TMI Blog1977 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... matograph film can defeat the same by engaging the same person. The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS'), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the Copyright Act, 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it throughout the world; that having regard to the provisions of the Act the' copyright in the case of a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapable of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright . The High Court also held that though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect . Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicated because of the involved language in which some of its provisions are couched and the case being of first impression, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or music ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded, or which is issued by the maker Of the film for use in conjunction with such an article ); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfounded; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically reproduced, it is not musical work within the meaning of the Copyright Act and there is no copyright 'in songs or orchestral pieces sung or played directly without its notation being written' that since a 'cinematograph film' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph' is required to be construed to include any work produced by any process analogous to cinematography, the owner of the cinematograph film is the firt owner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submissions made by learned counsel for the parties. So far as the first part of the question reproduced above is concerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that-- (1) the owner of the copyright in an existing work-or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m includes the sound track, if any, and cinematograph shall be construed as including any work produced by any process analogous to cinematography. (j) exclusive licence means a licence which confers on the licensee or on the licensee and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and exclusive licensee shall be construed accordingly. (m) infringing copy means,- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** **** (iv) ** ** ** (p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced . (q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodiffusion, or by the use of a record, or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely (i) to make a copy of the film; (ii) to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio-diffusion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely- (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio-diffusion. (2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the film is published . Section 30 of the Act which deals with grant of licences by owners of copyright runs thus :- 30. Licences by owners of copyright.--The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation.--When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence . The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be restrained from doing so. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily coexist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on I the composer's copyright which he does only if the 'music' is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhibiting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r either of them printed, reduced to writing or otherwise graphically produced or reproduced. Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in s.2(d), in relation to a musical work, is only the composer and s. 16 confies 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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