Copyright Act Now Provides Right Of Equal Sharing Of Royalty To Authors Of Literary & Musical Works: Calcutta HC
The Calcutta High Court enunciated that the Copyright Act now provides the right of equal sharing of royalty to the authors of literary and musical works.
The Court was dealing with a batch of suits and applications involving Vodafone Idea Limited, Saregama India Limited, and IPRS (Indian Performing Right Society) Limited.
A Single Bench of Justice Ravi Krishan Kapur observed, "In view of the above, although sections 13 and 14 of Act confers no specific rights to the author of the literary and musical works, the subsequent amendments to the Act and the incorporation of the provisos therein categorically provides a right of equal sharing of royalty to such authors indicating a liability upon the commercial exploiters of such works to pay the legitimate share of royalty to the authors. For the above reasons, there is no merit in the contention that since there has been no change to sections 13 or 14 of the Act there has been no change brought about post amendment. The words ‘subject to the provisions of this section and the other provisions of this Act’ obviously refers to all the provisions of the Act including sections 17, 18, 19 and the other sections."
The Bench said that moreover, in view of Sections 33, 34 and 34A of the Act, read with the third and fourth provisos to Section 18 of the Act, authors have also been prohibited from renouncing their rights of royalty for exploitation of their works in any form other than cinematographic films in a cinema hall and in fact, the author’s rights to receive royalties for utilization of such sound recordings has now been categorically recognised and preserved.
Senior Advocate S.N. Mookherjee represented Vodafone, Advocate Debnath Ghosh represented Saregama, and Senior Advocates Anindya Kumar Mitra and Abhrajit Mitra represented IPRS.
In this case, all the suits and applications had a common theme and by consent of the parties were heard analogously. Vodafone has been carrying the business of providing telecommunication service while Saregama has been engaged in the manufacture, sale, and publication of sound recordings. On the other hand, IPRS was a copyright society.
IPRS accepts from an author or owner exclusive authorization to administer any rights particularly in relation to literary and musical works by issuing licences and charging licence fees with the ultimate aim of protecting the collective interests of authors of such underlying literary and musical works. The crux of the issue in the proceedings was whether Vodafone required to obtain a separate licence from IPRS and pay royalty before commercially exploiting the musical and literary works of its members as part of the sound recording.
The High Court in view of the above facts noted, “As a consequence, authors of original literary and musical works, who had always been given unsympathetic treatment are now entitled to claim mandatory royalty sharing on each occasion when a sound recording is communicated to the public. The amendments cannot be interpreted to be merely clarificatory in nature. Post amendment, substantive rights have now been granted to the authors of original works which prohibit contracts whereby authors were forced to license away their rights for even future technologies.”
The Court said that the underlying object being that creative work ought to belong to the authors and that the author should have a share in all future commercial exploitation of their work (except cinema hall).
“In such circumstances, on a combined reading of Master Agreement dated 14 March, 2014 read with the annexed agreement dated 16 June, 2016, it is unequivocally clear that Saregama has not and could not have granted any right to Vodafone to exploit the underlying musical and literary works incorporated in the sound recording. Vodafone is now statutorily obliged to procure licences from IPRS. This fact is also evident from the Memorandum of Settlement dated 20 September, 2019 and the agreement dated 20 September, 2019. The fact that there is an independent obligation on Vodafone to obtain such licences from IPRS has also been recorded and confirmed by Saregama as reflected in the order dated 1 October, 2018”, it added.
Furthermore, the Court noted that there is no other valid mode of assignment which Vodafone has been able to produce or rely on to exploit the underlying musical and literary works of the members of IPRS and for such purposes, any attempt to rely on any of the different agreements vis a vis Vodafone and Saregama is distorted, misleading and untenable.
“In any event, Saregama could not possibly have any right to grant any licence in respect of the underlying musical and literary works incorporated in the sound recordings to Vodafone since Saregama had already assigned the same to IPRS as far back as in 1993 and once again in 2017. Thus, Saregama could not have given anything which it had no right to give. Nobody can give a better title than that he or she possesses. In any event, any such assignment would be void in terms of section 19(8) of the Act. Prima facie, Vodafone and Saregama also appear to be acting in concert with the ulterior aim of defeating the rights of IPRS. Saregama despite being a member of the IPRS has also failed to look after the interests of the authors of the literary and musical works and has acted contrary thereto”, it also observed.
“Though Saregama may have assigned the rights of exploitation of the sound recordings to Vodafone as first owners, Vodafone post amendment of the Act is bound and statutorily obliged to pay IPRS royalty to the authors of the literary and musical works incorporated in the sound recordings. Accordingly, there is no merit in the contention raised by Vodafone that there is no change in law brought about by the Copyright (Amendment) Act of 2012 and the same stands rejected”, it remarked.
The Bench added that Saregama has not and could not have granted any right to Vodafone to exploit the underlying musical and literary works incorporated in the sound recording and hence, Vodafone is now statutorily obliged to procure licences from IPRS.
The Court said that Vodafone has been unable to rely on any licence in compliance with Section 30A read with Section 19 of the Act permitting them to commercially exploit musical and literary works incorporated in the sound recordings.
“In its new avatar, the amendments provide the authors a right to collect royalties which cannot be defeated nor avoided by reading some of the sections of the Act in isolation and depriving the authors of their now statutorily recognized legal rights. One of the objects of the 2012 amendment is to protect the authors of literary and artistic works and this must now be accepted. In view of the above, IPRS has been able to make out a strong prima facie case on merits. The balance of convenience and irreparable injury is also in favour of orders being passed in favour of IPRS”, it concluded.
Accordingly, the High Court disposed of the applications and issued necessary directions.
Cause Title- Vodafone Idea Limited v. Saregama India Limited & Anr.
Appearance:
Vodafone Idea Ltd.: Senior Advocate S.N. Mookherjee, Advocates Arunabha Deb, Soumabho Ghose, Deepan Kumar Sarkar, Ashika Daga, Samriddha Sen, Ashish Bhan, Kirti Balasubramanian, Aayush Mitruka, and Lisa Mishra.
Saregama India Ltd.: Advocates Debnath Ghosh and Avijit Dey.
The Indian Performing Right Society Ltd.: Senior Advocates Anindya Kumar Mitra, Abhrajit Mitra, Advocates Soumya Ray Chowdhury, Himangshu Bagai, Sarosij Dasgupta, R. K. Ganguly, Susrea Mitra, and S Biswas.
