS when the sound recording is communicated to the public. The Plaintiff sought other relief which included an order of permanent injunction restraining IPRS from interfering with the broadcast of the sound recordings. The other relief in respect of the disputes of licence fees already paid and their refund, sought by the Plaintiff, were not within the jurisdiction of a civil court and the Copyright Board constituted in the Copyright Act, 1957 has an exclusive jurisdiction. Therefore, the Court dismissed the claim of the Plaintiff in respect of the disputes of licence fees already paid and refund thereof as sought by the Plaintiff and other consequential relief.

The crucial issue which is adjudicated and answered by the Court is that IPRS is not entitled to any royalty in respect of the literary or musical work embodied in the sound recording when the ‘sound recording’ is communicated to the public. Justice Vazifdar has analyzed the provisions of the Copyright Act 1957 and accepted the submissions made by Dr Tulzapurkar, Senior Counsel on behalf of the Plaintiff that:

• The Act recognises only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of right to the owner thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each class without the interference by the owners of the works in other class.
• No class of work is inferior to the work in another class.
• In sound recordings and cinematograph films, the literary and musical work gets incorporated into it, whereupon independent copyright works, viz.sound recordings and cinematograph films, come into existence and, therefore, rights under Section 14 in respect of each sound recording and cinematograph film come into existence which can be exploited by the owner of the sound recording or cinematograph film without interference from the owner of copyright in the underlying works.
• The owner of a sound recording has, inter alia, the exclusive right of communicating the sound recording to the public. Though the exercise of such right has the effect of communicating the underlying work, viz. musical or literary work, to the public such communication of underlying works being a part of the sound recording does not amount to infringement of the copyright of communicating to the public, the underlying works. The owner of a sound recording has an exclusive right to communicate the sound recording in any form and such communication in exercise of right under Section 14(1)(e)(iii) cannot amount to infringement of any underlying work in such sound recording.
• The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to the public as a part of the sound recording.
• The owner of a copyright in the underlying works retains the bundle of copyrights in them otherwise than as a part of the sound recording.
• The right of public performance of an underlying work is different from the right to communicate the sound recording in which the musical or literary work is incorporated.
• The Defendant, therefore, can claim licence fee only in respect of public performance of musical or literary work of its members or in respect of communication of such works otherwise that as a part of other copyright viz. Sound recording or cinematograph film. In other words, the Defendant cannot claim licence fees in respect of public broadcast or communicate to the public, musical or literary works as a part of the sound recording.

The Judge did not accept the last submission of the Plaintiff that, upon the owner of a copyright in musical and literary work permitting the making of a sound recording, his right to make or permit to be made another sound recording containing such work comes to an end.

This judgment is certainly going to change the scenario of music industry in India".

Thanks so much for this, Amit.  Readers can access the 108-page judgment here.