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

On February 13th, the Madras High Court passed a judgement in the case of M/s. Indian Record Manufacturing Company Limited v. AGI Music Sdn Bhd and Ors., wherein the music composer, Ilaiyaraja, was Defendant no. 2 (“Ilaiyaraja (II)”). The suit was decreed with costs and the defendants, including Ilaiyaraja, and agents etc. were permanently restrained from infringing the Plaintiff’s copyright over certain specifically identified musical works/sound recordings.

This is the second judgment concerning Ilaiyaraja, the first being the judgment in the case of AGI Music Sdn Bhd v. Ilaiyaraja and Anr. (“Ilaiyaraja (I)”). Ilaiyaraja (I) was relied upon in Ilaiyaraja (II).

In this two-part post, I start with an analysis of the Ilaiyaraja (II), i.e. the latest judgment, concluding that the Madras High Court had little choice in the matter in giving its ruling, given the judgment of the Supreme Court in the famous case of IPRS v. Eastern India Motions Pictures Association (“IPRS 1977”). Since the Court in Ilaiyaraja (II) also relies on Ilaiyaraja (I), I continue my analysis to said same Ilaiyaraja (I) as well. However, in the case of Ilaiyaraja (I) I share a different sentiment. In Part-II, I continue with the analysis by explaining why the judgment in IPRS 1977 was not a binding precedent on the Madras High Court in Ilaiyaraja (I).

M/s. Indian Record Manufacturing Company Limited v. AGI Music Sdn Bhd and Ors. (“Ilaiyaraja (II)”)

In Ilaiyaraja (II), the Plaintiff’s case was based on assignment agreements with the producers of thirty different feature films. Factually, as is recorded in the judgment, the works relate to the period of 1978-1980. The cause of action appears to be a newspaper article that stated that the Ilaiyaraja had given the right of administering the musical work of all his songs in films produced before 2000 to Defendant No. 1. It looks likes only Ilaiyaraja contested the suit. It also appears that after issues were framed, only the Plaintiff led oral and documentary evidence, whereas no evidence was led by the Defendants.

The judgment goes in favour of the Plaintiff based on a reading of Section 17(b) of the Copyright Act and the Supreme Court’s judgment in IPRS 1977 and Madras High Court’s judgment in Ilaiyaraja (I). The Court held that the producers of the cinematographic films were the first owners of the copyright even in the compositions and once the assignment agreements of the Plaintiffs with such producers were not in dispute, the suit must be allowed. The Court concluded that the rights of the author of a lyric/musical work could be defeated by the producer of a cinematographic film. The Defendant No. 2 failed to produce a contract to the contrary. The Court took pains the emphasize the difference between the ‘author’ and ‘owner’ of a copyright protected work and re-affirmed that notwithstanding the lack of ownership, the author of the musical work would always have moral rights under Section 57 of the Copyright Act.

It is difficult to criticize the judgment in this Ilaiyaraja (II) because it related to the period 1978-1980 and for which period, the findings in IPRS 1977 squarely apply.

However, when I went back to the Ilaiyaraja (I) judgment, I believe the Court got it wrong and my analysis on this follows below.

AGI Music Sdn Bhd v. Ilaiyaraja and Anr. (“Ilaiyaraja (I)”)

The judgement in Ilaiyaraja (I) case, decided on June 4 last year, appears to be a composite suit and the core of the dispute related to the rights are retained by Ilaiyaraja in his musical compositions created for various cinematographic films. This was also a final judgement and decree by a single judge of the Madras High Court. There were several issues raised in this case, though we need not go into all of these.

Unlike Ilaiyaraja (II), the facts in Ilaiyaraja (I) were not limited to works of a specified time-period. The Court held that Section 17 proviso (c) would not apply on facts. Focusing on Section 17 proviso (b) instead, the Court in Ilaiyaraja (I) observed that the first owner of the Copyright in a ‘cinematographic film‘ is the producer of said film. The term ‘cinematographic film’ is defined in Section 2(f) of the Copyright Act to “…include a sound recording accompanying such visual recording…….“. Reading these two together the Court in Ilaiyaraja (I) concluded that the producer of the ‘cinematographic film’ would be the first owner of the Copyright therein including such ‘sound recording’ (para 48). In this case, the sound recordings included musical works composed by Ilaiyaraja. Even in that case, Ilaiyaraja had apparently failed to produce any agreement to the contrary with the film producer.

The Court in Ilaiyaraja (I) did feel that there needs to be some balance on the concurrent rights of producers and the individual constituents of the sound recording. The Court answers that this balance is achieved by reference to the moral right of the author under Section 57 of the Copyright Act. The Court even goes on to observe that the issue of ownership under Section 17 of the Copyright Act does not change even after the 2012 amendment (para 65).

In the IPRS 1977 judgment, in paragraph 17, the Supreme Court concluded, rather summarily, if I may add, that under Section 17 proviso (b) the producer of the film becomes the “first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary”. The Supreme Court upheld the judgment of the High Court under appeal which held that the composers had no right at all in the composition.

In Ilaiyaraja (I), the Madras High Court has explained this aspect further – to the extent the term ‘cinematograph film’ includes a sound recording, the ownership rule under Section 17 proviso (b) also extends to such ‘sound recording’. But I think here is where the Madras High Court got it wrong, which I explain in the next section. 

Ilaiyaraja (I): Failure to properly interpret “copyright therein” and “cinematograph film”

One point that has always bothered me is the stipulation in the relevant part of Section 17 proviso (c) that the producer of the ‘cinematograph film’ would be the first owner of the “copyright therein”. What is the meaning of the term ‘therein’? Obviously, it is a reference to the ‘copyright’ in the ‘cinematograph film’. I think there is no confusion on what is meant by the term ‘copyright’ – it is a reference to the set of rights granted under Section 14.

As for term “cinematographic film”, the current definition is as below:

Section 2(f): “Cinematograph film” means any work of visual recording and includes a sound   recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films;

While it is accurate to state that the definition includes a sound recording, the connotation offered by the Madras High Court in Ilaiyaraja (I) is incorrect. The reference to ‘sound recording’ is not in isolation but it is a reference to a sound recording that accompanies a visual recording. The principle definition of the term is that it refers to a work of visual recording. Both these contextual elements suggest that the intent was to ensure that a composite product comprising both visual and sound elements as well as a product comprising only visual element, are both covered with in the definition of the term “cinematographic film”.

Under the scheme of the Act as it stands today, separate set of rights is conferred on a ‘sound recording’ under Section 14(1)(e). Under Section 13(4), the right in a ‘sound recording’ is separate from the right in the underlying musical work or lyric. Although Section 13(4) does not, unfortunately, deal with the relationship between a ‘sound recording’ and a ‘cinematograph film’, the fact that the Parliament has chosen to identify them separately and grant them separate rights (though substantially similar ones) prima facie suggests that the concept under Section 13(4) extends equally to a ‘sound recording’ vis-à-vis ‘cinematograph film’. To hold otherwise would be contrary to legislative intent.

Therefore, when Section 17 proviso (b) states that the producer shall be the first owner of the “copyright therein“, it can only be construed as a reference to the producer of the film becoming the default first owner of the rights granted under Section 14(1)(d), i.e. the copyright in the cinematograph film. That cannot be construed as granting the film producer the rights under Section 14(1)(e) as well, i.e. Copyright qua ‘sound recording’.

Moreover, definition of the term “cinematographic film”, in any event, does not include a “musical work”. Therefore, the phrase “copyright therein” in Section 17 proviso (b) cannot be construed as a reference to ownership of rights under Section 14(1)(a) as well, i.e. Copyright qua ‘musical work’.

By this logic, the Madras High Court judgment in Ilaiyaraja (I) is erroneous because it fails to: (i) properly appreciate the interpretation of the phrase “copyright therein”, (ii) the impact amendment to the definition of “cinematograph film” and inclusion of ‘sound recording’ by way of the 1994 Amendment.