Reiterating that said earlier, sound recording consists of the acoustic portion including a lyric or a musical work despite which underlying works do not lose their existence upon a sound recording being made but remain exclusively mutual. However, the anomaly of the provision of the Act that grants the authors of musical & literary work and authors of sound recording the right to communicate to public their work has questioned the independent existence of the said works during the coalescence of the two. Courts have in the recent past clearly opined 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 which is communicated. Therefore the musical or literary work, are not independently communicated or broadcast but as part of sound recording; nor can they be separated, while communicating the entire work (the sound recording), to the public.
While the Court in the above cases recognizes the independent existence of lyricist and composer’s entitlement to copyright and royalty in respect of their work (literary and musical) and entitlement of the producer of the sound recording’s copyright in respect of the sound recording. Before we jump into conclusion interpreting the decisions of the Apex Court in the above cases to limiting the royalty right of the author’s of lyric or musical work, it would be pertinent to understand the ownership of the work which is a matter of debate in the Apex Court’s decision. When a work is created at the instance of making a cinematograph film for a valuable consideration, or when the work is assigned/ transferred to the producer of sound recoding to be incorporated in the sound recording then sensibly the producer of cinematographic film or sound recording becomes the first owner of copyright in the underlying works of the derivative work.
Although the interpretation of the Court at the outset may seems unjustified. It is to be noted that the recognition afforded by the Parliament to the content of sound recording itself suggests that that the sound recording is perceived in law, as different from that of a musical or literary work, though there may be a coalescence of the two, but not necessarily all the time.
Notwithstanding anything to the contrary the composer of a lyric or a musical work, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and the producer cannot restrain the author of literary and musical work from doing so. For instance, IPRS Limited v Hello FM Radio (Malar publications Limited), in this case the Hon’ble Delhi High Court granted injunction in favour of IPRS restricting Hello FM radio station from playing music without obtaining a license from the IPRS. Similarly in Radio Today Broadcasting Ltd. vs Indian Performing Rights Society the Hon’ble Calcutta High Court, in the course of disposing an interim application, was asked to decide on the question whether the radio station (Radio Today) would be obliged to pay any royalty and/or licence fees to IPRS for the songs which would be broadcasted through their radio station in addition to the licence fees paid to the producer (PPL), the court ruling against Radio Today held that unless it is shown that the right of the members of IPRS were expressly assigned in favour of the members of PPL, IPRS is entitled to claim royalty from the plaintiff if they want to exploit the work and the members of IPRS commercially by broadcasting the songs through the radio station.
Therefore, the Apex Courts decisions in the Eastern Case and Aditya Pandey Case should not be interpreted to mean limiting the rights of the lyricist and composers over their works. The said decisions do not extinguish the royalty collection rights of the lyricist and composers over their works. Owners of the copyright in the underlying musical and literary works are at liberty to reserve the right to royalty in the underlying musical and literary works that may be incorporated in the sound recording or cinematographic film by an express agreement between the owners of the copyright in the underlying musical and literary works and the owner of the cinematograph film or sound recording to that effect. Owners of the copyright in the underlying musical and literary works having parted with their rights through an assignment or by creation of the work for a valuable consideration shall not have locus standi to demand royalty for the work which they do not own.
Authored by the Entertainment law division at BananaIP Counsels.
Image Source & attribution here, image is in public domain.
 Indian Performing Right Society Limited vs Eastern India Motion Pictures, 1977 AIR 1443, 1977 SCR (3) 206
 2006 (4) CHN 366, 2007 (34) PTC 174 Cal