Major knockback for IPRS in Indian broadcast claim

September 2011

Internet, music publishing

In a judgment I found extremely surprising, the Bombay High Court have decided that the owner of a sound recording can authorize the public communication of that sound recording and that no royalty is payable to the owner of the underlying works – here music and lyrics (Music Broadcast Private Limited v Indian Performing Right Society Limited, before S. J. Vadzifdar J).

The Indian Performing Rights Society (IRPS) have claimed a royalty when a ‘sound recording’ is ‘communicated to the public’ in many proceedings before various courts in India. The members of the IPRS are the authors of literary and musical works. The IPRS has always claimed that they are entitled to claim royalty when ‘work’  – which is embodied in the sound recording – is communicated to the public through broadcast on radio in the sound recording. IPRS claims that, in the absence of a licence from IPRS, such communication of sound recordings amounts to infringement of copyright of the members of the IPRS in the underlying works embodied in the sound recording. The radio broadcasters have valid licences to broadcast the sound recordings from Phonographic Performance Limited (PPL), the collection society for owners of sound recordings.

The claim of the IPRS has always been that, even after a valid licence from PPL, the radio broadcasters are also required to take a licence from IPRS because, when the sound recording is communicated to the public, the underlying works embodied in the sound recording are communicated to the public.

This case was originated by a user of sound recordings, Music Broadcast Private Limited and was brought against  the IPRS seeking relief, inter alia, by a declaration that IPRS is not entitled to claim and that the Plaintiff is not liable to pay any royalty to the IPRS when the sound recording is communicated to the public. The Plaintiff sought other relief, which included an order of permanent injunction restraining IPRS from interfering with the broadcast of the sound recordings

The Plaintiff also sought the refund of licence fees already paid but this was held not to be within the jurisdiction of the Court as the Copyright Board (constituted in the Copyright Act, 1957) has exclusive jurisdiction on such matters.

So the crucial issue which was adjudicated and answered by the Court is that IPRS is not entitled to any royalty in respect of the literary or musical work embodied in the sound recording when the ‘sound recording’ is communicated to the public. Justice Vazifdar analyzed the provisions of the Copyright Act 1957 and accepted the submissions made by the Plaintiff that:

  • The Act recognises only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of right to the owner thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each class without the interference by the owners of the works in other class.
  • No class of work is inferior to the work in another class.
  • In sound recordings and cinematograph films, the literary and musical work gets incorporated into it, whereupon independent copyright works, viz.sound recordings and cinematograph films, come into existence and, therefore, rights under Section 14 in respect of each sound recording and cinematograph film come into existence which can be exploited by the owner of the sound recording or cinematograph film without interference from the owner of copyright in the underlying works.
  • The owner of a sound recording has, inter alia, the exclusive right of communicating the sound recording to the public. Though the exercise of such right has the effect of communicating the underlying work, viz. musical or literary work, to the public such communication of underlying works being a part of the sound recording does not amount to infringement of the copyright of communicating to the public, the underlying works. The owner of a sound recording has an exclusive right to communicate the sound recording in any form and such communication in exercise of right under Section 14(1)(e)(iii) cannot amount to infringement of any underlying work in such sound recording.
  • The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to the public as a part of the sound recording.
  • The owner of a copyright in the underlying works retains the bundle of copyrights in them otherwise than as a part of the sound recording.
  • The right of public performance of an underlying work is different from the right to communicate the sound recording in which the musical or literary work is incorporated.
  • The Defendant, therefore, can claim licence fee only in respect of public performance of musical or literary work of its members or in respect of communication of such works otherwise that as a part of other copyright viz. Sound recording or cinematograph film. In other words, the Defendant cannot claim licence fees in respect of public broadcast or communicate to the public, musical or literary works as a part of the sound recording.

The Judge did not accept the last submission of the Plaintiff that, upon the owner of a copyright in musical and literary work permitting the making of a sound recording, his right to make or permit to be made another sound recording containing such work comes to an end.
UK music publishing rights collecting society PRS For Music has criticised the recent court rulings. PRS says that the court rulings breach India’s obligations under the Berne Convention, the international agreement that ensures minimum level copyright protection for composers and songwriters in any country signed up to it. The collecting society wants the Indian government to act to ensure the country’s copyright laws are able to fulfil international obligations.
PRS Chairman Guy Fletcher said: “PRS For Music is proud to represent the rights of many Indian music creators who have joined our society in order for us to collect their royalties when their music is used outside India. We diligently license, track, collect and pay music usage in our own country and look to respective governments to ensure copyright legislation is enforced in their own countries in order that local societies can properly compensate creators. Radio performances and the royalties earned are key components of any creator’s income and are as important in India as in the UK”.
From an article by Amit Jamsandekar on the 1709 Copyright Blog  ( and see the Judgment here

No Comments

Comments are closed.