The last consignment of RTI information that we had received from the Copyright Office had included a copy of the official ‘file notings’ pertaining to IPRS’s original application to be registered as a Copyright Society, in 1996, under the 1994 amendment to the Copyright Act, 1957. These file notings have now been uploaded on our website and are accessible over here.
As explained above these file notings reveal the internal discussions and objections of the Copyright Office to the original application for registration received from IPRS. In the process of vetting this application the Copyright Office was checking whether the Articles of Association and Memorandum of IPRS were in compliance with the requirements of the Copyright Act & Rules. Ideally the Copyright Office should not have approved the application until each and every requirement of the law had been fulfilled by IPRS. To the credit of the officer in charge, he has conducted a remarkable thorough study of some of the discrepancies in the articles of IPRS. However for reasons not clear he has missed the most obvious flaw in the original articles of IPRS, which is the fact that its articles did not require the company to be solely in the control of the ‘owners of copyrights’.
Sections 34 & 35 of the Copyright Act, 1957 both require the Copyright Society to be in complete control of the owners of the Society. However the old Articles of IPRS i.e. before they were amended in 2008, which are available over here and here (1991 amendment available over here), did not require IPRS to be in control of only the owners of copyrights. We have explained the old governing structure of IPRS in an earlier post accessible over here. To put it very briefly the old articles of IPRS, of 1969 vintage, required it to be in control of a mixture of authors, composers and owners. For example the qualifying criteria of ‘full members’, who were the only persons who had voting rights at AGMs, was basically any author or composer who had their musical works published in atleast 12 cinematograph works. Clearly this criteria does not ensure that the Society is solely under the control of the owners. It appears that the Copyright Office did not catch this distinction between ‘owners’ and ‘author' when it proceeded to register IPRS as a Copyright Society.
The interesting part of this entire fiasco is that in 2008 IPRS amended its articles to ensure that only owners were in complete control of the Society. Surprisingly they did this through a ‘title suit’ before the Civil Judge, Senior Division at Barasat instead of filing a writ petition before a High Court. Now although the new articles, prima facie seem to be in compliance with the Articles of IPRS two questions arise:
(i) When the original registration of IPRS itself was illegal, can the subsequent amendments be valid?
(ii) When the entire character of IPRS was altered through the 2008 amendments was it not necessary for IPRS to resubmit an application to be registered as a copyright society in order to ensure that the new articles were in compliance with the requirements of the law?
My best guess is that any writ petition challenging the original registration of IPRS as a copyright society back in 1996 will be successful before any High Court of this country. The Registrar of Copyrights in 1996 clearly failed to apply her mind to the application in question and the High Court will therefore be more than pleased to quash the original registration of IPRS in 1996 with directions to re-examine the application. In fact even the present Registrar of Copyrights can easily derecognize IPRS as a Copyright Society. Having said that let me be clear that any copyright society which is registered as per the law will in all probability consist of only music companies and not individual authors or composers. The reason for this is that most authors and composers have assigned away their copyrights to these musical companies. For all the criticism of the Supreme Court’s 1977 judgment in Eastern Motion Pictures the fact of the matter remains that authors and composers could have retained the copyrights in their works by inserting a clause to that effect in their contracts. The Supreme Court judgment did keep this option open. The fact that they did not do so demonstrates the failure of the original IPRS (before the music companies took over) to educate its members on the nuances of copyright law.