Indian Performing Right Society Ltd. Vs.
Eastern India Motion Pictures Association [1977] INSC 84 (14 March 1977)
SINGH, JASWANT SINGH, JASWANT KRISHNAIYER,
V.R.
CITATION: 1977 AIR 1443 1977 SCR (3) 206 1977
SCC (2) 820
ACT:
Copy Right Act (Act 14 of 1957),
1957--Whether in view of the provisions of the Copy Right Act 1957 an existing
and future rights of music composer, lyricist is capable of assignment under s.
18 when he grants a licence or permission u/s. 30 to an author (owner) of a
cinematograph film for its incorporation in the sound track of a cinematograph
film--Whether the producer of a cinematograph film can defeat the same by
engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r),
(v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act.
HEADNOTE:
The appellant society was incorporated in
terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State
of Maharashtra on August 23, 1969 as a company limited by guarantee for the
purpose of carrying on business in India of issuing or granting licences for
performance in public of all existing and future Indian musical works in which
copyright within the meaning of s. 13 subsists in India. The appellant company
has amongst its members the composers of musical works, authors of literary and
dramatic works and artistes. In accordance with the provisions of section 33 of
the Copyright Act, the appellant published on September 27, 1969 and November
29, 1969 in the "Statesman" and the Gazette of India respectively a
tariff laying down the fees, charges and royalties that it proposed to collect
for the grant of licences for performance in public of works in respect of
which it claimed to be an assignee of copyrights and to have authority to grant
the aforesaid licences. A number of persons including various associations of
producers of cinematograph films including the sound track thereof and the
Cinematograph Exhibitors Association of India filed objections in respect of
the tariff before the Copyright Board in accordance with the provisions of
section 34 of the Act, repudiating the rights of the appellant. The Copyright
Board held : (1) In the absence of proof to the contrary, the composers of
lyrics and music retained the copyright in their musical works incorporated in
the sound track of cinematograph films provided such lyrical and musical works
were printed on written and that they could assign the performing right in
public to the appellant. (2) The tariff as published by the appellant was
reasonable. (3) The appellant had the right to grant licences for the public
performance of music in the sound track of copyrighted Indian cinematograph
films and (4) It could collect fees, royalties and charges in respect of those
films w.e.f. the date on which the tariff was published in the Gazette of
India. The High Court allowed the appeal preferred by the respondents under s.
72 of the Act and held: (i) Unless there is a contract to the contrary a
composer who composes a lyric or music for the first time for valuable
consideration for a cinematograph film does not acquire any copyright either in
respect of film or its sound track which he is capable of assigning. (ii) Under
proviso (b) to section 17 of the Act, the owner of the film at whose instance
the composition is made becomes the first owner of the copyright in the
composition. (iii) The composer can claim a copyright in his work only if there
is an express agreement between him and the owner of the cinematograph film
reserving his copyright. (iv) Though section 18 of the Act confers power to
make a contract of assignment.
the power can be exercised only when there is
an existing or future right to be assigned and that in the circumstances of the
present case, assignment, if any, of the copyright in any future work is of no
effect.
In appeal by certificate to this Court, the
appellant contended (1) The author (composer) of a literary or musical work has
copyright which includes. inter alia. the exclusive right (a) to perform the
work in public and 207 (b) to make any cinematograph film or a record in
respect of the work. (2) That copyright in a literary or musical work is
infringed by any person if without a licence granted to him by the owner of the
copyright, he makes a cinematograph film in respect of the work or perform the
work in public by exhibiting the cinematograph film. (3) If a person desires to
exhibit in public a cinematograph film containing a musical work, he has to
take the permission not only of the owner of the copyright in the cinematograph
film but also the permission of the owner of the copyright in the literary or
musical work which is incorporated in the cinematograph film, as according to
s. 13(4) of the Act, the copyright in a cinematograph film or a record does not
effect 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 (4). The provisions
of section 17(b) of the Act have no application to a literary or musical work
or the separate copyright therein and do not take away the copyright in a
literary or musical work embodied in a cinematograph film. (5) The only modes
in which the author of a literary work or musical work ceases to be the owner
of copyright in the work are (a) by assigning under s. 18(b) by relinquishment
under s. 21 and (c) by the composer composing the work in the course of his
employment under a contract of service with an employer in which case the
employer becomes the owner of the copyright in the musical work. (6) In the
case of an assignment of copyright in future work and the employment of the
author to produce a work under a contract of service, the question of
priorities will be decided according to the principles "where equities are
equal, the first in time shall prevail".
The respondent's contentions were (i) Unless
a music is notationally written, printed or graphically reproduced it is not a
musical work within the meaning of Copyright Act and there is no copyright in
songs or orchestral pieces sung or played directly without its notation being
written.
(ii) Since a "cinematograph film"
is defined in section 2(f) of the Act as including the sound track and the
"cinema tograph" is required to be construed to include any work
produced by any process analogous to cinematography the owner of the
cinematograph film is the first owner of the copyright therein including the
right of the composer of the literary or musical work incorporated in the sound
track of the film. (iii) In the case of the film in which a lyric (which
literally means a short poem directly expressing the poet's own thoughts and
sentiments in instances failing within the purview of the expression
"literary work" as defined in section 2(0) of the Act has been
plagiarised, there will be copyright in the film vesting in the producer. (iv)
The Act confers a separate copyright of a cinematograph film as a film, its
author under s. 2(d)(v) of the Act being the owner of the film at the time of
its completion. (v) In the case of a lyric or music incorporated under the
sound track of a cinematograph film, since in section 2(f) of the Act
cinematograph film includes its sound track and section 13(1)(b) of the Act
confers copyright on the cinematograph film and section 14(c) (ii) of the Act
confers on the. owner of copyright the right to cause the film in so far as it
consists of visual images to be seen in public and in so far as it consists of
songs to be heard in public, it is not necessary for the owner of the
cinematograph film to secure the permission of the composer of the lyric or of
the music incorporated in the sound track of a cinematograph film for
exhibiting or causing the exhibition of the sound portion of the film in public
or for causing the records of the sound track of the film to be heard in public.
(vii) It is not correct to say that under s. 17 proviso (b) in order that the
producer of the cinematograph film should have copyright in the literary or
musical work incorporated in it, the making of the entire film should be
commissioned. Section 17(b) will equally apply if someone is commissioned to
make any component part of a cinematograph film such as a lyric or musical work
i.e. when such component of the film is made at the instance of a film producer
for valuable consideration, the copyright for such component shall as well vest
in the producer. (viii) As the Act confers a separate copyright on a
cinematograph film as a film the producer can exercise both the rights
conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of
the Act (when applicable) provides is that the rights created by section
14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d)
of the Act.
Dismissing the appeal the Court,
HELD: (Per Krishna Iyer, J. concurring) 208
(1) Copyright in a cinema film exists in law but section 13(4) of the Act
preserves the separate survival in its individuality of a copyright enjoyed by
any work notwithstanding its confluence in the film. This persistence of the
aesthetic personality of the intellectual property cannot cut down the
copyright of the film qua film. The exclusive right, otherwise, called
copyright, in the' case of a musical work extends to all the sub rights spelt
out in section 14(1) (a). A harmonious construction, of s. 14, which is the
integral yoga of copyright shows that the artiste enjoys his copyright in the
musical _work the film producer is the master of his combination of artistic
.pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2)
The boundaries of composite creations of art which are at once individual and
collective may be viewed from different angles. In a cosmic perspective, a
thing of beauty has no boundary and is humanity's property but in the
materialist plane on which artistes thrive private and exclusive estate inert
subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind,
but, till liberated by the prescribed passage of time, the private copy right
of the human maker says, "hands off. [223 F-G] (3) The film producer has
the sole right to exercise what is his entitlement under section 14(1)(c) qua
film.
But, he cannot trench on the composer's
copyright which he does only if the 'music' is performed or produced or reproduced
separately, in violation of section 14(1)(a). A film may be caused to be
exhibited as a film but the pieces of music cannot be picked out of the sound
track and played in the cinema or the theatre. To do that is the privilege of
the composer and that right of his is not drowned in the film' copyright except
where there is special provision such as section 17, proviso (c). Beyond
exhibiting the film as a cinema show if the producer plays the songs separately
to attract an audience or for other reasons he infringes the composer's
copyright, the copyright of the composer or the Performing Acts Society comes
into play, if a music is played, whether in a restaurant or aeroplane or radio
station or cinema theatre. [223 C-E] (4) Section 14 has in its careful
arrangement of the right belonging each copyright has a certain melody and
harmony to music which is to loose the sense of the same.
Our copyright statute protects the composite
cinematograph work produced by lay out of heavy money and many talents but does
not extinguish the copyrightable component parts in toto. The music which has
merged through the sound track, into the motion picture is copyright by the
producer but, on account of this monopoly, the music composer's copyright does
not perish. The twin rights can co-exist each fulfiling itself in its
delectable distinctiveness. [224 A-B] Observation:
Apart from the music composed, the singer
must be conferred a right. Copyrighted music is not the soulful tune, the
superb singing, the glorious voice or the wonderful rendering. It is the melody
or harmony reduced to print writing or graphic form of musical works. Author as
defined in s.2(d) in relation to a musical work is only the composer and
section 16 confines copyright to those works which are recognised by the Act,
which means the composer alone has copyright in a musical work and the singer
has none. This disentitlement of the musician or group of musical artistes to
copyright is un-Indian because the major attraction which lends monetary value
to a musical performance is not the music maker so much as the musician.
Perhaps both deserve to be recognised by the copyright law, because art in one
sense depends on the ethos and the aesthetic best of a people and while
universal protection of intellectual and aesthetic property of creators of "works"
is an international obligation each country in its law must protect such rights
wherever originally is contributed. [224 E-H] Per Jaswant Singh J.
(1) The existing and future right of music
........
composer and lyrics in their respective works
as defined in the Act is capable of assignment subject to the conditions
mentioned in section 18 of the Act as also in section 209 19 of the Act which
requires an assignment to be in writing, signed by the assigner or by his duly
authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2
which is not exhaustive leaves no room for doubt when read in conjunction with
section 14(1)(c)(iii), that the term cinematograph film includes a sound track
associated with the film. [220 D] (3) A harmonious and rational instead of
mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be:
(A) Once the author of a lyric or a musical
work parts with a portion of his copyright by authorising a film producer to
make a cinematograph film in respect of his work and thereby to have his work
incorporated or recorded in sound track of a cinematograph film, the
latter.acquires by virtue of section 14(1)(c) of the Act on completion of the
cinematograph film a copyright which gives him the exclusive right, inter alma,
of performing the work in public that is, to cause the film in so far as it
consists of visual images to be seen in public and in so far 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 a musical work for the performance of the work in public.
A distinct copyright in the aforesaid
circumstances comes to vest in the cinematograph film as a whole which relates
both to copying the film and to its performance in public.
(B) If an author (composer) of a lyric or a
musical work authorises a cinematograph film producer to make a cinematograph
film of his composition by recording it on the sound track or a cinematograph
film, he cannot complain of the infringement of his copyright if the author
(owner) of the cinematograph film causes the lyric or the 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 can operate to affect the rights acquired by the
author (owner) of the film by virtue of section 14(1)(c) of the Act.
(C) The composer of a lyric or musical work
retains the right of performing it in public for profit otherwise than as a part
of cinematograph film and he cannot be restrained from doing so. In other
words, the author (composer) of a lyric or musical work who has authorised a
cinematograph film producer to make a cinematograph film of his work and
thereby permitted him to appropriate his work by incorporating or recording it
on the sound track of a cinematograph 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
utilising such sound track or from communicating or authorising the
communication of the film by radio diffusion, as section 14(1)(c) of the Act
expressly permits the owner of the copyright of a cinematograph film to do all
these things.
In such cases the author (owner) of the
cinematograph 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 express provisions of clause (f), (m), (y) of section 2, section 13(1)(b)
,red 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 cinematograph
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 recognise as a separate entity and to treat a record embodying the recording
in any part of the sound track associated with the film by utilising such sound
track as something distinct from a record as ordinarily understood. [220 G-H;
221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1)
and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the
Act abundantly make it clear that protectable copyright (comprising a bundle of
exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in
a cinematograph film on its completion which is said to take place when the
visual portion and audible portion are synchronized. [221 H; 222 A] (5) The
rights of music ........ composer or lyricist can be defeated by the producer
of a cinematograph film in the manner laid down in proviso (b) and (c) of
section 17 of the Act. In both the. cases falling under clauses (b) and (c) of
s. 17, a cinematograph film producer becomes the.
first owner of the copyright and no copyright
subsists in the composer of the lyric or music so composed unless there is a
contract to the contrary between the composer of the lyric or music on one hand
and the producer of the cinematograph film on the other. [222 D-F] Wallerstein
v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 967 of 1975.
(From the judgment and order dated 13-2-1974
of the Calcutta High Court in Copyright No. 2/73).
A.K. Sen, E.P. Skons James, J. 1. Mehta, J.
Roy Choudhary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant.
S. Chaudhury, R.K. Bachawat, D.K. Sinha, H.S.
Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22.
J.C. Bhat, Atul Munim and B.R. Agarwala, for
respondents 68.
B. Sen, B.K. Bachawat, D.K. Sinha, H.S.
Parihar and I.
N. Shroff, for respondents 12 and 22.
J.L. Nain, Atul Munim and B. R. Agarwala, for
respondent No. 19.
The Judgment of the Court was delivered by
Jaswant Singh, 3., V.R. Krishna Iyer, J. also gave a separate opinion.
JASWANT SINGH, J. This appeal by certificate
granted under Article 133(1) of the Constitution by the High Court of
Judicature at Calcutta which is directed against its judgment dated February
13, 1974, raises the following substantial question of law of general
importance :-"Whether in view of the provisions of the Copyright Act, 1957,
an existing and future rights of music ...... composer, lyricist is capable of
assignment and whether the producer of a cinematograph film can defeat the same
by engaging the same person." The facts giving rise to the appeal are: The
Indian Performing Right Society Ltd. (hereinafter referred to for the sake of
brevity as 'the IPRS'), the appellant before us, was incorporated in the State of
Maharashtra on August 23, 1959, as a company limited by guarantee, for the
purpose of carrying on business in India of issuing or granting licences for
performance in public of all existing and future Indian Musical works in which
copyright subsists in India.
The incorporation of the IPRS was in terms of
section 2(r) of the Copyright Act, 211 1957 (Act 14 of 1957) (hereinafter
referred to as 'the Act') which was enacted after taking into consideration the
Report of the (British) Copyright Committee,1952, the suggestions of the
various Ministries of the Government of India and the State Governments, the
Indian Universities and certain interested industries and associations who were
invited to send their comments on the subjects of copyright. The IPRS has
amongst its members the composers of musical works, authors of literary and
dramatic works and artists. In accordance with the provisions of section 33 of
the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the
'Statesman' and the Gazette of India respectively a tariff laying down the
fees, charges and royalties that it proposed to collect for the grant of
licences far performance in public of works in respect of which-it claimed to
be an assignee of copyrights and to have authority to grant the aforesaid
licences. A number of persons including various associations of producers of
cinematograph films who claimed to be the owners of such films including the
sound track thereof and the Cinematograph Exhibitors Association of India filed
objections in respect of the aforesaid tariff in accordance with the provisions
of section 34 ofthe Act repudiating the claim of the IPRS that it had on behalf
of its members authority to grant licences for. performance in public of all
existing and future musical works which are incorporated in the sound track of
cinematograph films in which copyright may subsist in India or the right to
collect in relation thereto any fees, charges or royalties.
The association of producers averted inter
alia that their members engaged composers and sound writers under contracts of
service for composing songs to be utilised in their films; that the musical
works prepared by the composers of lyric and music under contract of service
with their members-producers of the cinematograph films--having been utilised
and incorporated in the sound track of the cinematograph films produced by the
latter, 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 the cinematograph films and no copyright subsisted in the
composers which they could assign to and become the basis of the claim of the
IPRS under section 33 of the Act; that their members i.e. the producers of cinematograph
films being the authors and first owners of the copyright in the cinematograph
films produced by them had the exclusive right inter alia to cause the said
films in so far as the same consisted of sounds (which include 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 (including any musical work
incorporated therein) and to cause the said records to be beard in public; that
in the making of a cinematograph film as contemplated by the Act a composer
composes a lyric or music under a contract of service or for valuable
consideration which is substantial a music director sets it to tunes and
imparts music to it and a singer sings the same but none of them nor any one of
their aforesaid works can and have any separate copyrights;
that 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; that having regard to the
provisions of the Act the' copyright in the case of 212 a cinematograph film
vests in the owner of the film as defined in section 2(d) (v) of the Act; and
that in the premises any assignment purporting to have been made in favour of
the IPRS was void and of no effect and was incapable of conferring any rights
whatsoever in such musical works on the IPRS.
The Cinematograph Exhibitors Association of
India also filed objections challenging the right of the IPRS to charge fees
and royalties in respect of performance in public of the musical works
incorporated in the sound track of the films. Besides raising contentions
identical to those raised by various associations of producers they averred
that copyright in a cinematograph film which vested in the producers meant
copyright in the entirety of the film as an integrated unit including the
musical work incorporated in the sound track of the film and the right to
perform the work in public; that in accordance with the agreement with the
distributors of films the exhibition of cinematograph film includes the right
to play in public the music which is an integral part and parcel of the film;
that the producers lease out copyrights of public performance of the films
vested in them to the distributors who give those rights to the exhibitors an
agreement and that when an exhibitor takes a licence for exhibition, it is
complete in all respects and a third party like the IPRS cannot claim any
licence fee from the exhibitors.
On the aforesaid objections being referred to
it for determination under section 35 of the Act, the Copyright Board expressed
the view that in the absence of proof to the contrary, the composers of lyrics
and music retained the copyright in their musical works incorporated in the
sound track of cinematograph films provided such lyrical and musical works were
printed or written and that they could assign the performing right in public to
the IPRS. The Copyright Board further held that the tariff as published by the
IPRS was reasonable and the IPRS had the right to grant licences for the public
performance of music in the sound track of copyrighted Indian cinematograph
films and it could collect fees, royalties and charges in respect of those
films with effect from the date on which the tariff was published in the
Gazette of India.
Aggrieved by the decision of the Copyright
Board, the objectors preferred an appeal under section 72 of the Act to the
High Court which allowed the same holding that unless there is a contract to
the contrary, a composer who composes a lyric or music for the first time for
valuable consideration for a cinematograph film does not acquire any copyright
either in respect of film or its sound track which he is capable of assigning
and that under proviso. (b) to section 17 of the Act, the owner of the film at
whose instance, the composition is made, becomes the first owner of the copyright
in the composition. The High Court further held that "the composer can
claim a copyright in his work only if there is an express agreement between him
and the owner of the cinematograph film reserving his copyright". The High
Court also held that "though section 18 of the Act confers power to make a
contract of assignment, the power can be exercised only when 213 there is an
'existing or future right to be assigned and that in the circumstances of the
present case, assignment, if any, of the copyright in any future work is of no
effect". Dissatisfied with this decision, the IPRS has, as already stated,
come up in appeal to this Court.
The copyright law in our country being fairly
complicated because of the involved language in which some of its provisions
are couched and the case being of first impression, learned counsel for the
parties have tried hard to help us in solving the knotty points by advancing
copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen
has urged that the author (composer) of a literary or musical work has
copyright which includes inter alia the exclusive right (a) to perform the work
in public 'and (b) to make any cinematograph film or a record in respect of the
work; that copyright in a literary or musical work is infringed by any person
if without a licence granted to him by the owner of the copyright, he makes a
cinematograph film in respect of the work or performs the work in public by
exhibiting the cinematograph film; that if a person desires to exhibit in
public a cinematograph film containing a musical work, he has to take the
permission not only of the owner of the copyright in the cinematograph film but
also the permission of the owner of the copyright in the literary or musical
work which is incorporated in the cinematograph film, as according to section
1. 3 (4) of the Act, the copyright in a cinematograph film or a record does 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; that the
provisions of section 17(b) of the Act have no application to a literary or
musical work or the separate copyright therein and do not take away the
copyright in a literary or musical work embodied in a cinematograph film; that
the only modes in which the author of a literary or musical work ceases to be
the owner of copyright m the work are (a) by assignment, '(b) by relinquishment
and (c) by the composer composing the work in 'the course of his employment
under a contract of service with an employer in which case, the employer
becomes the owner of the copyright in the musical work; that in the case of an
assignment of copyright in future work and the employment of the author to
produce a work under a contract of service, the question of priorities will be
decided according to the principle "where equities are equal, the first in
time shall prevail".
Mr. Sachin Chaudhary, learned counsel for
respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents
6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed
Mr. Chaudhary have on the other hand submitted that the dispute in the instant
case, according to the petition of appeal, the judgment of the Copyright Board
and the judgment of the Calcutta High Court is confined to the sound track
associated with a cinematograph film (which expression, according to Copinger
and Skone James on COPYRIGHT, means "any record of sounds which is
incorporated in any print, negative, tape or other article on which the film or
part of it, in so far as it consists of visual images, is recorded, or which is
issued by the maker 214 Of the film for use in conjunction with such an
article");
that the contention advanced on behalf of the
appellant that copyright in a literary or musical work incorporated in the
sound track of a cinematograph film vests in the composer of literary or
musical work and when the cinematograph film is performed i.e. exhibited in
public, the composer is entitled to fee or royalty in that behalf and since the
appellant is the assignee of the copyright from the composers, it has the right
to collect the fee or royalty is entirely unfounded; that unlike (the law) in
England, in India unless a music is notationally written, printed or
graphically reproduced, it is not musical work within the meaning of the Copyright
Act and there is no copyright 'in songs or orchestral pieces sung or played
directly without its notation being written' that since a 'cinematograph film'
is defined in section 2(f) of the 'Act as including the sound track and the
'cinematograph' is required to be construed to include any work produced by any
process analogous to cinematography, the owner of the cinematograph film is the
firth owner of the copyright therein including the right of the composer of the
literary or musical work incorporated in the sound track of the film; that in
the case of the film in which a lyric (which literally means a short poem
directly expressing the poet's own thoughts and sentiments in stanzas falling
within the purview of the expression "literary work" as defined in
section 2(0) of the Act) has been plagiarised, there will be copyright in the
film vesting in the producer; that the Act confers a separate copyright on a
cinematograph film as a film, its author under section 2(d)(v) of the Act being
the owner of the film at the time of its completion; that in the case of a
lyric or music incorporated in the sound track of a cinematograph film, since
under section 2(f) of the Act, cinematograph film includes its sound track and
section 13(1)(b) of the Act confers copyright on the cinematograph film and
section 14(c) (ii) of the Act confers on the owner of copyright the.
right to cause the film in so far as it
consists of visual images to be seen in public and in so far as it consists of
songs to be heard in public, it is not necessary for the owner of the
cinematograph film to secure the permission of the composer of the lyric or of
the music incorporated in the sound track of a cinematograph film for
exhibiting or causing the exhibition of the sound portion of the film in public
or for causing the records of the sound track of the film to be heard in public.
They have further urged that it is not correct to say that under section 17,
proviso (b) in order that the producer of the cinematograph film should have
copyright in the literary or musical work incorporated in it, the making of the
entire film should be commissioned. According to counsel for respondents
section 17 proviso (b) will equally apply if someone is commissioned to make
any component part of a cinematograph film such as a lyric or musical work i.e.
when such component of the film is made at the instance of a film producer for
valuable consideration, the copyright for such component shall as well vest in
the producer; that as the Act confers a separate copyright on a cinematograph
film as a film, the producer can exercise both the rights conferred on him
under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act
(when applicable) provides is that the rights created by section 14(1)(a) and
(b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g.
under clause (a), the 215 copyright in a literary work such as a novel entitles
its author to make a cinematograph film in respect of the work, and to exercise
the remaining rights created by section 14(1)(a) of the Act. But once he has
licensed someone to make a cinematograph film, the licensee shall have the
rights provided in clauses (c) and (d) of section 14(1) of the Act in respect
of the film.
We have given our earnest consideration to
the submissions made by learned counsel for the parties. So far as the first
part of the question reproduced above is concerned, there is no dispute between
the parties. Both sides are agreed that in view of the provisions of section 18
of the Act, the material portion of which lays down that--"(1) the owner
of the copyright in an existing work-or the prospective owner of the copyright
in a future work may assign to any person the copyright either wholly or
partially and either generally or subject to limitations and either for the
whole term of the copyright or any part thereof;
provided that in the case of the assignment
of copyright in any future work, the assignment shall take effect only when the
work comes into existence, (2)where the assignee of a copyright becomes
entitled to any right comprised in the copyright, the assignee as respects the
rights so assigned, and the assignor as respects the rights not assigned, shall
be treated for the purposes of this Act as the owner of copyright and the
provisions of this Act shall have effect accordingly", the first part of
the question should be answered in the affirmative. It is accordingly held that
an existing and future right of music ...... composer and lyricist in their
respective 'works' as defined in the Act is capable of assignment subject to
the conditions mentioned in section 18 of the Act, as also in section 19 of the
Act which requires an assignment to be in writing, signed by the assignor or by
his duly authorised agent.
It is the second part of the question which
has been a hot bed of controversy between the parties that has got to be
tackled. The main point for determination in regard to this part of the
question is whether the composer of lyric or musical work (which in terms of
section 2(p) of the Act means only a notationally written, printed or graphically
produced or reproduced music) retains a copyright in the lyric or musical work
if he grants a licence or permission to an author (owner) of a cinematograph
film for its incorporation in the sound track of a cinematograph film. For a
proper appreciation and determination of the contentions raised before us, it
is necessary to notice certain provisions of the Act.
The terms 'author', 'Cinematograph film',
'exclusive licence', 'infringing copy', 'musical work', 'performance'
performing rights society', 'radio-diffusion' and 'work' are defined in clauses
(d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the
Act as under :-"(d) author means,-(i) in relation to a literary or
dramatic work, the author of the work;
5--240SC I / 7 7 216 (ii) in relation to a
musical work, the composer;
(iii) ** ** ** (iv) ** ** ** (v) in relation
to a cinematograph film, the owner of the film at the time of its completion;
and (vi) in relation to a record, the owner of the original plate from which
the record is made, at the time of the making of the plate".
"(f) cinematograph film includes the
sound track, if any, and "cinematograph" shall be construed as
including any work produced by any process analogous to cinematography."
"(j) exclusive licence means a licence which confers on the licensee or on
the licensee and persons authorised by him. to the exclusion of all other
persons (including the owner of the copyright), any right comprised in the
copyright in a work, and "exclusive licensee" shall be construed
accordingly." "(m) infringing copy means,-(i) in relation to a
literary, dramatic, musical or artistic work, a reproduction thereof otherwise
than in the form of a cinematograph film;
(ii) in relation to a cinematograph film, a
copy of the film or a record embodying the recording in any part of the sound
track associated with the film;
(iii) ** ** ** (iv) ** ** **" "(p)
musical work means any combination of melody and harmony or either of them,
printed, reduced to writing or otherwise graphically produced or
reproduced".
"(q) performance includes any mode of
visual or acoustic presentation including any such presentation by the
exhibition of a cinematograph film, or by means of radiodiffusion, or by the
use of a record, or by any other means and, in relation to a lecture, includes
the delivery of such lecture".
"(r) performing rights society means a
society, association or other body, whether incorporated or not, which carries
on business in India of issuing or granting licences for the performance in
India of any works in which copyright subsists".
217 (v) radio-diffusion includes
communication to the public by any means of wireless diffusion whether in the
form of sounds or visual images or both".
"(y) work means any of the following
works, namely-(i) aliterary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a record".
Section 13 of the Act provides as follows :-"13.
Works in which copyright subsists.--(1) Subject to the provisions of this
section-and the other provisions of this Act, copyright shall subsist
throughout India in the following classes of works, that is to say,-(a)
original literary, dramatic musical and artistic works;
(b) cinematograph films; and (c) records.
(2) ** ** ** (3) Copyright shall not subsist-(a)
in any cinematograph film if a substantial part of the film is an infringement
of the copyright in any other work;
(b) in any record made in respect of a literary,
dramatic or musical work, if in making the record, copyright in such work has
been infringed.
(4) The copyright in a cinematograph 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.
(5) ** ** ** Section 14 of the Act which
contains the meaning of the expression "copyright" is to the
following effect :-"14. Meaning of copyright."--(1) For the purposes
of this Act: "copyright" means the exclusive right, by virtue of, and
subject to the provisions of, this Act,-(a) in the case of literary, dramatic
or musical work, to do and authorise the doing of any of the following acts,
namely-(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to perform the work in public;
218 (iv) to produce, reproduce, perform or
publish any translation of the work;
(v) to make any cinematograph film or a
record in respect of the work;
(vi) to communicate the work by radio-diffusion
or to communicate to the public by a loud-speaker or any other similar
instrument the radio-diffusion of the work;
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or
an adaptation of the work any of the acts specified in relation to the work in
clauses (i) to (vi):
(b) ** ** ** (c) in the case of a
cinematograph film, to do or authorise the doing of any of the following acts,
namely(i) to make a copy of the film;
(ii) to cause the film, in so far as it consists
of visual images, to be seen in public and, in so far as it consists of sounds,
to be heard in public;
(iii) to make any record embodying the recording
in any part of the sound track associated with the film by utilising such sound
track;
(iv) to communicate the film by radio-diffusion;
(d) in the case of a record, to do or
authorise the doing of any of the following acts by utilising the record,
namely-(i) to make any other record embodying the same recording;
(ii) to cause the recording embodied in the
record to be heard in public;
(iii) to communicate the recording embodied
in the record by radio-diffusion.
(2) Any reference in sub-section (1) to the
doing of any act in relation to a work or a translation or an adaptation
thereof shall include a reference to the doing or that act in relation to a
substantial part thereof".
Section 17 of the Act which relates to
ownership of copyright provides as under :-"17. First owner of
copyright.---Subject to the provisions of this Act, the author of a work shall
be the first owner of the copyright therein;
Provided that-219 (a) in the case of a
literary, dramatic or artistic work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical
under a contract of service or apprenticeship, for the purpose of publication
in a newspaper, magazine or similar periodical, the said proprietor shall, in
the absence of any agreement to the contrary. be the first owner of the
copyright in the work in so far as the copyright relates to the publication of
the work in any newspaper, magazine or similar periodical, or to the
reproduction of the work for the purpose of its being so published, but in all
other respects the author shall be the first owner of the copyright in the
work;
(b) Subject to the provisions of clause (a),
in the case of a photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph film made for valuable consideration at the
instance of any person, such person shall, in the absence of any agreement to
the contrary, be the first owner of the copyright therein;
(c) in the case of a work made in the course
of the author's employment under a contract of service or apprenticeship, to
which clause (a) or clause (b) does not apply, the employer shall, in the absence
of any agreement to the contrary, be the first owner of the copyright therein;
(d) ** ** ** (e) ** ** ** Sections 22 and 26
of the Act which deal with the term of copyright in musical and other works and
cinematograph films are to the following effect :-"22. Term of copyright
in published literary, dramatic musical and artistic works.--Except as
otherwise hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work (other than a photograph) published within
the lifetime of the author until fifty years from the beginning of the calendar
year following the year in which the author dies.
Explanation.--In this section, the reference
to the author shall, in the case of a work of Joint authorship, be construed as
a reference to the author who dies last.
"26. Term of copyright in cinematograph
films. In the case of a cinematograph film, copyright shall subsist until fifty
years from the beginning of the calendar year next following the year in which
the film is published".
220 Section 30 of the Act which deals with
grant of licences by owners of copyright runs thus :-"30. Licences by
owners of copyright.--The owner of the copyright in any existing work or the
prospective owner of the copyright in any future work may grant any interest in
the right by licence in writing signed by him or by his duly authorised agent:
Provided that in the case of a licence
relating to copyright in any future work, the licence shall take effect only
when the work comes into existence.
Explanation.--When a person to whom a licence
relating to copyright in any future work is granted under this section dies
before the work comes into existence, his legal representatives shall, in the
absence of any provision to the contrary in the licence, is entitled to the
benefit of the licence".
The interpretation clause (f) of section 2
reproduced above, which is not exhaustive, leaves no room for doubt when read
in conjunction with section 14(1)(c)(iii) that the term "cinematograph
film" includes a sound track associated with the film. In the light of
these provisions, it cannot be disputed that a "cinematograph film"
is to be taken to include the sounds embodied in a sound track which is associated
with the film. Section 13 recognises 'cinematograph film' as a distinct and
separate class of 'work' and declares that copyright shall subsist therein
throughout India. Section 14 which enumerates the fights that subsist in
various classes of works mentioned in section 13 provides that copyright in
case of a literary or musical work means inter alia (a) the right to perform or
cause the performance of the work in public and (b) to make or authorise the
making of a cinematograph film or a record in respect of the work. It also
provides that copyright in case of cinematograph film means. among other
rights, the right of exhibiting or causing the exhibition m public of the
cinematograph film i.e. of causing the film in so far as it consists of visual
images to be seen in public and in so far it consists of sounds to be heard in
public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of
his contentions lays down that the copyright in a cinematograph 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 authorising a film producer to make a cinematograph
film in respect of his work and thereby to have, his work incorporated or
recorded on the sound track of a cinematograph film, the latter acquires by
virtue of section 14(1)'(e) of the Act on completion of the cinematograph film
a copyright which gives 221 him the exclusive right inter alia of performing
the work in public i.e. to cause the film in so far as it consists of visual
images to be seen in public and in so far 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 a
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
cinematograph 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 authorises a
cinematograph film producer to make a cinematograph film of his composition by
recording it on the sound track of a cinematograph film, he cannot complain of
the infringement of his copyright if the author (owner) of the cinematograph
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
cinematograph film and he cannot be restrained from doing so. In other words,
the author (composer) of lyric or musical work who has authorised a
cinematograph film producer to. make a cinematograph film of his work and has
thereby permitted him to appropriate his work by incorporating or recording it
on the sound track of a cinematograph 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
utilising such sound track or from communicating or authorising 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 cinematograph film to do
all these things. In such cases, the author (owner) of the cinematograph 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
express 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 cinematograph 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 recognise 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 utilising
such sound track as something distinct from a record as ordinarily understood.
On a conspectus of the scheme of the Act as
disclosed in the provisions reproduced above particularly clauses (d)(v), (f)
(m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c)
to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly
clear that a protectable copyright (comprising a 222 bundle of exclusive rights
mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film
on its completion which is said to take place when the visual portion and
audible portion are synchronized.
This takes us to the core of the question
namely, whether the producer of a cinematograph film can defeat the right of
the composer of music .... or lyricst by engaging him.
The key to the solution of this question lies
in provisos (b) and (c) to section 17 of the Act reproduced above which put the
matter beyond doubt. According to the first of these provisos viz. proviso (b)
when a cinematograph film producer commissions a composer of music or a lyricst
for reward or valuable consideration for the purpose of making his
cinematograph film, or composing music or lyric therefore i.e. the sounds for
incorporation or absorption in the sound track associated with the film, which
as already indicated, are included in a cinematograph film, he becomes the
first owner of the copyright therein 'and no copyright subsists in the composer
of the lyric or music so composed unless there is a contract to the contrary
between the composer of the lyric or music on the one hand and the producer of
the cinematograph film on the other. The same result follows according to
aforesaid proviso (c) if the composer of music or lyric is employed under a contract
of service or apprentice ship to compose the work. It is, therefore, crystal
clear that the rights of a music composer or ....lyricst Can be defeated by the
producer of a cinematograph film in the manner laid down in provisos (b) and
(c) of section 17 of the Act. We are fortified in this view by the decision in
Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by
Mr. Sachin Chaudhary where it was held that the music composed for reward by
the plaintiff in pursuance of his engagement to give effect to certain
situations in the drama entitled "Lady Andley's Secret", which was to
be put on the stage was not an independent composition but was merely an
accessory to and a Fart and parcel of the drama and the plaintiff did not have
any right in the music.
For the foregoing reasons, we do not find any
justification to interfere with the order of the High Court. Consequently, the
appeal fails and is dismissed but in the circumstances of the case without any
order as to costs.
KRISHNA IYER, J.---The judgment just
delivered is on behalf of the Court, which makes this footnote, in a sense,
otiose. But I do append the abbreviated opinion solely to belight a slightly
penumberal area of the law and to voice a need for legislative exploration to
protect a category now left in the cold.
A cinematograph is a felicitous blend, a
beautiful totality, a constellation of stars, if I may use these lovely
imageries to drive home my point, slurring over the rule against mixed
metaphor. Cinema is more. than long strips of celluloid, more than miracles in
photography, more than song, dance and dialogue and indeed, more than dramatic
story, exciting plot, gripping situations and marvellous acting. But it is that
223 ensemble which is the finished product of orchestrated performance by each
of the several participants, although the components may, sometimes, in
themselves be elegant entities. Copyright in a cinema film exists in law, but
s. 13(4) of the Act preserves the separate survival, in its individuality, of a
copyright enjoyed by any 'work' notwithstanding its confluence in the film.
This persistence of the aesthetic 'personality' of the intellectual property
cannot cut down the copyright of the film qua film. The latter right is, as
explained earlier in my learned brother's judgment, set out indubitably in s.
14(1)(c). True, the exclusive right, otherwise called copyright, in the case of
a musical work extends to all the sub-rights spelt out in s. 14(1)(a). A
harmonious construction of s. 14, which is the integral yoga of copyrights in
creative works, takes us to the soul of the subject. The artist enjoys his
copyright in the musical work, the film producer is the master of his
combination of artistic pieces and the two can happily coexist and need not
conflict. What is the modus vivendi? The solution is simple. The film producer
has the sole right to exercise what is his entitlement under s. 14(1)(c) qua
film, but he cannot trench on I the composer's copyright which he does only if
the 'music' is performed or produced or reproduced separately, in violation of
s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but
the pieces of music cannot be picked out of the sound track and played in the
cinema or other theatre. To do that is the privilege of the composer and that
right of his is not crowned in the film copyright except where there is special
provision such as in s. 17, proviso (c). So, beyond exhibiting the film as a
cinema show, if the producer plays the songs separately to attract an audience
or for other reason, he infringes the composer's copyright. Anywhere, in a
restaurant or aeroplane or radio station or cinema theatre, if a music is
played, there comes into play the copyright of the composer or the Performing
Arts Society. These are the boundaries of composite creations of art which are
at once individual and collective, viewed from different angles.
In 'a cosmic perspective, a thing of beauty
has no boundary and is humanity's property but in the materialist plane on
which artists thrive, private and exclusive estate in art subsists. Man, the
noblest work of the Infinite Artist, strangely enough, battles for the finite
products of his art and the secular law, operating on the temporal level, guardians
material works possessing spiritual values. The enigmatic small of Mona, Lisa
is the timeless heritage of mankind but, till liberated by the prescribed
passage of time, the private copyright of the human maker says, 'hands off'.
The creative intelligence of man is displayed
in multiform ways of aesthetic expression but it often happens that economic
systems so operate that the priceless divinity which we call artistic or
literary creativity in man is exploited and masters, whose works are
invaluable, are victims of piffling payments. World opinion in defence of the
human right to intellectual property led to international conventions and
municipal laws, commissions, codes and organisations, calculated to protect
works of art. India responded to this universal need by enacting the Copyright Act,
1957.
224 Not the recommendations in conventions
but provisions in municipal laws determine enforceable rights. Our copyright
statute protects the composite cinematograph work produced by lay-out of heavy
money and many talents but does not extinguish the copyrightable component
parts in to. The music which has merged, through the sound track, into the
motion picture, is copyrighted by the producer but, on account of this
monopoly, the music composer's copyright does not perish. The twin rights can
co-exist, each fulfilling itself in its delectable distinctiveness. Section 14 has,
in its careful arrangement of the rights belonging to each copyright, has a
certain melody and harmony to miss which is to lose the sense of the Scheme.
A somewhat un-Indian feature we noticed in
the Indian copyright Act falls to be mentioned. Of course, when' our law is
intellectual 'borrowing from British reports, as admittedly it is, such
exoticism is possible. 'Musical work', as defined in s.2 ( p) reads:
"(p) musical work means any combination
of melody and harmony or either of them printed, reduced to writing or
otherwise graphically produced or reproduced." Therefore, copyrighted
music is not the soulful tune, the superb singing, the glorious voice or the
wonderful rendering. It is the melody or harmony reduced to print, writing or
graphic form. The Indian music lovers throng to listen and be enthralled or
enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava,
the lava and the sublime or exciting singing. Printed music is not the glamour
or glory of it, by and large, although the content of the poem or the lyric or
the song does have appeal.
Strangely enough, 'author', as defined in
s.2(d), in relation to a musical work, is only the composer and s. 16 confies
'copyright' to those works which are recognised by the Act. This means that the
composer alone has copyright in a musical work. The singer has none. This
disentitlement of the musician or group of musical artists to copyright is
un-Indian, because the major attraction which lends monetary value to a musical
performance is not the music maker, so much as the musician. Perhaps, both
deserve to be recognised by the copyright law. I make this observation only
because act in one sense, depends on the ethos and the aesthetic best of a
people; and while universal protection of intellectual and aesthetic property
of creators of 'works' is an international obligation, each country in its law
must protect such rights wherever originality is contributed. So viewed, apart
from the music composer, the singer must be conferred a right. Of course,
law-making is the province of Parliament but the Court must communicate to the
lawmaker such infirmities as exist in the law extant.
S.R. Appeal dismissed.
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