A Bombay High Court Bench of Justice Manish Pitale has observed that the Indian Performing Right Society Limited (IPRS) has made a strong prima facie case that the position of law now stands changed and original authors (authors, composers, publishers etc.) of the literary or musical works used in films and sound recordings are entitled to royalties equal to the producer for utilization of their works. In furtherance, it was also held that "the defendants cannot avoid payment of royalties to such authors, whose cause is espoused by copyright societies like the plaintiff herein".

In light of the same, the Court has temporarily restrained operators of FM radio channels Radio Mirchi and Radio City FM from broadcasting songs authored by members of the IPRS without paying royalties to the authors.

Senior Counsel Ravi Kadam and Senior Counsel Janak Dwarkadas, among others, appeared for the Plaintiff's side. Senior Counsel Virendra Talzapurkar, among others, appeared for the Defendant's side.

In this case, the plaintiff (IPRS) was a company whose object is to protect and enforce the rights and interests of its members who are original authors of musical and literary works. On the other hand, the defendants were operators of FM radio channels Radio Mirchi and Radio City FM. The IPRS filed two applications seeking interim relief claiming that the authors of songs were entitled to royalty for the broadcast of their songs over radio.

In the past, the Supreme Court had held that the original authors who have assigned their work to a producer of a cinematography film could no longer claim any right from the producer once the film was communicated to the public. This position has been taken in various other cases as well.

The IPRS approached the High Court primarily on the ground that amendments brought into effect from 21.06.2012 in the Copyright Act, 1957 have completely changed the legal framework concerning the rights of authors of original literary, dramatic, musical and artistic works. It was contended that the position of law has changed and that, as per the present position, the original authors of literary, dramatic, musical and artistic works were entitled to receive royalty.

The Apex Court reviewed the amendments made to the Act. Reviewing the proviso added under Section 17 by the 2012 amendment, the Court observed that "The proviso added under Section 17 by way of amendment in the year 2012, specifically provides that nothing contained in provisos (b) and (c) of Section 17 of the Copyright Act shall affect the rights of the authors and their works under Section 13(1)(a) of the said Act". In light of the same, it was held that there was a legislative departure from the previous position assumed by the Apex Court.

Subsequently, the Court also observed that the provisos added to Section 18 through the 2012 amendment introduced an unknown concept. In that context, it was said that "The said provisos and sub-sections, added by way of amendment in the year 2012, prohibit the authors themselves from assigning or waiving their right to receive royalties for utilization of their works in cinematograph films and sound recordings other than in cinematograph films".

In light of the same, it was said that "The third proviso to Section 18 read with sub-section (9) of Section 19 of the Copyright Act clearly provides that authors of such literary and musical works are very much entitled to claim royalties to be shared on an equal basis with an assignee of the copyright for utilization of such works in any form other than communication of the works to the public along with the cinematograph film in a cinema hall. A communication to the public of sound recordings that form part of the cinematograph film from radio stations is indeed a form of communication other than communication in a cinema hall along with the cinematograph film. Thus, the authors of such literary and musical works are entitled to claim royalties on each occasion that such sound recordings are communicated to the public through radio stations, including radio stations of the defendants herein".

In furtherance of the same, it was observed that "As regards sound recordings that do not form part of any cinematograph film, as per the fourth proviso to Section 18 and subsection (10) of Section 19 of the Copyright Act, the authors of such literary and musical works have the right to collect royalties for utilization of such works in any form".

The Court took the considered view that a proper reading of the Copyright Act shows that a copyright society like the plaintiff has the right to issue or grant licences in respect of such literary and musical works incorporated in cinematograph films or sound recordings and therefore, ownership of copyright in such works is the basis of exercising such right, which also includes the right to collect royalty on behalf of such authors. By extension of the same, the Court observed that "the purpose of the amendments brought about in the Copyright Act in the year 2012 cannot be defeated by seeking an escape route of claiming that the right to collect such royalties under the amended provisions does not fall within the definition of ‘copyright’".

Therefore, the Court observed that the IPRS made out a strong prima facie case that the amendments brought about in the Copyright Act with effect from 21.06.2012, have indeed fundamentally changed the manner in which the rights of authors of original works like literary works and musical works are to be treated.

Cause Title: Indian Performing Right Society Limited vs Rajasthan Patrika Pvt. Ltd.

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Bombay High CourtJustice Manish PitaleCopyright ActRoyalty

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