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!!!