Extinguishing the Rights of Lyricists and Composers: IPRS v Aditya Pandey

The rights of lyricists and composers with respect to sound recordings have been a contentious issue in copyright law in India for some time now.

Under the scheme of the Copyright Act, there is a distinction between the rights in a sound recording and those in a musical work (that of composer) or literary work (that of lyricists). In 2012, the Division Bench of the Delhi High Court held that only the owners of the sound recording were to be paid royalty for the communication or broadcasting of the said recording to the exclusion of lyricists and composers. IPRS then appealed to the Supreme Court, which delivered its judgement in September. Read our previous posts on this case here, here and here.

The issue at the Supreme Court was: What happens to the copyright in an underlying work (literary and musical works) when the derivative work (sound recording) is exploited? Does he who obtains a permission from the copyright owner of the derivative work to broadcast by way of communicating to the public said derivative work, additionally require a similar permission from the owner of the underlying works (lyricist and composer)?

Arguments

The IPRS argued that authors of literary work and composers of musical work are the first owners of copyright in their respective works under the Act. Hence, they have the right to restrain the respondents from infringing their copyright. It was pleaded that the right created under section 14(a)(iv) cannot be read in derogation of the right created under section 14(a)(iii) of the Act. Further, the appellants argued that the impugned judgement was in abrogation of India’s obligations under the Berne Convention and the TRIPs Agreement, and thus creates a discord between the manner of exploitation of the same works in two different countries, contrary to their objectives.

The respondents, on the other hand, argued that the 2012 amendment bestowed an independent copyright on the producer of the sound recording. Hence, once the author of a literary work or composer of musical work authorizes a film producer, or producer of a sound recording in respect of his work, he parts with the copyright in the said work and the rights exists with the producer to exhibit his work to the public. It was also pleaded that the appeals filed by societies not registered in India under section 33 of the Act are not maintainable.

Holding

The Court upheld the judgement of the Division bench of the High Court and arrived at the conclusion that even though the rights provided under section 14 of the Act were independent of each other, the producer of the sound recording (also an author by virtue of section 2(d)(v)) would still have the right to communicate his work to the public.

The court clarified that since section 19(10) was inserted on 21.06.2012, after the plaint was field in the trial court, this section shall not be applicable to the rights existing prior to this date. Section 19(10) states that the assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film, shall not affect the right of the author of the work to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent. This means that the assignment of copyright in any non-film musical work shall not affect the rights of lyricists and composers to claim an equal share of royalties.

Reasoning of the Court

Let us first examine the relevant sections of the Copyright Act as cited by the Court:

Section 2(d) of the Act defines the meaning of “author” of the work. According to section 2(d)(ii), the composer shall be the “author” of a musical work. However, section 2(d)(v) was added to the Act by virtue of the 1994 amendment, according to which an author shall also be “the person who causes the work to be created”, i.e. the producer.

As per section 14(e) of the Act, a copyright in a sound recording includes the right to make any other sound recording embodying it, and to communicate the sound recording to the public.

Section 13(4) of the Act states, “The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made”.

By reading these three sections together, the court came to the conclusion that:

“…the producer of sound recording is also an author. But his right would not affect the separate right of any work in respect of which sound recording is made, as provided in Section 13(4)…”

Further, section 19(10) of the Act states, “No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.” However, since this section was inserted post-amendment, it was not applied by the court.

The court thus went on to hold that on a conjoint reading of the various provisions of the Act, there was no doubt that under Section 14, the rights in respect of literary, dramatic or musical work are independent of one another, but reading these sub-clauses cannot be interpreted to mean that right of a producer under to communicate his work to the public is lost.

The court did not accept the argument of the appellants that the permission granted to the defendant did not include the right to communicate the sound recording to the public, as there was no term or condition depriving the defendant from doing so either.

Further, the 1977 judgement in Indian Performing Rights Society v Eastern Indian Motion Pictures Association & Ors. was heavily relied upon. This judgement held that once the author of a lyric or a musical work parts with his portion of his copyright by authorizing a film producer to incorporate it in a cinematographic film, the producer acquires the exclusive right of performing the work in public, without having to secure any further permission of the author of the musical work or lyric.

Analysis

• Firstly, this judgement is in abrogation of international conventions and ignores the international position on this matter. According to the Article 9(1) of the Berne Convention, the authors of literary works shall have the exclusive right of authorizing the reproduction of these works in any form. As per Article 9(3), any sound recording shall be considered as a reproduction. According to Article 11(1), the author of a musical work shall enjoy the exclusive right of authorizing the public performance of these works or any communication of the performance of his works to the public. Article 11bis(1) states that authors of literary works shall enjoy the exclusive right of authorizing the broadcasting or communication to the public of their works.

• Secondly, even though the judgement provides a “silver lining” by holding that lyricists and producers shall be entitled to royalty, this is applicable only to a “sound recording which does not form part of any cinematographic film”. This is clearly discriminatory. It excludes a very large number of artists in the prolific Indian film industry, both in Bollywood and its regional counterparts. This judgement is even more relevant in the Indian context, where most movies gain fame and profits due to the catchy beats and lyrics of its songs (Remember Munni badnam hui, Sheila ki jawani, or Kajra re?). This is clearly unfair as lyricists and composers are left to watch from the sidelines as the producers rake in the big money for the fruits of their effort.

• Thirdly, the court relies heavily on the 1977 judgement in Indian Performing Rights Society Ltd. vs. Eastern Indian Motion Pictures Association and Anr.. However, it fails to take into account the observations of Justice Krishna Iyer in the said judgement. Justice Krishna Iyer, in his dissenting opinion, observed in his hallmark style:“The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on the composer’s copyright which he does only if the ‘music’ is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhibiting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer’s copyright.” Justice Iyer in this judgement went as far as proposing the possibility of granting copyright to the singer of a song as the singer is the one who provides major attraction and lends monetary value to the musical work, especially in the Indian context.

• Fourthly, the court states, “In the present case the suit was filed in 2006, and the law as it existed has to be applied, for the period prior to 21.06.2012.” The court clarifies that with effect from the said date, section 19(10) shall apply which provides for the rights of lyricists and composers. Additionally, section 19(9), inserted by 2012 amendment states, “No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall” This provision was introduced by the 2012 amendment to the Copyright Act in order to give more rights to lyricists and composers in the film industry. These provisions clearly stipulate the rights of lyricists and composers. Taking this into account makes it clear that this judgement is applicable only to the given set of facts and all such disputes arising before the 2012 amendment was introduced. It does not lay down the law for all times to come. In this light, it seems as if the rights of lyricists and composers for works created post 2012 are secure, even though they shall not be able to claim royalties for their works assigned before this date.

• Lastly, it must be noted that as per the March 2016 order in Chitra Jagjit Singh v IPRS, the Delhi High court observed that the IPRS was not competent to grant licenses as it was not a registered copyright society. However, IPRS continues to act as a copyright society and represent the interests of parties in various litigations. Despite the fact that this argument was pleaded by the respondents, the court does not provide any reasoning or discussion with respect to the maintainability of the appeal. It is thus unclear what the legal status of IPRS is and whether they had the locus to continue representing the interests of parties in this matter in the first place.

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