Of Music and Lyrics Too...

The Delhi High Court, addressing a similar issue as the last post, rendered its concurrence with the decision of the Mumbai High Court, pronounced early last week.

Although the Mumbai High Court arrived at its decision by referring to several authorities, foreign judgments and statutory amendments, the Delhi High Court decision has given the issue a shop-floor approach.

The interim order, passed jointly in IPRS v. Aditya Kumar and PPL v. CRI Events Pvt. Ltd. & Ors., denied the grant of an order for interim injunction on the allegations of copyright infringement in the first suit, while issuing a temporary injunction order in favor of the Copyright society in the second.

The Court in arriving at the decision, touched upon multifarious factors. As pointed out in the comments to the related post, the Delhi High Court stated that:

“There would be no reason for the sound recording producer to pay once for acquiring the right to make the master sound recording and then pay separately for each reproduction thereof or each communication to the public. It is urged that if the plaintiff’s argument were to be accepted, then for each reproduction of the sound recording a separate royalty would be due from the producer of the sound recording to the owner of the rights in the underlying musical works and lyrics.”

Further, in view of Copyright being a bundle of rights, the Court commented upon the unity of ownership, and suggested that the stand taken by IPRS, would lead to discrimination in regard to identical content of copyrights of two different “works”, prove illogical and undermines the purposes of the Act.

In other words, the Court, opined that if IPRS’ proposition were to be admitted, it would put the licensee in a compelling position to seek permission from the authors of the underlying work. If a stand otherwise be taken, the same would perhaps, render the entire scheme of broadcasting rights oblivious- thus causing a dent to a huge segment of the entertainment industry.

The Court also looked into another critical issue- where royalty payments ensued, and to whom. CRI Events, urged that the fact that, since, the audience were not expected to make a payment, they were not obliged to pay royalties. In response to this line of assertion, the Court observed that:

“The enactment uses the phrases “public performance” and “communication to the public” in relation to a copyrighted work. The question what is “public” ought not to be considered in the abstract, and in isolation, but in the context of the definition of “infringement” of a copyrighted work, under Section 51."

J. Bhatt’s view that “public” ought to be considered in view of infringement, also brings to my mind , an extremely impactful paragraph, from one of his earlier judgments, Univ. of Oxford v. Narendra Publishing House and Ors ,

“Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use."

By citing this paragraph, what I intend to communicate is that, it is clear (although not expressly stated) that at least in the Court’s mind, “communication to the public”, “public performance” and “performance or communication” per se, can be differentiated by the standards applied to personal use as enumerated under the constituents of fair use.

The judicial line of thought, from these two decisions, seems to be very clear- separation of rights between separate authors. Undoubtedly, the 1994 amendment of the Act brought about a change, that seems to affect the rights of the authors of the underlying works to a considerable degree, which, in today’s context I personally view to be one that is important and much necessitated.

My opinion is further influenced by the fact that the manner in which production houses function today, is similar to that of corporates- thus the notion of “work for hire” holding greater relevance, while also strengthening the economic rationale for producers to pay a lyricist or music director towards their contribution.

While music and lyrics are an inseperable part of Bollywood, and despite this decision having left a few stakeholders a bit unhappy, the decision is one which finds sufficient justification within the four corners of the law.