JUDGMENT
Ashim Kumar Banerjee, J.
1. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literally creativity in man is exploited and masters, whose works are invaluable are victims of piffling payments — so said Justice Krishna Iyar.
2. To protect those intellects law was enacted in our country in 1957 being the Copyright Act, 1957″ (hereinafter referred to as the “Act of 1957”).
Law on the Subject:
3. The scheme of the Act of 1957 was elaborately discussed and explained and interpreted by the Apex Court in the case of IPR Society v. EIMP Association, . Their Lordships in paragraphs 8 to 17 of the said judgment analysed the entire scheme of the Act of 1957. Analysis done by Their Lordships is so explicit that no one need to venture the same any more. In any event I dare to do so as I would not be in a position to improve upon what Their Lordships did in the said precedent. I, however, wish to discuss my understanding of the interpretation which would only be relevant to decide the point in issue raised before me.
4. The Apex Court, however, got the privilege of getting assistance from two legal luminaries of this Bar who are unfortunately no more in this world and I am deprived of that privilege although the learned Counsel appearing before me ably assisted me in resolving the present controversy.
Subject Issue:
5. The subject controversy relates to copyright of songs. Be it film songs or be it non-film songs.
Preparation of Song:
6. Film Song: When a film is produced the producer to ornament and articulate his film hires artists for adding songs in the film. Those artist are lyricist, composer as well as singer. Lyricist is approached by the producer to write a song which can fit in a particular situation in the film so that the song does not become irrelevant or out of place in the film. After the song is written the same is given to the composer who composes the music and then a singer is asked to sing the song. The sound recordist records the song and the same is put in the original film track and mixed up with the film. After it is done the song becomes a part of the film. Once the song becomes the part of the film the producer being the owner of the film also becomes the owner of the song for the purpose of using the same in his film and is protected under the law from having the said song used in any other film without his consent.
7. After the song is put in the film the song is also converted into cassettes and/or Compact Discs (hereinafter referred to as “CDs”) by the music companies with the permission of the producer for the purpose of selling it in the market for public consumption. The music companies, however, pay royalty to each of the performers whose rights are protected under the law being the lyricist, the composer as well as the singer unless there is any exclusive right given by the artists to the film producer by agreement. However, singer is not as such separately regarded in the law as observed by Justice Krishna Iyar in the case of IPR Society (supra).
8. Non-Film Songs : The music companies hires singer, lyricist, composer and thereafter get a complete song sung by the singer with the lyrics of the lyricist and on the music composed by the composer and the said song is converted into CDs or cassettes which are sold in the open market. There also the music companies pay royalty to each of the performers being responsible for preparation of the said song.
Payment of royalty under the copyright law:
9. Cassettes and CDs are sold in the market. I go and buy one cassette upon payment of the price tagged on it. Such price includes not only the manufacturing cost and the profit but also the share of the royalty which is paid on my behalf by the music companies to each of the performers. I come back to my house, play the music on my player and enjoy it alone. I may enjoy with my family members. I may also invite hundred people in my house to enjoy the music. For these I do not have to pay any additional royalty. Next day I take the CD to my restaurant and play the music to attract my customers, I make myself vulnerable to payment of additional royalty under the law. Similarly if I am a film producer I am entitled to use the song in my film so long I want. However, I do not have any special right to permit others to exploit the same commercially unless there is an agreement to the said effect.
10. The basic question boils down to one point i.e. commercial exploitation. The moment artistic piece of work is commercially exploited by any one he is bound to pay royalty under the Copyright Law to the creator of such artistic piece. Be it composer, be it lyricist, be it sound recordist.
Facts of the Present Case:
11. Plaintiff wishes to run a radio station through F. M. band, inter alia, known as “Radio Today”. They applied for appropriate licence from the Central Government by depositing the requisite fees. Provisional licence was also issued to them. However, they are yet to start their radio station in various cities in the country including Calcutta. They intend to play both film and non-film songs through their radio station. They, however, do not wish to pay any royalty to the lyricist, composer and other artists being members of the Indian Performing Right Society Ltd., the defendant No. 1 being a registered society under the said Act, 1957 who preserves the rights of the performing artists against commercial exploitation of their piece of work. The defendant No. 1 contended that once the song was composed and marketed through producers they were only required to take appropriate permission from the producer society and not IPR as once the song was prepared and marketed the complete product would attract royalty and no royalty was payable to the performers as the performers lost their rights as soon as the product is marketed as a complete product. The defendant No. 1 threatened the plaintiff that in case the songs are played in the radio station that would amount to violation of the copyright law and consequence would follow. Against such threat the plaintiff filed the instant suit claiming protection under Section 60 of the said Act of 1957 whereas the defendant No. 1 filed a suit before the Delhi High Court inter alia alleging infringement of copyright by the plaintiff herein.
Moot question:
12. Moot question involved herein is whether the radio station would be obliged to pay any royalty and/or licence fees to IPR for the songs which would be broadcasted through their radio station in addition to the licence fees paid to the producer being Phonographic Performance Limited (hereinafter referred to as ‘TPL”), a society of the producers.
Precedent:
13. The parties relied upon principally on the precedent in the case of IPR (supra,). I also heavily rely upon the said decision as I find, the answer to the moot question can easily be derived from the said decision.
IPR Case (Supra):
14. IPR Society demanded royalty from the producers on account of future right on the film songs on behalf of the lyricists and composers and other members of the society. They approached the Copyright Board. The Copyright Board held that the IPR was entitled to tariff published in the newspaper and they had right to grant licence available before performance of the music in the sound track of the film and it could claim royalty charges in respect of those films with effect from the date on which tariff was published in the Gazette. The Cinema Producer Association approached the High Court as against the order of the Copyright Board. The High Court held that unless there is a contract to the contrary the composer/lyricist does not acquire any copyright either in respect of the film or its sound track which is capable of assigning it to others under Section 17(b) proviso. The High Court further held that ‘the composer can claim a copyright in his work only if their is an express agreement between him and the owner of the film reserving his copyright”. The High Court further held that Section 18 of the Act confers power to make a contract of the assignment, such power can be exercised only when there is an existing or future right to be assigned. The Supreme Court dismissed the appeal by holding that the right of the lyricist/composers in respect of the song picturised and put in the original film track is extinguished as soon as they are paid for their work. However, they retained their right to assign it to others for commercial exploitation of the same work in other mode in case such right is reserved by the agreement between him and the film producer.
15. The observation of the Apex Court being relevant herein is quoted below:
It is accordingly held that an existing and future right of music composer and lyricist in their respective ‘works’ as defined in the Act is capable of assignment subject to the condition mentioned in Section 18 of the Act, as also in Section 19 of the Act which requires an assignment to be in writing assigned by the assignor or by his duly authorised agent.
Present Case:
16. It is not the plaintiffs case that the members of the IPR did assign their exclusive right to the producers by agreement. Unless it is shown that such right of the members of IPR were expressly assigned in favour of the members of PPL, IPR is entitled to claim royalty from the plaintiff if they want to exploit the work and the members of IPR commercially by broadcasting the songs through the proposed radio station.
17. I. therefore, prima facie, hold that the IPR was legitimately entitled to demand royalty from the plaintiff.
Maintainability of this proceeding:
18. The instant proceeding was brought under Section 60 of the said Act of 1957. Proviso to Section 60 is as follows ‘.
“Provided that this section does not apply if the person making such threats, with due diligence, commonsense and prosecutes and action for infringement of the copyright claimed by him.”
19. In my prima facie view, IPR was entitled to claim royalty. Defendant No. 1 refused to pay the same. Hence, IPR was legitimately entitled to threaten the defendant No. 1 and they were also entitled to initiate proceeding by taking recourse to process of law to protect the interest of their members.
Result:
20. The application thus fails and is hereby dismissed.
21. There would be however no order as to costs.