Name of author: Vedant Gupte (5th Year Student, Dharmashastra National Law University)
Name of Co- author: Chetal Soni (5th Year Student, Dharmashastra National Law University)
Introduction
Copyright is an individual right conferred upon an individual but the management and protection of copyrighted work of individuals is not an easy task. Especially when the IP holders are musicians, song composers and lyricists. This particular group of creators are more likely and very often need to license their creation since music is the life of any social gathering, it is played in hotels, bars, events and any other social gathering. It is extremely difficult for the owners to protect their copyright works from infringement because these authors seldom have the financial resources to prevent the infringement of their copyright. A single society, composed of creators as its members, undertakes the management and protection of copyright works spanning various domains. This entity streamlines the process of distributing copyrights by serving as a centralized gateway for individuals seeking to procure rights for original creations such as music and literature. Such a copyright society has to be registered under Section 33 of the Indian Copyright Act, 1957[1] (1957 Act) for collective administration of copyright. In India, a society like Indian Singers Right Association (ISRA) works towards protecting the interests of only singers while societies like Public Performance License (PPL) or Indian Performance Right Society (IPRS) has members from diverse field of arts including lyricists, authors etc. and a society like Society for Copyright Regulation of Indian Producers of Films and Television for cinematograph or television film.
The blogpost delves into the legal complexities and challenges surrounding the collective administration of copyrights by societies in India. More specifically, it delves into how copyright societies, such as PPL and IPRS, navigate their legal authority to manage and protect the copyrights of musicians and creators, especially considering the distinctions between assignment and licensing of rights.
Before diving into the statutory and precedential discussion of this issue, there is a need to explain the distinction between assignment and license of a copyright. In the former, ownership of the work is transferred to the other person while in the latter the licensee gets the right to use the author’s work as well[2].
Court Rulings and the Evolving Role of Copyright Societies
PPL appears to be performing the functions of Copyright Societies. Since PPL is not registered under Section 33 of the 1957 Act[3], the provisions governing the conduct of Copyright Societies are not applicable to them. Therefore, by declaring themselves to be private companies these entities are no longer regulated by the Copyright Act.
To an extent, it is correct to call societies like this an agent of the owner of the copyright.
The Bombay High Court in the matter of Leopold Café Stores[4] held that “in order to qualify an agent, it is necessary for the agent to disclose that it is acting for and on behalf of the copyright owner in all the relevant documents.”[5] Additionally, performance rights organizations can issue licenses only in the name of the copyright holder, not in their own name. If the principal is not disclosed and the license is granted in the agent’s name, it triggers the prohibition outlined in Section 33[6].
A license from PPL is simply indicative of the permission to “perform all copyrighted works covered by that license and managed by PPL.”
From a glimpse of the Bombay High Court Judgement, in the matter of Leopold Café Stores implies that PPL is not an authorised agent or licensee as it is not registered under Section 33 of the Act and that will affect the licensing of music through third parties such as PPL. Theoretically, these companies could easily be reclassified as agents in accordance with the Court’s ruling. However, this could severely limit their ability to take legal action, as Section 55 of the 1957 Act[7] permits only copyright owners or exclusive licensees to pursue legal proceedings for copyright infringement. Consequently, as agents, these companies would be unable to initiate lawsuits. This shift would greatly impact the licensing models currently used by many Indian music labels that are not part of collecting societies.
However, Bombay High Court in a Notice of Motion[8] held that the Plaintiff i.e., PPL who claims to be the assignee/owner of the copyright (after perusing the Assignment Deed and satisfying itself with sufficiency of PPL’s agency right over the music records) in various sound recordings by virtue of the Assignment Deed is entitled to act as licensee for sound recordings for public performance and for other purposes as set out in the said deed. Similarly, in a Notice of Motion[9] Bombay High Court granted similar relief to IPRS.
The Bombay High Court in Rajasthan Patrika Pvt. Ltd. case[10] gave the interim relief in favour of IPRS. However, in the case of Music Broadcast Private Limited[11], did not give IPRS interim relief in a commercial suit for recovery of payment of royalty despite previous agreements for the use of music of members of IPRS. Possibly for the first time, the Bombay High Court gave a relief to IPRS in the Entertainment Network (India) Ltd.[12] case. It was an arbitration petition and Bombay High Court overturned the arbitral award and held that license from the Claimant (IPRS) is required for broadcasting the sound recording by it from its FM Radio Stations.
These societies got popular in recent times only and are trying to be more functional and effective in the daily life of the copyright holders along with ensuring that their rights are safeguarded. While explaining their function, the Supreme Court held that “The Society steps into the shoes of the author and files litigation on his behalf for protection and enforcement of his rights”[13]. Further, in the case of Novex Communication (P) Ltd. v. Lemon Tree Hotels Ltd.[14], one of the questions which was before the court for adjudication was do these societies or organizations have the right to collect royalties on behalf of the copyright owners?
The Court in the light of the settled precedeDelhint in the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.[15], the court held that these organizations have the right to collect the royalties on behalf of the owners and distribute the collected amount amongst its members[16]. Another question which needs an answer is “Whether the owner of the copyright can grant further license to some other organization of not?” As per the combined reading of the judgment of the Delhi high Court and Section 33(1) of the 1957 Act[17], it can be deduced that when an exclusive license is granted to a society by a owner, then the owner is further estopped from granting a license to someone else than that society[18] and surprisingly, the society can apply for an injunction against the owner of the copyright in case if he tries to grant a further license to someone else other than the society who currently holds the license in respect of that particular copyright under the Order XXXIX of the Code of Civil Procedure, 1908[19].
Conclusion
The collective administration of rights through copyright societies in India presents significant legal complexities, particularly regarding the registration and authority of entities like PPL and IPRS. Recent court rulings have increasingly favoured copyright societies in India, affirming their role in managing and protecting copyright interests. Judgments have upheld the authority of societies like IPRS and PPL to collect royalties, enforce rights, and issue licenses on behalf of copyright holders. This judicial support highlights the crucial function of these societies in the copyright ecosystem, though it also underscores the need for clearer regulatory guidelines to further strengthen their legal standing and operational effectiveness.
[1] Indian Copyright Act 1957, s. 33 (Act of 1957).
[2] International Confederation of Societies of Authors and Composers (ICSAC) v. Aditya Pandey, (2017) 11 SCC 437.
[3] Act of 1957, s. 33.
[4] Leopold Café Stores v. Novex Communications Pvt. Ltd. 2014 SCC OnLine Bom 1342.
[5] Ibid.
[6] Ibid.
[7] Act of 1957, s. 55.
[8] Phonographic Performance Ltd. v. Welcome Hotel Rama International (ITC) & ors. Notice of Motion (L) No. 3061, 3062, 3063, 3065, 3066, 3067, 3068, 3069, 3070, 3071, 3072, 3073, 3074, 3075, 3076, 3080.
[9] Indian Performing Right Society Ltd. v. Harsh Vardhan Samor, Notice of Motion (L) No. 3620 of 2015, 2015 SCC OnLine Bom 7333.
[10] Indian Performing Right Society Limited v. Rajasthan Patrika Pvt. Ltd. 2023 SCC OnLine Bom 944
[11] Music Broadcast Private Limited v. Indian Performing Right Society Limited 2011 SCC OnLine Bom 953 : (2011) 113 (5) Bom LR 3153 : (2012) 3 AIR Bom R 303 : 2012 CLC 421 : (2012) 1 Civ LT 111 : (2011) 47 PTC 587.
[12] IPRS v. Entertainment Network (India) Ltd. 2016 SCC OnLine Bom 5893.
[13] Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
[14] Novex Communication (P) Ltd. v. Lemon Tree Hotels Ltd., 2019 SCC OnLine Del 6568
[15] Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
[16] Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
[17] Act of 1957
[18] Novex Communication (P) Ltd. (n 12).
[19] The Code of Civil Procedure, Order XXXIX.