WHERE DO WE GO? CHENNAI LIVE 104.8 FM ASKS THE MADRAS HIGH COURT


The name of the case is:

Indian Performing Rights Society Ltd. & Ors. v. Branch Manager, Muthoot Finance Private Limited,

Chennai & Ors, [2009 INDLAW MAD 697].

 This case was filed before the Madras High Court by the Plaintiff Copyright Society against the Respondent Radio Channel, the former seeking to restrain the Respondent and it’s agents from communicating to the public, any musical and literary works of the members of the Plaintiff’s Society in the form of a broadcast on their private FM Radio Stations.

In an earlier hearing the Hon’ble High Court granted an ad interim injunction in favour of the Plaintiff Society, the same was being challenged by the Respondents. In its final decision the Madras High Court disposed off the application of the Respondent Radio Station and also gave the final verdict in favour of the Plaintiff Copyright Society.

The Plaintiff is a Co-operative Society registered under S.33 of the Copyright Act, 1957. In lieu of its status as a registered society, it is permitted to carry on business in musical and literary works. The working is as follows: members of the Plaintiff Society compromise of authors, composers and publishers of Indian musical and literary works. All the members have assigned their public performing rights in respect of their musical work to the Plaintiff society. Thus, the Plaintiff’s license the work on behalf of the owners, who are entitled to receive royalty as and when the sound recording is communicated to the members of the public.

The Respondents are engaged in the business of broadcasting private FM Radio Station in the city of Chennai in the name of Chennai Live 104.8 FM. The Plaintiff society alleged that the Respondents had begun unauthorized broadcasting of recorded songs (qualifying as musical and literary works) on their FM Radio Stations, in respect of which the members of the Plaintiff Society owned copyright. The Respondents cannot use or exploit the copyright of the members without duly obtaining licence from the Plaintiff and paying the necessary licence fee/royalty for such use and exploitation. Moreover, unless the Respondents are restrained from broadcasting any of the music and literary works of the members of the Plaintiff in the form of broadcast, the Plaintiff would suffer loss, harm and injury.

The Respondent argued that it had received licenses for the allegedly infringing broadcasts from the Phonographic Performance Limited (PPL). Therefore it was allowed to broadcast the works without obtaining license from IPRS.

Thus, the main question in the case was whether the Plaintiff has established a prima facie case that the respondent radio channel has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

The Plaintiff argued that literary and musical works constitute a separate category of work, distinguished from sound recordings and that these different categories of works don’t merge.  The Court agreed with the Plaintiff and stated that, “It is pertinent to note that the legislature, in its wisdom, has classified sound recording as a separate class of work from that of literary and musical work. The copyright in a sound recording shall not affect the separate copyright in any work in respect of which a sound recording is made as per section 13(4) of the Act. The separate classification of literary and musical work as contemplated under section 13(1) has been emphasised under section 13(4) of the Act.”

The next contention was regarding whether the broadcast of songs on FM amounted to public performance of the works. The Respondents argued that the Applicant’s only had the right over performances of the copyrighted works [meaning they could only issue licenses with respect to performer’s rights] and not broadcast of the works as such, as the same did not amount to a performance under the realm of performers rights. The Plaintiff Society disagreed and stated that, “in the case of literary or musical works, copyright means an exclusive right to perform the above work in public or to communicate it to the public. ‘Communication to public’ is defined under s.2(ff) of the Act and means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display. Therefore, performing literary or musical work in public does not only mean a musical performance in a public place. Broadcasting of the songs involves communication of the music to the public which is heard and enjoyed by them.” The Court agreed with the submission of the Plaintiff Counsel.

Post proving that there was separate copyright for musical and literary works and that broadcasting the works amounted to communication to public, the most important question came up, i.e., respondent radio channel has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

Addressing this question the court held that, “the Government of India had registered two separate Societies one for carrying on the business of issuing or granting licence in respect of literary and musical work viz., IPRS and another one in respect of sound recording work viz., PPL. Thus, unless the Respondent Radio Channel obtains licence for broadcasting literary and musical work of the members of the Plaintiff Society, they have no right to broadcast the songs of the members of the Plaintiff Society. Under such circumstances, if the Respondent Radio Channel continues to broadcast the songs of the members of the Plaintiff Society without getting licence from it, the interest of the Plaintiff and its members would be in jeopardy.”

On this basis the Court concluded that the ad interim injunction already granted by this court was made absolute and the application made by the Respondents was dismissed. 

2 comments.

  1. AvatarAnonymous

    A similar case came before the Calcutta High Court in 2006. The case is Radio Today v. IPRS.. similar facts, but the case was under section 60. Here is the link:
    http://indiankanoon.org/doc/112161/

    I’m quoting the relevant paragraph.
    16. It is not the plaintiffs case that the members of the IPR did assign their exclusive right to the producers by agreement. Unless it is shown that such right of the members of IPR were expressly assigned in favour of the members of PPL, IPR is entitled to claim royalty from the plaintiff if they want to exploit the work and the members of IPR commercially by broadcasting the songs through the proposed radio station.

    Reply

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