International Confederation of Societies of Authors andComposers (ICSAC)

V.

Aditya Pandey and others

Sandhya Somvanshi

898(IPR)

FACTS OF THE CASE: The issue involved is that : LYRICS written by ‘X’ (LYRICIST) MUSIC COMPOSED by ‘Y’ (MUSICIAN) are used to make SOUND RECORDING by ‘Z’ (SOUND RECORDING COMPANY), “Whether ‘A’(EVENT MANAGEMENT CO.) is required to seek license from ‘X’ & ‘Y’ for subsequently Playing the song in public even after ‘A’ had paid for broadcasting of the song to ‘Z’( SOUND RECORDING COMPANY)

• In this case three appeals were filed against an order passed on May 08, 2012 by division bench of high court of Delhi.

• (appellant in one of the above three appeals). International confederation of societies is a non-governmental organisation, an association of copyright societies, registered in France.

• (respondent 2) Synergy Media Entertainment is the event management company • (respondent 1) this company’s senior manager finance

• In that judgement court has dismissed the appeals, and affirmed the order of the learned single judge in suit relating to copyright infringement by disposing of the interim applications moved for temporary injunction & directions.• Directions issued by court were:

In the Synergy Suit : Applications for temporary injunctions which were disposed by stating that the defendants do not have to secure a license from the plaintiffs. In ICSAC suit : applications were disposed with the direction that

Where defendants wish to perform the sound recoding in public a license from PPRS is essential

In case of musical works to be communicated or performed in the public independently through an artiste, license of IPRS is essential

In case defendant wishes to hold an event involving performances or communication of works of both kinds to the public license or authorisation of both IPRS and PPRS are necessary. therefore the defendants were restrained from communicating any of such works to public or performing them in the public without appropriate authorisation

ARGUMENT OF APPELANTS:• Authors of literary & composers of musical work are the first owners of copyright in lyric & musical work under CR Act 1957. so they have right to restrain the respondent no.1 &2 from infringing their copyright, • Third party appellant pleaded it had direct impact on its members & creative community for their interest stands to suffer loss and injury as the impugned judgement deprives them of their exclusive right to collect royalty in cases of communication of sound recordings to the public.• They further argued impugned judgement denies the members of the appellants the right recognised under various international conventions to which India is a party, which they holdUnder copyright law.• Impugned judgement creates discord b/w the manner of exploitation & treatment of same work in two different countries contrary to what international conventions & treaties seek to achieve.• In the impugned judgement interpretation of law stands in direct conflict with India’s obligation under Berne Convention for protection of literary and artistic works& TRIPS 1994• Impugned judgement places reciprocal agreement b/w IPRS & other collecting societies under stress as it makes possible for Indian performing rights society limited to ful-fill its contractual obligations thus affecting rights of million song writers, composers & publishers.

• The authors of literary work and composers of musical work are the first owners of Copyright in their respective works under the Act. Hence, they have the right to restrain the respondents from infringing their copyright. It was pleaded that the right created under Section 14(a)(iv) cannot be read in derogation of the right created under Section 14(a)(iii) of the Act. Further, the appellants argued that the impugned judgement was in abrogation of India's obligations under the Berne Convention and the TRIPs Agreement, and thus creates a discord between the manner of exploitation of the same works in two different countries, contrary to their objectives.

ARGUMENTS OF RESPONDENT-• According to Indian performing right society ltd v. eastern Indian motion pictures association & others. It is contended that once the author of a lyric or a musical work parts with a portion of his copyright, by authorising a film producer or producer of sound recording in respect of his work, it exists with the later to exhibit his work to the public

• It is pleaded that appeals filed by societies, not registered in India , on behalf of lyricists and musicians under section 33 of the act are not maintainable.

• Sec 14 defines meaning of copyright.

• Sec 2(d) defines author• Producer of sound recording is also an author• Sec 16 defines no copyright except as provided in this act

• Sec 17 first owner of copyright : in literary, dramatic or artistic work made by author in course of employment by proprietor of a newspaper under contract of service for purpose of publication in newspaper the same proprietor shall in absence of any agreement to the contrary be the first owner of copyright in the work as far as it relates to publication in any newspaper or reproduction of the work for the purpose of its being so published but in all other respects the author shall be first owner of the copyright in the work.

• Section 18 deals with the Assignment of copyright: Owner or prospective owner may assign to any person the CR either wholly or partially either generally or subject to limitation either for whole or part of.

Appellants here are collecting societies.

• Section 19 mode of assignment Assignment of CR shall specify amount of royalty &other consideration payable to author during assignment it is subject to revision, extension or termination on mutually agreed terms.

If assignee does not exercise the right assigned to him under any of the other subsections of this section within 1 year from date of assignment , assignment is deemed to be lapsed after expiry of said period.

• This 19(10) inserted from 21/6/2012 , it did not exist on the day plaint was filed before trial court in 2006Sec 19(10) No assignment of CR in any work to make sound recording which does not form part CF shall affect right of author of the work to claim on equal share of royalties & consideration payable

Co-joint reading of various provision of the act leaves no doubt that each seven sub-clauses of sec 14(a) are independent of one author but reading these sub clauses independently cannot be interpreted to mean that right of producer of sound recording, who also comes under def. of author u/s 2(d) & has right to communicate his work to public u/s 14(e)(iii) of the act is lost.

Appellant said that permission granted to defendants was without the right to communication the sound recording to public, cannot be accepted as there appears no terms & conditions b/w the parties depriving the defendant from communicating his work of making song to the public.

• Here suit filed in 2006 & law as it existed has to be applied for period prior to 21.06.2012.

• Difference between right of original work & right of sound recording CR in original, literary, dramatic, musical & artistic works remains protected entire life of author + 60years CR in sound recording subsist for 60 years but both rights are equal.

• Indian Performing Rights society limited v. Eastern Indian Motion Pictures Association and other

Though conflict may at first exist between sec 13(4) & 14(1)(a)(iii) on one hand & section 14(1) ( c)(iii) on the other, once the author of lyric or musical work parts with a portion of his copyright by authorising a film producer to make cinematograph film in respect of his work thereby to have his work recorded on sound track of cinematograph film, latter acquires by section 14(1)( c) of act on completion of cinematograph films a copyright which gives him exclusive right interalia of performing the work in public Without securing further permission of the author (composer) of the lyric or musical work in public

. .• The respondents argued that the 2012 amendment bestowed an independent copyright on the producer of the sound recording. Hence, once the author of a literary work or composer of musical work authorizes a film producer, or producer of a sound recording in respect of his work, he parts with the copyright in the said work and the rights exists with the producer to exhibit his work to the public. It was also pleaded that the appeals filed by societies not registered in India under Section 33 of the Act are not maintainable

• .HIGH COURT DECISION:• interim order passed by the High Court of Delhi had essentially concluded that once event organizers have obtained licenses from (and paid royalties to) the producers of sound recordings for broadcasting such sound recordings, they did not require separate licenses from lyricists and musicians (authors of the underlying works contained in such sound recordings) when they merely played sound recordings containing the underlying works in public. The issues that were addressed by the High Court and also the Supreme Court at the interim stage of the original suit filed in 2006 are –

1. Whether the ‘Communication to the Public 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?

2. If the above is answered in affirmative, whether separate licenses in respect of such Literary and Musical Works should be obtained from the authors of copyrights in such works in addition to the license secured from the producer of the Sound Recording?

• Addressing the first issue, the court referred to the decision of the Chancery Division Court, reported as Gramaphone Co. Ltd. vs. Stephen Carwardine & Co. (1934) 1 Ch. 450, wherein, the concept of co-existing copyrights was recognized. The learned Single Judge, at first had concluded that once a license is obtained from the owner or someone authorized to give it, in respect of a sound recording, for communicating it to the public, including by broadcasting, a separate authorization or license is not necessary from the copyright owner or author of the musical and/or literary work. However, this does not mean that the musical and/or literary work can be otherwise "performed" in the public, (as opposed to communication of a sound recording to the public) without authorization.

• The High Court of Delhi, while addressing the second issue, relied on Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association and others (1977) 2 SCC 820, where it was contended that once the author of a lyric or a musical work parts with a portion of his copyright, by authorizing another to make a cinematograph film or a sound recording in respect of his work, a right exists with the latter to communicate his work to the public. It was hence concluded that it was not necessary for a party to obtain a license from the authors of underlying works (e.g. lyricists and musicians) or from the assignees of such works (in this case, the sound recording company).

It is also pertinent to mention that the Supreme Court also noted the substantial change in the aforesaid law by the copyright amendments of 2012. The court concluded that – with effect from 21st June 2012, the assignment of the copyright in the work to make sound recording per se (i.e., which does not form part of any cinematograph film), shall not affect the right of the author of the underlying work to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent

SUPREME COURT DECISION:

The Court upheld the judgement of the Division bench of the High Court and arrived at the conclusion that even though the rights provided under section 14 of the Act were independent of each other, the producer of the sound recording (also an author by virtue of section 2(d)(v)) would still have the right to communicate his work to the public.The court clarified that since section 19(10) was inserted on 21.06.2012, after the plaint was field in the trial court, this section shall not be applicable to the rights existing prior to this date. Section 19(10) states that the assignment of the 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 an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent. This means that the assignment of copyright in any non-film musical work shall not affect the rights of lyricists and composers to claim an equal share of royalties.

REASONING OF THE COURT:

let us first examine the relevant sections of the Copyright Act as cited by the Court:Section 2(d) of the Act defines the meaning of “author” of the work. According to section 2(d)(ii), the composer shall be the “author” of a musical work. However, section 2(d)(v) was added to the Act by virtue of the 1994 amendment, according to which an author shall also be “the person who causes the work to be created”, i.e. the producer.As per section 14(e) of the Act, a copyright in a sound recording includes the right to make any other sound recording embodying it, and to communicate the sound recording to the public.Section 13(4) of the Act states, “The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made”.By reading these three sections together, the court came to the conclusion that:“…the producer of sound recording is also an author. But his right would not affect the separate right of any work in respect of which sound recording is made, as provided in Section 13(4)…”Further, section 19(10) of the Act states, “No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.” However, since this section was inserted post-amendment, it was not applied by the court.

The court thus went on to hold that on a conjoint reading of the various provisions of the Act, there was no doubt that under Section 14, the rights in respect of literary, dramatic or musical work are independent of one another, but reading these sub-clauses cannot be interpreted to mean that right of a producer under to communicate his work to the public is lost.The court did not accept the argument of the appellants that the permission granted to the defendant did not include the right to communicate the sound recording to the public, as there was no term or condition depriving the defendant from doing so either.Further, the 1977 judgement in Indian Performing Rights Society v Eastern Indian Motion Pictures Association & Ors. was heavily relied upon. This judgement held that once the author of a lyric or a musical work parts with his portion of his copyright by authorizing a film producer to incorporate it in a cinematographic film, the producer acquires the exclusive right of performing the work in public, without having to secure any further permission of the author of the musical work or lyric.

• Finally supreme court held that we are unable to find any error in the impugned order passed by high court in a suit filed in 2006. with effect from 21.06.2012, according to section 19(10) the assignment of the copyright in the work to make sound recording which does not form part of any cinematograph films shall not affect the right of the author of the work to claim equal share of royalties or consideration payable for utilisation of such work in any form by the respondent/plaintiff.• Due to repeated adjournments sought on behalf of the plaintiff and on account of the failure of the plaintiff to file affidavit evidence of witness, the right of plaintiff to lead evidence has been closed.• ICSAC though not party to any suits but have been allowed to contest the interim matter before this court on the basis that the order of the high court adversely affects the societies rights has chosen not to implead itself as a party to the suits and pursue the same.

• Therefore all appeals stand disposed of with the observations. No order as to cost.