In 2012, the Division bench of the Delhi High Court, in the matter of IPRS v Aditya Pandey & Ors. dismissed IPRS’s appeal against the order of a Single Judge who had held that radio stations etc., who were broadcasting/communicating ‘sound recordings’ were required to pay royalty only to the owner of the sound recording and not to the owner of the lyrics or the musical works which had been incorporated into the sound recordings. We have previously covered this issue here and here.
Yesterday, the Supreme Court reaffirmed the decision of the Division Bench and once again, dismissed the appeal of IPRS and ICSAC. This judgement comes as a great blow to the rights of lyricists and composers, whose works were considered to be independent and separate from that of the music producers so far. However, by virtue of this judgement, the rights of the lyricists and composers stand partly extinguished.
It is however, pertinent to note that Justice Prafulla C. Pant, in his opinion, clarified that, with effect from 21st June, 2012, the assignment of the copyright in the work to make sound recordings which does not from part of any cinematographic film, shall not affect the right of the “author of the work” to claim an equal share in the royalties for utilization of such work. As per section 2(d)(i) and (ii) of the Copyright Act, lyricists and composers are also authors. Hence, lyricists and composers too, can claim royalties for their work. They will, however, have no say in the assignment or licensing of their works.
Justice Gogoi, in his separate concurring opinion, noted two “disturbing trends” emerging from the facts. Firstly, the suits herein had dragged on for over 10 years without any substantial progress. The parties lost all interest in prosecuting the same in light of the exhaustive orders at the interim stage, which effectively adjudicated upon all the issues. Secondly, the International Confederation of Societies of Authors and Composers (ICSAC) had been allowed to contend the matter at the Supreme Court stage even though it was not a party to any suit at the High Court stage, simply on the basis that the High Court order adversely affects its rights.
I will be bringing you a detailed analysis of this judgement soon. Stay tuned!
Image from here
In my respectful opinion this decision is seriously muddled. The international community, which participated through CISAC, must be rather confused, to say the least. The distinction between the sound recording and underlying works, and the need for separate licences for each, is clear from the language of the Act and was never in question until this series of erroneous judgements. And if the Court felt there was any ambiguity, the Act had to be given the Berne/TRIPS compliant interpretation: it can hardly be argued that such an interpretation would be repugnant to the Act. Again, the new (2012) provisions in sections 18 & 19 merely restrict the author’s right to assign an unclearly defined right to royalty (another confusion, but not the subject of this discussion) but do not alter
the scope of any of the exclusive rights comprising copyright under section 14. To rely on these new provisions as a basis for distinct and separate rights in the sound recording, music and lyrics is both unsound and unnecessary. Having some little (if long past) exposure to the relevant international community, I fear we are making ourselves look very odd, to put it mildly, besides perpetrating a gross injustice.
Absolutely Mr Sagar! Couldn’t agree more. Sad that we’ve got this so blatantly wrong!
Shamnad, I’m always happy when we agree about something.
( BTW I don’t know how my comment got posted twice. I hope Spicy IP can delete the first copy; the second is the version I meant to post.)
I just read the two orders and, having held the PoA for CISAC in this matter, my first reaction, without being in any way CISAC’s official position (I assume they will release it in their own time) is positive and reasonable because the Supreme Court of India has “disposed off” (not dismissed) our appeals and passed an interim arrangement safeguarding the interests of the authors to receive compensation or royalties after the 21st of June, 2012 and has expedited the suit before the Delhi High Court to be decided within one year.
The reasoning of the High Court is expressly stated as having “no legal effect”, with the Court emphasising that the copyright of the various contributors to music “co-exist”. Although basic, this is nevertheless very important because the first rumours suggested that “authors have lost”. The SC has upheld the Amendments and asked the HC to decide the matter within one year.
I must point out to Justice Gogoi’s remark about the slow movement of the cases – 10 years! This is an implicit criticism of IPRS which has, deliberately or through incompetence, sought innumerable extensions. What Justice Gogoi could not know is that CISAC never adds itself a party to a case where the local Society is involved because it expects the local Society to represent the interests of CISAC members. In this case, a point was reached where IPRS’ willingness to uphold members’ interests was seriously in doubt, hence the late intervention of CISAC.
In my personal opinion, the SC has done as good a job as it could given the little time it had on hand.
That said, we must remember that the Indian Copyright Act rests on a lousy piece of legislation: the British Copyright Act, 1956, and, in my view, an unfortunate decision in 1977. Since India is a signatory of the Berne Convention, sooner or later, the SC or Parliament will have to clarify what is meant by “author”. It is there in the Act, but between the lines.