Bombay High Court

Bombay High Court: In an interim application filed by Indian Performing Right Society Limited (IPRS) seeking relief of right to royalties against defendants with the claim that amendments to Copyright Act which came into effect from 21-6-2012 have the effect of calling upon the Court to consider granting interim reliefs, Manish Pitale, J. opined that IPRS succeeded in establishing a strong prima facie case and ordered accordingly.

The Plaintiff – IPRS, a society registered under the provisions of the Copyright Act, and the defendants are companies engaged in the business of operating FM Radio Broadcast Channels. The Court in the instant matter considered the question of whether IPRS is justified in claiming interim reliefs due to changes in law, as per Copyright Amendment Act 2012. The Court referred to the position of law recognized and reiterated in various judgements of the Supreme Court and High Courts.

Detailed reference was made to Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., (1977) 2 SCC 820 wherein the Court held that once the underlying original works became part of the cinematograph film, the producer enjoyed exclusive right of the said work and the authors had lost all rights under Section 17 of Copyright Act, while discussing the scope for Parliament and lawmakers to protect rights of creative individuals contributing to the final product. The Court pointed out that Copyright Act amendments in 1983, 1984 and 1994 did not really address the said concern, due to which, the said judgment has been relied upon. Relevant cases of Delhi and Bombay High Court discussing provisions under Section 14(e)(iii) and Section 13(1)(c) were also referred to.

The Court referred to the Statement of Objects and Reasons of Copyright Amendment Act of 2012 while cropping out its’ relevant part applicable to the instant matter as follows:

  • Independent rights to authors of literary and musical works in cinematograph films

  • Clarification on author’s rights to receive royalties and the benefits enjoyed through the copyright societies

  • Authors of the works, particularly authors of songs included in the cinematograph films or sound recordings to receive royalty for commercial exploitation of such works

  • Provision for formulation and administration of copyright societies by the authors instead of the owners

  • Provision for formulation of a tariff scheme by the copyright societies subject to scrutiny by the Copyright Board

The Court further scrutinized the relevant portions of Parliamentary report in this context and examined the relevant portions of Copyright Amendment Act, 2012 including interpretation, works in which copyright subsists, meaning of copyright, first owner of copyright, assignment of copyright, etc. The Court opined that IPRS is justified that non-amendment of Sections 13 and 14 of Copyright Act ought not to ipso facto conclusion of amendments falling short of its object.

The Court relied on Dattatraya Govind Mahajan v. State of Maharashtra, (1977) 2 SCC 548 wherein, the Constitution Bench considered the effect of a proviso and held that “there cannot be a rule that proviso must always be restricted to the ambit of main enactment.” The Court also referred to Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, (1966) 1 SCR 367 wherein it was clarified that “It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject matter of the proviso.”

The Court observed that the above position of law favours IPRS’s claim in terms of change in law benefiting authors of works. The Court noted that “Sections 13 and 14 incorporate ‘subject to the provisions of this section and other provisions of this Act’ insofar as Section 13 of the Copyright Act is concerned and the words ‘subject to the provisions of this Act’ in Section 14 thereof. The use of the said expression does indicate that exclusive rights recognized in Section 14 of the Copyright Act would be subject to the other provisions. Even the works in which copyright subsists as per Section 13 of the Copyright Act, would be subject, not only to the provisions of that very section but also be subject to other provisions of the Copyright Act.”

The Court also found relevance of Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210 in the instant matter wherein, applicability of proviso has been dealt with. The Court summed up that “whenever the words ‘subject to’ are used, it is an expression having the effect of making a provision subservient to other provisions of the statute.”

The Court opined that findings in Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn. (supra) were based on interpretation of provisos (b) and (c) of Section 17 against the IPRS. The addition of aforesaid proviso by 2012 amendment nullifies the effect of provisos (b) and (c) of Section 17 of the Copyright Act, which is indeed a significant change brought about in favour of authors. The Court observed that the reason for strong prima facie case favouring IPRS is that “the rights of authors of such literary and musical work have been placed at a high pedestal in the said provisos.”

The Court expressed that the words ‘with the cinematograph film in a cinema hall’ bring clarity authors are entitled to receive royalties in case of utilization of such works other than in a cinema hall. The legislative prohibition on sound recordings not forming part of cinematograph film is wider since such authors would have the right to receive royalties ‘for any utilization of such works’ qua a sound recording not forming part of a cinematograph film.

The Court clarified that the exclusive right under Section 14(e)(iii) of Copyright Act to communicate the sound recording to public is subjected to right to collect royalties now available to authors of such literary and musical works. It was observed that “it cannot be disputed that in the Indian context, when radio stations, including the radio stations, communicate sound recordings, they could be part of cinematograph films or otherwise.”

The Court granted interim reliefs sought by IPRS against the defendants to demand royalties.

[Indian Performing Right Society Limited v. Rajasthan Patrika Pvt. Ltd., 2023 SCC OnLine Bom 944, Judgment dated 28-4-2023]

Judgment by: Justice Manish Pitale

Advocates who appeared in this case :

For Applicant: Senior Counsel Ravi Kadam, Senior Counsel Janak Dwarkadas, Advocate Ashish Kamat, Advocate Rohan Kadam, Advocate Himanshu Bagai, Advocate Thomas George, Advocate Tanvi Sinha, Advocate Navankur Pathak, Advocate Neeti Nihal, Advocate Roma Liya, Advocate Tamanna Tavares;

For Defendant: Senior Counsel Virendra Tulzapurkar, Advocate Abhishek Malhotra, Advocate Sapna Chaurasia, Advocate Darshit Jain, Advocate Hiren Kamod, Advocate Rahul P. Jain.

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