• Music Broadcast Pvt. Ltd. v. Indian Performing Rights Society Ltd., 2011 (47) PTC 587 (Bombay) (HMJ S.J. Vazifdar)

Brief Facts/Main Issue(s):

• The Plaintiff that runs FM Radio broadcasting stations in various cities of India, has validly obtained licences from PPL to broadcast on its FM radio stations, sound recordings owned by PPL's members. The Defendant's contention is that despite the same, the Plaintiff is not entitled to broadcast the said sound recordings without also obtaining a licence from the owners of the underlying musical and literary works therein, which are owned by its members.
• The Plaintiff has, inter alia, sought a declaration that the Defendant is not entitled to demand or recover royalty and/or licence fee or require the Plaintiff to pay the same in respect of broadcast of sound recordings by the Plaintiff at its FM Radio Stations and is not entitled to interfere with such broadcasts by the Plaintiff for non payment of royalty and/or licence fee.

Salient Findings:

• Only point to be decided in this suit is a question of law leading to the grant of the declaration sought by the plaintiff. The Copyright Board has the exclusive jurisdiction to decide remaining issues in the suit in view of the provisions of section 19A(2) read with section 30A of the Copyright Act, 1957.
• The Act recognizes only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of right to the owner thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each class without the interference by the owners of the works is other classes.
• No class of work is inferior to the work in another class.
• In sound recordings and cinematograph films, the literary and musical work gets incorporated therein and independent copyrightable works viz. sound recordings and cinematograph films come. Rights under section 14 in respect of each sound recording and cinematograph film can be exploited by the owner of the sound recording or cinematograph film without interference from the owners of copyright in the underlying literary or musical works therein.
• The owner of a sound recording has an exclusive right to communicate the sound recording to the public in any form and such communication in exercise of rights under section 14(1)(e)(iii) cannot amount to infringement of the underlying work.
• The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to the pubic as a part of the sound recording.
• The owner of a copyright in the underlying works retains the bundle of copyrights therein otherwise than as a part of the sound recording.
• The right of public performance of an underlying work is different from the right to communicate the sound recording in which the musical or literary work is incorporated.
• The Defendant, therefore, cannot claim licence fees in respect of public broadcast or communication to the public of the musical or literary works as a part of the sound recording.
• According to the Defendant, the person making the sound recording pays the owner of the underlying works only to make the sound recording. Thereafter, the owner of the sound recording must again approach the owner of the underlying works for a licence and pay the royalty if he wants to communicate it to the public by broadcast.  This contention of the Defendant held to be fallacious.
• Once a sound recording is made, it is only the producer, as the owner thereof, who can exploit it exclusively in the manner provided in section 14(1)(e). However, those rights are confined to that particular sound recording alone. The owner of the sound recording can communicate the same to the public, inter-alia, by broadcasting it or playing it in public places. The owners of the underlying musical and literary work embodied in such sound recording cannot interfere with these rights of the owner of the sound recording qua that sound recording.
• The owner of the underlying works can make or authorize the making of a new sound recording by utilizing the same literary, dramatic or musical work. (Gramphone Company of India Ltd. v. Super Cassette Industries Ltd. 2010 (44) PTC 541 (Del.) However, the observations are to the effect that only a "new" sound recording can be made by the owner of the copyright in the original underlying works and the right does not extend to the very sound recording earlier authorised by him to be made.
• “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 copyrighted by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can coexist, each fulfilling itself in its delectable distinctiveness.” (Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association 1977 2 SCC 820) The judgment of the Supreme Court answers the entire case against the Defendant including the contention based section 13(4).

In the result, the issue was answered in favour of the Plaintiff.