Rights Of Indian Performing Rights Society Claiming Royalty Upheld by Kolkata High Court
In a recent decision rendered by High Court of Calcutta, Mr. Justice, Ashim Kumar Banerjee discussed in depth about the issues of royalty to be paid to the Indian Performing Rights Society (IPRS) and the rights of Music Composers and Lyricists.
Justice, Banerjee also stressed on the precedent of IPRS Society V/s. EIMP Association AIR 1977 SC 1443 and discussed the proposition as follows :-
“Preparation of Song:
Film Song: When a film is produced the producer to ornament and articulate his film hires artists for adding songs in the film. Those artists are lyricist, composer as well as singer. Lyricist is approached by the producer to write a song which can fit in a particular situation in the film so that the song does not become irrelevant or out of place in the film. After the song is written the same is given to the composer who composes the music and then a singer is asked to sing the song. The sound recordist records the song and the same is put in the original film track and mixed up with the film. After it is done the song becomes a part of the film. Once the song becomes the part of the film the producer being the owner of the film also becomes the owner of the song for the purpose of using the same in his film and is protected under the law from having the said song used in any other film without his consent.
After the song is put in the film the song is also converted into cassettes and/or Compact Discs (hereinafter referred to as “CDsâ€) by the music companies with the permission of the producer for the purpose of selling it in the market for public consumption. The music companies, however, pay royalty to each of the performers whose rights are protected under the law being the lyricist, the composer as well as the singer unless there is any exclusive right given by the artists to the film producer by agreement. However, singer is not as such separately regarded in the law as observed by Justice Krishna Iyar in the case of IPR Society (supra).
Non-Film Songs: The music companies hire signer, lyricist, composer and thereafter get a complete song sung by the singer with the lyrics of the lyricist and on the music composed by the composer and the said song is converted into CDs or cassettes which are sold in the open market. There also the music companies pay royalty to each of the performers being responsible for preparation of the said songâ€.
“Payment of royalty under the copyright law:
Cassettes and CDs are sold in the market. I go and buy one cassette upon payment of the price tagged on it. Such price includes not only the manufacturing cost and the profit but also the share of the royalty which is paid on my behalf by the music companies to each of the performers. I come back to my house, play the music on my player and enjoy it alone. I may enjoy with my family members. I may also invite hundred people in my house to enjoy the music. For these I do not have to pay any additional royalty. Next day I take the CD to my restaurant and play the music to attract my customers, I make myself vulnerable to payment of additional royalty under the law. Similarly if I am a film producer I am entitled to use the song in my film so long I want. However, I do not have any special right to permit others to exploit the same commercially unless there is an agreement to the said effect.
The basic question boils down to one point i.e. commercial exploitation. The moment artistic piece of work is commercially exploited by any one he is bound to composer, be it lyricist, be it sound recordist.
The facts of the case in question was that plaintiff wished to run a radio station on FM Band known as “Radio Today†and got the provisional licence from the Central Government to run the same. However, the plaintiff did not wish to pay royalty on the song which included Film songs as well as non-film songs to the IPRS. The plaintiff contended that once the song was composed and marketed through producers, they were only required to take a permission from the Producers Society and not the IPRS as the song was prepared and marketed by the producers and no royalty can be payable to the performers as the performers lost their right as soon as the product is marketed as a complete productâ€.
The question to be decided by the Calcutta High Court was that whether the radio station would be obliged to pay any royalty and/or licence fee to IPRS for the songs which would be broadcasted through their radio station in addition to the licence fee paid to the producers being Phonographic Performance Limited which is a society of producers.
Justice, Banerjee relied on the decision of the Supreme Court in IPR Society Vs. EIMP Association and observed as under :
“IPR society demanded royalty from the producers on account of future right on the film songs on behalf of the lyricists and composers and other members of the society. They approached the Copyright Board. The Copyright Board held that the IPR was entitled to tariff published in the newspaper and they had right to grant licence available before performance of the music in the sound track of the film and it could claim royalty charges in respect of those films with effect from the date on which tariff was published in the Gazette. The Cinema Producer Asociation approached the High Court as against the order of the Copyright Board. The High Court held that unless there is a contract to the contrary the composer/lyricist does not acquire any copyright either in respect of the film or its sound track which is capable of assigning it to others under Section 17(b) proviso. The High Court further held that “the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the film reserving his copyrightâ€. The High Court further held that Section 18 of the Act confers power to make a contract of the assignment, such power can be exercised only when there is an existing or future right to be assigned. The Supreme Court dismissed the appeal by holding that the right of the lyricist/composers in respect of the song picturised and put in the original film track is extinguished as soon as they are paid for their work. However, they retained their right to assign it to others for commercial exploitation of the same work in other mode in case such right is reserved by the agreement between him and the film producer.
It is accordingly held that an existing and future right of music composer and lyricist in their respective ‘works’ as defined in the Act is capable of assignment subject to the condition mentioned in Section 18 of the Act, as also in Section 19 of the Act which requires an assignment to be in writing assigned by the assignor or by his duly authorized agent.â€
It was held that the IPRS was legitimately entitled to demand royalty from the plaintiff as it was not the plaintiffs case that the members of the IPRS did assign their exclusive right to the producers by agreement. Unless it is shown that such right of the members of IPRS were expressly assigned in favour of the members of PPL, IPRS is entitled to claim royalty from the plaintiff if they want to exploit the work and the members of IPRS commercially by broadcasting the songs through the proposed radio station.
