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High Court of Delhi
PRADEEP NANDRAJOG & S.P. GARG
Indian Performing Right Society Ltd.
Versus
Aditya Pandey & Others
FAO(OS). No. 423, 424 & 425 OF 2011 & CM No.19128 OF 2011
Decided on : 08-05-2012
Whether the Communication to the Public, including by way of Broadcasting of a Sound Recording also amounts to a Communication to the Public of Literary and Musical Works embodied in the Sound Recording under the Copyright Act 1957 post the said Act being amended by the Copyright (Amendment) Act 1994? If yes: Whether a separate license in respect of such Literary and Musical Works can be asserted by the owner of copyright in such works in addition to the license secured from the copyright holder in the Sound Recording?
Fact of the Case:
The appellant, Indian Performing Right Society Ltd. (IPRS – for short) is a Copyright Society registered under Section 33 of the Copyright Act 1957 as per the Certificate of Registration dated March 27, 1996. As per a list published on March 08, 2006 it has 1478 members who are either authors of the lyrics or composers of the musical score. Undisputably, as per certain sample IPRS Assignment Deeds, the appellant has the locus to maintain an action with reference to copyright in the lyrics as also the musical score, if the copyright is violated. Its fight is with the broadcasters of Private FM Radio Channels, and Event Organizers for the reason the Private FM Radio Channels broadcast recorded songs and the Event Organizers organize either live musical performances or recorded musical performances. The Phonographic Performance Ltd. (PPL – for short) is also a copyright society registered under Section 33 of the Copyright Act 1957 and its members are copyright holders in sound recordings.
Finding of the Court:
The Court held that the communication to the public of a sound recording by the owner of the recording in no way encroaches upon the right of the owner of the underlying literary and musical works to perform said underlying works in the public, as correctly held by the learned Single Judge and therefore, nothing turns upon the arguments predicated upon the definition of the expressions “performance” and “performer” advanced by the learned senior counsel appearing for IPRS.
Issues: 1. Whether the Communication to the Public, including by way of Broadcasting of a Sound Recording also amounts to a Communication to the Public of Literary and Musical Works embodied in the Sound Recording under the Copyright Act 1957 post the said Act being amended by the Copyright (Amendment) Act 1994? 2. If yes: Whether a separate license in respect of such Literary and Musical Works can be asserted by the owner of copyright in such works in addition to the license secured from the copyright holder in the Sound Recording?
Ratio Decidendi: 1. The Court held that the rights of an owner of a sound recording are, in no way, inferior to those of an owner of copyright in the original literary or musical works. 2. The Court held that creating of a sound recording is through the simultaneous integration of the differentiated and notwithstanding the constituent differentials existing, the integrated whole i.e. the sound recording when broadcasted to the public is an exercise of the ownership right on its own strength. 3. The Court held that the communication of a sound recording to the public by the owner of the recording in no way encroaches upon the right of the owner of the underlying literary and musical works to perform said underlying works in the public.
Final Decision: The Court dismissed the appeals and cross-objections.
PRADEEP NANDRAJOG, J.
1. What we commonly understand as a song consists of three elements: lyrics, music and singing. There are three players. The lyricist who provides the words; the musician who provides the music score; and the singer who provides the sound to the words. The trinity join: a song is created. Thus, a song is music which is vocal in character. It is but natural that in a song, the words and the music have a special relationship. Words affect the melodic line, even the rhythmic structure. The inflection of the language in the lyrics leaves an imprint on the melody and the rhythm; on style and phrasing. When a song is sung there is a moving romance between the words and the music.
2. Do the identities break when their fusion creates a synthesized product i.e. when a song is recorded?
3. Undoubtedly, when a song is recorded there is homogenization of the lyrics with the musical score; where integration is articulated through the multi-level hierarchical system of inter-dependence.
4. But integration is not fusion just as differentiation is not fission.
5. Can it be said that the development process i.e. creation of a song is based neither on integration without differentiation nor on differentiation without integration? Can it be said that the process of creating a song unfolds itself through the simultaneous integration of the differentiated and the differentiation of the integrated?
6. None could doubt that the discernable coloration of words (literature) and music, gives a song a consciousness of its own, and thus a song may exist as an independent entity but not separated from the consciousness of the words and the music.
7. A song which is recorded is the result of the merger of the creative talent of three: the
composer of the lyrics, the composer of the musical score and the voice of the singer. When played, it is dichotic i.e. it simultaneously stimulates the ear - the lyric and the music score. It has to be. Because the singer and the musician play simultaneously upon the words and thus create a dichotic effect.
8. Integration is a difficult concept and has been used in different contexts and senses: totalization, aggregation, unification, fusion, assimilation, synthesis, composition etc.
9. It is rightly said that nothing exists in isolation, neither the problem nor the solution: all is an inextricable part of a complex multi-dimensional reality of existence.
10. While studying a problem or trying to solve it, habitually, we seize hold of a “constitutive” element, or a number of such elements, but seldom realize that the whole of the reality in which a specific problem arises, and in which it has its continued existence, eludes our grasp. We then seize the whole in its flow and onward movement, as an un-fragmented reality, and try to focus on specific issues as they merge from the fabric, and in which they are deeply interwoven.
11. We then realize, that the integrated whole, retains its gene-identity and thus has to make allowances for partial disintegration of its constitutive elements.
12. But, like revolution, integration is not a regular visitor in life; when it visits, just as a revolution, it evokes and calls for an answer to the sharing of the fruits of the cooperative venture.
13. To recall the profound statement of Sri Aurobindo: “Our way of knowing must be appropriate to that which is to be known.” Thus, if the data which we have to analyze reveals to us that reality is of the nature of an organic, multi-dimensional whole, in which a play of dynamic patterns constitute all the substances, then the method to seize such reality must be of a corresponding measure and rhythm. A method whose steps are not those of a reductionism, to be pursued to the last constitutive element, but a method that is akin to the rhythm: a movement that swells and coincides with the whole or reality and the dynamism inherent in it.
14. It is such a sense of totality which gives to the perspective
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