THE INDIAN PERFORMING RIGHT SOCIETY  Vs ENTERTAINMENT NETWORK (INDIA) LTD.

CS(OS) No.666/2006&CS(OS)No.1996/2009 Page 1 of 38
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 4th January, 2021

+ CS(OS) 666/2006, IAs No.4558/2006 (u/S 10 CPC), 199 21/2011
(u/O VI R-17 CPC), 9128/2012 (u/S 151 CPC) and 5953 /2017
(u/O XI R12 CPC).

THE INDIAN PERFORMING RIGHT SOCIETY LTD. ….. Plai ntiff
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr. Himanshu Bagai, Ms.Anu
Bagai, Mr. Akaashi Lodha, Mr.
Sanjeev, Advocates.
Versus

ENTERTAINMENT NETWORK (INDIA) LTD. ….. Defenda nt
Through: Mr. Sandeep Sethi, Sr. Adv. with
Mr. Ashish Verma, Ms. Prachi Johri,
Mr. Aditya Gupta, Mr.Shagun Trisal,
Advocates.

AND

CS(OS) 1996/2009

PHONOGRAPHIC PERFORMANCE LTD & ANR ….. Plain tiffs
Through: Mr. Neeraj K. Gupta, Adv. for P1
Mr. Dayan Krishnan, Sr. Adv. with
Mr. Himanshu Bagai, Ms. Anu
Bagai, Mr. Akaashi Lodha, Mr.
Sanjeev, Advocates for Plaintiff
No.2
Versus

CRI EVENTS PRIVATE LIMITED & ORS ….. Defendants
Through:
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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1. CS(OS) No.666/2006 was filed, on or about 22 nd April, 2006, by the
plaintiff The Indian Performing Right Society Limit ed (IPRS), pleading
that, (i) the plaintiff is a company limited by gua rantee and registered under
the Companies Act, 1956 and also registered as a Co pyright Society under
Section 33 of the Copyright Act, 1957; (ii) the pla intiff was established to
monitor, protect and enforce the rights, interests and privileges of its
members, comprising of authors, composers and publi shers of literary
and/or musical works, who are owners of copyright i n their literary and
musical works; (iii) the plaintiff is the sole repr esentative body of
composers, authors and publishers of literary and m usical works in India;
(iv) after the amendment of the year 1994 of the Co pyright Act, the
plaintiff was re-registered as a Society under Sect ion 33(3) of the Act,
authorizing the plaintiff IPRS to carry on copyrig ht business in literary and
musical works; (v) the members of the plaintiff com prise of authors,
composers and publishers of Indian literary and mus ical works, and have
executed deeds of assignment, assigning their publi c performing rights in
respect of the literary and/or musical works in fav our of the plaintiff; (vi)
the plaintiff is therefore the exclusive owner of t he public performing rights
in respect of these literary and musical works; (vi i) the plaintiff is therefore
exclusively authorized to license the public perfor ming rights that exist
with respect to literary and musical work created b y its members; (viii) the
primary task of the plaintiff is to collect royalti es from users of music and
thereafter disburse the same to the owners of the c opyright in the music,
whose interest it represents; (ix) the performing r ights include right of
performing the work in public and the right to comm unicate the work to the
public by making it available for being seen or hea rd or otherwise enjoyed
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by the public directly or by means of display or di ffusion and the right of
authorizing any of the said acts; (x) music is made by a team of persons
comprising of different talents and consequently th e copyright in different
components of music may belong to a number of indiv iduals; for example,
there is a lyric writer who writes words of a song, there are music
composers and then there are performers, who actua lly sing; (xi) under the
Copyright Act, lyric writers and music composers cr eate works which are
recognized as literary and musical works in Section s 2(o) and 2(p) of the
Act; (xii) under Section 2(ff) of the Act, communic ation to the public
includes within its ambit, communication of any wor k through satellite or
cable or any other means of simultaneous communicat ion to more than one
household or place of residence including residenti al rooms of any hotel or
hostel; (xiii) the owner of copyright in literary o r musical works
exclusively enjoys the rights as set out in Section 14(a) of the Act and
which include the right to performing work in publi c or communicating to
the public; (xiv) thus every broadcasting organizat ion, shop, departmental
store, showroom, emporium, restaurant, hotel, club, disco, bars, office
establishments, television channels, music concerts etc. which play music,
impinge on this right unless seek the permission of the plaintiff; (xv)
Phonographic Performance Limited (PPL) is also a co mpany incorporated
under the provisions of Indian Companies Act and is engaged in the
business of carrying on copyright business of its m embers in sound
recordings assigned to PPL by its members who are l eading music
companies in India; (xvi) the registration of PPL u nder Section 33 entitles
it to charge and collect license fee from users for sound recordings as
defined in Section 2(xx) of the Act, for which righ ts vest in its members;
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(xvii) PPL therefore charges and collects license f ee from users, on behalf
of its members who hold rights to cassettes, compa ct discs and such other
media of sound recordings which are played and per formed in public;
(xviii) thus the plaintiff IPRS and PPL, though bot h registered under
Section 33 as Copyright Societies, are registered f or and in two different
categories viz. musical works and sound recordings; (xix) exploitation of
the sound recordings also implies exploitation of l iterary and/or musical
works forming part thereof; (xx) accordingly, licen se fee for both these
works i.e. musical works and sound recordings, have to be paid for
separately by the users thereof, to each of the Soc ieties; (xxi) consequently,
entering into a license agreement with either Socie ty, for using both, the
musical works and sound recordings, will not absolv e the user from
entering into another appropriate license agreement with the other Society;
(xxii) the defendant is engaged in the business of broadcasting and is
commonly known by its brand name ‘Radio Mirchi’; (x xiii) the defendant,
in the year 2001 entered into agreements with the p laintiff for the broadcast
of music in respect of seven cities in India; (xxiv ) though the defendant has
commenced broadcasting in three new cities in India but did not obtain a
license from the plaintiff therefor and is repudiat ing the right of the
plaintiff; (xxv) the defendant, after having accept ed the rights of the
plaintiff and after having taken license from the p laintiff with respect to
seven cities, cannot so repudiate the rights of the plaintiff; and, (xxvi) the
broadcast of music by the defendant, in the three n ew cities, without
obtaining permission of the plaintiff, amounts to i nfringement of the public
performance rights of the plaintiff. Accordingly th e reliefs of, permanent
injunction restraining the defendant from broadcast ing/communicating to
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the public, the literary and/or musical works in wh ich the plaintiff has a
copyright, and of recovery of damages, are claimed in the suit.
2. CS(OS) No.666/2006 came up first before this Cou rt on 24 th April,
2006, when the counsel for the defendants also appe ared. Vide subsequent
order dated 20 th July, 2006, summons/notice of the suit and the app lication
for interim relief were ordered to be issued.
3. The defendant has contested CS(OS) No.666/2006 b y filing written
statement inter alia pleading that, (i) initially, the plaintiff compri sed of
authors and composers as members, who believed that the copyright
pertaining to literary and musical works vested in authors and composers;
(ii) however in Eastern India Motion Pictures Association Vs. India n
Performing Right Society Limited AIR 1974 Cal 257 (DB) it was held that
when a composer of lyrics or music, composes for th e first time, for
valuable consideration, for purposes of a cinematog raph film, the owner of
the film at whose instance the composition is made, becomes the first
owner of the copyright in the composition and the c omposer acquires no
copyright at all, either in respect of the film or its sound track, which he is
capable of assigning; the composer can claim a copy right only on the basis
of an express agreement, reserving his copyright, b etween him and the
owner of the cinematograph film; the Act makes it c lear that a
cinematograph film includes its sound track and sou nd track means the area
of a Motion picture film that carries the sound rec ord; (iii) the aforesaid
judgment was challenged in the Supreme Court and vi de judgment reported
as Indian Performing Right Society Vs. Eastern India M otion Pictures
Association AIR 1977 SC 1443 it was held that the author/compos er of a
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lyric or musical work who has authorised a cine matograph film
producer to incorporate his work in a cinematograph film and has thereby
permitted him to appropriate his work by incorpo rating or recording it
on the sound track of a cinematograph film, cannot restrain the author of the
film from causing the acoustic portion of the fi lm to be performed or
projected or screened in public, for profit, or fr om making any record,
embodying the recording in any part of the sound track associated with
the film, by utilising such sound track or fro m 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 the
cinematographic film to do all these things ; (iv) the aforesaid judgment
was followed in Eastern India Motion Pictures Vs. Performing Rights
Society Ltd. AIR 1978 Cal 477, where it was held that the compo sers,
authors and publishers of music have no copyright i n the sound track and
thus their association cannot have a better right i nspite of any alleged
assignment; (v) in 1994, certain amendments were in troduced to the
Copyright Act, which made it mandatory that only th e owners of the
copyright could be permitted to be members of the c opyright society;
inspite thereof, the plaintiff continues to hold no n-owners of any copyright
as its members; (vi) that in the modern scenario, a s far as film
music/songs/sound recording are concerned, the copy rights that vest in the
film producer are bought over by the music companie s and the music
companies are the single owner of all rights which get incorporated in one
right i.e. the sound recording right; the literary and music rights cease to
exist individually and get merged in one copyright which is held by the
music companies; (vii) the work which the defendant broadcasts, comprises
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of three separate works in which copyright may subs ist i.e. literary work
comprising of lyrics, music work comprising of musi cal compositions and
the sound recordings; (viii) the copyright with res pect to literary and
musical works gets incorporated/merged with the sou nd recording and the
lyricists and composers are divested of rights and the entire bundle of
rights in a song belongs to the music companies; (i x) the defendant cannot
be compelled to separately execute a license agreem ent with the plaintiff,
when the entire bundle of rights vests in the music companies and those
rights are administered by PPL; (x) the defendant is already paying PPL
with respect to its repertoire of works; and, (xi) the defendant, in the past
had obtained licence from the plaintiff under the bona fide belief that the
plaintiff has a right to collect the license fee bu t has now realised that the
plaintiff has no right.
4. CS(OS) No.666/2006 was adjourned from time to t ime. The plaintiff
filed IA No.3509/2010 to amend the plaint to also i nclude the relief with
respect to operations commenced by the defendant in other cities. The said
application was disposed of vide order dated 19 th March, 2010, with liberty
to the plaintiff to take fresh proceedings with res pect to the fresh cause of
action. Review applied by the plaintiff of the said order was dismissed on
30 th April, 2011. The plaintiff preferred FAO(OS) No.32 1/2011 and which
was allowed. Thereafter, on 25 th February, 2013, the counsels stated that
issue entailed in the present suit was pending cons ideration before Supreme
Court in SLP No.21082/2012. On 25 th July, 2013, CS(OS) No.666/2006,
CS(OS) No.1185/2006 ( The Indian Performing Right Society Ltd. Vs.
Aditya Pandey and Anr .) and CS(OS) No.1996/2009 (also dealt with in this
judgment) were taken up together and adjourned agai n, on the submission
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of the counsels that the issue entailed in all the three suits was pending
consideration before the Supreme Court. Accordingly , further proceedings
in all the three suits were adjourned sine die, with liberty to the parties to
apply for revival as and when required. None applie d for revival. However
the suits were taken up on 23 rd July, 2015 when it was informed that the
issue was still pending consideration in the Suprem e Court. Thereafter, on
change of minimum pecuniary jurisdiction of this Co urt, vide order dated
30 th December, 2015, CS(OS) No.666/2006 was transferred to the District
Court. However, in terms of Notification dated 28 th April, 2016 of this
Court, CS(OS) No.666/2006 was transferred back to t his Court.
5. CS(OS) No.666/2006 came up before the undersigne d on 3 rd
November, 2016, when the senior counsel for the pla intiff, under
instructions, withdrew the application for interim relief pending since the
year 2006 and on which no order had been made, and drew attention to IA
No.9128/2012 of the defendant for dismissal of the suit on the basis of an
Arbitral Award and contended that the Arbitral Awar d had since been set
aside. The counsel for the defendant however stated that the defendant, in
IA No.9128/2012 had sought dismissal of the suit no t only on the basis of
Arbitral Award but also on the basis of judgment of the Division Bench of
this Court in Indian Performing Right Society Ltd. Vs. Aditya Pan dey
2012 SCC OnLine Del 2645 (DB) and which judgment ha d since been
upheld by the Supreme Court in International Confederation of Societies
of Authors and Composers (ICSAC) Vs. Aditya Pandey (2017) 11 SCC
437. It was the contention of the counsel for the d efendant that the
defendant, admittedly holding license from PPL, whi ch is the assignee of
Intellectual Property Rights in the cinematograph f ilms whose songs the
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defendant broadcasts on its radio channels, was not required to obtain
license from the plaintiff, which claims to be the assignee of rights only in
the literary and the music compositions forming par t of the said songs. Per
contra, the senior counsel for the plaintiff conten ded that the findings of the
Division Bench of this Court and the Supreme Court in Aditya Pandey
supra were at the stage of hearing of an applicatio n under Order XXXIX
Rules 1&2 of the Code of Civil Procedure, 1908 (CPC ) and the Supreme
Court had expressly observed that the said findings would not have any
bearing at the time of final disposal of the suit.
6. However, being not satisfied that the interpreta tion in Aditya Pandey
supra by the Supreme Court of statutory provisions was not final, the
hearing, on request of the senior counsel for the p laintiff, was adjourned.
Thereafter, the counsels were heard on 7 th November, 2016, 15 th
November, 2016, 8 th February, 2017 and 4 th December, 2017, when orders
were reserved.
7. At this stage it is apposite to refer to CS(OS) No.1996/2009. The
said suit has been filed by, both PPL and IPRS agai nst CRI Events Private
Limited (CRI) and its official Rajesh Verma as well as against the banquet
hall Nitish Kunj inter alia pleading that CRI, a event management
company, was organising events, also at the Nitish Kunj banquet hall,
where music was played, without obtaining license f rom PPL or IPRS and
were thereby infringing the copyright held by PPL a nd IPRS and seeking
the reliefs of, (a) permanent injunction restrainin g them from causing
communication to the public of sound recordings of PPL’s repertoire by
way of mechanical devices or any other means and fr om communicating to
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the public the literary works and/or musical works of IPRS’s repertoire;
and, (b) recovery of damages. It is the plea of PPL and IPRS in the plaint
(i) “Music is made by a team of persons comprising different talents and
consequently, the copyright in the different compon ents of the music may
belong to a number of individuals. For example, the re is a lyric writer who
writes the words of a song (e.g. Majrooh Sultanpuri who is a well known
Indian lyric writer). There is a second category of artists namely music
composers (e.g. Naushad who is a legendary composer ). Ultimately, the
producer of the sound recording (the person who cau ses the sound
recordings to be made) will own all the rights in t he sound recording as
well as the underlying works i.e. lyrics and musica l compositions, having
engaged the lyric writer and the music composer on a contract of
employment or alternatively by virtue of specific c ontracts. Since in India,
film music makes up a major part of music industry, music companies also
source the rights from the film producers and effec tively own all rights in
the works mentioned hereinabove”; and, (ii) “The ex ploitation of a sound
recording implies therefor, the exploitation of th e underlying literary
and/or musical work also. Accordingly, the license fee for these works, i.e.
literary and musical works on the one hand and soun d recordings on the
other have to be paid for separately by the users t hereof to …” to PPL and
IPRS…. “Consequently, entering into a license agree ment with only one
copyright society for using both the musical works and sound recordings
will not absolve the user from entering into anothe r appropriate license
agreement with the other specific/particular societ y for the usage of the
other work”.
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8. The defendants (though the presence in the order sheets is on behalf
of all the defendants but the written statement is by CRI and its official
only and not by Nitish Kunj) contested the suit by filing a written statement
inter alia pleading, (a) that they as event organisers were m erely
aggregators and it is the disc jockeys who play mus ical works in
events/functions/shows coordinated by CRI and would already have license
from PPL and IPRS and similarly the hotel/banquet h all/business centre
where such events are organised by CRI, would also have a license and
CRI was not required to also obtain a license; and, (b) the events organised
by CRI were of two kinds i.e. where entry was paid and others where there
was no payment for the entry owing to a existing re lationship between the
person on whose behalf CRI organises the event and the invitees to the
event; music played at events to which entry is not paid qualify as private
and/or non-public use of music and there can be no infringement. Though
certain other defences are also taken in the writte n statement, but the need
to burden this judgment therewith, is not felt.
9. CS(OS) No.1996/2009 came up first before this Co urt on 26 th
September, 2009, when the counsels for the defendan ts appeared on caveat
and written statements were ordered to be filed. Th ereafter the suit was
adjourned from time to time and ultimately the orde r dated 10 th December,
2009 records “Arguments heard. Order reserved” and orders on the
application for interim relief in CS(OS) No.1996/20 09 were pronounced on
28 th July, 2011 along with the orders on the applicati on for interim relief in
CS(OS) No.1185/2006 titled IPRS Vs. Aditya Pandey & Anr. aforesaid
and against which order, appeals preferred to the D ivision Bench were
dismissed vide judgment dated 8 th May, 2012 in IPRS Vs. Aditya Pandey
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supra and against which judgment appeals were prefe rred to the Supreme
Court and dismissed vide dicta in ICSAC Vs. Aditya Pandey supra.
10. It thus becomes relevant to notice in brief, th e reasoning which
prevailed in the order dated 28 th July, 2011 supra in CS(OS) No.1996/2009.
It was held, (a) that when a lyricist or music com poser composes the lyrics
or the musical score, he becomes entitled to exerci se all the rights
enumerated in Section 14(a) i.e. to reproduce the w ork in any material
form, issue copies of the work to the public, to pe rform the work in public
or to communicate to the public or to make any cine matograph film or
sound recording in respect of the work or to make a ny translation of the
work or to make any adaptation of the work; (b) whe n the sound recording
copyright did not independently exist, they were pe rceived as part of the
copyright in the film and it was held that if the f ilm owner or copyright
proprietor wishes to exhibit the film including the songs, he is not required
to seek authorisation or separate license from the music composer or the
lyricist, for communicating to the public, since it was an integral part of the
film and this right extends to making any other sou nd recording embodying
the said works or to sell or give the same on hire and to communicate the
sound recording alone without the cinematograph fil m to the public; (c)
when a sound recording is communicated to the publi c by whatever means,
it is the whole work i.e. the lyrics, the score, th e collocation of sounds
caused by the equipment and the capturing of the en tire aural experience –
the musical or literary work per se is not communic ated or broadcast –
there is no method of separating musical and lyrica l works while
communicating the sound recording to the public; (d ) thus when sound
recording is communicated to the public or played i n public or broadcast,
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the musical and literary works though are communica ted to the public but
through the sound recording; (e) a musical or a lit erary work in itself,
without the other elements of the sound recording, may not even be
commercially viable; (f) therefore once a license i s obtained from the
owner or someone authorised to give a license in so und recording, for
communicating it to the public, a separate authoris ation or license is not
necessary from the copyright owner of the musical o r literary works
embodied in that sound recording; (g) however this could not mean that the
musical or literary work can be otherwise performed in public, apart from
the sound recording, without authorisation from the owner of the copyright
in the said musical or literary work and who remain s entitled to enforce the
same; (h) if the musical or literary works are perf ormed in the public, by a
performer , otherwise than by way of sound recordin g, license therefor will
have to be obtained; and, (i) in case performance i s of the literary or
musical works without the sound recording, authoris ation from IPRS is
necessary; if performance before the public is of s ound recording as well as
by performers using literary and musical works, lic ence/authorisation from
both IPRS as well as PPL will have to be taken. Acc ordingly, applications
for interim relief against the defendants in CS(OS) No.1996/2009 were
disposed of with the directions “that in case the d efendants wish to perform
sound recordings in public, i.e. play them, a licen se from PPL (mentioned
as PPRS in that judgment) is essential; in case the musical works are to be
communicated or performed in the public, independen tly, through an artist,
the license from IPRS is essential. In case the def endants wish to hold an
event involving performances or communication of wo rks of both kinds to
the public, the license or authorisation of both IP RS and PPL are necessary.
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The defendants are according restrained from commun icating any of such
work to the public, or performing them, in the publ ic, without such
appropriate authorisation or licensing pending adju dication of the suit”.
11. It is not necessary to notice the judgment of d ismissal of appeals
preferred against the aforesaid order/judgment on a pplications for interim
relief in CS(OS) No.1996/2009 in as much as the mat ter ultimately
travelled to the Supreme Court and I now notice the reasoning in the dicta
of the Supreme Court and awaiting which these suits were kept pending
and adjourned sine die . The Supreme Court, after noticing the controversy
and the definitions of copyright author, sound reco rding, communication to
the public and the provisions of Sections 13(4), 16 , 17, 18, 19, 30 and 31
of the Act as it stands after the amendment of the year 2012, observed/held
(i) that the producer of a sound recording is also an author but his right
would not affect the separate right of any work in respect of which sound
recording is made; (ii) that sub Section (10) of Se ction 19 inserted vide the
amendment of the year 2012 providing “No assignment of the copyright in
any work to make a sound recording which does not f orm part of any
cinematograph film shall affect the right of the au thor of the work to claim
an equal share of royalties and consideration payab le for any utilisation of
such work in any form”, which did not exist on the day the plaint in the
suits from which the appeal had arisen to the Supre me Court was filed in
the year 2006, was not to be considered since right s as existing in the year
2006 were to be considered; (iii) that conjoint rea ding of various provisions
of the Act leave no manner of doubt that though eac h of the seven sub
clauses of clause (a) of Section 14 relating to lit erary, dramatical or musical
work, are independent of one another but reading th ese sub clauses
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independently cannot be interpreted to mean that th e right of producer of
sound recording, who also comes under the definitio n of author and has a
right to communicate his work to the public , is lo st; (iv) the argument that
the permission granted to PPL, was sans the right t o communicate the
sound recording to the public, cannot be accepted; and, (v) no error could
be found in the judgment of the High Court. However the Supreme Court
clarified, (a) that with effect from the amendment of the year 2012, the
assignment of copyright in the work to make sound r ecording which does
not form part of any cinematograph film, shall not affect the right of the
author of the work to claim an equal share of royal ties or/and consideration
payable for utilisation of such work in any form by the IPRS; and, (b) that
its findings were prima facie .
12. Though the senior counsel for the plaintiff was heard first, but since
arguments were heard on the application of the defe ndant for dismissal of
the suit, it is deemed expedient to record the subm issions of the senior
counsel for the defendant first. The counsels, besi des verbal arguments also
handed over written submissions which were taken on record.
13. The senior counsel for the defendant argued, (i ) IPRS has instituted
the present suit contending, that the defendant Rad io, while broadcasting
the sound recordings, without payment of license fe e to IPRS, is infringing
the copyright in the lyrical and musical works embo died in the sound
recording; (ii) it is the contention of the defenda nt that no separate license
fee is payable in respect of copyright in the under lying literary and musical
works, once license fee is paid for communicating t he derivative work i.e.
the sound recording; in law, a sound recording is a n independent work in
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which there exists separate and independent copyrig ht and the requisite
licenses for the purposes of broadcasting the sound recording have been
obtained by the defendant, as per IPRS also; (iii) issues similar to those
which have arisen in the instant suit have been adj udicated by this Court
and by the Supreme Court in ICSAC Vs. Aditya Pandey supra, wherein it
has been held that no separate copyright in the und erlying lyrical and
musical works in a sound recording is exploited if the sound recording is
exploited by communication through radio broadcast, as in the present
case; thus the present suit, irrespective of the ot her defences of the
defendant, is liable to be dismissed on this ground alone; (iv) the contention
of IPRS, that there is duality of copyrights i.e. c opyright in sound recording
and copyright in underlying musical and lyrical wor ks, is contrary to law
because (a) sound recording is a separate copyright under Section 2(y) and
Section 13 of the Act; (b) the first owner of the s ound recording is its author
i.e. its producer, vide Section 17 of the Act; (c) there is thus only one
owner of the copyright work of sound recording i.e. its producer and
neither the lyricist nor the music composer holds a ny copyright in the
sound recording; (d) the owner of the copyright in sound recording or his
assignee has exclusive right under Section 14(1)(e) including the rights to
communicate the work to the public, under Section 1 4 (1)(e)(iii); (e) the
exclusive authority to grant license to communicate the sound recording to
the public is with the owner, under Section 18 of t he Act; (f) IPRS claims
to administer copyright only in literary or musical works belonging to its
members and not in sound recordings; (g) there is a separate society i.e.
PPL whose members are the authors of sound recordin g or their assignees
and PPL has the exclusive right to administer copyr ight in sound
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recordings; (h) under Section 51(a) of the Copyrigh t Act, if the broadcast is
done by the broadcaster under a license from the ow ner of the copyright
work in sound recording, in accordance with the ter ms of such license,
there is no infringement of copyright; (i) the defe ndant is not involved in
the business of public performance of the sound rec ordings but only
broadcasts the sound recordings by radio diffusion; (j) every recorded song
inter alia consists of literary work i.e. the lyrics of a son g, musical work i.e.
music composition of the song and sound recording i .e. simultaneous
integration of the differentiated, to produce an in tegrated whole; the
integrated whole i.e. the sound recording, when bro adcast to the public is
an exercise of the ownership right on its own stren gth; separate and distinct
copyright exists in respect of each of the aforesai d three elements as
mutually exclusive as is clear from Section 2(y) of the Act; (k) copyright in
each work consists of a bundle of rights, as recogn ised by Section 14 of the
Act; thus when owner of a right in a particular cla ss of work exploits his
copyright in that work, it does not and cannot amou nt to exploitation of
copyright in any other work; thus, when a cinematog raph film is exhibited,
the owner of the copyright in that cinematograph fi lm exploits his
copyright as provided in Section 14(a)(iii) i.e. of communicating the film to
the public; (l) similarly when the owner of the cop yright in a sound
recording is broadcasting the sound recording, he i s exercising his right
under Section 14(e)(iii) and which he is fully enti tled to; (m) the rights of
an owner of a sound recording are in no way inferio r to those of an owner
of a copyright in the original literary or musical works and the owner of a
sound recording has an unfettered and absolute righ t to exploit the sound
recording in all the three modes specified in Secti on 14 (e); (n) when a
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sound recording is legitimately made, the owner of the copyright in the
underlying works which have been incorporated in th e sound recording,
cannot interfere in any manner with the exploitatio n of all rights of the
owner of the copyright in the sound recording; (o) so long as it is the
sound recording that is communicated, copyright in the underlying works is
not infringed; (p) the owner of the copyright in th e underlying works
continues to retain the right of public performance or communicating it to
the public but having allowed an independent work i .e. the sound recording
to come into existence, he cannot object to that in dependent work being
exploited in any manner permitted by Section 14(e) including by
communicating to the public; (q) existence of paral lel rights does not mean
requirement of parallel licenses, especially when o ne of the parallel rights
i.e. the sound recording is statutorily independent ly recognised; (r) reliance
by the plaintiff on the judgment of the Division Be nch of the High Court of
Bombay in Super Cassettes Industries Pvt. Ltd. Vs. Trimurti F ilms Pvt.
Ltd. 2017 SCC OnLine Bom 8999 is misconceived; the same concerns use
of lyrics to create a new sound recording; and, (s) Supreme Court in
Entertainment Network (India) Ltd. Vs. Super Casset te Industries Ltd.
(2008) 13 SCC 30 has held that right in a sound rec ording is in no way
inferior to right of an author of original literary work; (v) the contention of
the counsel for the plaintiff that dicta of the Sup reme Court in Indian
Performing Right Society Ltd. Vs. Eastern Indian M otion Pictures
Association (1997) 2 SCC 820 is not applicable, is erroneous, b ecause: (A)
the rationale and ratio of this judgment though in the context of a
cinematograph film, applies squarely to sound recor dings; (B) Supreme
Court therein rejected the argument of requirement for separate licenses
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and the argument of duality of rights; (C) it was h eld therein that once
rights are passed by owners of underlying works, th eir claims are limited
and the reliance placed therein on the British law, as before this Court, was
rejected; (D) according to the said judgment, the e xclusive rights of owner
of a cinematograph film or sound recording, to comm unicate the same to
the public, cannot be said to be infringement of co pyright of
communicating to the public the underlying works th emselves; (E) sound
recording, recognised as an independent copyright w ork, though by an
amendment of the Act of the year 1994 i.e. subseque nt to the judgment, but
the Parliament having adopted an identical language in Section 14(e), to
that of the pre-existing Section 14(1)(c) which was interpreted by the
Supreme Court, there can be no doubt that the inten tion of the Parliament
was as held in the judgment; (F) while a cinematogr aph film is an amalgam
of three components viz. lyrics, musical works and sound and visual
recording, composition of a sound recording is an a malgam of two types of
works i.e. lyrics and musical work; just like in th e case of a film, the author
or owner of the copyright in the film is entitled t o exhibit/broadcast the film
the film as such, so also the owner of the copyrigh t in a sound recording is
entitled to communicate the sound recording; (G) Se ction 38 applies only
in respect of performers rights; Sections 13 & 14 d o not apply to the
performer; the absence of a provision similar to Se ction 38(4) (as it stood
prior to the amendment to the Act of the year 2012) in relation to
underlying works i.e. literary and musical works, d oes not show any
legislative intent that the owner of the copyright in the underlying works
has a superior right over the rights of the owner o f the sound recording; (H)
the necessity of enacting Section 38(4) was that th e performer rights were
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recognised for the first time by the amendment of t he Act of the year 1994
and which right was and is not a copyright work co vered by the Copyright
Act – there was no need to make similar provision i n respect of musical
works or literary works as Section 13 recognised th e derivative works i.e.
cinematograph film and sound recording as independe nt copyrightable
work and as Section 14 (a)(iv) contained provision that the owner of
copyright in a cinematograph film or a sound record ing would be its
producer while Section 13(4) provided that derivati ve works i.e.
cinematograph film and sound recording shall not af fect the separate
copyright in the underlying works; (I) the Division Bench of this Court in
Indian Performing Right Society Ltd. Vs. Aditya Pan dey supra has held
that the Copyright Act had drawn a distinction betw een communication to
the public by way of live performance and communica tion to the public by
way of radio diffusion; and, (J) Sections 2(y), 13(4), 14, 31(1)(b), 38(4)
and Section 52(a) referred to by the plaintiff do n ot in any manner suggest
that even with the retention of the copyright in th e underlying work after
the first sound recording is made, the owner of the underlying work
incorporated in the sound recording, can interfere or demand any payment
for communicating the sound recording to the public through radio
diffusion: (vi) the contention of the plaintiff tha t the orders of the Supreme
Court in ICSAC Vs Aditya Pandey supra are interim orders and cannot be
relied upon is erroneous because: (I) it has been h eld to be settled law that
in case of a sound recording, no copyright in lyric al or musical work
independently survives; (II) even though the judgme nt has been passed at
interim stage, a reading of the judgment clarifies that law had been laid
down after examining all arguments; (III) enunciati on of law even at
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interim stage, is legally binding; (IV) the observa tion in the judgment that it
would have no effect on the merits of the case is o nly qua findings given on
merits and not qua principles of law on which the j udgment is based; and,
(V) the judgment of the Division Bench of this Cour t in appeal before
Supreme Court unequivocally held that during the ti me when copyright in
the sound recording did not independently exist als o sound recording was
perceived as part of copyright in film, the author of the film was not
required to seek authorisation or separate license from music composer or
the lyricist for communicating the sound recording to the public; (vii)
reliance by the plaintiff on The Gramophone Company of India Ltd. Vs.
Super Cassette Industries Ltd. MANU/DE/1801/2010 holding that even
after making of one sound recording incorporating t he underlying work, the
owner of underlying work retains the rights of maki ng another sound
recording, is misplaced; the same does not deal wit h the right of the owner
of the sound recording to communicate his sound rec ording to the public
without interference from the owner of the underlyi ng works; (viii) the
High Court of Bombay, in Music Broadcast Private Ltd. Vs. Indian
Performing Right Society Ltd. MANU/MH/0923/2011 has held that once
the musical and literary works are subsumed in a ci nematograph film or a
sound recording, they do not have a separate existe nce and the broadcasting
of the sound recording to the public does not infri nge the copyright of the
author of such literary or musical works; (ix) the contention of the plaintiff
that the amendment of the year 2012 to the Copyrigh t Act is only
clarificatory in nature and is to be construed and applied retrospectively, is
not apposite, because: (a) the plaintiff has made no factual assertions to
make such a claim and no amendment of the plaint ha s been sought after
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the said statutory amendment; (b) the amendments of the Act of the year
2012 do not materially amend the provisions of the Copyright Act relevant
for deciding the present controversy; (c) Supreme C ourt also in ICSAC Vs
Aditya Pandey supra held that the suit with which it was concerne d having
been filed in the year 2006, the law as it existed then for the period prior to
21 st June, 2012 had to be applied; and, (d) the 2012 am endment shows the
legislative intent to treat the underlying works as separate and distinct from
the derivative works; the said position is not disp uted by the defendant
also; however the controversy for adjudication is, exploitation of such
distinct copyrights, such that communication to the public of the sound
recording does not infringe the copyright in commun ication to the public of
the underlying works insofar as part of the sound r ecording.
14. Per contra, the senior counsel for IPRS contend ed (i) the plaintiff is
the owner/assignee of Public Performance Rights in literary and musical
works of its members; (ii) the membership of the pl aintiff consists of
authors, composers, music companies and film produc ers; (iii) though the
defendant, engaged in the business of broadcasting/ communicating to the
public the literary and musical works belonging to the repertoire of the
plaintiff, by means of sound recording and claims t o have license for
communication to public of sound recordings, but no copies of the said
licenses have been produced till date; (iv) the que stion for adjudication is,
whether the communication to the public of a sound recording also
amounts to communication to the public of the liter ary and musical works
embodied in the sound recording; (v) copyright in a literary and/or musical
work runs parallel to the copyright in a sound reco rding and hence the
exploitation of such sound recording would necessar ily invoke the right in
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the underlying literary and/or musical works as wel l; (vi) all the judgments
relied upon by the defendant arise out of applicati on under Order XXXIX
Rules 1&2 of the CPC and hence are only on a prima facie view; (vii)
Supreme Court, in ICSAC Vs. Aditya Pandey supra has expressly stated so;
(viii) thus none of the said judgments are binding precedents; (ix) reliance
placed by the defendant on Indian Performing Right Society Ltd. Vs.
Eastern Indian Motion Pictures Association supra is misconceived
because: (a) the same arose from the facts of the t ime when the members of
the plaintiff were authors and composers and the mu sic companies and the
publishers were not the members of the plaintiff; ( b) the producers of
cinematograph films raised objection to the imposit ion of tariff by the
plaintiff, claiming to be the first owner of the co pyright, not only in the
cinematograph file but also in the musical works co ntained in the sound
recording; (c) the Eastern Indian Motion Pictures A ssociation approached
the Copyright Board, challenging the tariff publish ed by the IPRS; (d) the
Copyright Board held that in the absence of proof, composers of lyrics and
music retained copyright in their musical works pro vided that such musical
works were printed or written and they could always assign performing
rights in public to IPRS; (e) the Copyright Board t hus held that IPRS had
the right to grant license for public performance o f music in the soundtrack
of a cinematograph film and collect royalties there for; (f) in the challenge
to the decision of the Copyright Board, the High Co urt held that when the
composer of lyrics or music, for the first time, f or valuable consideration,
composes for the purposes of cinematograph film, th e owner of the film at
whose instance the composition is made, becomes the owner of the
copyright in the composition and the composer acqui red no rights in
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respect of the film or its soundtrack and could cla im copyright only on the
basis of an express agreement reserving the copyrig ht between him and the
owner of the cinematograph film; (g) in challenge to the judgment of the
High Court before the Supreme Court was in the said facts of the time
when plaintiff’s membership only consisted of autho rs and composers; (h)
however since the year 1993, the membership of the plaintiff consists,
besides of music composers, also of owners and film producers; and, (i)
therefore irrespective of the ownership of literary and musical works, the
plaintiff also is the owner of the sound recording; (x) subsequently, in
Eastern India Motion Pictures Vs. Performing Rights Society Ltd. supra,
it has been held that copyright in the literary and musical works could be
retained by the authors/composers by a contract to the contrary; (xi) the
1977 judgment relied on British Copyright Committee Report of 1952 and
was concerned only with the copyright in works comm issioned by the
owner of the cinematograph film and which is not th e case now;
(xii)“performance” is defined in Section 2(q) of th e Act as including any
mode of visual or acoustic presentation including b y radio diffusion; (xiii)
“radio diffusion” is defined in Section 2(v) as inc luding communication to
the public by any means of wireless diffusion, whet her in the form of
sounds or visual images or both; (xiv) “record” is defined in Section 2(w)
as meaning any disc, tape, perforated roll or other device in which sounds
are embodied so as to be capable of being reproduce d; (xv) copyright in a
cinematograph film is distinct from copyright in a sound recording; (xvi) a
judgment is an authority for what it decides and no t what may even be
logically deduced therefrom; reliance is placed on P.S. Sathappan Vs.
Andhra Bank Ltd. (2004) 11 SCC 672; (xvii) after the 1977
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judgment, there is a change in definition of commun ication to the public;
(xviii) vide the 1994 amendment to the Act, perfor mers’ right have been
introduced in the Act; (xix) the contention of the defendant that license
from the plaintiff is required only for live perfor mance, is contrary to the
clear mandate of the statute; (xx) sound recording is not an especially
carved right but merely replaces the definition of ‘record’ as the same had
become obsolete; (xxi) Sections 18(1), 18(2), 19(2) , 30, 30A, 51 and 56, all
support duality/co-existence of copyrights; (xxii) while under Section 22
copyright in literary and musical works is for life of the author plus 60
years, copyright protection in cinematograph film a nd sound recording,
vide Sections 26 & 27 of the Act, is for 60 years f rom the beginning of the
calendar next following the year in which the work is first published;
(xxiii) thus literary and musical works will always enjoy longer period of
protection in comparison to sound recording and cin ematograph films;
(xxiv) per Section 52 (1)(y), the exhibition of a film after the expiration of
the term of the copyright therein does not constitu te infringement of
literary, dramatic or musical works recorded or rep roduced in the film;
(xxv) if the theory of merger is correct, the quest ion of infringing the
underlying works by performing/communicating to the public a
cinematograph film, would not arise; (xxvi) though after expiration of the
copyright in the film, exhibition of the film is no t infringement of copyright
in the underlying works but during the subsistence of the copyright in the
film, exhibition of the film would be in infringeme nt of the underlying
works; (xxvii) though there is no infringement of underlying works in
exhibition of the film but if copies of the film ar e made or given on hire,
then underlying works would the infringed; (xxviii) there is no analogous
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provision in Section 52, relating to sound recordin gs; (xxix) the Copyright
(Amendment) Act, 2012 is clarificatory in nature an d has retrospective
effect, because: (A) objects and reasons thereof s tate that the amendments
clarify the existing right; and, (B) the report of the Standing Committee
pertaining to the said amendment also clarifies the amendments to be
clarificatory; (xxx) from Section 31D also, it foll ows that literary or
musical works can be communicated to public by broa dcast by either
recorded music or live performance; (xxxi) the Copy right (Amendment)
Act, 2012 clarifies and declares already existing r ights and clarifies that
royalty is payable for underlying works which vest in the plaintiff by virtue
of assignments; and, (xxxii) various international conventions also
recognise parallel rights.
15. No separate arguments were addressed in CS(OS) No.1996/2009 and
in fact none on behalf of the defendants in CS(OS) No.1996/2009 appeared
on any of the dates when the arguments were address ed.
16. As would become evident from the aforesaid leng thy narrative of
pleadings, proceedings and arguments, (i) both suit s were instituted in the
legal regime as existed prior to amendment of the A ct of the year 2012; (ii)
the interim order in CS(OS) No.1996/2009 is also of prior to the
amendment of the Act of the year 2012 and the appea ls thereagainst were
also dismissed prior thereto; (iii) though by the t ime the Supreme Court
decided the matter on 20 th September, 2016, the amendment of the year
2012 had come into force but in the context of the legal position prevailing
prior thereto; (iv) however, when the matters were argued before this
Court, IPRS justified continuation of CS(OS) No.666 /2006 invoking
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amendment of the Act of the year 2012, contending t hat the said
amendment was retrospective and bettered the rights of composers of lyrics
and musical works, whom it represented – however wi thout carrying out
any amendments to the plaint and by also contending that though earlier its
membership was confined to authors of lyrics and mu sic compositions but
it now had owners of sound recordings also as its m embers – again without
carrying out any amendment to the plaint; (v) thoug h CS(OS) No.666/2006
was filed by IPRS only, contending that by broadcas t by the defendant
therein of the sound recordings under license from PPL, copyright held by
lyricists and music composers in the underlying wor ks in the sound
recording and whom IPRS represented, was infringed , without making
PPL a party to CS(OS) No.666/2006 but subsequently, in para 15 of the
plaint in CS(OS) No.1996/2009 jointly filed by IPRS and PPL, as
reproduced hereinabove, it was admitted “Ultimately , the producer of the
sound recording (the person who causes the song rec ordings to be made)
will own all rights in the sound recordings as well as the underlying works
i.e. lyrics and musical compositions, having engage d/employed the lyric
writer and the music composer on a contract of empl oyment or
alternatively by virtue of specific contracts. Sinc e in India, film music
makes up a major part of the music industry, the mu sic companies also
source the rights from the film producers and effec tive own all rights in the
works mentioned hereinabove” and thereby negating t he claim in the plaint
in CS(OS) No.666/2006 that the copyright in lyrics and musical
composition subsists notwithstanding the said works being embodied in the
sound recording; and, (vi) however notwithstanding the aforesaid
admission in the plaint in CS(OS) No.1996/2009, in the prayer paragraph it
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was claimed that the defendant therein was required to take license, both
from IPRS and PPL.
17. What thus falls for adjudication is, (a) whethe r either of the suits
entails proof of any fact on which application of l aw as enunciated in
plethora of judgments cited by the counsels, would depend, or the suits can
be disposed of by application of such law; (b) whet her the changes to the
Copyright Act, by amendment of the year 2012, are r etrospective and if so
to what effect; (c) whether without any amendments to the plaint, after the
amendment of the Act of the year 2012, this Court, while adjudicating the
suits, is required to also adjudicate whether the p laintiffs would have a
case, if not before coming into force of the said a mendment, after coming
into force of the amendment; and, (d) whether the a mendment of the Act of
the year 2012 has made any change qua the controver sy in the two suits.
18. I may at the outset state that the argument of the senior counsel for
IPRS, that the owners of sound recordings are also members of IPRS and
IPRS, in CS(OS) No.666/2006 is seeking protection o f the rights of the
owners of the sound recordings also, is outside the ambit of the pleadings
in both the suits and it is well settled in (See Ponnayal Vs. Karuppannan
(2019) 11 SCC 800 and Bachhaj Nahar Vs. Nilima Mandal (2018) 17
SCC 491) that any claim beyond the pleadings, is n ot to be considered.
The said aspect thus, cannot be considered and the suit cannot be kept
pending for trial, as is the want of IPRS, by allow ing IPRS to, during the
arguments, raise new factual pleas. Suffice it is t o state that if IPRS wants
to assert the rights of owners of sound recordings and infringement of
copyright therein, it will be open to IPRS to initi ate fresh proceedings.
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19. I may also note that though an application of t he defendant in
CS(OS) No.666/2006 for stay of further proceedings in the suit under
Section 10 of the CPC was pending consideration and the senior counsel
for IPRS at the time of commencement of the hearing had indicated that
IPRS would be applying to the Supreme Court for tra nsfer of the suits to
one Court but after the hearing had advanced to an extent, stated, that there
was no need therefor.
20. The cause of action with which CS(OS) No.666/20 06 was filed,
being infringement of underlying literary and music works in the sound
recording, by radio diffusion of the sound recordin g by the defendant under
license from PPL only, the question for considerati on is, whether on
amalgamation or absorption of literary and musical work in a sound
recording, the copyright in the said literary and m usical works is infringed
by radio diffusion of the sound recording and this Court on the application
of the defendant, being IA No.9128/2012 for dismiss al of the suit before
trial, is only concerned with, whether in law, ther e is infringement of
underlying literary and musical works by radio diff usion of the sound
recording. If the answer is to be that there is no infringement of copyright
in the underlying literary and musical works by rad io diffusion of the sound
recording, irrespective of the agreement between th e owner of the
copyright in literary and musical works and the own er of the sound
recording, which can only be if it was possible in law for the owner of
copyright in literary and musical works to, while p ermitting the owner of
the sound recording to incorporate/amalgamate the l iterary and musical
works in the sound recording, retain the copyright to restrain
communication to the public of the said literary an d musical works even as
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part of sound recording, the suit will have to go t o trial. However if under
the statute the same is not possible, the suit woul d be liable to be dismissed
forthwith. CS(OS) No.1996/2009 was instituted with the cause of action of
the defendants therein infringing the copyright hel d by both, PPL and
IPRS, by organising events and by permitting events to be organised in
their premises, where music was communicated to the public.
21. Both suits having been instituted in the years 2006 and 2009
respectively i.e. prior to the 2012 amendment of th e Copyright Act, I will
first deal with the provisions of the Copyright Act as existing prior to the
2012 amendment and then proceed to discuss, whethe r 2012 amendment
has made any difference. However before discussing the statutory
provisions I may surmise my thoughts.
22. The literary work in a sound recording is the lyric component of the
sound recording and the musical work in the sound r ecording is the music
on which the lyrics are spoken or sung. However it is not as if the sound
recording is the sum total of lyrics and musical wo rks only. For the lyrics to
be heard, as distinct from being read, a voice is r equired and which is not
contributed by either the lyricists or the music co mposers. For all three to
have an appeal to the human ear, for which it is me ant, somebody has to
guide proper, appealing, commercially viable amalga mation of the three
and which somebody is generally the music director. Yet further,
somebody else has to make a recording thereof in a form communicable to
the public and which somebody is generally the prod ucer of the sound
recording. The sound recording thus, is something m ore i.e. something
besides the literary or musical works therein. To t he said more/addition,
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needless to state, neither the owner of the copyrig ht in the literary work nor
the owner of the copyright in the musical works has any claim or right. A
sound recording is thus the work of joint authorshi p within the meaning of
Section 2(z) of the Act i.e. a work produced by the collaboration of two or
more authors and in which the contribution of one a uthor is not distinct
from the contribution of the other author or author s. A sound recording is a
collaboration of author of literary work, author of musical works and the
author of a sound recording who ultimately directs the merger of the
musical work and the sound recording to form one co mplete whole. The
Act recognises a separate copyright in a sound reco rding besides the
copyright in the literary work and musical works, e ven if the only two
components of the sound recording. It is the owner of the sound recording
who transforms the literary work which otherwise is a mere collection of
words into a sound, capable of phonetic pleasure an d who gives the
composition of music a sound of various musical ins truments.
23. I have wondered, that if a separate copyright e xists in a sound
recording, how the radio diffusion of the sound rec ording can be violation
of the copyright in the literary work and the copyr ight in the musical works
which by themselves are not being communicated to t he public by radio
diffusion but are being communicated as part of ano ther whole having an
independent statutory existence.
24. The Courts, from time to time, have already de voted sufficient time
and spoken sufficiently on the subject and the need to reiterate or to add
thereto is not felt.
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25. The only aspect to be considered by me in this context is, whether
interpretation of law as existed prior to the amend ment of the Act of the
year 2012, while dealing with applications for inte rim relief, as in CS(OS)
No.1996/2009, by the Single Judge and Division Benc h of this Court and
by the Supreme Court, is not final.
26. What is of significance is that the enunciation of law in none of the
judgments was on any factual premise and in none of the judgments was it
held/observed that what was interpreted, would not apply if either the
plaintiff of the defendant proved any fact otherwis e. Thus, the
interpretation of the provisions of the Copyright A ct as it existed prior to
the amendment of the year 2012 was in abstract, de hors of any facts and
notwithstanding the observation in the judgments, o f the same being on a
prima facie view of the matter, as is customary and is the norm, the
interpretation therein would bind the final adjudic ation also, more so when
none of the arguments of the counsel for IPRS (and all of which have been
dealt with in the judgments aforesaid and the need to deal therewith again
thus does not arise) are found to dent the interpr etation of law in the
judgments aforesaid. The counsel for IPRS, inspite of repeated queries, was
not able to answer, what would be proved in the evi dence, which fact
would require a different interpretation. All that was said was, that the
defendant in CS(OS) No.666/2006 had not produced li censes obtained
from PPL either and that it will be proved that th e agreements between the
members of IPRS with the owners of the sound record ing, entitled
members of the IPRS to license fee from those to wh om the owners of the
sound recordings or their assignees issued licenses for broadcasting of the
sound recordings. However no merit is found in the said contention. Once
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the Copyright Act as existing prior to amendment of the Act of the year
2012 has been interpreted as vesting an independent copyright in the
owners of the sound recording including to communic ate the sound
recording to the public, once the owners of the cop yright in the literary and
musical works have consented to incorporation of th eir works in the sound
recording, they cannot claim infringement, by commu nication to the public
by the owner of the sound recording or its licensee s, of their literary and
musical works as part of the sound recording; the p rovision even if any to
the contrary in their agreements with the owner of the sound recordings is
thus of no avail. I may notice, that the same is al so not the plea of IPRS,
either in the plaint in CS(OS) No.666/2006 or in th e plaint in CS(OS)
No.1996/2009. IPRS, without pleading so, cannot at the stage of arguments
be heard to contend so.
27. I may at this stage refer to the order dated 4 th December, 2017
reserving orders in these suits, where it is expres sly recorded that no
argument had been addressed by the counsel for PPL though also a plaintiff
in CS(OS) No.1996/2009.
28. The plea of IPRS, that the defendant in CS(OS) No.666/2006 having
taken licenses from IPRS for broadcasting the sound recordings in seven
cities, being estopped from denying the right of IP RS may also be dealt
with at this stage. Merely because the defendant to ok licenses for
broadcasting from IPRS, would not compel the defend ant to continue to
obtain licenses from IPRS inspite of subsequently r ealising that there was
no need for obtaining licence from IPRS. Once in la w there is found to be
no need for separate licence from owners of copyrig ht in literary and
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musical works forming part of a sound recording, th ere can be no estoppel
against the law. It is also significant that IPRS a s the sole plaintiff in
CS(OS) No.666/2006, in the plaint expressly admitte d that while it
represents owners of copyright in literary and musi cal works, PPL
represents owners of sound recordings. Thus, the a rgument of the IPRS
that owners of sound recordings are also its member s, is an afterthought.
29. Before proceeding to deal with the 2012 amendm ent of the Act, it
must be highlighted that the owners of copyright in literary and musical
works, are not entitled to claim infringement only when their work is
communicated to the public as part of sound recordi ngs which they have
authorised. Else, they retain the right to restrain others from
communicating their work to public, otherwise than by way of sound
recording, as held in the judgment on the applicati on for interim relief in
CS(OS) No.1996/2009 and upheld by the Division Benc h of this Court as
well as the Supreme Court. While the claim of IPRS against the defendant
in CS(OS) No.666/2006 is only of broadcasting the l iterary and musical
works as part of sound recordings, the claim agains t the defendants in
CS(OS) No.1996/2009 is of broadcasting the literary and musical works
not only as part of sound recordings but otherwise also. It is for this reason
that vide the interim orders in CS(OS) No.1996/2009 , the defendants
therein have been directed to obtain license from I PRS if communicating to
the public the literary and musical works of the me mbers of the IPRS not as
part of sound recording but independently, through an artist. Thus, if there
is a live performance of songs incorporating the li terary and musical works
of members of IPRS, even if such songs also have a sound recording, for
such live performance, licence from IPRS will be ne cessary.
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30. That brings me to the 2012 amendment of the Cop yright Act. One of
such amendments, by incorporation of sub Section (1 0) in Section 19 was
noticed by the Supreme Court. However in the year 2 012, there were other
amendments also to the Act. The first question is, whether such
amendments and effect thereof is to be considered w hile adjudicating these
suits, cause of action wherefor accrued much prior to the year 2012. The
Supreme Court, while dealing with the matter in the year 2016, held it to be
not necessary though if IPRS even if not entitled t o interim relief prior to
2012, after 2012 were to be entitled to interim rel ief, if the 2012
amendment entitled IPRS thereto. Following the said reasoning, this Court
also, without any amendment to the plaint, while fi nally disposing of these
suits, is not required to deal with the 2012 amendm ent. However if this
Court were to be required to deal with the legal po sition of after 2012, the
second question is, whether license from the owners of copyright in literary
and musical works, after 2012, is required to be ta ken in addition to the
license from the owner of the copyright in sound re cording, while
communicating the said sound recording incorporatin g the said literary and
musical works, to the public and whether the 2012 a mendment is
retrospective.
31. The 2012 amendment does not alter the provision s of the Act, on
interpretation whereof in the judgments aforesaid i t was held that
communication to the public of underlying literary and musical works as
part of sound recording, under authorisation/licenc e from owner of the
copyright in the sound recording, does not require authorisation/permission
from the owner of the copyright in the underlying l iterary and musical
works of the sound recording. Thus when Section 19( 10) provides that
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assignment of copyright in any work to make a sound recording which does
not form part of any cinematograph film shall not a ffect the right of the
author of the work to claim equal share of royaltie s and consideration
payable for any utilisation of such work in any for m, it cannot mean that
utilisation of the work as embodied in the sound re cording also entitles the
owner of the copyright in such work to demand equal share of royalties and
consideration payable for the sound recording. To r ead the same otherwise
would make the other provisions, on interpretation whereof it was held that
no authorisation is required to be taken from owner s of copyright in
underlying works of the sound recording, while comm unicating the sound
recording under authorisation of copyright in sound recording, otiose. Any
interpretation which makes another provision of the statute redundant or
otiose, is to be avoided and the rule of harmonious construction has to be
applied. Thus Section 19(10) has to be read as not affecting the right of the
author of the underlying works in sound recording, to claim share in royalty
payable for utilisation of such works though identi cally as in the sound
recording but in any other form, as had earlier als o been held by the Single
Judge in the judgment on interim relief in CS(OS) N o.1996/2009. To the
said extent, the amendment of the year 2012, is cla rificatory. Moreover
Section 19(10) provides for sound recordings which do not form part of
any cinematograph film. The claim of IPRS in the pl aint in both the suits is
with respect to sound recordings forming part of ci nematograph film. IPRS,
in the plaint in CS(OS) No.1996/2009, in para 15 ha s expressly admitted
that in India, film music makes up a major part of music industry and the
music companies also source the rights from the fil m producers and
effectively own all rights in the underlying works in the said film music
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also. I thus conclude that the amendment of the Act of the year 2012, even
if were to be applied, does not change the legal po sition as already
enunciated in the judgments aforesaid.
32. Axiomatically it follows, that CS(OS) No.666/2 006, as per its own
averments and for the reasons spelled out by the Si ngle Judge and by the
Division Bench of this Court and by the Supreme Cou rt, while dealing with
application for interim relief in CS(OS) No.1996/20 09, is liable to be
dismissed and is hereby dismissed. In the state of law as aforesaid, no
costs. Decree sheet be prepared.
33. As far as CS(OS) No.1996/2009 is concerned, the claim therein was
primarily on the premise that owners of copyright i n underlying literary and
musical works in sound recording, are entitled to a ssert their copyright
even when sound recordings are communicated to the public under
authorisation from owner of copyright in the sound recording, and no merit
has been found in which claim. CS(OS) No.1996/2009 also, to the said
extent is to be dismissed. However since in CS(OS) No.1996/2006 claim
was also made with respect to live performances of songs in the sound
recordings and merit in which claim has been found, the same has to
succeed to that extent and with respect whereto the re is already an interim
order. The defendants therein have accepted the sam e and have not even
contested the suit. A decree in terms of the said i nterim order is thus
entitled to be passed, in CS(OS) No.1996/2009. That leaves the claim for
damages. Need is not felt in the circumstances, to keep CS(OS)
No.1996/2009 pending for assessment of damages in a s much as the plaint
is found to be lacking in that regard. Thus, a decr ee is passed in favour of
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the plaintiffs and against the defendants in CS(OS) No.1996/2009,
directing (i) that in case the defendants wish to p erform the sound
recordings in public, i.e. play them, a license fro m PPL is essential; (ii) in
case the musical works are to be communicated or pe rformed in the public,
independently, through an artist, the licence of IP RS is essential; (iii) in
case the defendants wish to hold an event involving performances or
communication of works of both kinds to the public, the licence or
authorisation of both, PPL and IPRS is essential; a nd, (iv) of permanent
injunction restraining the defendants from acting c ontrary to the aforesaid
directions, and leaving the parties to bear their o wn costs. Decree sheet be
prepared.
34. The suits are disposed of.

RAJIV SAHAI ENDLAW, J.

JANUARY 4, 2021
‘pp’..
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