Bombay High Court Orders Radio City & FM Tadka to Pay Royalties Before Using ‘Copyrighted Music’

Bombay High Court Orders Radio City & FM Tadka to Pay Royalties Before Using ‘Copyrighted Music’

The Bombay High Court by its single judge Justice Manish Pitale while temporarily restraining FM radio stations - Radio Tadka and Radio City from broadcasting songs authored by the members of Indian Performing Rights Society (IPRS) prima facie held that, original authors (authors, composers, publishers etc.) of the literary or musical works used in films and sound recordings are entitled to royalties equal to the producer for utilization of their works.

The real crux in the present matter was, whether the plaintiff - IPRS was justified in claiming interim reliefs on the basis that a strong prima facie case was made out due to change in law, as per amendments brought about in the Copyright Act with effect from 21 June, 2012, as opposed to the stand taken by the defendants that the position of law continued to be the same in respect of the extent to which authors of original literary and musical works, could exercise their rights on every occasion that their underlying works were communicated to the public.

The plaintiff- IPRS is a company with the object of protecting and enforcing rights and interests of its members who are original authors of literary and musical works.

The defendant companies, Rajasthan Patrika and Music Broadcast Limited, were engaged in the business of operating FM Tadka and Radio City respectively. They claimed that the amendments did not grant any new substantive right to the authors of original works.

In 2012, the Copyright Act was amended to add provisos to sections 17 (first owner of copyright) and 18 (assignment of copyright), and two subclauses to section 19 (mode of assignment).

However, IPRS contended that the position of law has changed since the Supreme Court’s judgment in IPRS v. Eastern Indian Motion Pictures Association (1977), wherein it was held that original authors who have assigned their work to a producer of a cinematograph film, could no longer claim any right from the producer when the film was communicated to the public. This position has been reiterated in various judgements regarding sound recordings also.

It was argued by IPRS that due to the amendment now the original authors of literary, dramatic, musical and artistic works were entitled to receive royalty. The defendants contended that since Section 13 (works in which copyright subsists) and Section 14 (meaning of copyright) were not amended, mere provisos cannot give a substantive right to the authors.

The Court on perusal of the third and fourth provisos to Section 18 added by the amendment observed, “the third and fourth provisos added to Section 18 read with sub-sections (9) and (10) added in Section 19 of the Copyright Act also introduce a concept hitherto unknown to the said Act. The said provisos and sub-sections, added by way of amendment in the year 2012, prohibit the authors themselves from assigning or waiving their right to receive royalties for utilization of their works in cinematograph films and sound recordings other than in cinematograph films.”

The Court remarked that the words ‘with the cinematograph film in a cinema hall’ made it abundantly clear that the moment such works are utilized in any form other than in a cinema hall, the authors are entitled to receive royalties.

Further, the Judge was of the considered view that as per subsections (9) and (10) of section 19, added by the amendment, the author’s right to claim royalties is unaffected when their work, which is part of a film, is used in any manner except in a cinema hall along with the film. If the work is just a sound recording (i.e., not part of a film), the author’s right to royalty is unaffected whenever it is utilized in any form.

The Court observed, “It cannot be said that since the literary and musical works of such authors get subsumed in the sound recording, which under Section 13(1) (c) is also a work in which copyright subsists, the entitlement of authors of such works to collect royalties would be taken away, despite specific guarantee of such rights by way of amendment in the year 2012, manifested by introduction of proviso to Section 17, third and fourth provisos to Section 18 and sub-sections (9) and (10) in Section 19 of the Copyright Act.”

The Court was of the view that the plaintiff- IPRS had indeed made out a strong prima facie case to hold that communication of the sound recording to the public on each occasion amounts to utilization of such underlying literary and musical works, in respect of which the authors thereof have a right to collect royalties.

It was highlighted by the judge that, most of the sound recordings communicated to the public through such radio stations were the part of film music, and therefore, both, the third and fourth provisos to Section 18 read with sub-sections (9) and (10) of Section 19 of the Copyright Act come into operation.

The Court categorically pointed out that the purpose of the amendments brought about in the Copyright Act in the year 2012 cannot be defeated by seeking an escape route of claiming that the right to collect such royalties under the amended provisions does not fall within the definition of ‘copyright.’

Hence, the Court ordered, “the IPRS was allowed to demand royalties in terms of the quantum already determined in proceedings initiated in that regard and as per the rates presently in vogue as per orders passed in such proceedings, which may be revised in accordance with law during the pendency of the present suit.”

Accordingly, the Court granted interim reliefs in favor of IPRS.