1.INTRODUCTION TO COPYRIGHT SOCIETY
1.1 A 'copyright society' is a registered collective administration society for the management and protection of copyright in works by authors and other owners of such works. A copyright society can issue or grant licences in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act, 1957 (Copyright Act).1
1.2 In India, copyright protection is granted for original works of authorship in classes of work such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings. Ordinarily, only one society is registered to do business in respect of the same class of work.
2. GOVERNING LAW
2.1 Copyright Act:
2.1.1 In India the Copyright Act governs the protection of copyright for original works. Copyright protects the rights of authors, i.e. creators of intellectual property in the form of literary, musical, dramatic and artistic works and cinematograph films and sound recordings, from unauthorized uses. Copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. Whereas, in the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication.
2.2 Copyright (Amendment) Act, 2012:
2.2.1 The Copyright Act has been amended five times i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The Copyright (Amendment) Act, 2012 (Amendment) is of vital importance for the purpose of this article. The main reasons for Amendments include bringing it in conformity with international standards established by WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).2
2.2.2 With the Amendment changes were made in Section 33 of the Copyright Act, wherein Sub-section (3) A was inserted, the proviso to which stated that "every copyright society already registered before the coming into force of the copyright (amendment) Act, 2012 shall get itself registered under this chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012." Other amendments include the introduction of Section 33A pertaining to Tariff scheme, omission of Section 34A, substitution of the phrase 'owners of rights' with 'authors and other owners of right' in Section 35 etc.
3. COPYRIGHT SOCIETIES IN INDIA
3.1 According the website of Copyright Office of India,3 following are the existing copyright societies in India:
- For musical works: The Indian Performing Right Society Limited (IPRS) [Re-registration is pending] (Website: http://www.iprs.org/);
- For sound recording: Phonographic Performance Limited (PPL) [Re-registration is pending] (Website: http://www.pplindia.org/);
- For reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO) [Re-registration has been rejected for non-completion of formalities as per the Rules] (Website: http://www.irro.in/)
- Society for Copyright Regulation of Indian Producers of Films and Television (SCRIPT) for cinematograph films. (for cinematograph and television films).
- For performers (Singers) Rights: Indian Singers Rights Association (ISRA) registered on 14th June, 2013 (Website: http://isracopyright.com)
4. PHONOGRAPHIC PERFORMANCE LIMITED (PPL) AND INDIAN PERFORMING RIGHTS SOCIETY (IPRS)
4.1 The Indian Phonographic Industry (IPI), the association of phonogram producers, was established in 1936. Subsequently, IPI members decided to form a specialised body to administer their public performance and broadcasting rights, and so Phonographic Performance Limited (PPL) came into being in 1941. PPL got itself registered under Section 33 of the Copyright Act as a copyright society.
4.2 Indian Performing Rights Society (IPRS) is a representative body of owners of music, viz. the composers, lyricists (or authors) and the publishers of music.4 It came into existence in 1969. It is a non-profit making organization and is a company limited by guarantee and registered under the Companies Act, 1956. After the Copyright (Amendment) Act, 1994 which came into effect in 1995, IPRS got registered under Section 33 of the Copyright Act as a Copyright Society to do the business of issuing licenses for usage of musical works and accompanying literary works.
5. IMPACT OF COPYRIGHT AMENDMENT ACT, 2012 ON PPL AND IPRS
5.1 The Amendment came into force on June 21, 2012 and hence as per the Amendment, IPRS and PPL were to re-register by June 21, 2013. Both the entities did apply for their re-registrations, but subsequently both withdrew their applications for re-registration with the copyright office and thereby expressed their desire to discontinue as registered copyright societies.
5.2 Due to their failure to re-register, IPRS and PPL, which were earlier copyright societies, automatically got de-registered on June 21, 2013 as a consequence of the Amendment. Both PPL and IPRS have chosen not to re-register as copyright societies but are now conducting business as private limited companies, registered under the Companies Act. According to Section 33 of the Copyright Act, the business of issuing or granting licences can only be carried out by a registered copyright society and as stated above IPRS and PPL ceases to be registered copyright societies since June 21, 2013.
5.3 In Leopold Café Stores v. Novex Communications Pvt. Ltd.5 the major issue looked into by the Bombay HC is whether Novex was entitled to grant licenses on behalf of Copyright Owners in various works? Brief facts of the case are that M/s Leopold Cafe, one of the most popular restaurants in Mumbai, obtained an order on June 26, 2014 against Novex Communications, claiming to be an authorized agent of Copyright Owners such as Yash Raj Films and Shemaroo. This order restrained Novex from issuing any licenses as per Section 33 of the Copyright Act, which prohibits any person or association of persons, with the exception of Copyright societies that are duly registered under the Act, from carrying out business of issuing or granting licenses.
5.4 In this case hon'ble Bombay HC observed that "every agent also "carries on business", but that is the business of agency, with the agent functioning as such, i.e., clearly indicating that it is acting on behalf of another, one who holds the copyright. This is the only manner in which both Section 33 and Section 30 can be harmonized. An absolute bar even on an agency, invoking Section 33, would undoubtedly run afoul of the plain language of Section 30 and render the words "or by his duly authorised agent" entirely otiose." After hearing both the parties, the Court held that Novex was not allowed to be in the business of issuing or granting licenses as per Section 33 of the Copyright Act. However, they could continue issuing licenses as an authorized agent of Copyright Owners under Section 30 of said Act.
5.5 Also, as a result of the Leopold Café case, the National Restaurants Association (NRAI) in December 2015 wrote letters to IPRS, PPL and Novex stating that all three companies are wrongly asserting rights to grant and issue license under Section 30 of the Copyright Act and that Section 33 mandates that the business of issuing and granting license should be carried out only by a registered copyright society.
5.6 Hence, applying the above judgment to the current situation of IPRS and PPL, it seems that there is a conflict between the application of Section 30 and 33 with regards issuing and granting of license. Further, it appears that the licenses can then be issued by PPL & IPRS only in the name of the copyright holder, and not in their own name. However, the practice of PPL and IPRS is quite clear that they issue licences in their own name and stage organisers are required to acquire licenses from them directly.
6. SDA COMMENTS
6.1 According to the Copyright Act, before using a recorded music in public it is necessary to obtain the licences from each and every right owner in the recording. Omitting to do so, results in a cognizable and non-bailable offence with huge penalties, which can extend up to 3 years and 2 lakhs respectively under Section 51 and Section 63 of Copyright Act. Hence it becomes important to procure the appropriate license from either the duly registered copyright society or the individual owner of copyright.
6.2 There seems to be conflict in the interpretation of Section 30 and 33 of the Copyright Act as they seem to overlap each other. The Bombay HC's judgment will affect the licensing of music through third parties such as IPRS, PPL and Novex. According to it, IPRS and PPL cannot function within the ambit of Section 33 of the Copyright Act, as they are not registered copyright societies. If at all they wish to continue to be in business, they must transform their functioning to suit the legalities of Sections 30 and 33 of the Copyright Act. Also not being registered as a copyright society seriously hampers their ability to initiate legal proceedings because Section 55 of the Copyright Act allows only owners or exclusive licensees of copyrighted work to initiate legal proceedings for the infringement of a copyright. Therefore, as an agent, such companies may not be able to initiate legal proceedings. We hope to have more clarity very soon.
5 Leopold Café Stores v. Novex Communications Pvt. Ltd 2014(6) BomCR 394.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.