Copyright

Whither the Song of Justice?


It all began with a 1977 Supreme Court decision, where a judge, for reasons best known to him, interpreted the law relating to Bollywood music in a manner that effectively emasculated the rights of music composers and lyricists. His brother judge, known otherwise for standing up for the under-dog in language often reminiscent of “poetic” justice, remained largely silent (by his “verbose” standards).
Fast forward a couple of decades and we have two collecting societies (IPRS and PPL) that enter the scene and master the art of “fleece” within no time: had section 375 of the Indian Penal Code (IPC) been worded liberally enough, they might have faced criminal sanction. The government finally woke up (thanks to the courageous advocacy of Javed Akhtar and a leading copyright lawyer), and sought to redress the historical injustice by mandating a largely controversial sharing of royalties. One would have thought the tide was slowly changing.

Unfortunately, a Mumbai High court judge is attempting, à la King Canute, to stop the flow of the changing tide, forcing it to beat a hasty return to its old exploitative path.

For those that are still in the dark of that which I speak about, let me refer you to a Times of India article that reports on a recent decision that effectively completes the process of emasculation that I referred to at the start of this post:

“In a setback to music composers and lyricists, the Bombay high court….. ruled that the Indian Performing Right Society Limited (IPRS), a body that safeguards the copyrights of music composers and lyricists, was not entitled to claim or demand royalty or licence fees from a private FM channel for the recorded song and music it plays on its radio station. This means that the FM stations would now have to only deal with Phonographic Performances Limited for obtaining a licence to play the music.”

Let me also refer you to a Bar and Bench piece which encapsulates my key objections to the Mumbai High Court decision:

“While the judgment is quite lucid and rehearses the various arguments and counter arguments in a very articulate manner, the judge unfortunately got the law wrong. The making of a sound recording does not extinguish any of the underlying rights in the music and lyrics (these underlying rights continue to vest with music composer and lyricist). When a song is broadcast on an FM channel, both the rights in the sound recording as also the right in the underlying works are implicated. And the FM radio station has to pay two separate license fees (one to IPRS which collects on behalf of underlying artists and the other to PPL which collects on behalf of sound recording copyright owners).

It is pertinent to note that the Indian government has taken note of the historical exploitation of Bollywood lyricists and music composers (underlying authors) and attempted to redress the injustice through proposed amendments to the copyright act that provide for compulsory sharing of royalties. Contrast this attitude with the present judgment which effectively perpetrates grave injustice against underlying authors by denying them their rightful license fees.”

The Mumbai High Court judge harps, time and again, on how sound recording companies (that have acquired the license from owners of underlying works such as lyricists and music composers to create the sound recording) need not repeatedly ask for licenses from underlying artists each time they sell a CD containing the copyrighted recording. And therefore it must logically follow that they need not do the same any time a song is broadcast (on FM channel or otherwise).

The very concept of a “license” itself ought to have alerted the judge to the jurisprudentially flawed nature of his reasoning. In other words, the terms of the license between underlying artists and the sound recording company determines the extent to which a recording company is able to exploit the song, and particularly the underlying works.

Almost all licenses invariably permit companies to reproduce sound recordings (and thereby the underlying works as well) and sell them through CD’s and the like. However, unless the license permits sound recording companies to broadcast the music as well or to permit others (through sub licenses) to broadcast, they cannot do so. And if they cannot do so, neither can FM stations, merely because they pay license fees to sound recording companies (or to PPL which collects on behalf of most sound recording companies). Two sets of rights are implicated, as I mention in this article here.

Net result: in order to legally broadcast music, radio stations ought to obtain two sets of licenses: one from the owners of sound recordings (or PPL, which often collects on their behalf) and the other from the owners of underlying works (or IPRS, which is meant to collect on their behalf).

Given that songs are effectively exploited in their “sound recorded” form across different mediums, a denial of the right to share in the proceeds of such exploitation in favour of underlying artists’ is downright unjust. And must be redressed at the earliest.

Asked what he believed his life song was, the inimitable Belafonte once remarked: “The same melody. It just needs to be sung again. What it needs are more voices of harmony. It’s a beautiful chord that everybody gets to sing in the same place at the same time with the same purpose. The song is the same: justice.”

One can only hope that the appellate court sets the course of justice right…and with it, the fortunes of a talented community that has been at the receiving end for far too long.

ps: Prashant and Sumathi referred me to this Kerala HC decision which arrives at a similar result (that IPRS has no right to claim royalties over FM broadcasts), but does so solely through a reliance on the 1977 Supreme Court decision (which effectively held that absent an express contract, the film producer is effectively the first owner of copyright over music and lyrics created for the movie).

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

19 comments.

  1. AvatarAnonymous

    I think the matter is a little different. Whereas IPRS is for the ‘Musical Work’, PPL is concerned with the Sound Recording. Both these terms have been defined under the Act. So, basically, in a radio, I am broadcasting the sound recording. IPRS can only claim a fee when the musical work is being worked on. As far as the SC judgement on 1977 is concerned, it flows from Section 17. Law has always been clear on that..

    Reply
  2. AvatarDelhi IP Attorney

    Dear Shamnad,

    I am dismayed to inform you that earlier today Justice Bhat of the Delhi High Court has passed an Order on similar lines in a case involving IPRS and Synergy Media. Shockingly, he has held that no permission/license is required from the owners of the underlying works when a sound recording is communicated to the public. This would not only apply to radio but also events/parties where only sound recordings are played. The underlying works would only be implicated when the a live performance takes place. This Order is entirely contrary to a Division Bench order of the Delhi High Court which held that all three rights need to be paid for in connection with hotels etc.

    With Justice Bhat’s order, IPRS has basically been rendered inconsequential.

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  3. AvatarNandita

    Hi Shamnad,

    I heard about the Delhi HC decision although I’m not sure in which case it was. There appear to have been two matters for pronouncement yesterday — CS(OS) 1185/2006 and CS(OS) 1996/2009. (Synergy Media is not listed as a party in either suit in the cause list.)

    I’d written about the decisions here (although I’m still trying to understand them):
    Redefining Music Rights and the Landscape of Copyright Contracts

    I haven’t been able to cross-check details of the Delhi High Court decision. In case you have/get any info., please could you post it ?

    Thanks,
    Nandita

    Reply
  4. AvatarShamnad Basheer

    Dear Nandita,

    We’ve requested Nikhil Krishnamurthy to do a guest post on the Delhi order. Which is by and large on the same lines as the Mumbai order. Wonder how Justice Bhat got it wrong though–very very surprising!

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  5. AvatarShamnad Basheer

    Dear Delhi IP attorney:

    it is very shocking. let me go through the full order and come back on why we think Bhat J held the way he did. Clearly High court judges are not supreme…and not infallible either…

    Reply
  6. AvatarShamnad Basheer

    i just deleted a comment which was derogatory of synergy media. if you’re planning on commenting, please stick to the merits of the dispute. if someone didn;’t their arguments right, please point out why. and engage in the merits. we will not carry comments that cast aspersions on parties or counsels without stating more and backing it up. Thanks

    Reply
  7. AvatarUdit

    In the Delhi order, Justice Bhat has declined to look at English judgments on the ground that the UK Act (CDPA) has an express provision stating that performance of a literary/musical work would include any “visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work”.

    However, the CDPA was enacted in 1988. Before that, the Copyright Act of 1956 was in place. I could not find a similar provision in that Act (please correct me if I’m wrong on this). Yet, the judgments between 1956 and 1988 have held the same thing – i.e. public performance of sound recording amounts to performance of the underlying works as well, and that making a sound recording does not amount to a ‘merger’.

    This shows that the 1988 Act did not change the position of law – rather, that provision was put in by way of abundant caution.

    In any case, the judgments between 1956 and 1988 should certainly have been examined.

    Reply
  8. AvatarShamnad Basheer

    some of you have in private emails alluded to the fact that the court may be justified in deciding the way it did owing to the foul way in which IPRS has operated over the years. that may be true in a “realist” sense, but what happens when IPRS is forced to clean up? Artists are left without royalties, since the court has decided as a matter of law that underlying rights are not impacted during a music broadcast. And no royalties are therefore due to owners of underlying works!

    That is jurisprudentially flawed and there are no two ways about it. The court ought to have used the opportunity to explain the law correctly, but to warn that IPRS ought to clean up its act and ensure that it represents the best interests’ of the artists and not of the record labels’.

    On a related note, its a huge surprise to me that despite the efflux of more than 3 decades, neither these artists nor IPRS have managed to get a larger bench to overrule an obviously wrong Supreme Court decision!

    Reply
  9. AvatarAnonymous

    we should also consider the view of the person who need to obtained two licences for using the same call of work , it has to be clear that sound collection of sound recording has to be for sound recording and other merger claim should be asked to sound recording owner not to the users , Only the wrong deal between composer/writer and producer why should other people faced , general people not even like double taxation then why should all pay 2 times fees for use of same class of work , I request to please focus and give write point of view of the person who suffers because of this double fees structure , law is a part but what you all think on logically ……
    Recently major creators were claimed that they are not receiving a royalty , IPRS is run by labels then in this condition who is going to care about the money who all are paying to both the societies any one can take a responsibility that all should be functioning well , IPRS itself said that they are paying royalty to publisher (who all are label company ) because they have rights then what is problem now if court clearly give all rights to companies , why it is wrong if both are saying the same , all are suffering because of this duel licencing .
    Now a days PPL collecting fees form marriage ceremony , without valid agreement collecting from ringtone royalty and dining to pay it to write author etc ,now theses all are taking disadvantage of law so being a public interest if court finding the facts and decide to the fix write liability to users then its noting like that ,I don’t know what other Court law says on it in the world but court of India focus on it its really good thing , my simple question is why cinematograph ( Video Films) treat as a same and merger rights cant treated separately ? Is IPRS can collect for Public view of FILM for songs !then how come sound recording allowed separate rights for merger thing “strange” then it should for film also why one class treat differently and other one is differently . Law protection should be same for all class of Intellectual Property.
    I this 1st function of theses societies should be lawful then after if we all worry about this question of law will be song of justice

    Reply
  10. AvatarAchille Forler

    Shamnad,

    How do you expect artists to puncture a flawed SC judgement when even seasoned judges cannot distinguish the wood from the trees?

    Secondly, you must consider that, until recently, cinema was not even considered an industry; few transactions were based on a written agreement; also, the producer would usually commission the composer to deliver the songs and the background score while the composer dealt directly with the lyricist.

    I foresee massive litigations in future because most publishing rights are toxic assets, either because there was no agreement with one of the parties or because the agreements were poorly drafted; we see this unfortunate trend emerging between film producers and record labels, as in “Sholay” and others. Once authors will gain confidence and get organized, a boulevard will open for additional litigation.

    The first step is that the rights of creators are secured and the relationship between the various rights clarified once and for all. But who will exploit the rights of the authors in the absence of real publishers? So then second step will be for film and record producers to encourage the rise of a healthy publishing business. They are not ready yet, but they should consider the alternative:

    On the one hand, film and sound recording rights are controlled by corporates and on the other, publishing rights are controlled by individual authors. Business attitude on one side, mostly volatile individuals on the other. What will the first party do in case of a sync, for example, if the second party doesn’t reply or systematically refuses because an animosity has developed between the two? Can you imagine the nightmare? My reading is that this perspective is the root cause of the 1977 judgement and the recent judgements as well.

    The Copyright Amendment Bill largely addresses this “operational” issue by mandating collective licensing by Collective Rights Management Societies like PPL and IPRS. Under the new regime, it will be the job of IPRS to encourage the rise of genuine publishers who will invest in the development of lyricist/composers and bring the literary and musical rights into a corporate environment.

    Though they may not understand it yet, this new system will benefit film and record producers: not only will it bring investments in a field where none exist today, but the separate exploitation of copyrights optimizes the value of each copyright.

    Reply
  11. AvatarShamnad Basheer

    Achille,

    We’re all part of the system. its all too easy to cry and blame the system and the various misgivings and I personally do that all too often. If this jurisprudentially flawed judgment remained on teh books for so long, it is my fault..and it is our collective fault. impleadment petitions could have been filed. test cases could have been taken up….we did none of this! and as discussed with you, we didnt even need the 1994 amendments to point the flaws in 1977 SC decn…the flaws were apparent even without the help of ’94 amendments. judges mischaracterised the nature of relationship–by labelling it as a contract of service (without any facutal basis)–and then surprisingly proceeed to then categorise it as a work for hire. Mutually inconsistent findings in a single judgment…and it stays on the book for more than 30 odd years. I bow my head in shame. I am to blame. as an IP community, we are to blame!

    Reply
  12. AvatarAchille Forler

    Dear Shamnad,

    System are inherently self-perpetuating because each member enjoys perceived immediate benefits. A system can be changed only by activists, people who refuse the rewards of the status quo and fight for what is right with a devil may care attitude. In retrospect only are they called “leaders” or “doordarshis”.

    All those who contribute to this blog are activists. I learn a lot from this blog and seize this opportunity to express my deep gratefulness to you and all contributors who labour for hours over a blog for no other reward than the burning desire of advancing the common good.

    Proof that this blog is really cool: even people who are not lawyers are reading it. Triple cheers!

    Reply
  13. AvatarAnonymous

    Hon. Justice Vazifdar in his great excellence fixed the question of law about the merger rights in the different class of work. The wondering thing is IPRS not care about the assignment of copyright vested with them. Who is the assignor to making a record simply assignee is a soundrecording owner and in the general rule for valid agreement should be accepted and signed by both the party to make it valid.If IPRS could provide the valid assignment in the court it may clearly fixed the rights of IPRS in sound recording due to the assignment with them and if they will fail to proved the fact of assignment then I think appellant court not event grant interim stay to the order .If all the assignment is legally valid then it may strongly possible that the assignment with the record label will treat as a void.The approach with this case of IPRS was not as strong as no strong documentary evidence was provided in the support of their rights. If we refer all the pervious judgment on the basis of sec 17 that if a work done by an author for a consideration for a publisher the copyright in it would normally vest in the publisher subject to any contract to the contrary, in the recent matter of sholey film the valid assignment rule is create strong impact same way IPRS can forced to do with the support of the assignment.Now the question is that could IPRS can functioning during the pendency of the appeal or till the order on appeal from the date of Hon. Justice Vazifadar judgment, and if answer is no then copyright board should immediate take action to stop the function on the rights of sound recording by IPRS otherwise it will be huge loss of public . The hand book of copyright clearly specify separate authorization from composer and author -in sound recording and after this judgment the moral and jurisprudenceary power of the board have to order to stop functioning till the final order of the appellant court, Because this question of law shall effect to permit the carry copyright business in musical work and any word any action sung spoken or performed with music. (IPRS permit in copyright business by CR board)No wonder if Dr.Tuljapurkar asked copyright board to stop functioning of IPRS in sound recording on the base of this judgment till the final appeal order and CR board grant the same.Second question if the question of law is fixed that IPRS /Composer/ Song writer no hold rights in business of sound record , after the amendment , will amendment applicable for all previous work or only to the assignment which will made after the amendment . Finally only the statutory body of copyright will answer and give relief in his power as per the chapter x vested with …………. easily possible to stop affect on social society and creators because of wrong practice e.g.say to checked all the assignments etc , which will clearly open all the scenario of theses copyright societies , so no one need to go to the court for question of Law .

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  14. AvatarAnonymous

    the judgment seems to be perfect and this question of law of rights in sound recording is 1st time disputed all other pervious judgments including SC judgment Which was on cinematograph not on soundrecording and all relevant judgments are considered in this judgment but only those on same issue . And now as part of the agreement of TRIPS (WTO) Indian Government has only option to pass the amendment as soon as possible to enforcement of Berne convention, as in the TRIPS agreement dispute, when recent judgment questioned no option expect amendment is with Indian Government to resolve.
    Result of this judgment is that creators will defiantly get separate rights and amendment will have to be passed very soon.

    Reply

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