Musical Works Create Some Noise

The past year has been a dynamic one for the music industry with several High Courts in India addressing the rights of underlying rights holders in sound recordings.  These rulings are a ray of hope for radio stations that have for years battled a double royalty for the broadcast of music. 

These were the decisions in the Radio City case (Music Broadcast Private Limited v. IPRS) by the Bombay High Court and the Synergy Media case (IPRS v. Aditya Pandey and Another) by the Delhi High Court where Courts held against the requirement of a license from IPRS (The Indian Performing Right Society Limited) for the radio broadcast of sound recordings.  The IPRS is the statutory copyright society which collects royalties for lyricists and musical composers.

Historically, radio stations in India have been required to obtain a license from the copyright owner of sound recordings and owners of underlying works since underlying works are incorporated into sound recordings.  About a half decade ago, while the FM radio industry in India was taking root, several factors led to disputes between IPRS and various radio stations.  Stations like “Radio Mirchi” (owned by the Times Group), “Radio City” (owned by Music Broadcast) amongst others, maintained that an IPRS license was not required since the radio broadcast was that of a sound recording.  Their view was that a valid license from PPL (Phonographic Performance Limited), whose members are the sound recording companies, should suffice for the broadcast of a sound recording.  The Radio Mirchi matter was referred to arbitration by the Bombay High Court and the proceedings are presently underway.

The Radio City case explicitly recognizes that while sound recordings incorporate literary and musical works, they are nevertheless a separate class of work in which copyright vests.  The copyright owner in this separate work is conferred specific exclusive rights under the Copyright Act, 1957 (of India) which include the right to communicate the sound recording to the public, including by radio broadcast.  The exercise of a statutory right by the sound record owner or its licensee should be without interference from owners of the underlying literary or musical works.  A radio broadcaster should therefore only require a license from the owner of the sound recording.

The recent decisions follow the 1977 Supreme Court landmark decision in the Eastern Indian case (IPRS v. Eastern Indian Motion Pictures Association), a highly controversial precedent which was in respect of cinematograph films.  The Synergy Media decision extends the rationale of the Eastern Indian case to sound recordings.  The heart of the Eastern Indian case decision was that copyright in films vest in their entirety in the film producer as an integral unit, including the musical work incorporated in the sound track and the right to perform the work in public.  Composers and lyricists do not therefore possess rights in the underlying works once those rights are assigned to the film producer.  Each class of work, including sound recordings, is separately recognized by statute and exclusive rights in respect of each class are statutorily stipulated.  No priority exists between different classes of works.  Composers and lyricists therefore hold no separate rights in the sound recordings for which they can claim a royalty once their underlying works are incorporated in the sound recording, even though the sound recordings are derived from musical and literary works.  

The Synergy Media decision recognises the transformative nature of a sound recording which uses musical and literary work as an element.  The Court observed that when a sound recording is communicated to the public, it is the whole “work”, i.e. the lyrics, the score, the collocation of sounds caused by the equipment and the capturing of the entire aural experience. The musical or literary work, by themselves, are not communicated or broadcast while communicating the entire work, which is the sound recording.  It would therefore be unjustified to say that when a sound recording is communicated to the public by broadcast, the musical and literary work is also communicated to the public through the sound recording.  Once a license to broadcast has been obtained from the sound record owner, a separate license is not necessary from the copyright owner of the musical or literary work. 

Recognizing the rights of artists, the Court in the Radio City case observed that while sound recordings incorporate underlying works giving rise to a wholly separate work, namely a sound recording, lyricists and music composers as owners of the underlying works continue to retain copyright in these underlying works apart from the use in that sound recording.  The Synergy Media decision also draws a distinction specifying that musical and literary works cannot be otherwise “performed” in public (as opposed to communication of a sound recording to the public) without the authorization from owners of musical and literary works. 

An analysis of the copyright statute demonstrates the sound basis of these decisions.  By statute, the owner of a sound recording is conferred an exclusive right to communicate the sound recording to the public.  This must include communication by radio broadcast since the very meaning of “communication to the public” under the statute specifies “making any work available… by any means of display or diffusion other than by issuing copies of such work... ”.  In exercising the exclusive right to communicate the sound recording, the sound record owner cannot be said to infringe the underlying works in the recording.  It must logically follow, that underlying right holders can claim license fees only in respect of a public performance of these works communicated otherwise than as part of a sound recording.

Appeals from these recent judgments are eminent.  The law as it stands today, however, is that once a license is obtained from the sound recording owner, a radio broadcast does not require licenses from owners of each underlying element since a legitimate sound recording could result only by obtaining rights to make such a recording, the exclusive rights in which vest as a whole in the owner of the recording.

Purnima Singh was admitted to the Bar Council of Maharashtra & Goa in 1999 and enrolled as a Solicitor of England & Wales in 2002. She practices general commercial law specialising in IP, media and entertainment laws.  She advises on IP agreements and related documents for clients in various industries such as hotels, FMCG, media and entertainment, publishing and software. Purnima’s experience includes advising on issues related to trademarks, copyrights, trade secrets, designs, domain names and aspects of cyber laws, including advising on alternate dispute resolution at the WIPO and .IN Registry, and devising strategies and advising clients for anti-counterfeiting measures.  Purnima can be contacted on +91 22 2262 3191 or by email at purnima.singh@mullaandmulla.com