ROYALTY IN RESPECT OF LITERARY AND MUSICAL WORKS FOR BROADCASTING MUSIC ON RADIO CHANNELS
1. INTRODUCTION:
In a recent judgment passed on April 28th, 2023 in the case of Indian Performing Right Society Limited Vs Rajasthan Patrika Pvt. Ltd. (hereinafter referred to as the “Case”), the Hon’ble Bombay High Court (hereinafter referred to as the “Court”) held that a sound recording that forms part of a cinematograph film and is communicated to the public from radio stations i.e. communication other than communication in a cinema hall along with cinematographic film, would entitle the authors of the underlying literary and musical works embedded in the sound recordings to claim royalties on each occasion that such sound recordings are communicated to the public.
This Case forms a crucial part of the jurisprudence on the Copyright Act 1957 (hereinafter the “Copyright Act”) read with the Copyright (Amendment) Act, 2012, (hereinafter the “Amendment”) specifically on the interpretation of the provisions under S.13, 14, 17, 18 and 19 therein.
2. FACTUAL BACKGROUND OF THE CASE:
Indian Performing Rights Society Limited (“IPRS/Plaintiff”) is a society registered under the provisions of the Copyright Act with the object of protecting and enforcing rights, interest and privileges of authors, composers and publishers who are its members, in relation to literary and musical works.
Rajasthan Patrika Pvt. Ltd. (“RPPL/Defendant”) is a company engaged in the business of operating FM Radio broadcast channels, including ‘Radio Tadka’.
In the present Case, Plaintiff approached the Court seeking interim relief against the Defendant on the ground that the amendments brought into effect vide the Amendment would entitle the authors of the underlying literary and musical works embedded in the sound recordings to claim royalties on each occasion that such sound recordings are communicated to the public by the Defendant through their radio broadcasting channels.
The Defendant, on the other hand, submitted that the Amendment is merely clarificatory in nature and does not grant any new substantive right to the authors of original work. They further submitted that the right to collect royalties did not arise out of ownership of the copyright and is merely an additional statutory right available to the authors of original work. The Defendant also submitted that the right to communicate the sound recording to the public remained unaffected by the
Amendment as evidenced by the fact that S.13 and 14 of the Copyright Act remained unaltered.
3. SUBMISSIONS BY THE PLAINTIFF
a) It was submitted by the counsel for the Plaintiff that from a bare perusal of the statement of object and reasons of the Amendment, it can be ascertained that the intention of the legislature was to protect the rights of authors of the original literary and musical works i.e. underlying works. The said Amendment effectively reversed the prevailing position in law, which has been interpreted by the Hon’ble Supreme Court in numerous judgements. The Supreme Court had previously interpreted the provisions of the Copyright Act to hold that once the author of the original literary or musical work assigned the same to a producer of a cinematograph film, such author of original works could no longer claim any further right from such producer.
b) It was further submitted that exclusive copyright in a cinematograph film and a sound recording was circumscribed by proviso added to S.17, the third and fourth provisos added to S.18 and sub-sections (9) and (10) added to S.19 of the Copyright Act. Therefore, the interpretation of the Hon’ble Supreme Court, in its earlier precedents, stood nullified. The third and fourth proviso of S.18 of the Copyright Act to state that on each occasion the original works recognized and protected under S.13 (1) (a) are utilized while communicating a sound recording to public, the right of authors of such original works to collect royalties stood assured.
4. SUBMISSIONS OF THE DEFENDANT
a) It was submitted by the counsel for the Defendant that the Amendment added provisos to S.17, 18 and sub-sections (9) and (10) of S.19 of the Copyright Act. Therefore, since S.13 and 14 of the Copyright Act remained unaltered, no additional rights could be interpreted, and any contrary interpretation would lead to conflict in the relevant subsections of S.14.
b) It was further submitted that the Amendment merely clarifies the well-settled position of law in the subject matter affirmed by the Hon’ble Supreme Court in various precedents relating to the copyright law. If the intention of the Amendment was to afford additional rights to authors of underlying literary and musical works embedded in sound recordings, S.13 and 14 of the Copyright Act ought to have been amended as the provisos could not give rise to any substantive rights to the authors.
5. ANALYSIS BY COURT
a) Even though the earlier precedents by the Hon’ble Supreme Court concluded that once underlying original works became part of a cinematograph film giving the exclusive right of enjoyment to the producer, the lawmakers and parliament were required to take necessary steps to address the infirmities in the law as it existed, lamenting the treatment meted out to creative individuals, who have contributed immensely to the final product i.e. cinematograph film.
b) The statement of object and reasons of the Amendment along with several reports of the parliamentary standing committee, can be used as aids for interpreting the provisions of the Amendment.
c) The Court was of the considered opinion that merely because S.13 and 14 of the Copyright Act have not been amended, the same ought not to lead to a conclusion that the Amendment had fallen short of its objective. Even though the Amendment only added provisos to S.17 and 18, the same have an effect of creating a substantive right in favour of authors of underlying literary and musical works.
d) The words “with the cinematograph film in a cinema hall”, added by virtue of the Amendment, make it clear that the moment such works are utilized in any form other than in a cinema hall, the authors are entitled to receive royalties. The authors would have a right to receive royalties ‘for any utilization of such works’ qua a sound recording when used in a stand-alone manner and not forming part of a cinematograph film.
CONCLUSION
In light of the aforementioned observations, the Court granted interim reliefs to the Plaintiff thereby restraining the Defendant from broadcasting music from IPRS repertoire in the event royalties in respect of the literary and musical works is not paid within 6 weeks.
Therefore, vide this judgment, exploitation of any sound recordings by a mode other than communication in a cinema hall along with cinematographic film, would require the exploiting party to pay appropriate royalties, in line with S.33A of the Copyright Act which authorises a copyright society to collect royalties on behalf of its lyricists and composer members.
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