India: Copyright Societies And The Grant Of Rights For Radio Broadcast

Last Updated: 12 May 2009

Acquisition of rights to broadcast musical works and associated literary works on radio is vital in view of copyright violation and the existence of copyright societies. An application was filed to seek an order of temporary injunction restraining Muthooth Finance, its co-parties and agents from in any manner communicating any of the musical and literary works of the members of the Indian Performing Rights Society (IPRS) in the form of broadcast on their private FM Radio Stations. The Court clarified the stand regarding obtaining licenses in a common order, regarding an application to seek an order of temporary injunction (O.A.No.1318 of 2008) and another to revoke an already granted injunction (Application No.37 of 2009 in O.A.No.1318 of 2008) in Indian Performing Rights Society Ltd. & Ors. v. Branch Manager, Muthoot Finance Private Limited, Chennai & Ors. (C.S.No.1180 of 2008)

IPRS is a society registered under section 33 of the Copyright Act, 1957 and is permitted to carry on business in musical and literary works. IPRS claims to be affiliated to 194 World Societies of authors and composers. Muthoot and its co-parties engage in the business of broadcasting private FM (Frequency Modulation) Radio Station in the city of Chennai in the name of Chennai Live 104.8 FM. The owners of copyright in musical and literary work in respect of a recorded song are entitled to receive royalty as and when the sound recording is communicated to the members of the public. In this respect, IPRS is authorized to grant a licence and collect royalties and licence fee on behalf of its members for use and exploitation of the copyrights by means of broadcast, telecast or public performance to the public at large.

IPRS alleged Muthoot and co-parties of broadcasting recorded songs on their FM Radio Stations in respect of which IPRS members owned copyright in relation to musical and literary work. This was not allowable unless a necessary licence fee/royalty was paid for such use and exploitation

The third respondent, a branch of Muthoot Finance based in Kerala, contended that they had entered into an agreement dated 4.6.2008 with Phonographic Performance Limited (PPL), whereby PPL had been duly assigned the rights by the first owners of the copyright of music being played by Chennai Live. They also stated that private agreements had been signed with other owners of copyrights who were not members of PPL. They stated that IPRS could grant licences in respect of performing rights only. Stating that Muthooth was not in the business of performing music, they were not required to enter into any agreement with IPRS. In view of a license from PPL having been obtained they submitted that grave prejudice would be caused if the ad interim order of injunction remained in force.

The Court pointed out that it was necessary to determine if IPRS had established a prima facie case that Muthoot finance, based in Kerala had got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

IPRS stated that the literary and musical work is a separate class of work from that of sound recording, while Muthoot vehemently submitted that the literary and musical work merges with the sound recording work.

The Court noted that there existed that two Copyright Societies viz., Indian Performing Rights Society (IPRS) and the Phonographic Performance Limited (PPL) was registered under section 33(3) of the Copyright Act, 1957.Examining the provisions the Court noted under section 33(1) of the Copyright Act, 1957, there is a bar for any person or association of persons to carry on business of issuing licence in respect of any copyright without the registration under section 33(3) of the Act. IPRS in this regard had been registered to carry on business of granting licence in respect of copyrights involved in any work under section 33(3) of the Copyright Act, 1957. The Court acknowledged that Phonographic Performance Limited was also a Society registered under section 33(3) of the Act, both having been issued certificate of registration under the aforesaid provision of law by the Government of India.

The Court taking note of a copyright subsisting in three classes of works a) original literary, dramatic, musical and artistic work; b) Cinematographic films; and c) Sound recording stated that the legislature, classified sound recording as a separate class of work from that of literary and musical work, hence the copyright in a sound recording not affecting the separate copyright in any work in respect of which a sound recording was made as per sub-section 4 of section 13 of the Act.

The Counsel appearing for IPRS submitted that broadcasting of the songs by the third respondent through its FM station would amount to performance of the work in public. But, the learned counsel appearing for Muthooth contended that IPRS had got a right to issue a licence for performing rights only. Muthoot averred that not being in the business of performing music, they did not in any way intrude into the domain of the applicant.

The Court noted that in case of a literary or musical work, copyright means an exclusive right to perform the above work in public or to communicate it to the public. In view of the definition of 'communication to public', it refers to any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display. Therefore, the Court stated that performing literary or musical work in public does not only mean a musical performance in a public place and that broadcast of songs involved communication of the music to the public which is heard and enjoyed by them. In this light, the submission made by Muthoot regarding performance being restricted to performance in public view was rejected.

While the Counsel appearing for IPRS stated that being an assignee of the copyright by its members under the deed of assignment, they could freely plunge into action for copyright without arraying the first owner of the copyright, the counsel appearing for Muthoot contended that there was a statutory bar under section 61 of the Copyright Act to lay a suit without impleading the original owner of the copyright. The Court noted that under section 61 of the Copyright Act, no civil suit could be laid by an exclusive licensee, unless the owner of the copyright is made a defendant in the suit. The Court opined that IPRS had shown prima facie before the court that the applicant is only an assignee of the copyright by its members and not an exclusive licensee as contemplated under section 61 of the Copyright Act. The Court noted that IPRS had obtained an assignment under section 18 of the Copyright Act and not licence from the owner of the copyright under section 30 of the Copyright Act.

IPRS submitted that being assignee of the copyright of its members, they had obtained the right of administration of such rights, which was contradicted by Muthoot who submitted that only the owner of the copyright could seek civil remedies for infringement of copyright under section 55 of the Copyright Act, 1956.

The Court opined that a Copyright Society, having obtained a certificate of registration as per section 33 of the Act could enter into an agreement with the copyright owners authorizing it to administer any right in the work by assignment of licence or collection of licence fee or both. The Copyright Society, the Court observed may issue licence under section 30 in respect of any rights under the Act. Being an assignee, the Copyright Society was said to step into the shoes of the copyright owner and can very well seek the remedies invoking the provision under section 55 of the Copyright Act. Further, an exclusive licensee was also said to be empowered to lay suitable proceedings for infringement of copyright under section 61 of the Act. Therefore, the Court concluded that the assignee of copyright has got every right not only to administer the copyright assigned to it but also to safeguard the right given to it by the owner of the copyright. The Court also took note of precedents cited in arriving at this conclusion.

The Court concluded that IPRs had got an assignment of the literary and musical work from its owners by entering into separate agreement of assignment. The Court stated that unless Muthoot obtained a licence for broadcasting literary and musical work of the members of the applicant Society, they had no right to broadcast the songs of the members of IPRS. The Court held that if Muthoot continued to broadcast the songs of the members of IPRS without obtaining a licence, the interest of the applicant and its members would be in jeopardy. The Court stated that it was shown that many radio channels had obtained licence both from the applicant Society and PPL. The balance of convenience was found to be in favour of IPRS. The ad interim injunction which had already granted by this court was declared to absolute and the second application seeking revocation of the injunction was denied.

© Lex Orbis 2009

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