Nine years after the 2012 amendments to the Copyright Act, a copyright society has finally been registered by the Central Government for sound recordings! This comes as the Central Government recently granted Recorded Music Performance Limited (‘RMPL’) registration as a copyright society with respect to sound recordings. The application for registration was filed by RMPL in 2018. Notably, the Phonographic Performance Limited India (‘PPL’) has also been attempting to obtain registration as a copyright society for the same kind of works. In this post, I shall analyse the grant of registration to RMPL after providing a brief legal background. Particularly, I shall look at the consistency of this registration with the Delhi High Court’s order in a case filed by PPL, and the issues surrounding delays and transparency.
Rule 44 of the Copyright Rules, 2013 prescribes that any association of persons “formed for the purpose of carrying on the business of issuing or granting licences in respect of a right or set of rights in specific categories of works” may file an application with the Registrar of Copyrights for registration as a copyright society. As per Section 33(3) of the Copyright Act, 1957, while granting such registration, the government must look at the interests of authors/ rights owners, public, and prospective licensees, and “the ability and professional competence of the applicants”. Moreover, it provides that ordinarily not more than one copyright societies should be registered for the same class of works. Additionally, as per Section 35 of the Act and Rule 44(2) of the Rules, each copyright society is required to contain a governing body with equal representation of authors and other owners of rights. Finally, as per Rule 49, the determination on whether an applicant is to be granted registration should be carried out within 60 days.
PPL’s Tussle at Registration
PPL is a long established entity that controls “Public Performance rights” and “Radio Broadcasting” rights for 400+ music record labels with more than 4.5 million international and domestic songs”. Its members include several top players from the industry such as “Saregama, Sony Music, Times Music, T-Series, Universal Music, Venus Music, Warner Music, and many top regional labels”. Its attempts at securing registration as a copyright society have been elaborately discussed by Divij in his post here. For the purposes of this post, it is relevant to note that PPL’s registration application was rejected by the Registrar of Copyrights against which it had moved to the Delhi High Court. One of its pleas before the court was to restrain the government from processing any other applications for registering a copyright society for sound recordings. The court, while denying this relief, observed that the government “shall not take any action inconsistent with” the fact that PPL’s registration application may revive based on the outcome of the case.
It is interesting to assess whether the grant of registration to RMPL amount to such an inconsistent action. This is because if PPL’s application is possibly revived, it arguably has a stronger case for registration than RMPL (as discussed below) and generally more than one societies are not registered for the same purpose of works. PPL’s application might rather be prejudiced now if upon a revival of its application, the existence of an already registered copyright society in RMPL is used as a factor to deny registration to PPL. It is, thus, very difficult to see how this decision is consistent with the court’s observations. But at the same time, the court’s handling of the issue in itself is unclear and conflicting in that it had rejected prohibition on processing of other applications. As granting any registration to a society for sound recordings would affect PPL’s position, the possible middle ground of both the observations is that the government could consider other applications but not approve them. This, in turn, means that no such copyright society can be approved until the outcome of the decision which might take its own sweet time. It, thus, would be interesting to see how this issue is adjudicated by the court.
Why RMPL?: Absence of Transparency
As noted earlier, the government is required to consider several factors while deciding upon an application for registration as a copyright society. The manner in which this determination is made is, however, shrouded in secrecy. The discussions, if any, as part of granting the registration are not publicly available. Moreover, even the announcement of grant of registration to RMPL does not come with reasons behind doing so. This is particularly problematic in the instant case. As discussed by Simrat in her post analysing RMPL’s application, RMPL is a new organisation set up only a few months before the registration application was filed, without much experience, and it does not contain even a single ‘author’ as member of its governing body as required by law. There is no available information to indicate if the composition of the governing body has subsequently been changed to include authors within its fold. Moreover, it is a relatively small organisation as majority of the players in the field are members of PPL instead which has experience of several decades in this sector. Interestingly, on RMPL’s website, the ‘Member list’ tab was not functional when I tried to access it, so it is unclear as to which all entities are members of RMPL. These reasons make a strong case for rejection of application under Rule 49 of the Rules. If despite such apparent issues with the application, the government grants the registration, at the bare minimum it should substantiate the same with detailed reasons behind the same. Notably, Rule 49(1)(v) provides that an opportunity to be heard must be provided before rejecting any application. It is theoretically possible that an adverse outcome was initially reached at regarding RMPL’s application which was changed upon the hearing of the entity or some of these deficiencies may have been resolved by RMPL. There is, however, no way to determine what actually transpired given the cloak of opacity shrouded over the entire procedure.
This probably is the most absurd part of the entire fiasco. This is the first registration of a copyright society for sound recordings in NINE years! There is no reasonable explanation behind the same. Recall that Rule 49 envisions the outcome of a registration application in 60 days. The first application was filed by PPL in May 2013 which it sought to withdraw in May 2014, a year after the original application. The matter would not have prolonged and become cumbersome the way it has had the prescribed timelines been adhered to. Subsequently, despite rejecting PPL’s withdrawal, the government left the matter in cold without any progress at all for four years until another application was filed by PPL in 2018. Even then, it took another 3 years to decide on that application. The same is the case with RMPL’s application which was filed in 2018 and decided upon only recently. There is no logical explanation behind the government excessively delaying upon deciding applications for registration of copyright societies. All of this adds to the uncertainty of the players involved as well as makes it difficult for authors to exercise their rights with respect to copyright societies which have been codified in the Act and the Rules.
The decision to grant registration to RMPL arguably seems to be an inefficient one. I believe that it might be subjected to legal challenge by PPL else it might be prejudicial to its interests since it might lose out on registration even if it wins its challenge before the Delhi High Court. While registration for both entities is legally possible, it is non-ordinary and as Simrat argues it might be sub-optimal. This, however, is not to take anything away from the issues that PPL itself has been crippled with in the past such as lack of transparency and rent-seeking behaviour (see here, here, and here) and its attempts at avoiding the scrutiny of compliance with the constraints of copyright law (see here and here). In the meantime, however, RMPL must immediately work towards ensuring that it is in compliance with the Act and the Rules with respect to issues such as providing details specified in Rule 66 on its website including the list of its members and details of its Governing Council, none of which it currently specifies. Similarly, based on RMPL’s application and information available on its website, it appears that it currently does not ensure representation in its governance body and has not established traceable systems for collection and distribution of royalties as required by the Rules.