Copyright

The ‘Original Sin’ of recognizing IPRS as a Copyright Society


The last consignment of RTI information that we had received from the Copyright Office had included a copy of the official ‘file notings’ pertaining to IPRS’s original application to be registered as a Copyright Society, in 1996, under the 1994 amendment to the Copyright Act, 1957. These file notings have now been uploaded on our website and are accessible over here.

As explained above these file notings reveal the internal discussions and objections of the Copyright Office to the original application for registration received from IPRS. In the process of vetting this application the Copyright Office was checking whether the Articles of Association and Memorandum of IPRS were in compliance with the requirements of the Copyright Act & Rules. Ideally the Copyright Office should not have approved the application until each and every requirement of the law had been fulfilled by IPRS. To the credit of the officer in charge, he has conducted a remarkable thorough study of some of the discrepancies in the articles of IPRS. However for reasons not clear he has missed the most obvious flaw in the original articles of IPRS, which is the fact that its articles did not require the company to be solely in the control of the ‘owners of copyrights’.

Sections 34 & 35 of the Copyright Act, 1957 both require the Copyright Society to be in complete control of the owners of the Society. However the old Articles of IPRS i.e. before they were amended in 2008, which are available over here and here (1991 amendment available over here), did not require IPRS to be in control of only the owners of copyrights. We have explained the old governing structure of IPRS in an earlier post accessible over here. To put it very briefly the old articles of IPRS, of 1969 vintage, required it to be in control of a mixture of authors, composers and owners. For example the qualifying criteria of ‘full members’, who were the only persons who had voting rights at AGMs, was basically any author or composer who had their musical works published in atleast 12 cinematograph works. Clearly this criteria does not ensure that the Society is solely under the control of the owners. It appears that the Copyright Office did not catch this distinction between ‘owners’ and ‘author’ when it proceeded to register IPRS as a Copyright Society.

The interesting part of this entire fiasco is that in 2008 IPRS amended its articles to ensure that only owners were in complete control of the Society. Surprisingly they did this through a ‘title suit’ before the Civil Judge, Senior Division at Barasat instead of filing a writ petition before a High Court. Now although the new articles, prima facie seem to be in compliance with the Articles of IPRS two questions arise:

(i) When the original registration of IPRS itself was illegal, can the subsequent amendments be valid?
(ii) When the entire character of IPRS was altered through the 2008 amendments was it not necessary for IPRS to resubmit an application to be registered as a copyright society in order to ensure that the new articles were in compliance with the requirements of the law?

My best guess is that any writ petition challenging the original registration of IPRS as a copyright society back in 1996 will be successful before any High Court of this country. The Registrar of Copyrights in 1996 clearly failed to apply her mind to the application in question and the High Court will therefore be more than pleased to quash the original registration of IPRS in 1996 with directions to re-examine the application. In fact even the present Registrar of Copyrights can easily derecognize IPRS as a Copyright Society. Having said that let me be clear that any copyright society which is registered as per the law will in all probability consist of only music companies and not individual authors or composers. The reason for this is that most authors and composers have assigned away their copyrights to these musical companies. For all the criticism of the Supreme Court’s 1977 judgment in Eastern Motion Pictures the fact of the matter remains that authors and composers could have retained the copyrights in their works by inserting a clause to that effect in their contracts. The Supreme Court judgment did keep this option open. The fact that they did not do so demonstrates the failure of the original IPRS (before the music companies took over) to educate its members on the nuances of copyright law.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

7 comments.

  1. AvatarAnonymous

    In continuation of the above, When the SC has already laid the law that IPRS has no rights in the soundtrack of movies, how does IPRS continue to file suits after suits all over india (and if i am not mistaken got an injunction from the Calcutta High Court) against hotels, radio stations etc who play film music?

    Reply
  2. AvatarPrashant Reddy

    Hi Anon,

    The Supreme Court only said that when the song was composed for a cinematograph film, the film producers would be first owners of copyright in the underlying lyrics and music. These film producers usually assign their rights away to music companies, all of whom are memebers of IPRS and in fact in control of IPRS.Once the music companies authorize IPRS to collect royalties, IPRS can file law suits for copyright infringement.

    Best,
    Prashant

    Reply
  3. AvatarAnonymous

    Dear Prashant,

    Thank you for your response. I would like to present a slightly different view.

    In para 16, the SC held “The composer of a lyric or a
    musical work, however, retains the right of performing it in public for profit otherwise
    than as a part of the cinematogaph film and cannot be restrained from doing so.”

    I think the entire para 16 seems to indicate that the lyrisist/composer lose their litrary/musical work insofar as that particular Cinematograph film is concerned which is taken care by PPL. However they retain copyright in any other manner of performance (other than the manner it is recorded in the Cinematorgraph Film) which is the scope of IPRS.

    Therefore coming back to the point, The SC has specifically held that IPRS has no rights in the lyrics / music which has transformed into a sound recording. therefore how does IPRS claim infringement of MUSICAL and LITERARY work when sound recordings are being played in hotels/radio stations.

    Reply
  4. AvatarAnonymous

    Dear Prashant Reddy,

    Leave IPRS..Javed Sahab is taking Care of it..
    Concentrate mainly on PPL & IMI.
    It will help to protects creators money a lot.

    Reply
  5. AvatarPrashant Reddy

    Dear Anon (11:25)

    When a sound recording is played in a hotel a licence has to be procured for playing even the underlying works i.e. the music and the lyrics. These rights can be administered only by IPRS as long as it can established that the owner of the copyrights in these lyrics and music have indeed handed over their rights to IPRS. PPL cannot administer these rights as the terms of its registration allows for it to issue licences only for sound recordings.

    Prashant

    Reply
  6. AvatarAnonymous

    Prashant,

    I guess it become difficult to address me as anon (11:25). You may call me Bhairava.

    I find your explanation very interesting. Please clarify the following:-

    In IPRS Vs. EIMP, the SC looked into exactly the same question. IPRS claim was that amounts were due to it for the underlying works and therefore everytime a soundrecording was played, it impinged upon the underlying works of the musician.

    The SC while negativing it said that once a movie is created a new work comes into creation. As far as this new work is concerned producer has all the rights.

    In other words, the underlying works lose their absolute identity as a seperate work once a new work is created out of it as long as the creation of such new work is with the consent of the musician.

    A good analogy would be like parents. A literary work and Musical work gives birth to a child called sound recording. However, once the child is born any income of the child belongs solely to the child and not the parents just because they are the parents. No doubt the parents can have another child but then the child has its own identity and is a seperate legal entity.

    Reply
  7. AvatarAnonymous

    Dear Prashanth,

    If I need to get license for literary work, ie lyrics, is it ok to get only license from IPRS?

    Reply

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