Judgment

JASWANT SINGH, J. - This appeal by certificate granted under Art. 133 (1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance:-

"Whether in view of the provisions of the Copyright Act, 1957, an existing and future right of music ..........composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person."

2. The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as the IPRS), the appellant before us, was incorporated in the State of Maharashtra on August 23 1969, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of S. 2(r) of the Copy right Act, 1957 (Act 14 of 1957) (hereinafter referred to as the Act) which was enacted after taking into consideration the Report of the (British) Copyright Committee, 1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subject of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic words and artistes. In accordance with the provisions of S. 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the Statesman and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of S. 34 of the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averred inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films: that the musical works prepared by the composers of lyric and music under contract of service with their member - producers of the cinematograph films - having been utilised and incorporated in the sound track of the cinematograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright subsisted in the composers which they could assign to and become the basis of the claim of the IPRS under S. 33 of the Act; that their members i.e. the producers of cinematograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound trak of the films produced by them (including any musical work incorporated therein) and to cause the said records to be heard in public; that in the making of a cine