PETITIONER: INDIAN PERFORMING RIGHT SOCIETY LTD. Vs. RESPONDENT: EASTERN INDIA MOTION PICTURES ASSOCIATION DATE OF JUDGMENT14/03/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1977 AIR 1443 1977 SCR (3) 206 1977 SCC (2) 820 ACT: Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act. HEADNOTE: The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 967 of
1975.
(From the judgment and order dated 13-2-1974 of the Calcut-
ta High Court in Copyright No. 2/73).
A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud-
hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the
appellant.
S. Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar
and I. N. Shroff, for respondents 1-5 and 12 and 22.
J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6-
8.
B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I.
N. Shroff, for respondents 12 and 22.
J.L. Nain, Atul Munim and B. R. Agarwala, for re-
spondent No. 19.
The Judgment of the Court was delivered by Jaswant
Singh, 3., V.R. Krishna Iyer, J. also gave a separate opin-
ion.
JASWANT SINGH, J. This appeal by certificate granted
under Article 133(1) of the Constitution by the High Court
of Judicature at Calcutta which is directed against its
judgment dated February 13, 1974, raises the following
substantial question of law of general importance :–
“Whether in view of the provisions of the
Copyright Act, 1957, an existing and future
rights of music …… composer, lyricist is
capable of assignment and whether the producer
of a cinematograph film can defeat the same by
engaging the same person.”
The facts giving rise to the appeal are: The Indian
Performing Right Society Ltd. (hereinafter referred to for
the sake of brevity as ‘the IPRS’), the appellant before us,
was incorporated in the State of Maharashtra on August 23,
1959, as a company limited by guarantee, for the purpose of
carrying on business in India of issuing or granting li-
cences for performance in public of all existing and future
Indian Musical works in which copyright subsists in India.
The incorporation of the IPRS was in terms of section 2(r)
of the Copyright Act,
211
1957 (Act 14 of 1957) (hereinafter referred to as ‘the Act’)
which was enacted after taking into consideration the Report
of the (British) Copyright Committee,1952, the suggestions
of the various Ministries of the Government of India and the
State Governments, the Indian Universities and certain
interested industries and associations who were invited to
send their comments on the subjects of copyright. The IPRS
has amongst its members the composers of musical works,
authors of literary and dramatic works and artists. In
accordance with the provisions of section 33 of the Act, the
IPRS published on September 27, 1969 and November 29, 1969
in the ‘Statesman’ and the Gazette of India respectively a
tariff laying down the fees, charges and royalties that it
proposed to collect for the grant of licences far perform-
ance in public of works in respect of which-it claimed to be
an assignee of copyrights and to have authority to grant the
aforesaid licences. A number of persons including various
associations of producers of cinematograph films who claimed
to be the owners of such films including the sound track
thereof and the Cinematograph Exhibitors Association of
India filed objections in respect of the aforesaid tariff in
accordance with the provisions of section 34 of- the Act
repudiating the claim of the IPRS that it had on behalf of
its members authority to grant licences for. performance
in public of all existing and future musical works which
are incorporated in the sound track of cinematograph films
in which copyright may subsist in India or the right to
collect in relation thereto any fees, charges or royalties.
The association of producers averted inter alia that their
members engaged composers and sound writers under contracts
of service for composing songs to be utilised in their
films; that the musical works prepared by the composers of
lyric and music under contract of service with their mem-
bers-producers of the cinematograph films–having been
utilised and incorporated in the sound track of the cinemat-
ograph films produced by the latter, all the rights which
subsisted in the composers and their works including the
right to perform them in public became the property of the
producers of the cinematograph films and no copyright sub-
sisted in the composers which they could assign to and
become the basis of the claim of the IPRS under section 33
of the Act; that their members i.e. the producers of cine-
matograph films being the authors and first owners of the
copyright in the cinematograph films produced by them had
the exclusive right inter alia to cause the said films in so
far as the same consisted of sounds (which include musical
works) to be heard in public as also the exclusive right to
make records embodying the sound track of the films produced
by them (including any musical work incorporated therein)
and to cause the said records to be beard in public; that in
the making of a cinematograph film as contemplated by the
Act a composer composes a lyric or music under a contract of
service or for valuable consideration which is substantial a
music director sets it to tunes and imparts music to it and
a singer sings the same but none of them nor any one of
their aforesaid works can and have any separate copyrights;
that motion picture is the combination of all arts and music
in the sound track which cannot be detached from the film
itself; that the purpose of making a motion picture is not
only to complete it but also to publicly exhibit it through-
out the world; that having regard to the provisions of the
Act the’ copyright in the case of
212
a cinematograph film vests in the owner of the film as
defined in section 2(d) (v) of the Act; and that in the
premises any assignment purporting to have been made in
favour of the IPRS was void and of no effect and was incapa-
ble of conferring any rights whatsoever in such musical
works on the IPRS.
The Cinematograph Exhibitors Association of India also
filed objections challenging the right of the IPRS to charge
fees and royalties in respect of performance in public of
the musical works incorporated in the sound track of the
films. Besides raising contentions identical to those
raised by various associations of producers they averred
that copyright in a cinematograph film which vested in the
producers meant copyright in the entirety of the film as an
integrated unit including the musical work incorporated in
the sound track of the film and the right to perform the
work in public; that in accordance with the agreement with
the distributors of films the exhibition of cinematograph
film includes the right to play in public the music which is
an integral part and parcel of the film; that the producers
lease out copyrights of public performance of the films
vested in them to the distributors who give those rights to
the exhibitors an agreement and that when an exhibitor
takes a licence for exhibition, it is complete in all
respects and a third party like the IPRS cannot claim any
licence fee from the exhibitors.
On the aforesaid objections being referred to it for
determination under section 35 of the Act, the Copyright
Board expressed the view that in the absence of proof to the
contrary, the composers of lyrics and music retained the
copyright in their musical works incorporated in the sound
track of cinematograph films provided such lyrical and
musical works were printed or written and that they could
assign the performing right in public to the IPRS. The
Copyright Board further held that the tariff as published by
the IPRS was reasonable and the IPRS had the right to grant
licences for the public performance of music in the sound
track of copyrighted Indian cinematograph films and it could
collect fees, royalties and charges in respect of those
films with effect from the date on which the tariff was
published in the Gazette of India.
Aggrieved by the decision of the Copyright Board, the
objectors preferred an appeal under section 72 of the Act to
the High Court which allowed the same holding that unless
there is a contract to the contrary, a composer who composes
a lyric or music for the first time for valuable considera-
tion for a cinematograph film does not acquire any copyright
either in respect of film or its sound track which he is
capable of assigning and that under proviso. (b) to section
17 of the Act, the owner of the film at whose instance, the
composition is made, becomes the first owner of the copy-
right in the composition. The High Court further held
that “the composer can claim a copyright in his work only
if there is an express agreement between him and the owner
of the cinematograph film reserving his copyright”. The
High Court also held that “though section 18 of the Act
confers power to make a contract of assignment, the power
can be exercised only when
213
there is an ‘existing or future right to be assigned and
that in the circumstances of the present case, assignment,
if any, of the copyright in any future work is of no
effect”. Dissatisfied with this decision, the IPRS has,as
already stated, come up in appeal to this Court.
The copyright law in our country being fairly complicat-
ed because of the involved language in which some of its
provisions are couched and the case being of first impres-
sion, learned counsel for the parties have tried hard to
help us in solving the knotty points by advancing copious
and able arguments. Appearing on behalf of the appellant,
Mr. Ashok Sen has urged that the author (composer) of a
literary or musical work has copyright which includes inter
alia the exclusive right (a) to perform the work in public
‘and (b) to make any cinematograph film or a record in
respect of the work; that copyright in a literary or
musical work is infringed by any person if without a licence
granted to him by the owner of the copyright, he makes a
cinematograph film in respect of the work or performs the
work in public by exhibiting the cinematograph film; that if
a person desires to exhibit in public a cinematograph film
containing a musical work, he has to take the permission
not only of the owner of the copyright in the cinematograph
film but also the permission of the owner of the copyright
in the literary or musical work which is incorporated in the
cinematograph film, as according to section 1. 3 (4) of the
Act, the copyright in a cinematograph film or a record does
not affect the separate copyright in any work i.n respect of
which or a substantial part of which, the film, or as the
case may be, the record is made; that the provisions of
section 17(b) of the Act have no application to a literary
or musical work or the separate copyright therein and do not
take away the copyright in a literary or musical work em-
bodied in a cinematograph film; that the only modes in which
the author of a literary or musical work ceases to be the
owner of copyright m the work are (a) by assignment, ‘(b) by
relinquishment and (c) by the composer composing the work in
‘the course of his employment under a contract of service
with an employer in which case, the employer becomes the
owner of the copyright in the musical work; that in the case
of an assignment of copyright in future work and the employ-
ment of the author to produce a work under a contract of
service, the question of priorities will be decided ac-
cording to the principle “where equities are equal, the
first in time shall prevail”.
Mr. Sachin Chaudhary, learned counsel for respondents 1,
2 and 3, as well as Mr. J.C. Bhat, learned counsel for
respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel
for respondent 19, who followed Mr. Chaudhary have on the
other hand submitted that the dispute in the instant case,
according to the petition of appeal, the judgment of the
Copyright Board and the judgment of the Calcutta High Court
is confined to the sound track associated with a cinemato-
graph film (which expression, according to Copinger and
Skone James on COPYRIGHT, means “any record of sounds which
is incorporated in any print, negative, tape or other arti-
cle on which the film or part of it, in so far as it con-
sists of visual images, is recorded, or which is issued by
the maker
214
Of the film for use in conjunction with such an article”);
that the contention advanced on behalf of the appellant that
copyright in a literary or musical work incorporated in the
sound track of a cinematograph film vests in the composer of
literary or musical work and when the cinematograph film is
performed i.e. exhibited in public, the composer is entitled
to fee or royalty in that behalf and since the appellant
is the assignee of the copyright from the composers, it has
the right to collect the fee or royalty is entirely unfound-
ed; that unlike (the law) in England, in India unless a
music is notationally written, printed or graphically repro-
duced, it is not musical work within the meaning of the
Copyright Act and there is no copyright ‘in songs or orches-
tral pieces sung or played directly without its notation
being written’ that since a ‘cinematograph film’ is defined
in section 2(f) of the ‘Act as including the sound track
and the ‘cinematograph’ is required to be construed to
include any work produced by any process analogous to cine-
matography, the owner of the cinematograph film is the
firt owner of the copyright therein including the right of
the composer of the literary or musical work incorporated in
the sound track of the film; that in the case of the film in
which a lyric (which literally means a short poem directly
expressing the poet’s own thoughts and sentiments in stan-
zas falling within the purview of the expression “literary
work” as defined in section 2(0) of the Act) has been
plagiarised, there will be copyright in the film vesting in
the producer; that the Act confers a separate copyright on a
cinematograph film as a film, its author under section
2(d)(v) of the Act being the owner of the film at the time
of its completion; that in the case of a lyric or music
incorporated in the sound track of a cinematograph film,
since under section 2(f) of the Act, cinematograph film
includes its sound track and section 13(1)(b) of the Act
confers copyright on the cinematograph film and section
14(c) (ii) of the Act confers on the owner of copyright the.
right to cause the film in so far as it consists of visual
images to be seen in public and in so far as it consists
of songs to be heard in public, it is not necessary for the
owner of the cinematograph film to secure the permission of
the composer of the lyric or of the music incorporated in
the sound track of a cinematograph film for exhibiting or
causing the exhibition of the sound portion of the film in
public or for causing the records of the sound track of the
film to be heard in public. They have further urged that it
is not correct to say that under section 17, proviso (b) in
order that the producer of the cinematograph film should
have copyright in the literary or musical work incorporated
in it, the making of the entire film should be commis-
sioned. According to counsel for respondents section 17
proviso (b) will equally apply if someone is commissioned
to make any component part of a cinematograph film such as a
lyric or musical work i.e. when such component of the film
is made at the instance of a film producer for valuable
consideration, the copyright for such component shall as
well vest in the producer; that as the Act confers a sepa-
rate copyright on a cinematograph film as a film, the pro-
ducer can exercise both the rights conferred on him under
section 14(1).(c)(ii) of the Act and all that section 13(4)
of the Act (when applicable) provides is that the rights
created by section 14(1)(a) and (b) shall co-exist with
those created by section 14(1)(c) and (d) of the Act, e.g.
under clause (a), the
215
copyright in a literary work such as a novel entitles its
author to make a cinematograph film in respect of the work,
and to exercise the remaining rights created by section
14(1)(a) of the Act. But once he has licensed someone to
make a cinematograph film, the licensee shall have the
rights provided in clauses (c) and (d) of section 14(1) of
the Act in respect of the film.
We have given our earnest consideration to the submis-
sions made by learned counsel for the parties. So far as
the first part of the question reproduced above is con-
cerned, there is no dispute between the parties. Both
sides are agreed that in view of the provisions of section
18 of the Act, the material portion of which lays down
that–“(1) the owner of the copyright in an existing work-or
the prospective owner of the copyright in a future work may
assign to any person the copyright either wholly or partial-
ly and either generally or subject to limitations and either
for the whole term of the copyright or any part thereof;
provided that in the case of the assignment of copyright in
any future work, the assignment shall take effect only when
the work comes into existence, (2)where the assignee of a
copyright becomes entitled to any right comprised in the
copyright, the assignee as respects the rights so assigned,
and the assignor as respects the rights not assigned, shall
be treated for the purposes of this Act as the owner of
copyright and the provisions of this Act shall have effect
accordingly”, the first part of the question should be
answered in the affirmative. 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 conditions mentioned
in section 18 of the Act, as also in section 19 of the Act
which requires an assignment to be in writing, signed by the
assignor or by his duly authorised agent.
It is the second part of the question which has been a
hot bed of controversy between the parties that has got to
be tackled. The main point for determination in regard to
this part of the question is whether the composer of lyric
or musical work (which in terms of section 2(p) of the Act
means only a notationally written, printed or graphically
produced or reproduced music) retains a copyright in the
lyric or musical work if he grants a licence or permission
to an author (owner) of a cinematograph film for its incor-
poration in the sound track of a cinematograph film. For
a proper appreciation and determination of the contentions
raised before us, it is necessary to notice certain provi-
sions of the Act.
The terms ‘author’, ‘Cinematograph film’, ‘exclusive
licence’, ‘infringing copy’, ‘musical work’, ‘performance’
performing rights society’, ‘radio-diffusion’ and ‘work’
are defined in clauses (d), (f), (j), (m), (p), (q), (r),
(v) and (y) respectively of section 2 of the Act as under
:–
“(d) author means,–
(i) in relation to a literary or dramatic
work, the author of the work;
5–240SC I / 7 7
216
(ii) in relation to a musical work, the com-
poser;
(iii) ** ** ** (iv) ** ** **
(v) in relation to a cinematograph film, the
owner of the film at the time of its comple-
tion; and
(vi) in relation to a record, the owner of the
original plate from which the record is made,
at the time of the making of the plate”.
“(f) cinematograph film includes the sound
track, if any, and “cinematograph” shall be
construed as including any work produced by
any process analogous to cinematography.”
“(j) exclusive licence means a licence
which confers on the licensee or on the licen-
see and persons authorised by him. to the
exclusion of all other persons (including the
owner of the copyright), any right comprised
in the copyright in a work, and “exclusive
licensee” shall be construed accordingly.”
“(m) infringing copy means,–
(i) in relation to a literary, dramatic,
musical or artistic work, a reproduction
thereof otherwise than in the form of a
cinematograph film;
(ii) in relation to a cinematograph film, a
copy of the film or a record embodying the
recording in any part of the sound track
associated with the film;
(iii) ** ** ** (iv) ** ** **"
“(p) musical work means any combination of
melody and harmony or either of them, printed,
reduced to writing or otherwise graphically
produced or reproduced”.
“(q) performance includes any mode of
visual or acoustic presentation including any
such presentation by the exhibition of a
cinematograph film, or by means of radiodif-
fusion, or by the use of a record, or by any
other means and, in relation to a lecture,
includes the delivery of such lecture”.
“(r) performing rights society means a
society, association or other body, whether
incorporated or not, which carries on business
in India of issuing or granting licences for
the performance in India of any works in which
copyright subsists”.
217
(v) radio-diffusion includes communication
to the public by any means of wireless diffu-
sion whether in the form of sounds or visual
images or both”.
“(y) work means any of the following works,
namely–
(i) aliterary, dramatic, musical or artistic
work;
(ii) a cinematograph film;
(iii) a record”.
Section 13 of the Act provides as follows :–
“13. Works in which copyright
subsists.–(1) Subject to the provisions of
this section-and the other provisions of this
Act, copyright shall subsist throughout India
in the following classes of works, that is to
say,–
(a) original literary, dramatic musical and
artistic works;
(b) cinematograph films; and
(c) records.
(2) ** ** **
(3) Copyright shall not subsist–
(a) in any cinematograph film if a substantial
part of the film is an infringement of the
copyright in any other work;
(b) in any record made in respect of a liter-
ary, dramatic or musical work, if in making
the record, copyright in such work has been
infringed.
(4) The copyright in a cinematograph film
or a record shall not affect the separate
copyright in any work in respect of which or a
substantial part of which, the film, or as the
case may be, the record is made.
(5) ** ** **
Section 14 of the Act which contains the
meaning of the expression “copyright” is to
the following effect :–
“14. Meaning of copyright.”–(1) For the
purposes of this Act: “copyright” means the
exclusive right, by virtue of, and subject to
the provisions of, this Act,–
(a) in the case of literary, dramatic or
musical work, to do and authorise the doing of
any of the following acts, namely–
(i) to reproduce the work in any material
form;
(ii) to publish the work;
(iii) to perform the work in public;
218
(iv) to produce, reproduce, perform or publish
any translation of the work;
(v) to make any cinematograph film or a record
in respect of the work;
(vi) to communicate the work by radio-diffu-
sion or to communicate to the public by a
loud-speaker or any other similar instrument
the radio-diffusion of the work;
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or
an adaptation of the work any of the acts
specified in relation to the work in clauses
(i) to (vi):
(b) ** ** **
(c) in the case of a cinematograph film,
to do or authorise the doing of any of the
following acts, namely-
(i) to make a copy of the film;
(ii) to cause the film, in so far as it con-
sists of visual images, to be seen in public
and, in so far as it consists of sounds, to be
heard in public;
(iii) to make any record embodying the record-
ing in any part of the sound track associated
with the film by utilising such sound track;
(iv) to communicate the film by radio-diffu-
sion;
(d) in the case of a record, to do or
authorise the doing of any of the following
acts by utilising the record, namely–
(i) to make any other record embodying the
same recording;
(ii) to cause the recording embodied in the
record to be heard in public;
(iii) to communicate the recording embodied in
the record by radio-diffusion.
(2) Any reference in sub-section (1) to
the doing of any act in relation to a work or
a translation or an adaptation thereof shall
include a reference to the doing or that act
in relation to a substantial part thereof”.
Section 17 of the Act which relates to
ownership of copyright provides as under :–
“17. First owner of copyright.—Subject
to the provisions of this Act, the author of a
work shall be the first owner of the copyright
therein;
Provided that–
219
(a) in the case of a literary, dramatic or
artistic work made by the author in the
course of his employment by the proprietor of
a newspaper, magazine or similar periodical
under a contract of service or apprenticeship,
for the purpose of publication in a newspaper,
magazine or similar periodical, the said
proprietor shall, in the absence of any agree-
ment to the contrary. be the first owner of
the copyright in the work in so far as the
copyright relates to the publication of the
work in any newspaper, magazine or similar
periodical, or to the reproduction of the work
for the purpose of its being so published, but
in all other respects the author shall be the
first owner of the copyright in the work;
(b) Subject to the provisions of clause (a),
in the case of a photograph taken, or a paint-
ing or portrait drawn, or an engraving or a
cinematograph film made. for valuable consid-
eration at the instance of any person, such
person shall, in the absence of any agreement
to the contrary, be the first owner of the
copyright therein;
(c) in the case of a work made in the course
of the
author’s employment under a contract of
service or
apprenticeship, to which clause (a) or
clause (b)
does not apply, the employer shall, in the
absence of
any agreement to the contrary, be the first
owner of
the copyright therein;
(d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal
with the term of copyright in musical and
other works and cinematograph films are to the
following effect :–
“22. Term of copyright in published liter-
ary, dramatic musical and artistic
works.–Except as otherwise hereinafter pro-
vided, copyright shall subsist in any liter-
ary, dramatic, musical or artistic work (other
than a photograph) published within the life-
time of the author until fifty years from the
beginning of the calendar year following the
year in which the author dies.
Explanation.–In this section, the refer-
ence to the author shall, in the case of a
work of Joint authorship, be construed as a
reference to the author who dies last .
“26. Term of copyright in cinematograph
films. In the case of a cinematograph film,
copyright shall subsist until fifty years from
the beginning of the calendar year next fol-
lowing the year in which the film is pub-
lished”.
220
Section 30 of the Act which deals with
grant of licences by owners of copyright runs
thus :–
“30. Licences by owners of copyright.–The
owner of the copyright in any existing work or
the prospective owner of the copyright in any
future work may grant any interest in the
right by licence in writing signed by him or
by his duly authorised agent:
Provided that in the case of a licence
relating to copyright in any future work, the
licence shall take effect only when the work
comes into existence.
Explanation.–When a person to whom a
licence relating to copyright in any future
work is granted under this section dies before
the work comes into existence, his legal
representatives shall, in the absence of any
provision to the contrary in the licence, is
entitled to the benefit of the licence”.
The interpretation clause (f) of section 2 reproduced
above, which is not exhaustive, leaves no room for doubt
when read in conjunction with section 14(1)(c)(iii) that the
term “cinematograph film” includes a sound track associated
with the film. In the light of these provisions, it cannot
be disputed that a “cinematograph film” is to be taken to
include the sounds embodied in a sound track which is asso-
ciated with the film. Section 13 recognises ‘cinematograph
film’ as a distinct and separate class of ‘work’ and de-
clares that copyright shall subsist therein throughout
India. Section 14 which enumerates the fights that subsist
in various classes of works mentioned in section 13 provides
that copyright in case of a literary or musical work means
inter alia (a) the right to perform or cause the performance
of the work in public and (b) to make or authorise the
making of a cinematograph film or a record in respect of the
work. It also provides that copyright in case of cinemato-
graph film means. among other rights, the right of exhibit-
ing or causing the exhibition m public of the cinematograph
film i.e. of causing the film in so far as it consists of
visual images to be seen in public and in so far it consists
of sounds to be heard in public. Section 13(4) on which Mr.
Ashok Sen has leaned heavily in support of his contentions
lays down that the copyright in a cinematograph film or a
record shall not affect the separate copyright in any work
in respect of which or a substantial part of which, the
film, or as the case may be, the record is made. Though a
conflict may at first sight seem to exist between section
13(4) and section 14(1) (a) (iii) on the one hand and sec-
tion 14(1) (c) (ii) on the other, a close scrutiny and a
harmonious and rational instead of a mechanical construction
of the said provisions cannot but lead to the irresistible
conclusion that once the author of a lyric or a musical work
parts with a portion of his copyright by authorising a film
producer to make a cinematograph film in respect of his work
and thereby to have, his work incorporated or recorded on
the sound track of a cinematograph film, the latter acquires
by virtue of section 14(1)‘(e) of the Act on completion of
the cinematograph film a copyright which gives
221
him the exclusive right inter alia of performing the work in
public i.e. to cause the film in so far as it consists of
visual images to be seen in public and in so far as it
consists of the acoustic portion including a lyric or a
musical work to be heard in public without securing any
further permission of the author (composer) of the lyric
or a musical work for the performance of the work in pub-
lic. In other words, a distinct copyright in the aforesaid
circumstances comes to vest in the cinematograph film as a
whole which in the words of British Copyright Committee set
up in 1951 relates both to copying the film and to its
performance in public. Thus if an author (composer) of a
lyric or musical work authorises a cinematograph film pro-
ducer to make a cinematograph film of his composition by
recording it on the sound track of a cinematograph film, he
cannot complain of the infringement of his copyright if the
author (owner) of the cinematograph film causes the lyric or
musical work recorded on the sound track of the film to be
heard in public and nothing contained in section 13(4) of
the Act on which Mr. Ashok Sen has strongly relied can
operate to affect the rights acquired by the author (owner)
of the film by virtue of section 14(1)(c) of the Act. The
composer of a lyric or a musical work, however, retains the
right of performing it in public for profit otherwise than
as a part of the cinematograph film and he cannot be re-
strained from doing so. In other words, the author (com-
poser) of lyric or musical work who has authorised a
cinematograph film producer to. make a cinematograph film
of his work and has thereby permitted him to appropri-
ate his work by incorporating or recording it on
the sound track of a cinematograph film cannot restrain
the author (owner) of the film from causing the acoustic
portion of the film to be performed or projected or screened
in public for profit or from making any record embodying the
recording in any part of the sound track associated with the
film by utilising such sound track or from communicating or
authorising the communication of the film by radio-diffu-
sion, as section 14(1)(c) of the Act expressly permits the
owner of the copyright of the cinematograph film to do all
these things. In such cases, the author (owner) of the
cinematograph film cannot be said to wrongfully appropriate
anything which belongs to the composer of the lyric or
musical work. Any other construction would not only render
the express provisions of clauses (f), (m), (y) of section
2, section 13(1)(b) and section 14(1)(c) of the Act otiose
but would also defeat the intention of the Legislature,
which in view of the growing importance of the cinemato-
graph film as a powerful media of expression, and the
highly complex technical and scientific process and heavy
capital outlay involved in its production, has sought to
recognise it as a separate entity and to treat a record
embodying the recording in any part of the sound track
associated with the film by utilising such sound track as
something distinct from a record as ordinarily understood.
On a conspectus of the scheme of the Act as disclosed
in the provisions reproduced above particularly clauses
(d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and
14(1)(c), provisos (b)and (c) to section 17 and sections 22
and 26 of the Act, it is, therefore, abundantly clear that a
protectable copyright (comprising a
222
bundle of exclusive rights mentioned in section 14(1)(c) of
the Act) comes to vest in a cinematograph film on its com-
pletion which is said to take place when the visual portion
and audible portion are synchronized.
This takes us to the core of the question namely, wheth-
er the producer of a cinematograph film can defeat the right
of the composer of music …. or lyricst by engaging him.
The key to the solution of this question lies in provisos
(b) and (c) to section 17 of the Act reproduced above which
put the matter beyond doubt. According to the first of
these provisos viz. proviso (b) when a cinematograph film
producer commissions a composer of music or a lyricst for
reward or valuable consideration for the purpose of making
his cinematograph film, or composing music or lyric there-
fore i.e. the sounds for incorporation or absorption in the
sound track associated with the film, which as already
indicated, are included in a cinematograph film, he becomes
the first owner of the copyright therein ‘and no copyright
subsists in the composer of the lyric or music so composed
unless there is a contract to the contrary between the
composer of the lyric or music on the one hand and the
producer of the cinematograph film on the other. The same
result follows according to aforesaid proviso (c) if the
composer of music or lyric is employed under a contract of
service or apprentice.ship to compose the work. It is,
therefore, crystal clear that the rights of a music composer
or ….lyricst Can be defeated by the producer of a cinemat-
ograph film in the manner laid down in provisos (b) and (c)
of section 17 of the Act. We are fortified in this view by
the decision in Wallerstein v. Herbert (1867) Vol. 16, Law
Times Reports 453, relied upon by Mr. Sachin Chaudhary where
it was held that the music composed for reward by the plain-
tiff in pursuance of his engagement to give effect to cer-
tain situations in the drama entitled “Lady Andley’s
Secret”, which was to be put on the stage was not an inde-
pendent composition but was merely an accessory to and a
Fart and parcel of the drama and the plaintiff did not have
any right in the music.
For the foregoing reasons, we do not find any justification
to interfere with the order of the High Court. Conse-
quently, the appeal fails and is dismissed but in the
circumstances of the case without any order as to costs.
KRISHNA IYER, J.—The judgment just delivered is on
behalf of the Court, which makes this footnote, in a sense,
otiose. But I do append the abbreviated opinion solely to
belight a slightly penumberal area of the law and to voice a
need for legislative exploration to protect a category now
left in the cold.
A cinematograph is a felicitous blend, a beautiful
totality, a constellation of stars, if I may use these
lovely imageries to drive home my point, slurring over the
rule against mixed metaphor. Cinema is more. than long
strips of celluloid, more than miracles in photography, more
than song, dance and dialogue and indeed, more than dramatic
story, exciting plot, gripping situations and marvellous
acting. But it is that
223
ensemble which is the finished product of orchestrated
performance by each of the several participants, although
the components may, sometimes, in themselves be elegant
entities. Copyright in a cinema film exists in law, but s.
13(4) of the Act preserves the separate survival, in its
individuality, of a copyright enjoyed by any ‘work’ notwith-
standing its confluence in the film. This persistence of
the aesthetic ‘personality’ of the intellectual property
cannot cut down the copyright of the film qua film. The
latter right is, as explained earlier in my learned broth-
er’s judgment, set out indubitably in s. 14(1)(c). True,
the exclusive right, otherwise called copyright, in the case
of a musical work extends to all the sub-rights spelt out in
s. 14(1)(a). A harmonious construction of s. 14, which is
the integral yoga of copyrights in creative works, takes us
to the soul of the subject. The artist enjoys his copyright
in the musical work, the filmproducer is the master of his
combination of artistic pieces and the two can happily co-
exist and need not conflict. What is the modus vivendi ?
The solution is simple. The film producer has the sole
right to exercise what is his entitlement under s. 14(1)(c)
qua film, but he cannot trench on I the composer’s copyright
which he does only if the ‘music’ is performed or produced
or reproduced separately, in violation of s. 14(1)(a). For
instance, a film may be caused to be exhibited as a film but
the pieces of music cannot be picked out of the sound track
and played in the cinema or other theatre. To do that is
the privilege of the composer and that right of his is not
crowned in the film copyright except where there is special
provision such as in s. 17, proviso (c). So, beyond exhib-
iting the film as a cinema show, if the producer plays the
songs separately to attract an audience or for other reason,
he infringes the composer’s copyright. Anywhere, in a
restaurant or aeroplane or radio station or cinema theatre,
if a music is played, there comes into play the copyright of
the composer or the Performing Arts Society. These are the
boundaries of composite creations of art which are at once
individual and collective, viewed from different angles.
In ‘a cosmic perspective, a thing of beauty has no boundary
and is humanity’s property but in the materialist plane on
which artists thrive, private and exclusive estate in art
subsists. Man, the noblest work of the Infinite Artist,
strangely enough, battles for the finite products of his art
and the secular law, operating on the temporal level, guard-
ians material works possessing spiritual values. The enig-
matic small of Mona, Lisa is the timeless heritage of man-
kind but, till liberated by the prescribed passage of
time, the private copyright of the human maker says, ‘hands
off’.
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 literary creativity in man is
exploited and masterS, whose works are invaluable, are
victims of piffling payments. World opinion in defence of
the human right to intellectual property led to internation-
al conventions and municipal laws, commissions, codes and
organisations, calculated to protect works of art. India
responded to this universal need by enacting the Copyright
Act, 1957.
224
Not the recommendations in conventions but provisions in
municipal laws determine enforceable rightS. Our copyright
statute protects the composite cinematograph work produced
by lay-out of heavy money and many talents but does not
extinguish the copyrightable component parts in toto. The
music which has merged, through the sound track, into
the motion picture, is copyrighted by the producer but, on
account of this monopoly, the music composer’s copyright
does not perish. The twin rights can co-exiSt, each ful-
filling itself in its delectable distinctiveness. Section
14 has, in its careful arrangement of the rights belonging
to each copyright, has a certain melody and harmony to miss
which is to lose the sense of the Scheme.
A somewhat un-Indian feature we noticed in the Indian
copyright Act falls to be mentioned. Of course, when’ our
law is intellectual ‘borrowing from British reports, as
admittedly it is, such exoticism is possible. ‘Musical
work’, as defined in s.2 ( p) reads:
“(p) musical work means any combina-
tion of melody
and harmony or either of them printed, re
duced to writing or otherwise graphically
produced or reproduced.”
Therefore, copyrighted music is not the soulful tune, the
superb singing, the glorious voice or the wonderful render-
ing. It is the melody or harmony reduced to print, writing
or graphic form. The Indian music lovers throng to listen
and be enthralled or enchanted by the nada brahma, the sweet
concord of sounds, the rags, the bhava, the lava and the
sublime or exciting singing. Printed music is not the
glamour or glory of it, by and large, although the content
of the poem or the lyric or the song does have appeal.
Strangely enough, ‘author’, as defined in s.2(d), in rela-
tion to a musical work, is only the composer and s. 16
confies ‘copyright’ to those works which are recognised by
the Act. This means that the composer alone has copyright
in a musical work. The singer has none. This disentitle-
ment of the musician or group of musical artists to copy-
right is un-Indian, because the major attraction which lends
monetary value to a musical performance is not the music
maker, so much as the musician. Perhaps, both deserve to be
recognised by the copyright law. I make this observation
only because act in one sense, depends on the ethos and the
aesthetic best of a people; and while universal protection
of intellectual and aesthetic property of creators of
‘works’ is an international obligation, each country in its
law must protect such rights wherever originality is con-
tributed. So viewed, apart from the music composer, the
singer must be conferred a right. Of course, law-making is
the province of Parliament but the Court must communicate to
the lawmaker such infirmities as exist in the law extant.
S.R. Appeal dismissed.
225
