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    Why Bombay HC has said FM channels must pay royalties to composers and lyricists

    • 10.05.2023
    • By Khadija Khan

    FM radio channels cannot use copyrighted music without paying royalties to composers and lyricists, the Bombay High Court has ruled.

    In a judgment delivered on April 28, Justice Manish Pitale ruled that the law has changed to protect “original authors” after the 2012 amendment of the Copyright Act.

    What was the case?

    In December 2020, the Intellectual Property Appellate Board (IPAB) fixed royalties for radio broadcasts at 2% of the Net Advertisement Revenues. The IPAB also stated that after the 2012 amendments, a “shared right” exists between the author and whoever owned the copyright.

    In 1977, the Supreme Court in ‘IPRS v Eastern India Motion Pictures’ held that the copyright for works created for incorporation in a film divests from the original author and vests in the producer.

    The IPRS argued that with the changes in the 2012 amendments, original authors are also entitled to a share in royalties and not just the producer.

    What was the 2012 amendment?

    The amendment recognised performers’ rights under the copyright framework. It was widely acknowledged that authors of original literary and musical works had got a raw deal, while the benefits of the work were garnered by the producers. The artistes would vest the copyright with the producers.

    In a series of additions to existing provisions, the 2012 amendment ensured that the rights of the original authors could not be overridden.

    A key change was Section 38 of the Copyright Act, 1957, as amended in 2012, which recognises “Performer’s Rights”. The provision states that where the performer engages in any performance including, literary work, song, movie, the same subsists in the concerned person for 50 years from the “beginning of the calendar year next following the year in which the performance is made”.

    This amendment was brought in 2012 to protect artists. For example, if the copyright of a song is licensed, it would not just be the producer who would get a royalty but the singer and lyricist would also be entitled to a share.

    Crucially, the rights under this provision cannot be waived or diluted through a contract, which means performers’ rights cannot be transferred or sold through an agreement. This was done to ensure production houses are not able to simply buy out an artist, and that her work continues to remain with her.

    What did the court rule?

    The Court also acknowledged that there had been a change in the position of the law, in line with the stated object of the Copyright (Amendment) Act, 2012, which intended to further protect and guarantee the rights of authors of such literary and musical works when their works are utilised in any form.

    For this, the court referred to the Statement of Objects and Reasons of the 2012 Amendment Act, which reiterated that the WIPO Copyright Treaty deals with “the protection for the authors of literary and artistic works such as writings, computer programmes; original databases; musical works; audiovisual works; works of fine art and photographs”.

    The Court also cited a 2010 report of a Parliamentary Standing Committee of the Parliament leading to the introduction of the amendment. The report had referred to Justice Krishna Iyer’s opinion in the 1977 judgment, which recorded that a policy change was required by the legislature to help authors of original works.

    The report also said that such authors of original works, including lyricists and music composers, suffered due to unequal bargaining powers with the producers of cinematograph films and/ or sound recordings. This necessitated discussion, debate, and consideration of changes to be brought about in the Copyright Act to protect the rights of authors of such original work.

    The FM channels — the defendants in the case — argued “that undoubtedly, changes have been made to the Copyright Act in the year 2012, but essentially the amendments are clarificatory in nature”, and do not impact the licence agreements between them and the producers.

    Is this the first time that a court has recognised rights of the artists?

    The IPRS has fought a long legal battle on this issue, starting from the 1977 ruling of the Supreme Court. In the present case, the Bombay HC observed that this position of law was reiterated in the subsequent judgments of the SC, HCs, and other courts, despite amendments brought to the Copyright Act in 1983, 1984, and 1994.

    In 2011, the Delhi High Court in ‘IPRS Vs. Aditya Pandey and Another’ held that IPRS was not entitled to insist upon the defendants securing a licence for communicating sound recordings to the public since they had already obtained a licence from the original owner of such a sound recording.

    When the issue reached the Supreme Court, the court recognised that while the 2012 amendments had changed the law, the 2017 case pertained to the unamended Copyright Act, and the orders passed by the Delhi High Court were sustained.

    This article was first published on IndianExpress