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Would Licensing a Sound Recording Call For Separate License From the Lyricist and Composer?
This post was last published on May 15th, 2012.
The case ruling in IPRS v. Aditya Pandey came as a huge loss to the music composers and lyricists of the industry. It was held that no separate license was required from the copyright owner of literary and musical work (lyricist and composer) that embody a sound recording.
A brief overview of the facts are as follows-
The appellant, Indian Performing Right Society Ltd. (IPRS – for short) is a Copyright Society registered under Section 33 of the Copyright Act 1957 and has around 1478 members who are either authors of the lyrics or composers of the musical score. The respondents are Private FM Radio Channels and Event Organizers. The Appellants contended that the respondents were to obtain separate permission from the authors of the underlying work (literary and musical works) in addition to the permission obtained from the copyright owner of the derivative work (sound recording).
The main controversy which arose for decision before the Delhi High court was: what happens to the copyright in an underlying work (literary and musical works) when the derivative work (sound recording) is exploited. Does he who obtains permission from the copyright owner of the derivative work to broadcast by way of communicating to the public the derivative work, additionally requires similar permission from the owner of the underlying works i.e. the literary and musical works?
Music and lyrics are the underlying elements of a song. The lyricist provides the words and the music composer provides the music score. Each of these individuals owns a copyright for his/her work. Or in other words, the lyricist has a copyright over the literary work and the composer owns the copyright over the music composition. When the song is recorded, a sound recording is created. The copyright over the sound recording vests with the producer. Therefore, now the question that arises is whether a separate license is required from the composer and lyricist apart from the producer of the sound recording if the sound recording is to be exploited. If the sound recording is communicated to the public, would it amount to communicating to the public, the literary and musical work that embodies the sound recording?
Earlier the Single Bench had held that to broadcast or communicate to the public a sound recording, one needs to take license only from the producer of the said sound recording and no separate license was required from the lyricist or the composer of the sound recording. The Single Judge also held that while broadcasting/ communicating the work to the public, radio stations, channels etc., one needs to pay royalty only to the producer of the sound recording and not to the lyricist and the composer. However, if one wishes to hold an event involving live performances the license or authorization from IPRS is necessary. The main contention on behalf of the Appellant was due to Section 14 (a)(i) to (vii) of the Copyright Act 1957, authors of musical or literary work that form part of a song as they are the original owners of the work, are entitled to exploit their works to the exclusion of all others. Also, Section 13(4) of the Copyright Act 1957 was cited to strengthen their argument as this section provides that the copyright in the sound recording shall not affect the separate copyright of the authors of the song’s music or literary work.
However, the court though accepting that Section 13(4) provides that a copyright subsisting in a derivative work (record) shall not prejudice the copyright subsisting in original works (literary and musical), held the contentions of IPRS to be anomalous.
The court held: “The communication of a sound recording (derivative work) to the public results in exploitation of literary and musical works (original works). Had the intention of Indian legislature been that the owner of a sound recording (derivative work) should not communicate the sound recording to the public without obtaining the prior authorization of the owner of the copyright in literary and musical works (original works) or that 2 permissions had to be obtained, it should have specifically manifested such intention in the Copyright Act, 1957, as has been manifested the legislature in the United Kingdom in the CDP Act, particularly when CDP Act, 1988 prohibits the owner of copyright in sound recording from communicating the sound recording to the public stood enacted, at the time when provision relating to copyright in sound recording was amended in India in the year 1994.”
Therefore, in light of this decision no separate permission is required from the owner of a copyright in the literary or musical work of a sound recording. The decision of the court indeed is a setback for the composers and lyricist whose work constitute the sound recording. Taking into consideration the fact that the period for which copyright subsists over a literary and musical work is much longer than the period for which a sound recording enjoys copyright protection, the judgement of the court would mean that after the copyright over a sound recording expires, it passes on to the public domain and anybody is free to use the sound recording without paying royalties to the lyricist and the composer.