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2011 (5) ALL MR 738
High Court of Judicature at Bombay
S.J. VAZIFDAR
Music Broadcast Private Limited
Versus
Indian Performing Right Society Limited
SUIT NO. 2401 OF 2006
Decided on : 25-07-2011
I. The Act recognizes only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of rights to the owner thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each class without the interference by the owners of the works in other classes.
II. No class of work is inferior to the work in another class.
III. In sound recording and cinematograph films, the literary and musical work gets incorporated therein and thereupon independent copyrightable works viz. sound recordings and cinematograph films come into existence and, therefore, rights under Section 14 in respect of each sound recording and cinematograph film come into existence which can be exploited by the owner of the sound recording or cinematograph film without interference from the owners of copyright in the underlying literary or musical works therein.
IV. Of such right has the effect of communicating the underlying works viz. musical or literary to the public such communication of underlying works being a part of sound recording does not amount to infringement of the copyright of communicating to the public, the underlying works. The owner of a sound recording has an exclusive right to communicate the sound recording in any form and such communication in exercise of right under Section 14(1)(e)(iii) cannot amount to infringement of any underlying work in such sound recording.
V. The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to the public as a part of the sound recording.
VI. The owner of a copyright in the underlying works retains the bundle of copyright therein otherwise than as a part of the sound recording.
VII. The right to public performance of an underlying work is different from the right to communicate the sound recording in which the musical or literary work is incorporated.
VIII. The defendant, therefore, can claim licence fees only in respect of public performance of musical or literary works of its members or in respect of communication of such works otherwise than as a part of other copyright work viz. sound recording or cinematograph film. In other words, the defendant cannot claim licence fees in respect of public broadcast or communicate to the public, musical or literary works as a part of a sound recording.
IX. Upon the owner of a copyright of musical and literary work permitting the making of a sound recording, his right to make or permit to be made another sound recording containing such work comes to an end.
Court has held all but the last submission to be well founded.
1. The plaintiff has sought a declaration that the defendant is not entitled to demand or recover royalty and/or licence fee or require the plaintiff to pay the same in respect of broadcast of sound recordings by the plaintiff at its FM Radio Stations and is not entitled to interfere with such broadcasts by the plaintiff for non payment of royalty and/or licence fee; a permanent injunction restraining the defendant from demanding or claiming or making any claim in respect of or interfering with such broadcasts by the plaintiff for non payment of royalty/licence fee and a decree in the sum of `.1,27,62,589/-towards refund of royalty/licence fee received by the defendant from the plaintiff from 1st August, 2003 upto 31st July, 2006, together with interest. In the alternative to the above prayers, the plaintiff has sought a declaration that it is entitled to a licence to broadcast the works from the defendant’s repertoire on payment of royalty as stipulated by an order dated 25th August, 2010, passed by the Copyright Board and for an order restraining the defendant by a perpetual injunction from interfering with the plaintiff’s broadcasting works upon payment of such amounts.
2. The plaintiff carries on business, inter-alia, of establishing, operating and maintaining FM Radio broadcasting stations in various cities of India. It is not necessary to refer to the policy of the Central Government which led to the privatisation of FM radio broadcasting sector. Suffice it to state that the plaintiff has obtained the necessary licence to operate and maintain FM radio stations at various places in India.
The defendant, a Copyright Society constituted under section 33 of the Copyright Act, 1957 administers the rights of lyricists and composers and issues licences to perform publicly the dramatico-musical works controlled by it and its affiliated foreign collecting societies and collects licence fee/royalty from several radio stations in India and thereafter distributes the same among its members whose works are performed by such radio stations.
3. The only point decided in this suit is a question of law leading to the grant of the declaration sought by the plaintiff.
It was not seriously disputed that this Court does not have jurisdiction to decide the other issues. The Copyright Board has the exclusive jurisdiction to decide them. I have, however, referred to the pleadings in greater detail than is necessary as there was a lot said about the plaintiff’s conduct being dishonest and as the matter has gone to trial. In deciding a pure question of law, a parties’ conduct is not relevant. If I ever have occasion to refer to this judgment in future, I should from here proceed straight to the part after the issues.
Plaint :
4. The plaintiff has been paying the defendant royalties in respect of broadcast of sound recordings by the plaintiff at its FM radio stations under a mistaken belief of law. The plaintiff is legally bound to pay royalty only to the Phonographic Performances Limited (PPL) and not to the defendant. As a result of incorrect advise and under a misconception of law, the plaintiff entered into a licence agreement with the defendant dated 11th June, 2001. Under this agreement, the defendant granted the plaintiff the non exclusive licence to perform publicly, the dramatico-musical works controlled by the defendant and its affiliated foreign collecting societies for a term of ten years and on the other conditions mentioned therein. The agreement provides, inter-alia, for the royalty/licence fees. The defendant granted the plaintiff an infancy discount on its royalty/licence fees as the private FM radio industry was at its nascent stage.
Disputes arose between the parties as a result whereof, the defendant, by a letter dated 22nd March, 2003, withdrew the infancy discount. The plaintiff contended that there was no breach of the agreement on its part and pointed out that it was incurring heavy financial losses for a varie
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