Copyright of Music Composers, Lyricists and Performers: Another Missed Opportunity by Mad HC in the Illayaraja Cases – Part II

In Part I of this two-part post, I had analysed the latest judgments of the Madras High Court in Ilaiyaraja (II) and Ilaiyaraja (I), in that order. I had concluded that the Madras High Court in Ilaiyaraja (II) got it right whereas it got it wrong in Ilaiyaraja (I) even though the conclusions are same in both the judgments. This is not a contradiction because the law applicable to the facts in both cases is totally different. In Ilaiyaraja (II), the Madras High Court was bound by IPRS 1977. I submit that this is not true in the case of Ilaiyaraja (I) and I explain the same in this Part II.

IPRS 1977: “copyright therein” and “cinematograph film”?

One could ask – why blame the Court in Ilaiyaraja (I) as well since it was also following the precedent from the Supreme Court in IPRS 1977. In IPRS 1977, paragraph 17 thereof, it was held in very clear terms that the composer shall have no right in view of Section 17 proviso (b). Much ink has been split on this judgment several times before, including criticisms of the judgment for its failure to interpret the statute correctly. I don’t intend to enter this debate and express no views on the correctness of IPRS 1977. However, what I do intend to focus on is the blind following of IPRS 1977 in Ilaiyaraja (I).

At the time of IPRS 1977, the definition of ‘cinematograph film’ was very different:

Section 2(f) as on 1977: ‘cinematograph film’ includes the sound track, if any, and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography.

The differences with the current definition are several – (i) there is no affirmative meaning given with reference to visual recording, (ii) the reference is only to a ‘sound track’ (iii) the word ‘sound recording’ is absent and (iv) there is also no qualifier to the effect ‘accompanying such visual recording’. At that time, there was a separate subject matter called ‘record’ (predecessor to ‘sound recording’) but even this term was absent in the definition of ‘cinematograph film’. Even back then, the word ‘sound track’ was not categorized as a separate work for which copyright was conferred, in contrast with what we see today for ‘sound recording’. In that context, perhaps, the decision in paragraph 17 made sense – if the composer and performers were commissioned to create a ‘sound track’, the producer of the film becomes the first owner of the ‘sound track’ as well. I emphasize that I am expressing any view on the correctness of IPRS 1977.

Therefore, in my humble opinion, the finding in paragraph 17 of the judgment in IPRS 1977 has limited relevance in today’s statutory context. Moreover, even in the context of the erstwhile law applicable then, the findings in paragraph 15 of the very same judgement, are extracted below, are important to note:

15…Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in Section 13(4) of the Act on which Mr Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of Section 14(1)(c) of the Act. 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 cinematograph film and he cannot be restrained from doing so…

(Emphasis supplied in bold)

 To the same effect are the following extracts of Justice Krishna Iyer’s concurring opinion in the IPRS case of 1977:

“20… The artist enjoys his copyright in the musical work, the film producer is the master of his combination of artistic pieces and the two can happily coexist and need not conflict. What is the modus vivendi?

21. The solution is simple. The film producer has the sole right to exercise what is his entitlement under Section 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 Section 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 drowned in the film copyright except where there is special provision such as in Section 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. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles

(Emphasis supplied in bold and underline)

(N.B: The underlined portion in Justice Krishna Iyer’s judgment may seem odd at first but even there you can see a reference only to Section 17 proviso (c) and not (b). This is important to emphasize because in Section 17 proviso (c), the phrase “copyright therein” will contextually connect with “work”, which was defined in Section 2(y) at that time to cover everything including musical work, record and cinematograph film (and correspondingly today, musical work, sound recording and cinematograph film). This is in direct contrast with Section 17 proviso (b), where the phrase “copyright therein” will contextually connect with “cinematograph film” and not musical work or sound recording, as explained above. In Ilaiyaraja (I), the Court held that Section 17 proviso (c) would not apply on facts but only proviso (b))

It is unfortunate that the changes in the statute since the IPRS 1977 have been inadequately analysed in Ilaiyaraja (I). The above findings in paragraphs 15, 20, 21 of the IPRS judgment of 1977 are all the more critical after the Amendment Act of 1994 that totally re-cast the definition of ‘cinematograph film’ as shown above and created a hitherto non-existent connection with ‘sound recording’. As a side-note, I reiterate that it is difficult to criticize the judgment in Ilaiyaraja (II) because it related to the period 1978-1980 when the statute was totally different.

IPRS 2011, 2012 and 2016

I would be remiss not to point to the Delhi High Court judgment by the Single Judge in IPRS v. Aditya Pandey (IPRS 2011 case”), upheld by the Division Bench (IPRS 2012 case”) and by the Supreme Court (IPRS 2016 case”). These case have been covered extensively on this blog before (see here, here, here and here) but I only intend to cover a limited reference here.

Justice Bhat’s judgment in IPRS 2011 carried some observations to the effect that certain anomalies would arise if the judgment in IPRS 1977 is not applied even after the 1994 Amendment (para 48). Even though this order in IPRS 2011 was upheld by the Division Bench in IPRS 2012, the findings in para 48 of the Single Judge’s judgment was held to be erroneous (para 40). This judgement of the Division Bench was upheld by the Supreme Court in IPRS 2016, closely paralleling the reasoning of the Division Bench.

To summarize both Part-I and Part-II,

  1. I believe the finding in paragraph 17 of the IPRS judgment of 1977 would only to fact situations preceding the Amendment Act of 1994 (amending the Copyright Act) and thus, the judgment in Ilaiyaraja (II) seems justified;
  2. I believe the findings in paragraphs 15, 20 and 21 of the IPRS judgment of 1977, however, would apply for both pre- and post- 1994 amendment situations;
  3. The reasoning in Ilaiyaraja (I) of 2019, with respect, is erroneous and requires further consideration.
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