# INDIAN PERFORMING RIGHT SOCIETY LTD v. EASTERN INDIA MOTION PICTURES ASSOCIATION

- **Citation:** [1977] 3 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1977-03-14
- **Bench:** V. R. Krishna }Yer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-performing-right-society-ltd-v-eastern-india-motion-pictures-association-7193
- **Pages:** 19

## Headnote

Copy Right Act (Act 14 of 1957), 1957-Whether in view of the provisions of the Copy Right Act 1957 an existinJ? and future rights of nHtsic . ...
c(imposer, lyricist is capable of assignment under s. 18 when he grants a licence
or permission uls. 30 to an author (owner) of a cine1natograph film for its
incorporation in the ~·ound track of a cinen1atocraph film-Whetht!r the producer of a cinematograph film can defeat the same by engaging i;1 the ~~ame
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.
The appellant society was incorporated in terms of section 2(r) of
the
Copyright Act, 1957 (Act 14 of 1957), in tho 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
aH existing and: futar-e Indian musical works in which copyright within
the
meaning of s. 13 subsists i_n 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 3 3 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 fee:-s, charges and royalties that it proposed to collect for the
grant of licences for perlormance 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 Iitdia 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 tnusic retained the copyright in their musical works incorporated in
the sound track of cinematograph films provided such lyrical and rriuskal works
were printed or 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 a1Jowed the appeal preferred by the respondents under s. 72
of the Act and held: (i) Unle-ss there is a contract to the contrary, a composer who composes ~ 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 i 7 of the Act, the owner of the film at v.·hose 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 (I) The
author (composer) of a literary or musical work has copyright which includes. inter a/ia, the exclusive right (a) to perfor1n the work in public and
I.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, J.)
207
(b) to make any cinematograph film or a record in respect of the work.
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(2) T

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206
INDIAN PERFORMING RIGHT SOCIETY LTD.
v.
EASTERN INDIA MOTION PICTURES ASSOCIATION
March 14, 1977
[V. R. KRISHNA }YER AND JASWANT SINGH, JJ.)
Copy Right Act (Act 14 of 1957), 1957-Whether in view of the provisions of the Copy Right Act 1957 an existinJ? and future rights of nHtsic . ...
c(imposer, lyricist is capable of assignment under s. 18 when he grants a licence
or permission uls. 30 to an author (owner) of a cine1natograph film for its
incorporation in the ~·ound track of a cinen1atocraph film-Whetht!r the producer of a cinematograph film can defeat the same by engaging i;1 the ~~ame
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.
The appellant society was incorporated in terms of section 2(r) of
the
Copyright Act, 1957 (Act 14 of 1957), in tho 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
aH existing and: futar-e Indian musical works in which copyright within
the
meaning of s. 13 subsists i_n 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 3 3 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 fee:-s, charges and royalties that it proposed to collect for the
grant of licences for perlormance 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 Iitdia 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 tnusic retained the copyright in their musical works incorporated in
the sound track of cinematograph films provided such lyrical and rriuskal works
were printed or 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 a1Jowed the appeal preferred by the respondents under s. 72
of the Act and held: (i) Unle-ss there is a contract to the contrary, a composer who composes ~ 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 i 7 of the Act, the owner of the film at v.·hose 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 (I) The
author (composer) of a literary or musical work has copyright which includes. inter a/ia, the exclusive right (a) to perfor1n the work in public and
I.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, J.)
207
(b) to make any cinematograph film or a record in respect of the work.
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(2) That copyright iin a literary or musical work is infringed by any person if
'vithout a licence granted to him by the owner of the copyright, he makes a
.cinematog;raph film in respect of the work or perlorm the work in public by
~xhibiting 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 cinen1atograph _film but
also the permissi_on of the owner of the copyright in the literary or musical
\York which is incorporated in the cinematograph film, as according to s. 13(4)
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of the Act, the copyright in a cinematograph film o·r a record does not effect
:the separate copyright in any work in respct of which or a substantial part
of which the film or as the case may be1~ the record is made ( 4). ~fhe provi-
:sions of section J 7 (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 con1poser con1posing the work
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in the course of his employment under a contract of service v.·ith an employer in which c_ase the employer becomes the o\vner of the copyright in the
_musical work.
(~J 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 questi_on of priorities will be decided- according to the principles
"where equities 3-re equal, the first in time shall prevail". The respondent's
·Contentions were (i) lJnless 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 -0r orchestral pieces sung or played directly
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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 "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 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)
Jn the case of tb'e film in which a lyric (which literally means a short poem
directly expressing the poet's own thoughts and sentin1ents in instances falling
\Vithin the purview of the expression "literary wo:rk" as defined in section 2(o)
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.of the Act) has been plagiarised, there wil1- be copyright in the film vesting
in the nroducer.
(iv) The Act confers a separate copyright of a cinemato-
-graph film ~s a film, its author under s. 2(d) (v) of the Act being the owner
of the film at th~ tin1e of its completion.
(v) Jn 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
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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
lvric 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
rublic.
(.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 iti the making of the entire film should be con1G
missioned.
Section 17 (b) will equally apply if someone is comrnissioned to
make any component part of a cinematograph film such as a lyric or musical
·\vork i.e. when such 1::omponent 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 copyrip:ht on a
cinematograph film as a film the producer can exercise both the rights conferre<l on him under s. !41(c)(ii) of the Act and all that section 13(4) of the
Act (when applicable) provides is that the rights created by section J4(1)(a)
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-and (b) shall co-exist with thooe created by section 14 ( !) ( c) and ( d) of the Act.
Dismissing the appeal the Court,
HEID : (Per Krishna Iyer, J. concurring)
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2 08
SUPREME COURT REPORTS
(1977} 3 S.C.R.
( 1) Copyright in a cinema film exists in law hut section 13 ( 4) of the Act:
preserves the sep_arate 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 harn1onious construction of s. 14, which is the integral yoga of copyright sh9ws that the artiste enjoys his copyright in the musical _work; the film1
producer is the masb~r of his combination of artistic pieces and the two calli
happily co-exi&t and need not conflict. [223 A-CJ
(2) The boundaries of composite creations of art whic;h are at once individual and collecJive may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's prop1!rty but in
the materialist plane on \Vhich artistes thrive private and exclusive estate in
r .. rt subsists.
1'he enigmatic sma1e of Mona Lisa is the timeless heritage of
mankind, but, till liberated by the prescribed pas~agc of time"- the private copyright of the human maker says, "hands off'. [223 F-G]
(3) The film producer has the sole right to exercise \vhat is his entitlement
under section 14-(1) (c) qua film.
But, he t'annot trench on the composer's
copyright which he does only if the 'music' is perforn1ed OJ 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 ill 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
sp~cial provision such as section 17, _proviso
(c).
Beyond exhibiting the filn1 as a cinema sho\V if the produce:r plays the
songs separately to attract an audience or for other reasons he infringes the
con1poser's copyright, the copyright of the composer or the Performing Acts
Society comes into play, if a music is played, \vhether in n restaurant or
aeroplane or radio station or cinema theatre. [223 C-E]
( 4) Section 14 has in its careful arrangement of the right
belonging
t<>
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 e-inematograph \vork produced by lay out of heavy nloney and many talents but does
not extinguish the copyrightable· component parts in toto. The n1usic which
has merged through the sound track, into the nlotion picture is copyright by
the producer but, on account of this monopoly, the music con1poser's copyright
does not perish. The twin rights can co-exist each fulfiling itself in its delectable distinctiveness. r224 A-B1
Observation :
Apart from the music composed, the singer must be
conferred a
right
Copyrighted music is not the soulful tune, t11e 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 compcger and section 16 confines
copyright to those works which are recognised by the Act., which means the
cotnposer alone has Copyright in a musical 'vork and the singer has none.
This disentitlement of the musician or group of musical artistes to copyright is
un-Jndian because the major attraction which lends monetary val1:1e to a
musical performance is not the music maker so much as the musician. Perhaps both des~rve to be recognised by the copyright l~w, because art _in on_e
sense depends on the ethos and the aesthetic best of a people and Vv'h1le universal protection of iiltellectual and aesthetic property of creators of "works'~
is an international obligation eaCh countrv in its la'v must protect such rights
'vherever originally is contributed. [224 E-H]
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Per Jas1;,.•c.11t 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 assigriment subject to the conditions mentioned in section 18. of the Act as also in section
!.P.R. SOCIETY v. E.I.M. PICTURES (Jaswant Singh,!.)
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 \Vhich is n'ot exhaustive
leaves no room fn_r doubt when read in conjuncrion with section 14(1)(c)(iii)
that the term cinematograph film includes a sound tn!ck a~tlociated \Vith the
film. [220 DJ
(3) A harmonious and rational instead of mechanical construction of s 34,
:g
s. 14(1)(a)(iii) ands. 14(1)(c)(ii) will be:
(A) Once the author of a lyric or a musical work parts v1ith a portion of bis
copyright by authorising a film producer to make a cinematograph film in res·
pect 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 afia, Of performing the work in public that is, to
c·
cause the film in so far as it consists of visual images to be seen in public and
in so tar o.s il consists of the acoustic portion including a lyric or a musical
\\'Ork to be heard in public without securing any further
p~rmis'5ion of the
author (i!omposer) of the lyric or a musical work for the pzrfonnance of the
work in public. A distinct copyright in the aforesaid circu111stances co1nes
to
vest in the cinematograph film as a \\'hole which relates both to copying the filn1
anJ to its performance in public.
(B) If an author (composer) of a lyric or a musical
work authorises
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cinematograph film producer to make a cinematograph film of his composition
by recording it on the sound track or a cinematograph film, he cannot con1plain
of the infringement of hiS copyright if the author (owner) of the cinc1n1.tograph
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
._'\ct
can operate to affect the rights acquired by the author ( own.:.!r) 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 perforn1E
ing it in public for profit otherwise than as a part of cinematograph film and he
cannot b; restrained from doing so.
In other words, the author (con1poser) of
a lyric or musical v;1ork who has authorised a cin-:matograph film producer to
make a cin~matograph film of his work and thereby permitted him to
appropriate his work by incorporating or recording it on the sound track of a cine1natograph 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
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the sound truck associated with the film by utilising such sound jrack or from
co1n1nunica1ing or authorising the comn1unicatiOn of the film by fadio diffusion,
as section 14 ( 1) (c) of the Act expressly permits the owner of the copyri£"ht of
a cinematograph film to do all these things. In such cases rhe author (owner)
of the cjnematograph film cannot be said to -.vrongfu1ly 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)fbJ and seclion 14(l)(c) of
the Act otiose but v.·ould also defeat the intention of the legislature which in
view of the growing importance of the cinematograph film as a powerful rnedia
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 a'sociated \vith the film by utilising such sound track ns son·u!thing distinct from a record as ordinarily understood. [220 G-H; 221 A·Gl
(4)Clauses (d), (v), (f), (rn), (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 n1ake it clear that protectable copyright (comprising a
bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes tQ
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SUPREME COURT REPORTS
(1977) 3 S.C.R.
vest i!1 a cine~atograph fili;n on its. completion which is said to t<lke place \Vhen
the visual portion and audible portion are synchronized. [221 H; 222 .A]
(_5) Th~ rig~ts of music ........ composer or lyricist can be defeated by the .
producer ot a cmematograph film in the manner laid down in proviso {b) Dnd
(c) of section 1! of the Act. Jn both the· cases falling under clauses (b) and
(~) of s. 17, a c1nematograph film producer becomes the first ov.•ncr of the copynght and no copyright subsists in the composer of the lyric or n1usic so compo~ed unless. there is a contract to the contrary between the composer of the
Iync or music on one hand and the producer of the cinematograph filn1 on the
other. [222 D-FJ
Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted \vith
approval.
CIVIL A.PPELLATE JURISDICTION: Civil Appeal No. 967 of 1975.
(From the judgment and order dated 13-2-1974 of the Calcutta High
Court iu Copyrigtht No. 2/73).
A. K. Sen, E. P. Skons James, J. I. 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 6-K
B. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.
Shroff, for respondents 12 and 22.
J. L. Nain, Atul Munim and B. R. Agarwala, for respondent
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No. 19.
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The Judgment of the Court was delivered by Jaswant Singh, J.,
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, raise~ 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 pro~ucer ot
a cinematograph film can defeat the same by engaging the
same person."
The facts giving rise to the appeal are : The Indian
Perfo~·ming
Right Society Ltd. (hereinafter referred to for the sake of brevity as
'the IPRS') the appellant before us, was incorporated in the State of
Maharashtr~ on August 23, 1959, as a company limited by guarantee,
for the purpose of carrying on business in India of issuing or grant!ng
licences for performa'!-ce in puJ;>lic of al! ex~sting and
futu~e Indian
Musical works in which copynght suJ;>s1sts m India.
The ~ncorpora
tion of the JPRS was in terms of sectton 2(r) of the Copyngbt Act,
I.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, !.)
2 u
1957 (Act 14 of 1957) (hereinafter referred to as 'the Act')
which
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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
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literary and dramatic works and artists.
In accordance with the
·provisions of section 33 of the Act, the IPRS published on September
27, 1?69 and November 29, 1969 in the 'Statesman' and the Gazette
of India respectively a tariff laying down the fees, charges and royalties that it propos<•d 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.
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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 of the 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
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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 averred •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 membersE.
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
F.
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 heard
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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
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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
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212
SUPREME COURT REPORTS
[1977] 3 S.C.R.
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 purportmg to have been made m favour of the IPRS was void and of no effect
and was incapable of conferring any rights whatsoever in sucil musical
works on the IPRS.
. The Cinematograph Exhibitors Association of India also filed objections challengmg the nght 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 copy.
right 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 distribucors of films the exhibition of cinematograph film
includes t.he right to play in publ;c 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 under an agreement and that when "n
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 ddermination
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 pnblic 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 !Maia.
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 valnable consideration for a cinematograph film does not acquire
an} copyright eit'her 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,
bec~mes ·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
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I.P.R. SOCIETY v. E.I.M. PICTURES (Jaswant Singh, J.)
213
there is an existing or future right to be assigned and that in the cirA
cumstances of the present case, assignment, if any, of the copyright in
any future work is of no effect".
Dissatisfied with this decision, the
lPRS 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. Appear;ng 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
cxhibiting the cinematograph filll); 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 13 ( 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 in the work are (a) liy assignment,
(b) by relinquishment and (c) by the composer composing the work in
the course of his employment under a contract of service with "n
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
fo 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 ?n which the film i:r p~rt. of it, in so far as it
consists of visual images, 1s recorded, or which IS issued by the maker
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
of the film for use in conjunction with such an article"); that the contention .advanced ~m behalf of t.he appellant that copyrigh~ in a literary
or musical work mcorporated m the sound track of a cmematograph
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; tl\at unlike
(the law) in England, in India unless a music is notationally written,
. printed or graphically reproduced, it is not musical work witl1in 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 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 stanzas falling
within the purview of the expression "literary work" as defined
in
section 2 ( o) 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 compos.er of the lyric or of the 1,ll';'~ic incorpora!ed
in the sound track of a cmematograph film for exh1b1tmg or causmg
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 nnder 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 lfl(l) (a) and (b) shall co-exist with those created
by section 14(1)(c) and (d) of the Act, e.g. un<ler clause (a), the
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!.P.R. SOCIETY v. E.I.M. PICTURES (Jaswant Singh, J.)
215
copyright in a literary work such as a novel entitles its author to make
A
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 snbmissions 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-"(!) 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;
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(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 "cincmatograph" 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 3rtistic
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 fihn;
(iii) **
(iv) **
**
**
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"(p) musical work means any combination of melody
and harmony or either of them, printed, rednced 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 ~ociety means a societ)'., assoc!ation or other body, whether mcorporated or not, which cames
on business in India of issuing or granting licences for the
performance in India of any works in which copyright subsists".
I.P.R. SOCIETY v. E.I.M. PICTURES (Jaswant Singh, J.)
"(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) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a record''.
Section 13 of the Act provides as follows :-
"13.