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No Dual Royalty For Playing Songs In Public

By: Nidhi Tandon

When it comes to the copyright of a song, lyricists and music composers of a song are the first owners and their works (literary and musical works) are considered to be independent and separate from that of the music producers. By virtue of the amendment of the Copyright Act, 1957 in the year 2012, this understanding was overturned in the recent judgment of the Supreme Court in IPRS (Indian Performing Rights Society Limited) and CISAC (International Confederation of Societies of Authors and Composers) v/s Aditya Pandey and Synergy Media Entertainment. As per the amendment, the producer of sound recording (music producer) is categorized as the “author” of the copyright subsisting in a song, which is a derivative work of the music (musical works) and lyrics(literary works) put together and has independent copyright of his work.

The dispute before the Court was:

If X and Y were to create the music (musical works) and lyrics (literary works) for a sound recording (derivative work) being produced by Z, three distinct copyrights would be created. X would own the copyright for the musical work, Y would own the copyright for the literary work and Z would own the copyright for the sound recording, i.e., the studio recording of both the music and the lyrics together (derivative work). The issue at dispute was whether A (Event Management Company/Event Organizer) was required to seek license from X and Y for subsequently playing in public the sound recording (derivative work) produced by Z even after paying Z for broadcasting the song?

In India, the legal position in such cases has been that individual permission would have to be taken from the copyright owner of the sound recording (derivative work), the musical works and the literary works.  Phonographic Performance Limited (PPL) has enforced copyright for sound recording while the copyright in music & lyrics has been enforced by Indian Performing Rights Society Limited (IPRS).

In  2012 a Division bench of the Delhi High Court in the matter of IPRS v/s Aditya Pandey and Synergy Media Entertainment turned the law on its head by dismissing IPRS’s appeal against the order of a Single Judge who had held that radio stations, event organizers, et al,  who were broadcasting ‘sound recordings’ were required to pay royalty only to the owner of the sound recording (derivative work) and not to the lyricist and music composer whose works (literary and musical works) have been incorporated in the sound recording.

After 10 years, the Supreme Court (“the Court”) has affirmed this decision of the Delhi High Court that mass media outfits like radio stations and event organizers don’t need to secure license from lyricist and music composers for broadcasting/communicating the songs in public after it has paid for the broadcasting of the song to the sound recording company.

IPRS and CISAC contended that lyricists and music composers are the true owners of a song, and the license given to a sound recording company does not affect their rights to claim royalty for the song. Therefore, any third party communicating/broadcasting a song to the public would be required to pay royalty to the lyricists and the music composers of that song.

The sound recording company, Synergy Media Entertainment, contended that once the lyricist and the music composer part with a portion of their copyright by authorizing the sound recording company in respect of their work, a right exists with the sound recording company to exhibit the work to the public. Accordingly, for broadcasting/communicating a song to the public, the event organizers are only required to pay royalty to the music companies who are the ultimate licensees and have the right to publish the song.

The Supreme Court has re-affirmed the view taken by the Delhi High Court by concluding that:

  1. By virtue of the amendment of the Copyright Act, 1957 (“Act”) with effect from 21.6.2012, the “producer of sound recording”, i.e., the recording company would also be categorized as the “author” of the copyright subsisting in a song under Section 2(d) (v) and has an independent copyright of his work.

  2. Under Section 14(e)(iii) of the Act, the producer of the sound recording has a right to communicate her work to the public.

  3. In view of the introduction of sub-section 10 of Section 19 of the Act through the 2012 amendment, the assignment of the copyright in the work to make sound recordings, which does not form part of any cinematograph film, shall not affect the right of the “author of the work” to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the third parties, i.e. the event organizers/management.

  4. As per section 2(d)(i) and (ii) of the Act, lyricists and composers are also authors. Hence, lyricists and composers too can claim royalties for their work. They will, however, have no say in the assignment or licensing of their works.

In view of the above settled principles of law, the royalty for communicating/broadcasting a song to the public by a third party (event organizers) ought to be paid to the recording company alone, and not to the lyricists and music composers of the song.  This judgment, therefore, comes across as a major relief for event organizers as they would not be paying dual royalties for the same song. On the other hand, lyricists and music composers are now deprived of their exclusive right to claim royalty from event organizers.

This judgment would in effect extinguish the rights of the lyricist and music composer since the term of copyright protection of a sound recording (60 years from when the work is published) is substantially shorter than the term of copyright protection in musical and literary works (life of the author plus sixty years from when the author dies). This means that once the copyright in the sound recording ends, anybody can play the sound recording without having to pay royalty to lyricists and music composers (or their heirs) despite the fact that they have a valid copyright in the music and lyrics.

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