The Indian Performing Rights Society Limited And Another v. Branch Manager The Muthoot Finance Private Limited And Others

Common Order:

O.A.No.1318 of 2008 is filed seeking an order of temporary injunction restraining the respondents and their agents from in any manner communicating any of the musical and literary works of the members of the applicants in the form of broadcast on their private FM Radio Stations. Application No.37 of 2009 is filed by the third respondent seeking to vacate the order of ad interim injunction granted in O.A.No.1318 of 2008.

2. The applicant/plaintiff is a Co-operative Society registered under section 33 of the Copyright Act, 1957. The applicant was permitted to carry on business in musical and literary works. The Government of India through the Registrar of Copyrights has issued to the applicant a certificate of registration. The respondents are engaged in the business of broadcasting private FM (Frequency Modulation) Radio Station in the city of Chennai in the name of Chennai Live 104.8 FM. The applicant is affiliated to 194 World Societies of authors and composers. The members of the applicant comprised of authors and composers and publishers of Indian Musical and Literary works have executed deeds of assignment assigning their public performing rights in respect of their musical work. The owners of copyright in musical and literary work in respect of a recorded song are entitled to receive royalty as and when the sound recording is communicated to the members of the public. The applicant has also been authorised to grant licence and collect royalties and licence fee on behalf of its members for use and exploitation of the copyrights by means of broadcast, telecast or public performance to the public at large.

3. It is alleged by the applicant that the respondents have started broadcasting the recorded songs on their FM Radio Stations in respect of which the members of the applicant owned copyright in relation to musical and literary work. The respondents cannot use or exploit the copyrights of the members without duly obtaining licence from the applicant paying necessary licence fee/royalty for such use and exploitation. Unless the respondents are restrained from broadcasting any of the music and literary works of the members of the applicant in the form of broadcast, the applicant would suffer loss, harm and injury, it is further alleged.

4. It is the contention of the third respondent that the third respondent had already entered into an agreement dated 4.6.2008 with Phonographic Performance Limited (PPL), a copyright Society registered under section 33(2) of the Copyright Act, 1957. PPL has been duly assigned the rights by the first owners of the copyright of music being played by Chennai Live. The third respondent also entered into private agreements with other owners of copyrights who are not members of PPL. The applicant has been granted licence to issue licence for performing rights only. But, the respondent is not in the business of performing music. Therefore, the respondent is not required to enter into any agreement with the applicant. The producer Companies mentioned in the list produced by the applicant are also members of the registered Co-operative Society viz., PPL which has already granted broadcasting licence to the respondents to conduct its business. Therefore, the third respondent would submit that grave prejudice will be caused to the respondent if the ad interim order of injunction already granted remains in force.

5. The point that arises for determination is whether the applicant has established a prima facie case that the third respondent has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

6. Learned Senior Counsel appearing for the applicant would submit that the literary and musical work is a separate class of work from that of sound recording. Whereas learned counsel appearing for the third respondent would vehemently submit that the literary and musical work merges with the sound recording work.

7. There is no dispute to the fact that there are two Copyright Societies viz., Indian Performing Rights Society (IPRS), the applicant herein and the Phonographic Performance Limited (PPL) registered under section 33(3) of the Copyright Act, 1957. Under section 33(1) of the Copyright Act, 1957, there is a bar for any person or association of persons to carry on business of issuing licence in respect of any copyright without the registration under section 33(3) of the. The applicant Society has been registered to carry on business of granting licence in respect of copyrights involved in any work under section 33(3) of the Copyright Act, 1957. There is no dispute to the fact that Phonographic Performance Limited is also a Society registered under section 33(3) of the. Both of them have been issued certificate of registration under the aforesaid provision of law by the Government of India.

8. Copyright shall subsist in three classes of works viz.,

a) original literary, dramatic, musical and artistic work;

b) cinematographic films; and

c) sound recording as contemplated under section 13 of the.

It is pertinent to note that the legislature, in its wisdom, has classified sound recording as a separate class of work from that of literary and musical work. The copyright in a sound recording shall not affect the separate copyright in any work in respect of which a sound recording is made as per sub-section 4 of section 13 of the. The separate classification of literary and musical work as contemplated under section 13(1) has been emphasised under section 13(4) of the.

9. The learned Senior Counsel appearing for the applicant would submit that broadcasting of the songs by the third respondent through its FM station would amount to performance of the work in public. But, the learned counsel appearing for the third respondent would contend that the applicant has got right to issue licence for performing rights only. The third respondent, who is not in the business of performing music, does not in any way intrude into the domain of the applicant.

10. In case of literary or musical work, copyright means an exclusive right to perform the above work in public or to communicate it to the public. What is communication to public is defined under section 2(ff) of the. Communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display. Therefore, performing literary or musical work in public does not only mean a musical performance in a public place. Broadcasting of the songs involves communication of the music to the public which is heard and enjoyed by them. Therefore, the submission made by the learned counsel appearing for the respondent that the right accrued to the applicant to issue licence for performing the literary or musical work is confined only to performing music in the public view stands rejected.

11. It is submitted by the learned Senior Counsel appearing for the applicant that the applicant being an assignee of the copyright by its members under the deed of assignment, can freely plunge into action for copyright without arraying the first owner of the copyright.

12. Per contra, the learned counsel appearing for the third respondent would contend that there is a statutory bar under section 61 of the Copyright Act to lay a suit without impleading the original owner of the copyright.

13. It is true that under section 61 of the Copyright Act, no civil suit can be laid by an exclusive licensee, unless the owner of the copyright is made a defendant in the suit. Firstly, the applicant has shown prima facie before the court that the applicant is only an assignee of the copyright by its members and not an exclusive licensee as contemplated under section 61 of the Copyright Act. The applicant has got assignment under section 18 of the Copyright Act and not licence from the owner of the copyright under section 30 of the Copyright Act.

14. The learned counsel appearing for the respondents cited the judgment of the Supreme Court in ESPN STAR SPORTS v. GLOBAL BROADCAST NEWS LIMITED AND OTHERS ( 2008 DHC 156). That was a case where the plaintiff, contending that it had obtained the sole and exclusive licence from various sports bodies, laid a civil action for infringement of copyright. In the factual background of the above case, the Supreme Court held that the suit was not maintainable as the owner of the Copyright in an action initiated by the exclusive licensee was not made a party as mandated under section 61 of the Copyright Act. The above ratio does not apply to the fact situation of this case where an assignee and not a licensee has approached this court seeking the relief under the Copyright Act without arraying the assignor of the copyright.

15. It is submitted further by the learned Senior Counsel appearing for the applicant that the applicant, being assignee of the copyright of its members, has got right of administration of such rights. Therefore, any violation of the right assigned can be challenged before the court of law by the applicant, it is submitted.

16. Per contra, the learned counsel appearing for the respondent would submit that only the owner of the copyright can seek civil remedies for infringement of copyright under section 55 of the Copyright Act, 1956.

17. A Copyright Society, which has got certificate of registration as per section 33 of thecan enter into an agreement with the copyright owners authorising it to administer any right in the work by assignment of licence or collection of licence fee or both. The Copyright Society may also issue licence under section 30 in respect of any rights under the. It can also collect fee in pursuance of such licence granted. The rights of the owner of copyright is administered by the Copyright Society in terms of the agreement entered into by the Society and its members who have authorised the Society to administer any right in work. The registered Copyright Society, being assignee, steps into the shoes of the copyright owner and can very well seek the remedies invoking the provision under section 55 of the Copyright Act. Further, even an exclusive licensee is empowered to lay suitable proceedings for infringement of copyright under section 61 of the. Therefore, the assignee of copyright has got every right not only to administer the copyright assigned to it but also to safeguard the right given to it by the owner of the copyright.

18. The learned counsel appearing for the respondent cited yet another decision in INDIAN PERFORMING RIGHT SOCIETY LIMITED v. EASTERN INDIA MOTION PICTURE ASSOCIATION AND OTHERS (AIR 1977 SC 1443 [LQ/SC/1977/128] ). That was a case where the issue as to whether the existing and future right of music composer and lyricist is capable of assignment and also whether the Producer of a Cinematographic film, who was authorised by music composer and lyricist to appropriate their work, can lawfully defeat their aforesaid right. The Supreme court has held that an existing and future right of music composer and lyricist in their respective works as defined in the is capable of assignment. It has been further held that if an author (Composer) of a lyric or musical work authorises a cinematographic film Producer to make a cinematographic film of his composition, by recording it on the sound track of a cinematographic film, he cannot complain of the infringement of the copyright if the author (owner) of the Cinematographic film causes the lyric or musical work recorded on the sound track of the film to be heard in public. 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 cinematographic film and he cannot be restrained from doing so.

19. That was a case between a composer of musical work and the owner of cinematographic film. Here is a case where the dispute has arisen between a registered Society which has got assignment of literary and musical work from its owner and a broadcaster, who claims to have acquired licence from another registered Society for broadcasting not only sound recording but also literary and musical work. Further, the core issue that has arisen in that case is found to be totally different from the issue arisen in the case on hand. Therefore, the aforesaid authority does not apply to the facts and circumstances of this case.

20. The applicant Society has established, prima facie, that it has got assignment of the literary and musical work from its owners by entering into separate agreement of assignment. It is also shown before the court that sound recording is a different class of work from that of literary and musical work. The Government of India has also registered two separate Societies one for carrying on the business of issuing or granting licence in respect of literary and musical work viz., IPRS and another one in respect of sound recording work viz., PPL. Unless the third respondent obtains licence for broadcasting literary and musical work of the members of the applicant Society, they have no right to broadcast the songs of the members of the applicant Society, it has been established prima facie before this court.

21. Under such circumstances, if the third respondent continues to broadcast the songs of the members of the applicant Society without getting licence from it, the interest of the applicant and its members would be in jeopardy. It has also been shown before the court that many radio channels have obtained licence both from the applicant Society and PPL. The balance of cocnvenience is found only in favour of the applicant.

22. Therefore, ad interim injunction already granted by this court is made absolute and O.A.No.1318 of 2008 stands allowed and Application No.37 of 2009 stands dismissed. There is no order as to costs.