Thursday, July 28, 2011

Of Music and Lyrics- Mumbai HC sounds the drum!!!

The much awaited judgment from Mumbai High Court has finally been pronounced-awaited not so much because the issue has national prominence, but more so, because the subject matter concerns one of India’s most widely shared passions...running a close second to Cricket- Film Music!!!

A few months back, many may recall, noted members of the film fraternity came out with their views on their right to royalties, vis-à-vis broadcast of sound recordings consisting of their underlying works, namely lyrics and music. The Mumbai High court has put the matter to some rest, in the Judgment pronounced in Music Broadcast Pvt. Ltd. V. Indian Performing Rights Society (IPRS), on Monday July 25, 2011.

To give a brief overview of the case, the issue centered around whether IPRS was entitled, and Music Broadcast Pvt. Ltd., in turn, obligated to pay royalties to the members of the IPRS, for broadcast of recordings containing their (IPRS members’) underlying works. 

For the uninitiated, Music Broadcast Pvt. Ltd. carries on the business of establishing, operating and maintaining FM Radio broadcasting stations in various cities of India. IPRS, on the other hand, is a non-profit organization, registered as a Copyright Society under Section 33 of the Copyright Act, 1957. 

The Society undertakes to issue Licenses to users of music and collect Royalties from them, for and on behalf of its Members i.e. the Authors, the Composers and the Publishers of Music, and distribute this Royalty amongst them after deducting its administrative costs.

The Court while deciding this case, in my humble opinion, has given Copyright a very holistic approach. While the Court looked at Copyright as how it (again IMHO) must be envisioned, i.e. as a bundle of rights, it made multifarious references to noted international authors, and also commented on the non-applicability of several precedents to the case at hand. 

 In resolving the issue, the Court also pointed out that the Phonographic Performances Ltd., another Copyright Society established under S. 33 of the Copyright Act, is the only body entitled to collect royalties for the broadcast of sound recordings.

To me, the most impactful statement(s) putting the whole controversy to rest were in Para 59, on Pages 72 and 73. The extract I refer to reads:

“Thus, 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.”

From the start of the issue, I was of a similar opinion as echoed in the extract - I interpret the judgment to treat copyright as a bundle of rights that may be separated into various strands. Further, as the Court also notes, the manner in which Section 14 of the Copyright Act outlines the various constituents while explaining the “meaning of copyright”, the provision clearly distinguishes rights in a literary work from a musical work, and the two from rights in a sound recording.

Although the judgment does not state, yet to me, it appears that apart from seperability of the various types of works and the rights that constitute the copyright bundle for each of these, the Court somewhere at the back of its mind also had the economic rationale in mind. 

What I intend to state, and as I see (and probably would also advocate), is that while a sound recording is made, one part of their right, has been exhausted - i.e. the right to adapt or make a derivative sound recording of their work.

Having said so, of course, these exceptionally talented people are also sufficiently remunerated at the time they contract for their work to be used in a sound recording. Granted that this may not be a typical work for hire, yet if they desire to be compensated for the future use and benefits accruing from something that involves (or is based on) an underlying work on which they hold a copyright, the same should be a matter for contractual negotiation and not of royalty collection from a copyright society, with whom they do not have the capacity to deal. 

The reason I term them incapacitated to do so, is not their stature, or, standing, but simply because as mere authors of a literary or musical work, they are not holders of copyright in the sound recording.

As I shall read the 108 page decision another time, I am almost certain that many more points, views and contradictions shall come to mind. In the meanwhile, I hope that our readers shall have a lot more to say, rebut and in Sai’s words- refute! Until then… Let the Music Play!!!


  1. :) Nice One Divs!

    Just wanted to bring out one more point... If the authors of the underlying works continue to exercise their copyright in the said underlying work as embodied in a sound recording, then the copyright of the author of the sound recording becomes redundant. If the author of the sound recording has to keep on taking permissions from the authors of the underlying works while exploiting his copyright under 14(e), then what is the point of the exclusivity of his copyright?

    There is another aspect - while relying on J. Krishna Iyer's ruling in the IPRS case (see pgs. 74-75), the Bombay High Court seems to suggest that the author of the sound recording is the "master of the combination" thereby implying that if any other person brings together the same combination of authors of the underlying works to create a new sound recording of the same song, then it may amount to infringement of the copyright of the author of the sound recording. What are your thoughts on this?

  2. With redundancy of 14(e) i completely agree.. this was at the back of my mind when I said about contractually negotiated terms!!

    @ master of Combination... ah am a bit icky on that.. to me a sound recording is primarily fixation, of course bringing about a lot of creative input in terms of using the right trebble, bass, bars and riff.. More so in J. Krishna Iyer's time, than today when you have software to mix and alter as well as disc writers floating freely!!!

    In case of a soundrecording, the copyright includes the right -
    (i) to make any other sound recording embodying it;
    (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
    (iii) to communicate the sound recording to the public.

    I wonder if creating a new SR altogether would violate any of these- to me, prima facie No. However, since sweat of the brow is not a test applied to examine copyright infringement, it is a close call- thanks to the "embody" language. If one were to re-record a song as a remix or any other derivative work, one would safely say that a SR is not infringed (as we have seen in many cases).

    But how would Courts interpret the term "embody" and to what degree would something be considered "embodied"?? especially in a much "inspired" industry... I am foggy... Any ideas?

  3. Mere conjecture again... lets read para 68 from the Bombay High COurt judgment and see if that is helpful. It reads:

    "68. Mr. Seervai relied upon a footnote in Nimmer on Copyright, Indian Reprint, Vol.I Release No.82 at page 4-42.4 which retains this position. It reads as under :- A phonorecord is a material object in which sounds are fixed. 17 U.S.C. 101. Such sounds may consist of a literary, musical or dramatic work. No copyright may be claimed in a phonorecord as such, but a literary, musical or dramatic work will be eligible for copyright if it is fixed in any tangible medium of expression, including that of a phonorecord. See 203(B) supra. In addition, a separate copyright may be claimed in the manner in which such a work is performed or rendered on the phonorecord. This is the sound recording copyright. See 2.10 supra. The distinction may be summed up as the difference between a copyright in a Cole Porter song, and a copyright in Frank Sinatra’s recorded performance of that song. The former would be a musical work copyright and the latter would be a sound recording copyright, although both may be embodied in the same phonorecord. Daboub v. Gibbons, 42 F. 3d 285, 388 (5th Cir. 1995)"

    Use of "embodied" above indicates that it could simply mean "to give a body / concrete form" as opposed to "incorporating" in a new SR. In fact, I am inclined towards this interpretation for 2 reasons:

    1. Since we all agree that the owner of the copyright in SR has the right to make copies of the SR, unless embodying is interpreted to mean fixing, as opposed to creating a derivative work from the SR, from where is the owner of copyright in SR getting this right to make copies? 14(d)(ii) only talks about selling or giving on hire the copies, not about making of the copies.

    2. Use of "embodying" in Explanation to Sec. 20 is also helpful. Sec. 20 Expln states that "In this section, the expression "manuscript" means the original document embodying the work, whether written by hand or not."

  4. I think your interpretation is likely to hold ground.. but if embodying is a question only of fixation, to me it seems like the issue becomes closer to one of the sale/production of counterfeits. Would you be inclined to agree?

    On the other hand, I feel that if an action does come up in Court on this, the Court is likely to see the degree of embodiment of the original SR- I would anticipate that theories such as innocent infringement, derivative wks etc may come into play. But having said that, what we are then really looking at is the infringement of the Musical work. In such a scenario, I think the violation of CR in SR and MW will have to be looked at in conjunction, and not as 2 seperate issues. Do you agree?

  5. Divs - I would definitely be inclined to agree.

    In fact, this brings me to another aspect of the Bombay High Court's judgment, where I think their interpretation is incorrect. Bombay High Court has interpretated (see paragraph 48) that the copyright declaration requirement under Sec.52A(1)(b) refers to the disclosure of the name of the copyright owner in the underlying work.

    I disagree with this interpretation. S.52A was enacted to curb piracy and counterfeiting. It is the copyright owner of SR who suffers the most in case of counterfeiting. In fact, I have never heard of the owner of the underlying work initiating an action for counterfeiting / piracy in respect of infringement of the SR (I would be happy if anybody could point out any case whether the lyricist or singer has filed an action for counterfeiting). If this is the case, then what purpose will be served by disclosing the name of the copyright owners of the underlying works as opposed to disclosing the name of the copyright owner of the SR (who will lose the most due to any counterfeiting) is beyond me.

    In fact, if "such work" in 52A(1)(b) refers to the underlying works, then it must refer to underlying works in 52A(2)(b) as well. Thus, all the DVD manufacturers would be required to show that they have permission from the lyricists and singers and composers to make the DVD. This seems illogical to me.

    As for your point on violation of copyright in SR and musical work having to be looked at in conjunction in any case before the court, I think the first question the court would have to answer is whether Indian law provides for the unity theory of SR (owner being the master of the combination) or not. It is this question which will be the determining factor.

  6. Sneha.. I agree 100%. I went back and forth para 48 and the adjoining paragraphs.. because I was very perturbed by the interpretation led into.

    @ SR and musical work...I agree too.. that qn would be the determinant factor..