Infringement of Copyright

Copyright is a type of intellectual property rights and provides you an exclusive right on your artistic works like art, music, cinematographic films. Section 14 and section 33 of Copyright Act, 1957 mentions the copyright infringement. If the owner of the artistic work finds his work is infringes and using by someone, he or she can file a case against the illegal user. Here we discuss about the copyright infringement of broadcast of songs by FM Radio and the right of the particular producer of the film.

Broadcast of sings by FM Radio – Right of film producer

Dr. Tulzapurkar relied upon the judgment of the Supreme Court  in Indian Performing Right society Ltd. Versus Eastern Indian Motion Pictures Association. I find the judgment to cover the case in the plaintiff’s favor. Although it was in respect of a cinematographic film, I find it to be equally applicable in the case of a sound recording. Indeed, after having read the judgment more than once and, as rightly insisted upon by Mr. Seervai, Comparing the provisions of the Act as they stood at the time of the judgment and as they stand amended today, I am of the opinion that the judgment continues to hold the field. I say so with great respect as it was seriously suggested on behalf of the defendant that the judgment is no longer good law in view of the amendments to the Act after the judgment. It was also submitted that the judgment bring in respect of cinematograph films is not relevant in present case which deals with sound recordings. It is necessary, therefore, to deal with the judgment in greater detail than I would have otherwise thought it necessary having come to conclusion that it clearly supports the plaintiff’s case. In that case, the appellant – IPRS published a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licenses for the performance in public of the works in respect of which it claimed to be an assignee of copyright and to have authority to grant the licenses. Among other the association of producers of cinematographic films claiming to be the owners thereof, including the sound track therein and cinematographic Exhibitors Association of India filed objections repudiating the claim of IPRS. They objected on the ground that the composers and song writers had executed the work under contracts of service with them or their members to be utilized in the films. It was also contended that the musical works prepared by the composers of lyric and music having been utilized and incorporated in the sound track of the cinematographic films produced by them, all the rights which subsisted in the composers and their works, including the right to perform them in public, became the property of the producers of cinematograph films and no copyright subsisted in the composers which they could assign to IPRS and that the producers of cinematographic films being the authors and first owners of the copyright in cinematographic films produced by them had the exclusive right, inter-alia, to cause the said films insofar as the same consisted of sound (which included musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them and to cause the said works to be heard in public. It is important to note that the contention was based not merely on the ground that the composers were under a contract of service, but also on the ground that they did do doe valuable consideration.

In other words, it was also contented that for valuable consideration which is substantial. a music director sets the work to tunes and imparts music to it and a singer sings the same, but none of them or any one of their aforesaid  works can and have any separate copyright; that the 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 and that having regard to the provisions of the Act, the copyrights in the case of cinematographic film vests in the owner of the film and that, therefore, any assignment purporting to have been made in favor of IPRS was void and of no effect and was incapable of conferring any rights in such musical works on the IPRS. It was further contended that copyright in a cinematographic film which vested in the producers meant copyright in the entirely of the film as an integral unit, including the musical work incorporated in the Sound Track of the film and the right to perform the work in public. The Supreme Court, after referring to the various provisions of the Act, held as under:

The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in continuation with Section 14(1) (c)(iii) that the term “cinematographic film” includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a “cinematographic film” is to be taken to include the sounds embodied in a sound track which is associated with the film. Section 13 recognizes “cinematographic film” as a distinct and separate class of “work” and declares that copyright shall subsist therein throughout India. Section 14 which enumerates the rights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literacy or musical work means inter alia (a) right to perform or cause the performance of the work in public and (b) to make or authorize the making of a cinematographic film or a record in respect of the work. It also provides that copyright in case of cinematographic film means among other rights, the right of exhibiting or causing the exhibition in public of the cinematographic film i.e. of causing the film insofar as it consists of visual images to be seen in public and public and insofar it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has learned heavily in support of his contentions lays down that the copyrights in a cinematographic film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13 (4) and section 14 (1) (a) (iii) on the one hand and section 14 (1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorizing a film producer to make  a cinematographic film in respect of his work and thereby to have his work incorporated or recorded on the sound track of a cinematographic film, the latter acquires by virtue of section 14 (1) (c) of the Act on completion of the cinematographic film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film insofar as it consists of visual images to be seen in public and insofar as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or 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 cinematographic 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 authorizes 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 his copyrights 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 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 cinematographic film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorized a cinematographic film producer to make a cinematographic film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematographic film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilizing such sound track of from communicating or authorizing the communication of the film by radio-diffusion, as Section 14 (1) (c) of the Act expressly permits the owner of the copyright of the cinematographic film to do all these things. In such cases, the author (owner) of the cinematographic film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the expresses provisions of clauses (f), (m), (y) of Section 2, Section 13 (1) (b) and section 14 (1) (c) of the Act otiose but would also defeat the intention of the legislature, which in view of the growing importance of the cinematographic film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognize it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilizing such sound track as something distinct from a record as ordinarily understood.

The provisions of the Act in respect of a cinematographic film and sound recordings are not identical view of the nature of the two works. The rights conferred upon them in certain respects are naturally different. However, what is important to note is the similar manner in which exclusivity of the rights are conferred by the Act to the producers who are the owners of the copyrights in the underlying works in cinematographic films and sound recordings. I am unable to distinguish the judgment on the ground that the Supreme Court dealt with a cinematographic film, whereas the present case concerns sound recordings alone.  No cogent reason, justifying such a distinction, has been furnished.

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