The Copyright is vested with the Music Companies

The Bombay high court in a landmark judgment has upheld the right of the music companies over a song recording (Click here to view the judgment).  Bombay high court on Monday ruled in favour of the Music Broadcast Pvt Ltd seeking a declaration that the Indian Performing Right Society (IPRS) was not entitled to demand and receive any licence fee or royalty for broadcast of sound recordings on its FM radio stations. The order by Justice S J Vazifdar is a huge relief to FM radio stations and others who play recorded songs, including hotels and discotheques. The FM radio stations that were paying separately to both music producers and copyright societies such as the Indian Performing Rights Society, which administer rights of lyricists, music composers, will now be required to pay only to the music producers — the owners of the sound recording.

Senior advocate Navroz Seervai and advocate Sandeep Marne who represented IPRS argued that once a song is recorded the composers and lyricists do not lose their copyright over the work. They claimed that the owners of the song are only paid to make a sound recording.  They submitted that that while interpreting the provisions the  Court must keep in mind that a sound recording is only a derivative work being derived from the musical and literary work. The musical and literary works are the original works.  The creator of the original musical and literary work ought therefore to be given precedence over the owner of the copyright in a sound recording and the owner of the sound recording must again approach the owner of the underlying works for a licence and pay the royalty if he wants to communicate it to the public by broadcast.

Senior advocate Virendra Tulzapurkar who represented the plaintiff, opposed this argument saying that as the works of the lyricists and music composers are incorporated in a sound recording made by music companies, it is these companies who exclusively own the copyright over such recordings. The IPRS can claim royalty only when the song is performed live or another song is recorded, or the original song is remixed.

The court held that once the author of a lyric or a musical work parts with his copyright by authorising the producer of a sound recording in respect of his work and thereby to have his work incorporated or recorded in the sound recording, the producer of the sound recording acquires copyright, which gives him the exclusive rights.

Justice Vazifdar said, “once the author of a lyric or a musical work parts with a portion of his copyright by authorising the producer of a sound recording to make a sound recording in respect of his work and thereby to have his work incorporated or recorded in a sound recording, the producer of the sound recording acquires by virtue of section 14(1)(e) of the Act, a copyright which gives him the exclusive right stipulated in section 14(1)(e) which includes the right to communicate the sound recording to the public.  A distinct copyright comes to vest in the sound recording as a whole.  I see no reason why if this is the case for cinematograph films, it is not so in respect of a sound recording.” The court also rejected the argument that the music companies are only given the right to make CDs and cassettes and they would have to pay copyright fees if they broadcast the songs, for example through radio.

The Delhi High Court today in Indian Performing Right Society Limited v. Mr. Aditya Pandey and Anr.; CS(OS) 1185/2006 and/or Phonographic Performance Limited and Ors. v. CRI Events Private Limited and Ors. CS(OS) 1996/2009 has given a decision in similar lines.

The Copyright Laws of the U.S. and U.K. provides for the protection of rights of composers and song-writers using the concept of ‘needle-drop’. That is synch royalty becomes payable every time the needle drops on a record player in a public performance. The French copyright law also provides necessary amount of protection for the author. So in a way we can say that the judgement of the Bombay High Court and the Delhi High Court is not in tune with the international approach towards recognising the rights of the author.

The IPRS will most probably challenge the decisions especially when people like veteran lyricist Javed Akhtar are fighting hard to protect the rights of the authors and composers.