Indian Performing Right Society Ltd. v. Eastern India Motion… (1977)

PETITIONER:
INDIAN PERFORMING RIGHT SOCIETY LTD.
Vs.
RESPONDENT:
EASTERN INDIA MOTION PICTURES ASSOCIATION
DATE OF JUDGMENT14/03/1977
BENCH:
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 per-

mission 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 copy-

rights and to have authority to grant the aforesaid li-

cences. 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 appel-

lant. 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 li-

cences 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 pub-

lished 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 compos-

er can claim a copyright in his work only if there is an

express agreement between him and the owner of the cinemato-

graph 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 per-

mission not only of the owner of the copyright in the cine-

matograph film but also the permission of the owner of the

porated 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 provi-

sions 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

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

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

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 pro-

ducer. (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 incorporat-

ed 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

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 compo-

nent 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 notwith-

standing 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 repro-

duced 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 sta-

tion 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 fulfil-

ing 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 wonder-

ful 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

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 obliga-

tion each country in its law must protect such rights wher-

ever 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 cine-

matograph 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 pro-

ducer 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 exclu-

sive 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.

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

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 ex-

press 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 record-

ing 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

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 cinemato-

graph film on the other. [222 D-F]

Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports

453, quoted with approval.

JUDGMENT

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 967 of

1975.

(From the judgment and order dated 13-2-1974 of the Calcut-

ta High Court in Copyright No. 2/73).

A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud-

hary, 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 6-

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 re-

spondent No. 19.

The Judgment of the Court was delivered by Jaswant

Singh, 3., V.R. Krishna Iyer, J. also gave a separate opin-

ion.

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

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 li-

cences 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 perform-

ance 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 mem-

bers-producers of the cinematograph films--having been

utilised and incorporated in the sound track of the cinemat-

ograph 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 sub-

sisted 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 cine-

matograph films being the authors and first owners of the

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 through-

out 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 incapa-

ble 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

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

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 considera-

tion 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 copy-

right 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 complicat-

ed because of the involved language in which some of its

provisions are couched and the case being of first impres-

sion, 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 i.n 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 em-

bodied 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 employ-

ment of the author to produce a work under a contract of

service, the question of priorities will be decided ac-

cording 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

is confined to the sound track associated with a cinemato-

graph 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 arti-

cle on which the film or part of it, in so far as it con-

sists 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

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 unfound-

ed; that unlike (the law) in England, in India unless a

music is notationally written, printed or graphically repro-

duced, it is not musical work within the meaning of the

tral 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 cine-

matography, the owner of the cinematograph film is the

firt 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 stan-

zas 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 commis-

sioned. 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 sepa-

rate copyright on a cinematograph film as a film, the pro-

ducer 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

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 submis-

sions made by learned counsel for the parties. So far as

the first part of the question reproduced above is con-

cerned, 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 partial-

ly 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

and the assignor as respects the rights not assigned, shall

be treated for the purposes of this Act as the owner of

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 incor-

poration 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 provi-

sions 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 com-

poser;

(iii) ** ** **

(iv) ** ** **

(v) in relation to a cinematograph film, the

owner of the film at the time of its comple-

tion; 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 licen-

see 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 radiodif-

fusion, 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

217

(v) radio-diffusion includes communication

to the public by any means of wireless diffu-

sion 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

(2) ** ** **

(3) Copyright shall not subsist--

(a) in any cinematograph film if a substantial

part of the film is an infringement of the

(b) in any record made in respect of a liter-

ary, 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

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-diffu-

sion 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) ** ** **

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 con-

sists 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 record-

ing in any part of the sound track associated

with the film by utilising such sound track;

(iv) to communicate the film by radio-diffu-

sion;

(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 agree-

ment to the contrary. be the first owner of

the copyright in the work in so far as 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 paint-

ing or portrait drawn, or an engraving or a

cinematograph film made. for valuable consid-

eration at the instance of any person, such

person shall, in the absence of any agreement

to the contrary, be the first owner of the

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 liter-

ary, dramatic musical and artistic

works.--Except as otherwise hereinafter pro-

vided, copyright shall subsist in any liter-

ary, dramatic, musical or artistic work (other

than a photograph) published within the life-

time 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 refer-

ence 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,

the beginning of the calendar year next fol-

lowing the year in which the film is pub-

lished".

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 asso-

ciated with the film. Section 13 recognises ’cinematograph

film’ as a distinct and separate class of ’work’ and de-

clares 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 cinemato-

graph film means. among other rights, the right of exhibit-

ing 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 sec-

tion 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 pub-

lic. 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 pro-

ducer 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 re-

strained from doing so. In other words, the author (com-

poser) 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 appropri-

ate 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-diffu-

sion, 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 cinemato-

graph 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 com-

pletion 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, wheth-

er 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 there-

fore 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 cinemat-

ograph 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 plain-

tiff in pursuance of his engagement to give effect to cer-

tain situations in the drama entitled "Lady Andley’s

Secret", which was to be put on the stage was not an inde-

pendent 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. Conse-

quently, 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’ notwith-

standing 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 broth-

er’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 filmproducer is the master of his

combination of artistic pieces and the two can happily co-

exist 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 exhib-

iting 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, guard-

ians material works possessing spiritual values. The enig-

matic small of Mona, Lisa is the timeless heritage of man-

kind 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 internation-

al 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 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 co-exiSt, each ful-

filling 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

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 combina-

tion of melody

and harmony or either of them printed, re

duced 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 render-

ing. 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 rela-

tion 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 disentitle-

ment of the musician or group of musical artists to copy-

right 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 con-

tributed. 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.

225

Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association