India’s PPL cannot litigate in respect of unauthorised performances

September 2008

Music Publishing, collection societies

Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008)

From our friends at Spicy IP and the IPKat

In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others , the Delhi High Court has held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings in India. The Court found that the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. Clearly this decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings.

Music companies have granted authorisations to PPL to administer their right of communication to the public in respect of their sound recordings and to administer such right by the grant of licences and collection of royalties. The music companies’ agreements with PPL also authorise PPL to initiate any actions for the enforcement of their rights for which authorizations were granted to PPL. However this usually isn’t an exclusive licence in the sound recording as labels will retain the right to sell physical product and downloads as well as the right to issue synchronization licences for sound recordings for films and TV. The High Court held that PPL merely had the authority to administer the licences and collect royalties from the licensees but the statute did not permit PPL to initiate a copyright action. This is in view of the statutory provisions which only authorize a copyright owner or its exclusive licensee to initiate an infringement action and PPL was neither the copyright owner nor an exclusive licensee.

By way of further elucidation, the court held that the authority that a copyright owner gives to a copyright society for the collection of fees relates to the fees in respect of the licences granted by the copyright societies. It is arguable that such an authority to an agent like PPL would include the authority to recover royalties from delinquent licensees by filing a civil suit. However, the situation is entirely different where persons to whom no licence has been granted by the copyright society unauthorisedly uses the copyright work. In such cases where no licences have been granted to such a person, the copyright society would have no authority to file a suit against such persons either for infringement or for recovery of royalties or for damages. The suit, if any, would have to be filed by the copyright owner or its exclusive licensees”.

No Comments

Comments are closed.