2021 Supreme(Del) 35

IN THE HIGH COURT OF DELHI
RAJIV SAHAI ENDLAW, J.
The Indian Performing Right Society Ltd. & Others - Appellant
Versus
Entertainment Network (India) Ltd. & Others - Respondent
CS(OS). Nos. 666 of 2006, 1996 of 2009 IAs. No. 4558 of 2006 (u/S 10 CPC), 19921 of 2011 (u/O VI R-17 CPC), 9128 of 2012 (u/S 151 CPC) & 5953 of 2017 (u/O XI R12 CPC)
Decided On : 04-01-2021

The communication to the public of underlying literary and musical works as part of sound recording, under authorization/licence from owner of the copyright in the sound recording, does not require authorization/permission from the owner of the copyright in the underlying literary and musical works of the sound recording.

Headnote:

COPYRIGHT - PUBLIC PERFORMANCE RIGHTS - SOUND RECORDING - LITERARY AND MUSICAL WORKS - DISTINCTION - COMMUNICATION TO PUBLIC - INFRINGEMENT - COPYRIGHT ACT, 1957 - SECTION 13(4), 14, 18, 19, 30, 31, 51(A), 52(1)(Y).

Fact of the Case:

Plaintiff, Indian Performing Right Society Limited (IPRS), a company limited by guarantee and registered under the Companies Act, 1956, and also registered as a Copyright Society under Section 33 of the Copyright Act, 1957, filed CS(OS) No.666/2006, pleading that it is the sole representative body of composers, authors and publishers of literary and musical works in India; that after the amendment of the year 1994 of the Copyright Act, the plaintiff was re-registered as a Society under Section 33(3) of the Act, authorizing the plaintiff IPRS to carry on copyright business in literary and musical works; that the members of the plaintiff comprise of authors, composers and publishers of Indian literary and musical works, and have executed deeds of assignment, assigning their public performing rights in respect of the literary and/or musical works in favour of the plaintiff; that the plaintiff is therefore the exclusive owner of the public performing rights in respect of these literary and musical works; that the plaintiff is therefore exclusively authorized to license the public performing rights that exist with respect to literary and musical work created by its members; that the primary task of the plaintiff is to collect royalties from users of music and thereafter disburse the same to the owners of the copyright in the music, whose interest it represents; that the performing rights include right of performing the work in public and the right to communicate the work to the public by making it available for being seen or heard or otherwise enjoyed by the public directly or by means of display or diffusion and the right of authorizing any of the said acts; that music is made by a team of persons comprising of different talents and consequently the copyright in different components of music may belong to a number of individuals; for example, there is a lyric writer who writes words of a song, there are music composers and then there are performers, who actually sing; that under the Copyright Act, lyric writers and music composers create works which are recognized as literary and musical works in Sections 2(o) and 2(p) of the Act; that under Section 2(ff) of the Act, communication to the public includes within its ambit, communication of any work through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel; that the owner of copyright in literary or musical works exclusively enjoys the rights as set out in Section 14(a) of the Act and which include the right to performing work in public or communicating to the public; that thus every broadcasting organization, shop, departmental store, showroom, emporium, restaurant, hotel, club, disco, bars, office establishments, television channels, music concerts etc. which play music, impinge on this right unless seek the permission of the plaintiff; that Phonographic Performance Limited (PPL) is also a company incorporated under the provisions of Indian Companies Act and is engaged in the business of carrying on copyright business of its members in sound recordings assigned to PPL by its members who are leading music companies in India; that the registration of PPL under Section 33 entitles it to charge and collect license fee from users for sound recordings as defined in Section 2(xx) of the Act, for which rights vest in its members; that PPL therefore charges and collects license fee from users, on behalf of its members who hold rights to cassettes, compact discs and such other media of sound recordings which are played and performed in public; that thus the plaintiff IPRS and PPL, though both registered under Section 33 as Copyright Societies, are registered for and in two different categories viz. musical works and sound recordings; that exploitation of the sound recordings also implies exploitation of literary and/or musical works forming part thereof; that accordingly, license fee for both these works i.e. musical works and sound recordings, have to be paid for separately by the users thereof, to each of the Societies; that consequently, entering into a license agreement with either Society, for using both, the musical works and sound recordings, will not absolve the user from entering into another appropriate license agreement with the other Society; that the defendant is engaged in the business of broadcasting and is commonly known by its brand name ‘Radio Mirchi’; that the defendant, in the year 2001 entered into agreements with the plaintiff for the broadcast of music in respect of seven cities in India; that though the defendant has commenced broadcasting in three new cities in India but did not obtain a license from the plaintiff therefor and is repudiating the right of the plaintiff; that the defendant, after having accepted the rights of the plaintiff and after having taken license from the plaintiff with respect to seven cities, cannot so repudiate the rights of the plaintiff; and, that the broadcast of music by the defendant, in the three new cities, without obtaining permission of the plaintiff, amounts to infringement of the public performance rights of the plaintiff. Accordingly the reliefs of, permanent injunction restraining the defendant from broadcasting/communicating to the public, the literary and/or musical works in which the plaintiff has a copyright, and of recovery of damages, are claimed in the suit.

Finding of the Court:

The Court held that the communication to the public of underlying literary and musical works as part of sound recording, under authorization/licence from owner of the copyright in the sound recording, does not require authorization/permission from the owner of the copyright in the underlying literary and musical works of the sound recording. Thus when Section 19(10) provides that assignment of copyright in any work to make a sound recording which does not form part of any cinematograph film shall not affect the right of the author of the work to claim equal share of royalties and consideration payable for any utilisation of such work in any form, it cannot mean that utilisation of the work as embodied in the sound recording also entitles the owner of the copyright in such work to demand equal share of royalties and consideration payable for the sound recording. To read the same otherwise would make the other provisions, on interpretation whereof it was held that no authorisation is required to be taken from owners of copyright in underlying works of the sound recording, while communicating the sound recording under authorisation of copyright in sound recording, otiose. Any interpretation which makes another provision of the statute redundant or otiose, is to be avoided and the rule of harmonious construction has to be applied. Thus Section 19(10) has to be read as not affecting the right of the author of the underlying works in sound recording, to claim share in royalty payable for utilisation of such works though identically as in the sound recording but in any other form, as had earlier also been held by the Single Judge in the judgment on interim relief in CS(OS) No.1996/2009. To the said extent, the amendment of the year 2012, is clarificatory.

Issues: 1. Whether the communication to the public of underlying literary and musical works as part of sound recording, under authorization/licence from owner of the copyright in the sound recording, requires authorization/permission from the owner of the copyright in the underlying literary and musical works of the sound recording? 2. Whether the amendment of the Copyright Act, 2012 is retrospective?

Ratio Decidendi: 1. The Court held that the communication to the public of underlying literary and musical works as part of sound recording, under authorization/licence from owner of the copyright in the sound recording, does not require authorization/permission from the owner of the copyright in the underlying literary and musical works of the sound recording. 2. The Court held that the amendment of the Copyright Act, 2012 is clarificatory.

Final Decision: The Court dismissed CS(OS) No.666/2006 and passed a decree in favour of the plaintiffs and against the defendants in CS(OS) No.1996/2009, directing (i) that in case the defendants wish to perform the sound recordings in public, i.e. play them, a license from PPL is essential; (ii) in case the musical works are to be communicated or performed in the public, independently, through an artist, the licence of IPRS is essential; (iii) in case the defendants wish to hold an event involving performances or communication of works of both kinds to the public, the licence or authorisation of both, PPL and IPRS is essential; and, (iv) of permanent injunction restraining the defendants from acting contrary to the aforesaid directions, and leaving the parties to bear their own costs.