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2006 Supreme(Cal) 257
High Court Of Calcutta
Ashim Kumar Banerjee
RADIO TODAY BROADCASTING LTD. - Appellant
Versus
INDIAN PERFORMING RIGHTS SOCIETY - Respondent
C. S. 90 Of 2006
Decided On : 04/26/2006
DEBAL BANERJI, JOYANTA MITRA, P.C.Sen, PHIROZE EDULJI, RANJAN BACHAWAT, RUDRAJYOTI BHATTACHAIJEE, S.K.Bajoria, S.K.KAPOOR, SANJIB BANERJI, SAYANTAN BASU
A radio station broadcasting songs is liable to pay royalties to the Indian Performing Right Society Ltd. (IPRS) for the songs which would be broadcasted through their radio station in addition to the license fees paid to the producer being Phonographic Performance Limited (PPL), a society of the producers, unless the members of IPRS expressly assigned their exclusive rights in favor of the members of PPL.
Headnote:
COPYRIGHT - FILM AND NON-FILM SONGS - PAYMENT OF ROYALTIES - RADIO STATION BROADCASTING SONGS - LIABILITY TO PAY ROYALTIES TO PERFORMING ARTISTS - INTERPRETATION OF COPYRIGHT ACT, 1957 - SECTION 17(B) PROVISO, SECTION 18, SECTION 19 AND SECTION 60.
Fact of the Case:
Plaintiff, a radio station, sought to broadcast film and non-film songs without paying royalties to the Indian Performing Right Society Ltd. (IPRS), a society preserving the rights of performing artists. IPRS contended that once a song was composed and marketed through producers, only permission from the producer society was required, and no royalties were payable to the performers.
Finding of the Court:
The court held that IPRS was entitled to demand royalty from the plaintiff for broadcasting songs through its radio station, as the members of IPRS did not assign their exclusive rights to the producers by agreement. The court also held that the instant proceeding brought under Section 60 of the Copyright Act, 1957 was maintainable as IPRS was legitimately entitled to threaten the plaintiff and initiate legal proceedings to protect the interests of its members.
Issues: 1. Whether a radio station is obliged to pay royalties to IPRS for broadcasting songs in addition to the license fees paid to the producer society? 2. Whether IPRS is entitled to claim royalty from the plaintiff for exploiting the work and members of IPRS commercially by broadcasting the songs through the proposed radio station?
Ratio Decidendi: 1. The court relied on the precedent in the case of IPR Society v. EIMP Association to interpret the scheme of the Copyright Act, 1957. 2. The court held that the right of lyricists/composers in respect of the song picturized and put in the original film track is extinguished as soon as they are paid for their work, unless they reserve their right to assign it to others for commercial exploitation of the same work in other modes by agreement with the film producer. 3. The court held that IPRS was entitled to claim royalty from the plaintiff as the members of IPRS did not assign their exclusive rights to the producers by agreement.
Final Decision: The court dismissed the plaintiff's application, holding that IPRS was legitimately entitled to demand royalty from the plaintiff, and that the instant proceeding brought under Section 60 of the Copyright Act, 1957 was maintainable.
( 2 ) TO protect those intellects law was enacted in our country in 1957 being the Copy Right Act, 1957" (hereinafter referred to as the "act of 1957" ). Law on the Subject:
( 3 ) THE scheme of the Act of 1957 was elaborately discussed and explained and interpreted by the Apex Court in the case of IPR Society v. EIMP Association reported in AIR 1977 Supreme Court, Page 1443. Their lordships in paragraphs 8 to 17 of the said judgment analysed the entire scheme of the Act of 1957. Analysis done by Their Lordships is so explicit that no one need to venture the same any more. In any event I dare to do so as I would not be in a position to improve upon what Their Lordships did in the said precedent. I, however, wish to discuss my understanding of the interpretation which would only be relevant to decide the point in issue raised before me.
( 4 ) THE Apex Court, however, got the privilege of getting assistance from two legal luminaries of this Bar who are unfortunately no more in this world and I am deprived of that privilege although the learned Counsel appearing before me ably assisted me in resolving the present controversy. Subject Issue:
( 5 ) THE subject controversy relates to copy right of songs. Be it film songs or be it non-film songs. Preparation of Song:
( 6 ) FILM Song: When a film is produced the producer to ornament and articulate his film hires artists for adding songs in the film. Those artist are lyricist, composer as well as singer. Lyricist is approached by the producer to write a song which can fit in a particular situation in the film so that the song does not become irrelevant or out of place in the film. After the song is written the same is given to the composer who composes the music and then a singer is asked to sing the song. The sound recordist records the song and the same is put in the original film track and mixed up with the film. After it is done the song becomes a part of the film. Once the song becomes the part of the film the producer being the owner of the film also becomes the owner of the song for the purpose of using the same in his film and is protected under the law from having the said song used in any other film without his consent.
( 7 ) AFTER the song is put in the film the song is also converted into cassettes and/or Compact Discs (hereinafter referred to as "cds") by the music companies with the permission of the producer for the purpose of selling it in the market for public consumption. The music companies, however, pay royalty to each of the performers whose rights are protected under the law being the lyricist, the composer as well as the singer unless there is any exclusive right given by the artists to the film producer by agreement. However, singer is no as such separately regarded in the law as observed by justice Krishna lyar in the case of IPR Society (supra ).
( 8 ) NON-FILM Songs : The music companies hires singer, lyricist composer and there after get a complete song sung by the singer with the lyrics of the lyricist and on the music composed by the composer and the said song is converted into CDs or cassettes which are sold in the open market, There also the music companies pay royalty to each of the performers being responsible for preparation of the said song. Payment of royalty under the copy right law:
( 9 ) CASSETTES and CDs are sold in the market. I go and buy one cassette upon payment of the price tagged on it. Such price includes not only the manufacturing cost and the profit but also the share of the royalty which is paid on my behalf by the music companies to each of the performers. I come back to my house, play the
