Yet another baffling judgment from the Delhi High Court extinguishes the rights of composers & lyricists

In yet another setback to composers and lyricists of music in India, a Division Bench of the Delhi High Court in the case of IPRS v. Aditya Pandey & CRI Events, has dismissed IPRS’s appeal against the order of a Single Judge who had held that radio stations etc., who were broadcasting/communicating ‘sound recordings’ were required to pay royalty to only the owner of the sound recording and not the owner of the lyrics or the musical works which had been incorporated into the sound recordings.

The judgment which can be accessed over here is the latest in series of similar judgments from a Single Judge at the Bombay High Court and a Division Bench at the High Court of Kerala. 

We had blogged about these earlier cases over here, here and here. All of these judgments, the present one included, are bound to significantly reduce the fortunes of composers and lyricists. The Indian Performing Rights Society (IPRS) now has an option to appeal to the Supreme Court but rest assured that it is going to have an incredibly difficult time in convincing the Supreme Court that judges of three different High Courts have wrongly interpreted the law. 

While I’m yet to read the other judgments, I can tell you that I found this present order of the Delhi High Court utterly baffling.

The core issue at question before the Division Bench as described in its own words was as follows:

The area of dispute is: what happens to the copyright in an underlying work (literary and musical works) when the derivative work (sound recording) is exploited. Does he who obtains a permission from the copyright owner of the derivative work to broadcast by way of communicating to the public said derivative work, additionally requires a similar permission from the owner of the underlying works i.e. the literary and musical works?

In answering this question the judgment notes “The Act, recognizing the separate existence of the three copyrights, requires it to be held that creating of a sound recording is through the simultaneous integration of the differentiated and notwithstanding the constituent differentials existing, the integrated whole i.e. the sound recording when broadcasted to the public is an exercise of the ownership right on its own strength. The situation may be dichotic, but it has to be so. The three works exist, independent of each other, and do not co-exist – joined by an umbilical cord.”

In simple English: Let me break down the above two paragraphs to simple English with the help of an illustration. If A.R. Rahaman & Javed Akhtar were to get together to create the music and lyrics for a sound recording being produced by Saregama, there would be three distinct copyrights create. Rahaman would own the copyright for the musical work, Akhtar would own the copyright for the lyrics a.k.a. the literary work and Saregama would own the copyright for the sound-recording i.e. the studio recording of both the music and the lyrics together. The basic issue at dispute in this case is whether a radio station or event management company playing the sound recording produced by Saregama would have to pay royalties to all three copyright owners i.e. Saregama, Rahaman & Akhtar? 

Historically in India, the accepted legal position has been that for the public performance of a sound recording i.e. by playing a sound recording over the radio or in a bar, individual permission would have to be taken from the copyright owner of the sound-recording, the music & the lyrics. In India copyrights for sound recordings have been traditionally enforced by PPL while the copyrights in the music & lyrics have been enforced by IPRS, both of which are copyright societies registered under the Act.

The Delhi High Court has however turned the law on its head when it ruled that for the public performance of a sound recording, royalties are required to be paid only to the owner of the copyright in the sound recording and not the owner of the copyrights in the music and lyrics.    

Critiquing the order of the Delhi High Court

The 43 page order of the Delhi High Court was delivered on the 8^th of May, 2012 by a Division Bench consisting of Justice Pradeep Nandrajog & Justice S.P. Garg. The initial portions of the judgment are rather baffling since the Court meanders between integration, differentiation, fusion, fission, Aurbindo. I would recommend just skipping the first 13 pages of the judgment. 

A. Errors in the orders of the Single Judge: As noted by Nikhil in his guest post over here, the Single Judge makes several factual and legal errors in his interpretation. The Division Bench agrees with IPRS that the Single Judge got the law wrong at more than one instance. This in itself should have been a ground to set aside the judgment, however the Division Bench substitutes the reasoning of the Single Judge with its own reasoning.   

B. The first argument: IPRS tried to establish the patent errors of the Single Judge’s judgment by pointing out how such a conclusion would in effect extinguish the rights of the lyricist and composer, especially since the term of copyright protection of a sound recording (60 years from when the work in published) was substantially shorter than the term of copyright protection in musical and literary works (life of the author plus sixty years from when the author dies).

If I may illustrate this with an example: If Javed Akhtar & A.R. Rahaman were to contribute the music and lyrics to a sound recording produced by Saregama in the year 1990 then the copyright in the sound recording would end in 2050 but Akhtar’s & Rahaman’s copyright in their music and lyrics would end only 60 years after their death. Their rights are definitely longer than Saregama’s rights.

Therefore, going by the Single Judge’s logic, once the copyright in Saregama’s sound recording ends, anybody can play the sound recording without having to pay royalties to even Akhtar and Rahaman (or their heirs) despite the fact that they have a valid copyright in the music and lyrics. This would clearly be an awkward legal situation and serves as a perfect example of the obvious fallacies in the Single Judge’s order.    

To the above argument of IPRS, the Division Bench responded with the following two-fold conclusion:

(i) That the scope of copyright in musical and literary works,  in Section 14(a) of the Copyright Act was distinct from the scope of copyright of a sound recording in Section 14(e). According to the Division Bench, Section 14(a) authorizes the owner of copyright in literary and musical works to perform the work in public or communicate it to the public while on the other hand Section 14(e) authorizes the owner of copyright in sound recording to only communicate the work in public. According to the Court, this difference between the rights in 14(a) & 14(e) is indicative of a subtle distinction in the rights of composer/lyricists and producers. So what is that difference?

To answer this question, the Court dives into the history of the following terms in the Copyright Act: ‘performance’, ‘broadcast’, ‘communication to the public’, ‘performance’, ‘performer’. In pertinent part in paragraph 39 of the judgment, the Court discusses when each one of these definitions was amended or introduced for the first time in the Act. For example the Court notes how the definition of the term ‘performance’ was significantly amended in 1994 and how the term ‘communication to the public’ did not exist in the Act when it was initially promulgated.   

The Court seems to stress on the changing definition of ‘performance’. Earlier, S. 2(q) defined performance to mean any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematographic film or by means of radio-diffusion of a cinematographic film or by means of radio-diffusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture. In 1994 ‘performance’ was amended to mean any visual or acoustic presentation made live by one or more speakers.

After going through all these definitions and their legislative history, especially the changing definition of ‘performance’, the court abruptly concludes that the Copyright Act, 1957 draws a distinction between communication to the public by way of live performance and when it is by way of diffusion. (para 39)

(ii) On the basis of the aforesaid difference between communication to the public by way of live performance and by way of diffusion, the Court concludes:

“Thus, whereas the owner of copyright in literary and musical works enjoys the right to communicate said works to the public by way of live performance the owner of copyright in sound recording does not enjoy similar right to communicate the sound recording to the public by way of live performance. A necessary corollary to the aforesaid is that the communication of a sound recording to the public by the owner of the recording in no way encroaches upon the right of the owner of the underlying literary and musical works to perform said underlying works in the public, as correctly held by the learned Single Judge and therefore, nothing turns upon the arguments predicated upon the definition of the expressions “performance” and “performer” advanced by the learned senior counsel appearing for IPRS.”  

In my opinion there are two problematic issues in the above analysis of the Division Bench which I’ll list as follows:

(i) The necessary corollary according to the Delhi High Court is neither necessary nor a corollary. It is a huge leap in logic. Just because the owner of a sound recording cannot give a live performance of a sound recording does not mean that he will not encroach upon the rights of the author of the literary or musical works to communicate to the public in other ways. This linking the rights of the author to the rights of the owner of the sound recording makes little sense to me.

The Court should have instead confined its analysis to the term ‘communication to the public’ since as per Section 14, both the owner of the sound recording and the owners of the music and lyrics have this very same right.   

(ii) Where the court analyses the various definitions of ‘performance’ to come to the conclusion that the Copyright Act, 1957 draws a distinction between communication to the public by way of live performance and when it is by way of diffusion, it completely fails to note the context in which the definition of ‘performance’ was amended. In 1994 the term ‘performance’ was amended because for the first time Parliament had introduced ‘performer’s rights’ into Indian law. Performers rights are for singers, dancers etc. who are essentially performers and not necessarily creators. Thus when the term was amended it was in an entirely different context and of no relevance to the present case. The entire distinction drawn by the Court between communication by way of live performance and by way of diffusion is of no consequence.  

C. The second argument: The second limb of IPRS's arguments was to present the comparative position vis-à-vis the position in the U.K. The exact arguments are not quite clear from a reading of the judgment but the Court does make a conscious note of the ‘rhythmic difference between the flow of river Thames and Yamuna’ on the grounds that unlike the Indian legislation, Section 20 of the UK legislation prohibits the owner of copyright in sound recording from communicating the sound recording to the public.

Let me reproduce Section 20 below, as is available from one of the U.K. Govt. websites which can be accessed over here:

[F120Infringement by communication to the public

(1)The communication to the public of the work is an act restricted by the copyright in—

(a)a literary, dramatic, musical or artistic work,

(b)a sound recording or film, or

(c)a broadcast.

(2)References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

(a)the broadcasting of the work;

(b)the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.]

Am I missing something? How did the Division Bench come to the conclusion that S. 20 of the U.K. CPD Act prohibits the owner of copyright in sound recording from communicating the sound recording to the public? In fact if anything the U.K. legislation states the exact opposite. 

D. The third argument: The Division Bench then turns its attention to the 1977 decision of the Supreme Court in the case Eastern Motion Pictures v. IPRS. This decision of the Supreme Court formed the basis of the Single Judge’s order. In this part of its order the Division Bench briefly explains how the SC came to its conclusion that the producer of a cinematograph film who commissioned the lyricist and composer to create a song would own the copyright to both the lyrics and music. In the next four pages it reproduces several paragraphs from the SC’s judgment and then once again comes to an abrupt conclusion that the SC’s observations relating to Section 13(4) of the un-amended Copyright Act, 1957 are applicable to the present case.

The Division Bench completely fails to explain how any of the SC’s observations on S. 13(4) are relevant to the present case? Again, am I missing something here? How does the Division Bench keep making these great leaps of logic?

E. The Fourth & Fifth arguments: The last two arguments of IPRS pertained to two Madras High Court judgments and the requirements of international conventions. Both arguments were disposed of summarily by the Division Bench.