Indian Performing Right Society Ltd v. Cri Events Pvt. Ltd. & Ors.

16. The fabric in which the consti^uti interwoven is the Copyright Act ^95 Copyright (Amendment) Act 1994 and a our discussion, the data i.e. the Sections which we were called upon,to analyze reveal a reality of ing? ve elements are deeply 7 as amended by the s would be evident from the whole being multidimensional, and before we proceed to analyze the same, not as reductionists, but by seizing the. d constitute all the substances, and ap|; measure and rhythm by ensuring thdt t /namic patterns which lying the corresponding Te dynamism inherent in the reality is not isolated, we list the fabric - Section 2(d), Section 2(dd), Section 2(ff), Section 2(q), Sect Section 2(y), Section 13 and Section

1957. They read as under:- 2(dl)n- "author" means,- •'

(i) in relation to a literary the author of the work; f, on 2(qq), Section 2(xx), 14 of the Copyright Act or dramatic work,

(ii) in relation to a:m^usical work, the composer;;

(iii) in relation to an artisticj work other than a photograph, the artist;

(iv) in relation to a photograph, the person taking the photograph; i, !

(v) in relation to a cinenhatograph film,or sound recording, the producc^r; and

(vi) in relation to any musical or artistic work wf iterary, dramatic, ich is computergenerated, the person who caufees the work to be created; > 2(dd).public- 'broad.cast" means com

(i) by any means of wireJess whether in any one or more of tf sounds or visual images; or

(ii) by.wire, and includes a re-broadcast;

2(ff).- "communication to the making any work available fc heard or otherwise enjoyed by or by any means of display or diffusion other than by issuing copies of such.' work regardless of whether any member of the. puDlic actually sees, hears or otherwise enjoys th^ work so made available. i Tiunication to the 5 diffusion, le forms of signs, public" means r being seen or;he public directly Explanation.- For the purposes of this clause, communication through satellitiB or cable or any other means of simultaneous communication to I more than one household or pjlace of residence including residential rooms d'f ajny hotel or hostel shall be deemed to be comndunication to the public; ^ 2(q).- "performance", in relation to performer's jstic presentation mers; right, means any visual or aco made live by one or more perfor 2(qq).- "performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance; 2(xx).- "sound recording" nr^aans a recording of sounds from which such sour^ds may be produced regardless of the mediurn on which such C recording is the method by vvhi produced; 2(y).- "Worl<" means any of'the namely; (i) • a literary, dramatic,,', rr work;

(ii) a cinematograph film:,

(iii) a sound recording;:h the sounds are following works, usical or artistic

13. ' Works in ^which copyTig Subject to the provision of thif other provision of this Act, copy throughout India in the followinc that is to say, - (a) original literary, dramatic', m works; (b) cinematograph films; and;'

(c) sound recording

(2) Copyright shall not subsist in any work er than a work to 40 or section 41 specified in sub-section (1), oth which the provisions of section apply, unless,-, nt subsists. - (1) section and the right shall subsist classes of works, usical and artistic (i). in the case of a published work, the work is first published in India, or v|here the work is first published outside India,',th^ author is at the date of such publication, or'in ja case where the author was dead at that dat(4, was at the time of r i his death, a citizen of India; ' j

(ii) in the case of an unpublished work other than work of architecture, the date of the making of the wgrk or domiciled in India; and ^

(iii) in the case of work, of work is located in India.

author is at the a citizen of India; architecture, the Explanation.- In the case of a work of joint authorship, the conditions,conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.; FA0(0S)-423, 424 •& 425/2011 0 So (3) Copyright shall not subsi a)in any cinematograph filmn'if of the film is an infringemer>1: of the copyright in any other work;. b=)in any sound recording nr.ad literary, dramatic or musica.! y\i the sound recording, copyright -been infringed. ' a substantial part B in respect of a ork, if in making in such work has (4) The copyright in a cinematograph film or a sound recording shall not 'affsct the separate copyright in any work in respect of which or a substantial part of which, the filn, or, as the case may be, the sound recording-is made. (5) In copyright the case of work shall subsist only of architecture, in the artistic character and design and shall not extend to processes or mesthods of constri

14. Meaning of copyright.- For the Act, "copyright" means the exclusi the provisions of this Act, to 'do doing of any of the following act work or any substantial part thereof, namely:- (a) in the case of a literary, liramatic or musical work, not being a computer proiliramme,ction. purposes of this */e right subject to or authorize the s in respect of a in any material it in any medium

(i) to reproduce the work form including the storing, of by electronic means; •.

(ii) to issue copies of th^e w not being copies already in. ci

(ill) to perform the work communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation j3f the work;

(vii) to do, in relation to* a translation or an adaptation of the work, any of the acts specified in relation to the work in subclauses(l) to (vi); i i I (b) in the case of a computer programme,fork to the public xulation; in- public, or

(i) to do any of the acts specified in clause

(a); i ! (ii) ' to sell or give on com|nnercial rental or offer for sale or for commercial rental any copy Provided that not apply in e: of the computer prograrnm such commercial rental 'doss respect of computer programme where the programme itself is not the essential object of the rental. • i

(c) in the case of an artistic wc^rk, •1

(i) to reproduce the work form including depiction in th a two dimensional work or.in a three dimensional work; f-

(ii) to communicate the Vj'or

(iii) to issue copies of ths v not being copies already in circulation;

(iv) to include the work iii a iy cinematograph film;

(v) to make any adaptation pf the work;

(vi) to do in relation to an jadaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (it/);

(d) in the case of a cinematogfap

(i) to make a copy of the film including a photograph of any image fci)rn1ing part thereof;

(ii) to sell or give on hire Ojr offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasion; ' i

(iii) to communicate the fJJm to the public;

(e) in the case of a sound reco,rding,in any material ree dimensions of:wo dimensions of < to the public; /ork to the public 1 film,-

(i) to make embodying it;

(ii) to sell or give on hire, cjr offer for sale or hire, any copy of th^' sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the.'solund recording to

"the public. j Explanation.- For the purposes of this section, a copy which has been sold once sl^ail be deemed to be a copy already in circulation.-|t | 17,. Since the voyage undertakenlearned senior counsel for the parties Kingdom, the provisions of the Copyrig Act, 1988 which were referred to by tear house, may also be noted. They read;as "5A Sound recordings by us, as navigated by took us to the United It, Designs and Patents ned counsel, as a lightunder:- (1) In this part "sound recording" means- (a) a recording of sounds, may be reproduced, or (b) a recording of the whole dramatic or musical wbrl^, from which the sounds or any part of a literary, from which sounds reproducing the work or [part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced. ' | •, (2) Copyright does not sj.'jbsist in a sound recording which is, or to the extent thct itj is, a copy taken from a previous sound recording. j

6 Broadcasts i:' I I (1) In this Part a "broadcast" means an electronic transmission of.visual inlagjes, sounds or other information which- (a) is transmitted for by members of the public lawfully received by them, simultaneous reception and is capable of being or. (b) is transmitted eit s by the persons mailing time determined solely the transmission for presentation to, members of the public. and which, is not excepted by sub-section (lA); and therefore to broadcasting shall be construed accordingly. 16The acts restricted by copyi'lgl- t in a work. (1) The owner of the copyright in a work- has, in accordance with the following p the exclusive right to do the foil Kingdom; (a) to copy the worii (see section 17); the work to the public (b) to issue copies? of {see section 18); • (ba) to rent or leiifd (see section 18A); I' (c)to perform, show or pla> section 19); !

(d) to communicate!th section 20)'; rovision of this Chapter, owing acts in the United the work to the public ! the work in public (see e work to the public (see (e) to make an adaptation of the work or do any of the above in relatic section 21);; n to an adaptation (see and those acts are referred to in this Part as the "acts restricted by the copyright". I (2) Copyright in a work is infringed by a person who without the licence of the ^copyright owner does, or authorizes author to do, any of tihe acts restricted by the copyright.; |,i ! (3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it (a) in relation to the woifk as a whole or any substantial part of it, and ! j (b) either directly or indirectHy; and it is immaterial whether any intervening acts themselves infringe copyrightj •'i I (4) This Chapter has effect subject to (a) the provisions of Chaptjer I relation to copyright works), and (acts permitted in (b) the provisions of Cfepter VII (provisions with respect to copyright licensing).

17 Infringement of copyright by copying (1) The copying of the work is an act restricted by the copyright in every description references in this Part to copyi construed as follows. of copyright work; and ng and copies shall be (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. (3) In relation to an artistic wo making of a copy' in three dimensional work and the rna dimensions of a three-dimensiune "k copying includes the dimensions of a two- <ing of a copy in two I work. (4) Copying in relation to a filnri or broadcast includes making a photograph of the wijiolie or any substantial part of any image forming part of the film or broadcast. (5) Copying in relation to the typographical arrangement of a published edition means';making a facsimile copy of the arrangement, I (6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.'

19 Infringement by performancei,, showing or playing of work in public i (1) The performance of the work in public is an act restricted by the copyright in a litefrary, dramatic or musical work. '• i FA0(qS)-423, 424 &425/2011 V- (2) In this Part "performance", in felation to a worl<- (a) (b) includes delivery ia addresses, speeches and the case of sermons, and lectures, in general, includes any mode of visual or acoustic presentation,^; in|cluding presentation by means of a sound recibrdjing, film or broadcast of the work. ! (3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast. (4) Where copyright in a work iis infringed by its being performed, played or shown in! public by 'means of apparatus for receiving visual images or sounds conveyed by electronic means, the personiby whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be reganJed as responsible for the infringement. 20i Infringement by communicoition to the public (1) The communication to the buDlic of the work is an act restricted by the copyright in - (a) a literary, dramatic, musital or artistic work, (b) a sound recording or film, or

(c) a broadcast. !

(2) References in this Part to cpnrjmunication to the public are to communicate to the j public by electronic transmission, and in relation to e' work include - I (a) the broadcasting of the wjork; (b) the making available to t;he public of the work by electronic transmission | in such a \i\iay that members of the public may access it frorn a place and at a time individuallyjchosen by them."

18. The appellant, Indian Performing Riight Society Ltd. (IPRS - I for short) is a Copyright Society registered under Section 33 of the Copyright Act 1957 as per the^ Certificate of Registration dated March 27, 1996. As per a list pijbllshed on March 08, 2006 it has 1478 members who are either composers of the musical score. Undi sample IPRS Assignment Deeds, the'api maintain an action with reference td c also the musical score, if the copyright is the broadcasters of Private FM Radio Channels, and Event ' I Organizers for the reason the Private FM Radio Channels broadcast recorded songs and the Event Organizers organize either live musical performances or recorded musical performances. The Phonographic Performance Ltd. (PPL - for • short) is also a copyright society reg/stered under Section 33 of I the Copyright Act 1957 and its members} are copyright holders in I sound recordings.' ^

19. Whereas IPRS contends that by virtue of Section 17 of the •Copyright Act 1957, the authors of (iterary and musical works; 'work' as defined in Section 2(y) of the Act, are the first owners of the copyright therein i.e. the lyriqs and the musical score respectively and by virtue of Section 18 of the Act can assign the copyright, as per mode of assignment contemplated by Section 19 of the Act, the rights vested in th(^m under Section 14 of the Act. The licensing provisions as per Section 30, Section 30A and Section 31 of the Act being the source jof the power of IPRS to prevent infringement of the copyright in the lyrics and the musical score of its members, who have assigned the copyright to IPRS in the lyrics and the musical scojre. It is the assertion of ! I IPRS that these authors, being the orjgiijial owners of the works, • I are^entitled to exploit their works, to the exclusion of all others, t on the subjects enumerated in sub-clauses (i) to (vii) of clause la) I of Section 14 of the Copyright Act 1957.| Highlighting sub-clause

(iii) and sub-clause (iv), IPRS argues that|the authors of the lyrics /2C authors of the lyrics or sputably, as per certain pellant has the locus to Dpyright in the lyrics as violated. Its fight is with \A^ and the musical scores have the exc'jlu^ive right to perform the work in public or communicated to tl'te p^ubiic and also to mal<e a I sound recording in respect of the vkprik, and dove-tail the twin rights, to sub-section 4 of Section 13 of the Act by highlighting that if the author of the musical score a right under sub-clause (iv) of clause '(a) i.; by permitting a third party to make copyright in the sound recording (as per

13) shall not affect the separate cooyr thus IPRS highlights that the creation' of derivative copyrightable work does ndt a nd the lyric exploit their of Section 14 of the Act a sound recording, the sub-section 4 of Section ight in their works; and a sound recording i.e. a ffect, in any manner,, the right in the underlying (lyric and musical score) works. IPRS urges that the right of the.owners ^)f perform the work in public or commurlico the underlying works to te the work to the public (a right conferred by Section'14(a)(iiij, of the Act) is distinct from and not a sub-set of the right to make a under Section 14(a)(iv) of the Act) a;nd argument to mean that once the ov^ne I musical scores exploit their right to peri[nit a sound recording, it would not mean that their works hav^e become a sub-set of the I sound recording, in that, he who obtains ja permission ora license from the owner of the copyright in' th|e sound recording, can either perform in public by an acoUstiC presentation or a live I performance or by broadcasting the sbund recording, without I obtaining a parallel permission from Ihe owner of the copyright > I holders of the underlying works i.e. the! lyricist and he who set,•! 1 the musical score, and for which IPRS hi^ghlights the definition of I the word 'broadcast' as per Section 2(dd) of the Act, the •definition of the expression 'communication to the public' as per Section 2(ff) of the Act, the definition o1i the word 'performance' sound recording (a right enlist the effect of the rs of the lyrics and the I as per Section 2(q) and the definition of the word 'performer' as per Section 2('qq) of the Act. IPR[5] hiphljights that broadcast has been defined in the broadest terrn to mean any mode of I communication of a sign, sound or ia Visual image by wire or wireless diffusion and linking the broadcast to the expression 'communication to the public' highlic|hts that if a work is made available for being seen or heard ok o public directly by means of display or di infer that, pertaining to a song, connmunicated to.the public the undefilyi lyrics are simultaneously communicated a visual presentation of a lyric and t;he sound recording, makes available to t^he works and there is a communication to work. IPRS asserts that with. respect to performing a work in I public or communicating it to the public, the Copyright (Amendment) Act 1994 has not chahged the legal position. It asserts that the amendment brought Into the statute book in the year 1994 introduced Performers' (Rights in the context of performance which was live Section,2(q) and in-the context of I communication by display or diffusion' ^(ff), which hitherto-fore found themselves integrated in thfe [definition of the word •i; i 'performance' in Section 2(q) of the fkfX, jwhen brought in force in I the year 1957, and for which IPRS placesj reliance upon the Notes on Clauses to the 1994 Amendment Whic^h undisputably bring out • ' t that, the Performers' Rights introduced b| the 1994 Amendments, required a division of the subject pertainjing to live performances while communicating the work to the public and when the I communication was by way of diffusio'h. ! iherwise enjoyed by the fusion, logic demands to ^ a sound recording is "ig musical score and the and thus an acoustic or musical score as also a public each of the three the public of each such

20. With reference to 3 sound recording in the form of a song, conceding that by virtue of the definjtic per Section 2(y) of the Act, the sound |ec be a work, author whereof as per Sec producer of the sound recording, and^that this distinct derivative copyrightable work comes into existence, as a protectable work, by virtue of clause (c) of sub-section (1) IPRS concedes that by virtue of sub-cia n of the word 'work' as ording of the song would tion 2(d) would be the of Section 13 of the Act, use (iii) of clause (e) of Section 14 of the Act, the owner of|;the sound recording has a right to communicate the sound recdrdi noted herein above, urge that he wiho from the owner of the sound reco communicate to the public or convey by the sound recording to the publiic permission from the owner of the undtirly ig to the public, but, as obtains the permission rding to broadcast or an acoustic presentation must obtain a similar ing copyrightable works.

21. To give substance to the aforesaid submissions, IPRS urges with reference to clause (b) of sub-section 3 of Section 13 and clause (iv) of clause (a) of Section M, that a sound recording embodying a literary and/or musicalJwork can only be created with the authority of the owner of the and/or the musical work, otherwise the s an infringement. IPRS refers to Section copyright in the literary Dund recording would be 17, 18 and 19 of the Act to bring home the argunrient that it is pnly pertaining to films that copyright in a literary/musical work would belong to the producer (Section 17(b)). This is not so with respiect to sound recordings. IPRS highlights, with reference to Section 17(c) that it embodies pure employment conditions with reference to the ownership of the copyright being with the employer. !PR[5] highlights that by virtue of Section 18 and 19 the author of a literary and/or a musical work may assign his copyrightaible work to the producer.FA0(0S)-423, 424 & 425/2011 or who makes the sound recording and l^hat this assignment may be full or partial with restrictions.

22. Highlighting that the right to cdmr distinct from the right to make a sounc that each right may be assigned or i therefore, it is urged, that exploitation of work as part of a sound recording '>vil Tunicate to the public is recording, IPRS asserts censed individually and a literary and/or musical always depend on the terms of the license or the assignment. The decision reported as 1937 BLR 654 (Bom.) Wellington Cinema Societyrelied upon.

23. It was asserted by Sh!P.V.Kapur; le IPRS that any contrary view would ba on the 'nrierger principle' i.e. the underlying copyrights would recording, if the right of the owner of th Section 14(e) is held to communicate the sound recording to the public irrespective of the rights accorded to the literary and musical works under Section 14(a) of the Act. It was asserted that the interpretation as projected by IRRS would not render the rights under Section 14(e) otiose for the owns the copyrights in the sound recc granting a license, to a third party Which third party would •I j simultaneously have to obtain a license from the owner of the copyright in the literary and the musical Work. On this argument,, it was asserted that the respondents] contention of Literary I Works, Musical Works and Sound Recordings being distinct I I classes of works under Section 13 •.wi);h distinct rights under Section 14 would mean that when owher of a Literary and/or Musical Works allows the making of a-sound recording would give birth to a distinct right, unhampered by any other obligation, vs. The Performing Right arned senior counsel for merge in the sound sound recording under eason the producer who rding would exploit, by would run contrary to a harmonious interpretation of the various provisions of the Copyright Act, 1957.. ' ' I ' • I

24. Navigating the voyage to the United Kingdom, IPRS highlighted that the definition oi the expression 'Sound Recording' under Section 5(a) of Copyright, Designs and Patents Act, 1988 in the United Kingdom i'vas pari materia with the corresponding definition in Section 2(xx) in the Copyright Act, 1957, notwithstanding the difference in for which learned senior counsel Sh.P.V. debates on the subject by the House Section 19(2) of the U.K. Act, with 'performance'the concept of 'comm per Section 2(ff) of the Act in India, It v position is the same in both the coun provisions envisage literary/musical work there is a visual or acoustic presentation the appellant. Referring to the decisi.'on the language used, and <apur made us read the of Lords. Contrasting reference to the word unicate to the public' as vas highlighted that this tries inasmuch as both s being performed when to the public.

25. We were read passages from treaties on the subject of reputed international commentaries, such as Copinger, Nimmer \ I and Sterling to bring home the poirit t|iat the principle of 'co existence of copyrights' is well recogiriized and is as projected by of the Chancery Division Court, reported as (1934) 1 Ch. 450 Gramaphone Co. Ltd. vs. Stephen Carwardine & Co. it.was hJghliphted that the Chancery. ( Division Court held that the Special Cq^pyright under Section 19 of the Imperial Copyright Act, 1911 pertaiijiing to phonograms also allowed for the 'pubHc performance' of phonograms and that this special right was in addition to the i:o|:jyright in the underlying works and not to their detriment or prejudice, for the reason law recognizes the concept of co-existing Copyrights. It was urged that the principle of co-existence; of copyrights is clearly discernable in various provisions of t[-)e Section (4) of Section 13 was higplic legislated that the copyright in a cinematograph film or a sound recording shall not affect the separaice copyright in any work in respect of which or a substantial partbf:opyright Act 1957; subhted wherein it stands ^vhich, the film, or, as the case may be, the sound recording is: made. Section 52(l)(y), it was asserted states that if the.ter cinematograph film has expired the exh amount to an infringement of the c6pVright in the literary and musical works incorporated in the film; it was highlighted that this restriction on the exploitation of the literary and musical works is restricted only to cases of e>=nibition of a cinenriatograph film. To put it simply, it was urged cinematographic film there was a mechanism of exhibiting the underlyi;ng need for the legislature to so specify relation to the term of copyright prote Section 22, 26 and 27 it was urged' th protected for a period less than the 7, I musical work and if the argument of;a siound recording resulting in merger of the underlying works in w:hd sound recording was to j be accepted, once a sound recording confies in public domain, the I term of copyright in the underlying w(i)rks as protected under I Section 22 would stand curtailed. i I I *' i

26. Since the learned Single Judge nas heavily relied upon the decision of the Supreme Court reported as 1977 (2) SCC 820 Indian Performing Rights Society I/5. Eastern India Motion Pictures m of protection in a bition thereof would not that if in exhibiting a simultaneous in-built copyrights, there was no in Section 52(l)(y). In ction, with reference to at a sound recording is underlying literary and Association, it was urged that the decision dealt with a contest between authors and composers oti the one hand and film FA0(0S)-423, 424 &425/2011; I producers on the other with respect to ownership of copyright in the literary and the musical works mc•rporated in the 'Sound Track of the film and not with the i|sue of exploitation, and of how many copyrights would be explc'ite film is communicated to the public.,t Supreme Court was dealing with the ^ue context of the music and the lyrics being composed by persons engaged to compose the same commissioned, and needless to statei it case of Clause (c) of Section 17 anci: C being the subject matter of the debate, the Supreme Court had referred to the answered by it. i j when a cinennatogra It was, urged that the stion of ownership in the i.e. the works being \/vas urged that it was a ause (b) of said Section and for which paragraph 17 of the opinion of the-Supreme Court was highlighted, where 'Centra! question' being

27. The argument was concluded by urging that the contra view would be contrary to International Con was a signatory and thus would result; in disharmony with the world order. FA0(0S)-423., 424 & 425/2011 ventions to which India the law in India being, in

28. Vide impugned order dated 28.07.2011 the learned Single judge has concluded that once a licence is obtained from the owner or someone authorized to giy;a ij:, in respect of a sound I recording, for communicating it td tfie public, including by '• broadcasting, a separate authorizatiopi or license is not necessary ( from the copyright owner or author of tHe musical and/or literary work. However, this does not mean that the musical and/or I I literary work can be otherwise "perTorned" in the public, (as }. I opposed to communication of a souhd |recording to the public) j without authorization. In coming to tltie said conclusion, the I "reasoning adopted by the learned Single Judge is as: - (i) in f\ Eastern MPA's case (supra) it was; categorically held by the Supreme Court that if the author of ayy musical work parts with a portion of his copyright, authorizing.;a film producer to make a cinematograph film in respect of his work and have his work incorporated or recorded on the souP:,d track of a cinematograph film, the copyright owner of the film; acquires a copyright which gives him the exclusive right, inter alia, of performing the work in public i.e. to cause the film, in so far as it to be seen in public and in so far.it portion including a lyric or a musical work to be heard, in public without securing any further permission from the author (composer) of the lyric or musical work for the performance of the work in public. Since sound recording copyright was carved out of pre-existing cinematographic filiVi copyright in the year 1994 a similar treatment should be ^Tforded to sound recording copyright as afforded to cinematographic film copyright; (ii) in view of considerable difference betweer Sections 16, 19 and 20 of UK Copyrights, Patents and De;signs Act, 1988 and the provisions of Indian Copyright Act the rptio of. the judgments of UK courts relied upon by jPRS cannot b case; (iii) in view of the fact that soUnd been carved out of cinematogra'phi acceptance of the arguments of IPRS vjould lead to 2 different kinds of copyrights. Whereas, the copyright proprietor of a film, who happens to own the sound recording can authorize the broadcast or communication to the pubjiic of the film, including I the sound recording part, (as a composite work) without license r.' ' from the author of the lyrics or the composer; on the other hand I if the copyright owner of a sound recording is different from the owner of the copyright in the film, a sepiarate authorization from consists of visual images consists of the acoustic 5 applied in the present recording copyright has c film copyrights the s the lyricist or the composer would be; necessary. The acceptance of the arguments of IPR[5] would lead inasmuch as the sound recording in a. fi! which is authorized by the film cclp^^right owner, would not ' I require separate authorization from thejauthor of the musical or literary work. Whereas in the case of an [^wner of the copyright in the sound recording, an identical eiutl^orization by the sound recording copyright owner (for cpnlmunicating the sound recording to the public) would be -.nsufficient, and two more authorizations, or licenses from the lyricist and/or the composer would be required. Thus, the acceptance of arguments of IPRS would lead to discrimination in regard to identical content of I copyrights of two different "works" jwhich undermines the I purposes of the Act and is also illogic^il. jwo different approaches to identically phrased rights, one 'Cc^rvj^d out of a pre-existing right, would render the quality of the license obtained from the sound recording copyright owner iRferior; (iv) when a sound recording is communicated to the public-by whatever means, it is the whole "work" i.e. the lyrics, thfe Score, the collocation of sounds caused by the equipment and: the capturing of the entire j I aural experience which is communicateqi. The musical or literary work, which is the subject matter of thej copyright under Section ( 14(a) of the Act, per se is not commu'niclated or broadcast; nor is there a method of separating that elefnent, while communicating the entire work, i.e. the sound recbrding, to the public. The recognition afforded by the Parliament |to the content of sound I recording. itself suggests that that? tlie content of a sound j I recording is perceived in law, as different from that of a musical or literary work, though there may be a coalescence of the two, but not necessarily so, all the time. It' is; therefore, unjustified to to a further anomaly, Ti, the communication of say that when a sound recording is f^onjimunicated to the public; I by way of a broadcast the musica^ and literary worl< is also.1. 1 communicated to the public, through thel sound recording. ! I

29. The infirmities in the impugni^^d decision containing the opinion of the learned Single Judge were questioned on 6 counts as under:-

(i) Referring to paragraphs 40, 41 a decision, it was urged that the j.ea nd 48 of the impugned rned Single Judge has I erroneously held that a sound recording right came into existence in the year 1994. Conceding that the same had.no bearing upon the issue, it was urged that this misconception has led the learned Single judge to con,elude that sound recording I copyright was carved out of the cinerr^atograph film copyright..and thus must result in similar protection, a line of reasoning I which was on an incorrect interpretation |of the law. V ' I

(ii) The learned Single Judge erroneously opined that the \ 1 decision of the Supreme Court in Eastern India Motion Picture Association's case (supra) concluded iihe matter against the •)' • I appellant and thus failed to address the' decisions reported as 2010 (42) PTC 752 Indian PerformingRi'aht Society 1/5. Muthooth Finance and the decision in QSA No.64'/2010 Muthooth Finance I • ' • 1/5. Indian Performing Rights 5oc/'gwhich dealt vi/ith a challenge by radio operators to the right of IPPjlS to collect royalty for the performance of underlying works in a soijnd recording. I t I

(iii) The learned Single Judge failed-to [appreciate that the only modes of assigning or licensing literary land musical works were as envisaged by Section 17, 18 aPfd j30 of the Act and the exploitation of the right under Section;14(a)(iv) would not and (; I FA0(0S)-423, 424&425/2011, i Page 24of43 5: !• cannot be in derogation of tine right upder Section 14(a)(iii), or to put it differently that the right under Siec right which is tagged with the rigltjt (Refer para 12 of the impugned decision)

(iv) The learned Single Judge, with amendhnent has not appreciated the rfela amended Section 2(q) and Section 2!{ff) book in the year 1994. (Flefer para 16 of the impugned decision), t •! '

(v) The learned Single Judge has noted, but failed to address ' f the contentions urged pertaining to sub-Section 4 of Section 13 of the Act. •! ion 14(a)(iii) cannot be a jnder Section 14(a)(iv). reference to the 1994 tionship between the unbrought on the statute

(vi) The impugned order leads to, obligations under the InternationaT; C incorporated in the Copyright Act 1957. derogations of India's onventions which were ginally stood enacted (a) literary, dramatic,

30. Copyright Act, 1957 as it.-or recognized three classes of work viz, musical or artistic work; (b) cinematographic film and (c) record. Whereas musical and literary works are original works, record is a derivative work. "Recording" was defin<^d in Section 2(x) of the: I Copyright Act, 1957 to mean the aggregate of the sounds embodied in and capable of being reproduced by means of a I record. Section 13{4) of the Copyright /ijct, 1957 prescribed that copyright in a cinematographic film or a record shall not affect the separate' copyright in any worki in respect of which or a substantial part of which, the film or record is made. To put it simply. Section 13;(4) prescribed'that the copyright subsisting in a derivative work (record) shall not prejudice the copyright subsisting in original works (literary and tinusical). n 5 I I I; j

31. In the year 1994 the Copyright.Ac[:, 1957 was an^iended to I strengthen the copyright law in India. One of the significant changes made in the old Act was to extend protection to the performers by means of a special rig 'performer's right', in respect of the ma or visual recordings of their live p'erfo I related acts. Another change made w It, to be known as the king of sound recordings •mances, and of certain as to replace the term 'record' with 'sound recording' as the former term had become outdated through association with an o 3solescent technology of sound reproduction. Vide Section 2(,xx), 'sound recording' was defined, to mean a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by.which thip sounds are produced; I obviously to include piano roils and mechanical instruments from which jingles are produced. The amenc classes of work viz. (a) literary, dramatic (b) cinematographic film and (c):SOund recording. Whereas musical.and literary works are original works, sound recording is a derivative work. It is significant to noteithat Section 13(4) of the unamended Act was retained in the'post amendment; with the only difference being that Section 13(i[4]) of the amended Act provided that the copyright subsistini^ in a sound recording shall not prejudice the copyright subsisting'in literary and musical work i.e. the only amendment incorporated jn Section 13(4), on the j subject was to replace the word 'record' with the words 'sound recording'. • i I

32. Chapter IV of the Copyright Act deals with ownership of I copyright and the rights of the owner. Section 14 stipulates the I exclusive right to do or authorize doing of the acts mentioned !' I therein in respect of a work or an;/ $ubstantial part thereof. i I FA0(0S)-423, 424 &425/2011. | Page 26 of43 ed Act recognizes three musical or artistic work'; \o Rights which may be exercised in respect of-each class of work are stipulated in Section 14. It is noter.vorthy that Section 14 does not indicate any order of priority between the different classes of works. Nor does it place any particular work above the others. It merely prescribes the rights that carf be exercised in respect of each class of work.

33. In the decision reported as Entertainment Network (India) Limited v Super Cassette industries!Limited (2008) 13 SCC 30 following pertinent observations were made by the Supreme I Court:- 'I "63. A statute as is well knowfi nhust be read in its entirety. It is required to be ree.^d chapter by chapter, section, by section and clause by clause. The definition of the term "broadcast" as afeo "sound recording" must be given a wide meaning. Clause (a) of Section 13 protects original work whereas clauses (b) and (c) protect derivative works. It provides for commercial manifestation of original works, and the fields specified therein. Clause (a) of sub-sectiqn (1) of Section deals with original work. It is extrem'ssly thereto, the copyright on filmr^ c work operates in restrictive field; jthey provide for a restrictive rights as would appel^r from the provisions contained in Section 14(l)(e) of iihejAct.

64. For aproper construction of tljie provisions, will it be necessary to keep in mind the ^:Jifference between the right of the original work:,, and right of sound recording? Should we also bear Tn irnind that there are various forms of intellectual prpperty rights. Section 16 provides that a right, inter alia work must be claimed only under with the provisions of the Act unii passing off rights can be enforced! even though they are not registered. It must else be noticed that whereas the term of a copyrig^ht dramatic and musical and arcist broad. In contrast r sound recording, in respect of any and in accordance ce trade mark and in original literary, c works not only remains protected in the entire "lifi^time of the author but also until 60 years from r|:he calendar year next following the author dies, the term of copyright subsists only for 60 years! hereinbefore, the same would nbt hiean that the right of an owner of sound recordingms beginning of the year in which the in sound recording but as indicated in any way inferior to that of right of an owner ofi copyright on original literary work, etc" (Emphasis SJj?pi\ed)

34. From the above observations ofiithe Supreme Court and the wordings of Sections 13 and 14 of the Copyright Act, 1957 it emerges that the rights of an owner of a sound recording are, in no way, inferior to those of an ownei] of copyright in the original literary or musical works. This was ay proposition which was not challenged by either learned counsel.> f

35. The area of dispute is: what haf3pe|ns to the copyright in an •« ' underlying work (literary and musical worl<s) when the derivative work (sound recording) is exploited. Does he who obtains a permission from the copyright owne?: of the derivative work to broadcast by way of communicating to tlhe public said derivative f' work, additionally requires a similar permission from the owner of the underlying works i.e. the literary amd[musical v\/orks?:•? I I

36. The three classes of works referfed| to in Section 2(y) of the Copyright Act, 1957 viz. (a) literary, dfaniatic, musical and artistic works; (b) cinematographic films and jc) sound recording are mutually exclusive. As already noted; hereinabove, Section 13(4) I recognizes that there is separate copyright in the underlying musical and literary works which | are embodied in a cinematographic film or sound recorcfind. Such underlying works do, not lose their existence upon h sound recording or any I number of sound recordings being maifdeJ Upon a sound recording being made, the said three works ren'iain mutually exclusive and the ownership therein can be exercised by the Act.: to the extent prescribe

37. As observed in paragraph 3 above by us, when a song is e lyrics with the musical through the multi-level There may be no fusion recorded, there is homogenization of the score where integration is articulated hierarchical system of interdependence. of the musical score and the lyrics, but there certainly is integration. The Act, recognizing thd separate existence of the three copyrights, requires it to be held that creating of a sound i recording is through the simultaneous integration of the differentiated and notwithstanding the| constituent differentials I existing, the integrated whole i.e. thq sound recording when broadcasted to the public is an exerci^.e its own strength. The situation may |e so. The three works exist, independent co-exist-joined by an umbilical cord.. 3f the ownership right on jichotic, but it has to be of each other, and do not

38. In view thereof, the argument predicated upon Section 13(4) and Section 22 with reference t© the difference in the terms of copyrights in literary and musical works on one hand and i sound recording on the other advaticed by the learned senior I counsel appearing for IPRS which proceed on the premise that to I ^hold to the contrary would result: inj merger, in the sound I recording, of the underlying copyri^htfe and hence lose their 'separate existence is incorrect.; | t I I

39. Section 14(a) of the Act authorizes the owner of copyright in I literary and musical works to perform' the work in public or I I communicate it to the public. On the btlier hand Section 14(e) of t the Act authorizes the owner of copyrighl: in sound recording only to communicate the work in public.' This subtle distinction between the rights of owners of literaqy and musical works on one hand and sound recording on th[6];. ot backdrop of the definition of the e|(pr« defined under Section 2(q) of the Copyright Act, 1957 as it was originally enacted and definitions of/'various expressions under, i the amended Copyright Act viz. 'broiadcast', 'communication to

I. the public', 'performance' and 'performer' contained in Sections ler has to be seen in the ession 'performance' as 2(dd), (ff), (q) and (qq) of the Act respec Copyright Act as originally enacted d Lively. Section 2(q) in the fined 'performance' to mean any mode of visual or acoustic;presentation, including any such presentation by the exhibition o,f a cinematographic film, or by means of radio-diffusion, or by the use of a record, or by any other means and, in relation to a lecture|, includes the delivery of I I such lecture. The expression 'communication to the public' was not defined when the Act was promulgated. The amendment in the year 1994, significantly changed the definition pf the "( j expression "performance". The amended Section 2(q) defines ii; "performance" to mean any visual ori;acoustic presentation made live by one or more speakers. $ection 2(dd) defines the expression 'communication to the pOblijc' to mean: making any work available for beinq seen or heard or othervi/ise enjoyed by the public directly or by any means 6f display or diffusion other than by issuing copies of such work- repardless of whether any I member of the public actually sees, hear|S or otherwise enjoys the work so made available. The definitions jof the words 'broadcast' I and 'performer' were also introduced yide Sections 2(dd) and ' I (qq) in the amended Act. A combined' reading of the definition of the said expressions, when seen in tne light of difference in the definition of the;expression "performance" under the unamended ' i FAO(OS)-423, 424 & 425/2011 ' O V[3] • and amended Acts, brings out that vthe Copyright Act draws a public is by way of live diffusion. Thus, whereas nusical works enjoys the e public by way of live ound recording does not sound recording to the distinction when communication to t|ne performance anci when it is by way^pf the owner of copyright in literary anid n right to communicate said works to.;,; performance the owner of copyright \f] s enjoy similar right to communicate jihe public by way of live performance, necessary corollary to the aforesaid is that the communication of ^ sound recording to the public by the owner of the recording jn the right of the owner of the underly •' i'; works to perform said underlying worKs i r. held by the learned Single judge and upon the arguments predicated upon the definition of the '' ': I expressions "performance" and "pe|fo|-mer" advanced by the learned senior counsel appearing for IpRS. i

40. It may be true that the reasohin judge pertaining to a copyright in a soun out of from the pre-existing copyrig|nt 'V noted by us in at serial nos.

(i) and Viii tr commentaries dealing with UK Copying!'' Act, 1988 to urge that the learned Sing that neither the commentaries nor the no way encroaches upon ng literary and musical n the public, as correctly therefore, nothing turns g of the learned Single d recording being carved n cinematographic film, of paragraph 28 above may not be sound reasoning, but when corrected and as interpreted by us hereinabove, the same

41. Much emphasis was laid by the conclusion is reached. learned senior counsel appearing for IPiRS on the judgrihents of UK courts and ts, Patents and Designs e judge erred in holding decisions were relevant inasmuch as there was a material 'difference in the statutory provisions of the Statute in India and Uni:ed Kingdom.

42. After noting Sections 5A, 9, 16, 1-9 and 20 of UK CDP Act, 1988 and Sections 2(ff), 2(xx), 13, 14:and 51 of the Copyright • I Act, 1957, albeit with an erroneous assumption that a new species of copyright i.e. sound recording was introduced in the Indian law for the first time in the yearil994, in paragraph 46 of the impugned decision the learned Sin^:|ile Judge has opined that there is considerable difference inij' the structure of the 1''" • I.' enactments in India and United Kingdom on the subject of copyright.

43. One has to be careful while import;;,pg and applying the ratio of law declared in a foreign judgmei^t. The language of the Statute interpreted in a foreign judgment needs to be carefully compared and contrasted with the:: language of municipal Statutes. r

44. Section 5A(1) of UK CDP Act defines 'sound recording' to mean, (a) a recording of sounds, from which the sounds may be reproduced, or (b) a recording of the^iwhole or any part of a literary, dramatic or musical worl'| from which sounds reproducing the work or part may be p.]:oduced. Section 2(xx) of the Copyright Act, 1957 defines 'soured recording' to mean a recording of sounds from which such Spunds may be produced regardless of the medium on which sucli recording is the method H by which the sounds are produced. !

45. A first blush reading of the aforesaid two sections would suggest that there is difference in the definition ofthe expression 'sound recording' in under UK CDP Act/and Copyright Act, 1957. However a careful reading of the two sections shows to the contrary. Clause (a) of subrsection 1 of: Section 5A reads that a sound recording is a recording of pounds. Sub-section (1) continues to read that sound recording ip'ieans, (b) a recording of the whole or any part of a literary, draniatic or musical work. But that is recording of sounds only, whid|i is largely embraced in clause (a). Clause (b). of Section 5A(1) of UK CDP Act (which does not exist in the definition of sound reci;;)rding in India) makes no difference to the definition of sound recording in UK CDP Act, for what is prescribed in clause (b) is largely embraced under clause (a) (which corresponds to the definition of sound recording in India). Indeed, a debate in the House of Lords at the sitting held on 30.11.1987 would reveal that Lord ^Beaverbrook who piloted the Copyright Designs and Patents Bij;i in the House of Lords conceded to the argument of Lord iOlbracken, when it was pointed out that what was intended to tfe conveyed by clause (b) was already a part of clause (a). The following debate between the 2 Law Lords brings out as aforesaid: - "Lord Kilbracken' Can the Minister explain why paragraph (b) is necessary at: all? We read in paragraph (a) that a sound recording means a recording of sounds. The subsecti-iin continues, 'or (b) a recording of the whole or any '^art of.' But that of course, is a recording of sounds. Surely paragraph (b) is already embraced by paragraph'(a). Lord Beaverbrook Perhaps I can taike the noble Lord's point of view. There is obviously ^ very great overlap between the two paragraphs. But^there are things in paragraph (b) that are not in paradraph (a). Paragraph (a) refers to a recording of sounds; paragraph (b) covers all recordings of works for; which way sounds may be reproduced, whether r^hade by recording sounds or not. Old fashioned piarj|Q rolls and modern electronic recordings may both; be works made without recording sounds. So they-finust be covered by the definition." ' i' I i ^ Vv

46. We may highlight that whereas clause (a) of Section 5A(1) of UK CDP Act, 1988 refers to only a o^cording of sounds, from which the sounds may be reproduced-and clause (b) refers to anything from which a sound may be produced, the definition of.! I sound recording in India embraces both elements under one head. Thus, notwithstanding the difference in the expression used in the 2 Acts, the meaning conveyqd is pari materia.

47. So far so good. Let us go further. We have observed in para 9 above that nothing exists in isolation; Neither the problem nor the solution. We have undertaken, as per the roadmap set out in paragraphs 10, 11 and 13 above, not to solve the problem as reductionists but by analyzing the dynamic patterns which constitute all the substances i.e. in the form of a movement that swells and coincides with the whole':; of the reality with the dynamism inherent in it. Copyright Act, 1957 recognizes three classes of works viz. (a) Literary, dra^'natic, musical or artistic works; (b) cinematographic film and (c)!:;Sound recording.

UK CDP Act also recognizes the said three qiasses of works. Under Copyright Act 1957, the owner of copynjight in sound recording is authorized to communicate the sound;; recording to the public. (See Section 14(e)(iii) ofthe Copyright /fct, 1957). Under UK CDP Act, 1988 the owner of copyright in literary and musical works is prohibited from presenting said works tG| the public by means of a sound recording. (See Section' 19 of UK CDP Act). More importantly, the owner of copyright', in sound recording is prohibited from communicating the soun;d recording to the public. (See Section 20 of UK CDP Act). The prohibitions contained in the law in the United Kingdom are a consciQius omission in the Indian FA0(0S)-423, 424 & 425/2011 '' statutes and this explains the rhythmic difference between the flow of river Thames and Yamuna. i r

48. The matter does not rest here.. The aforesaid material difference in the rights, enjoyed by th:e owner of copyright in sound recording in India and UK helps to resolve the controversy in the present case. The tommunicatipn of a sound recording (derivative work) to the public results in exploitation of literary and musical works (original works). Had the intention of Indian legislature been that the owner of a sqund recording (derivative * i'" work) should not communicate the sound recording to the public without obtaining the prior authorizatjl'bn of the owner of the copyright in literary and musical works ••(original works) or that 2 permissions had to be obtained, it ^^should have specifically manifested such, intention, in the Copyright Act, 1957, as has been manifested the legislature in the U.nited Kingdom in the CDP Act, particularly when CDP Act, 198S: prohibits the owner of copyright in sound recording from communicating the sound recording to the public stood enacted, the time when provision relating to copyright in sound recording:;was amended in India in the year 1994.

49. Faced with such situation, it is difficult to accept the stand of IPRS that 2 separate permissions woui:d be required.

50. We now proceed to examine the judgment of the Supreme Court in Eastern MPA' case (supra), whifch forms the basis of the decision of the learned Single Judge.

51. It is indeed true that the controv|ersy involved in Eastern MPA's case (supra) was whether a proclucer of cinematographic film who commissions a composer of music and lyricist for reward I; ' FA0(0S)-423, 424 &425/2011 V; or valuable consideration for the purpose of composing music and writing songs for his film become^ the first owner of such music and songs and that whether a Copyright subsists in the writer of the songs and composer of miisic. Having regard to the provisions of Sections 17 (b) and (c) ofMihe Copyright Act, 1957 the Supreme Court resolved the said cc?htroversy by holding that a producer of cinematographic film whd'icommissions a composer i of music and lyricist for reward or valuable consideration for the purpose of composing music and wi'iiting songs for his film becomes the first owner of such musife and songs and that no copyright subsists in the writer of the songs and composer of music. However, while resolving the controversy, the Supreme Court had an occasion to examine! Section 13(4) of the unam'ended Copyright Act and mdde following pertinent observations in said regard:- | "5. The copyright law in our qountry being fairly complicated because of the involved language in which some of its provisions are cfjuched and the case being of first impression, learn(|d Counsel for the parties have tried hard to help us in solving the knotty points by advancing copious ariiti able arguments. Appearing on behalf of the appellant, Mr.Ashok Sen has urged that the author (compojser) of a literary or musical work has copyright whicM 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 anyvperson if without a licence granted to him by the owhier of the copyright, he makes a cinematograph film irtirespect 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 cGintaining a musical work, he has to take the permissjion 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 whiciii is incorporated in FA0(0S)-423, 424&425/2011 -i Page 36of43 the cinematograph film as accordmg to Section 13(4) of the Act, the copyright in a cinerhatoaraph film or a record does not affect the separsite 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) by assignment, (b) by relinguishment and (c),;by the composer composing the work in the course: of his employment under a contract of service with ah employer in which case, the employer becomes iihe owner of the copyright in the musical work; thfit in the case of an assignment of copyright in futcire work and the employment of the author to proc'bce a work under a contract of service, the question.lof priorities will be decided according to the principle "where equities are equal, the first in time shall prevail'

6. 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 that as the Act confers a separate copyright on a cineiTijatograph film as a film, the producer can exercise both the rights conferred on him under Section 14(l)(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(l)(a) and (b) shall co-exist with those'created by Section 14(l)(c) and (d) of the Act, e. g. uhder Clause (a), the copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by Section 14(l)(a) of the Act. But cnce he has licensed someone to make, a cinematogra'Q)h 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. FA0(0S)-423, 424 425/2011 i Page 37 of43 Tr"

1 I words, a distinct copyright in the aforesaid circumstances comes to vest in';the cinematograph. film as a whole which in the word::ii 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 produce:;" to make a cinematograph film of his compojj:jition 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 oth, 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 tc"; affect the rights acquired by the author (owner) of'the film by virtue of Section 14(l)(c) of the Act. The cgmposer of a lyric or a musical work, however, retains the right of performing it in public for profit iotherwise than as a part of the cinematograph filmiijand he cannot be restrained from doing so. In othe^f words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his wor| and has thereby permitted him to appropriate his v/.ork by incorporating or recording it on the sound track'of a cinematograph film cannot restrain the author '(owner) of the film from causinig the acoustic portion of the film to be performied or projected or screendd in public for profit or from making any record embod^nng the recording in, any part of the sound track assocfated with the film by utilising; such sound track or frofp communicating or authorising the communication of the film by radio- • diffusion, as Section 14(l)(c) ofi 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 ejDpropriate anything which belongs to the composer ofi 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(l)(b) and Se:ction 14(l)(c) of the Act otiose but would also defeat ythe intention of the legislature, which in,view of the gi pwing importance of the cinematograph film as a powerful media of FAO(OS)-423, 424 & 425/2011: expression, and the highly cDrr-plex technical and scientific process and heavy capital outlay involvejd in its production has sought to recognise it as a separate entity and to treat a record embcfijying the recording in any part of the sound track assi^ciated with the film by utilising such sound track as; something distinct from a record as ordinarily understood "(Emphasis Supplied) T

52. The aforesaid observations relating to Section 13(4) of the unamended Copyright Act, 1957 made; by the Supreme Court may be obiter, but we remind ourselvfes that an obiter dicta, more so when it is with reasons, in a decision of a court having higher position in the pyramidic structure must ordinarily be followed by a court lower in the pyrgrnidic structure, unless./i there are very good reasons for not dd|ng so. No good reasons have been shown to us by the learned iiienior counsel appearing for IPRS which would lead us to not to'follow the interpretation given by the Supreme Court to Section 13(4) of the Copyright Act, 1957.. •' I

53. We now proceed to examine the ^'idecisions relied upon by the learned senior counsel appearing foiT IPRS.

54. In the decision reported as IPRS vl'Muthoot Finance Pvt Ltd & Ors 2010 (42) PTC 752 (Mad) IPRS:bd filed a suit before a learned Single Judge of Madras High Gourt against Muthoot, a I FM channel which had obtained;;ilicense from PPL for I I broadcasting songs of the members of^lPRS, inter-alia, praying therein.that Muthoot be restrained froni broadcasting the songs of its members till the time it obtains'^ separate license from I IPRS. While dealing with an "interim" ^application under Order XXXIX Rules 1 and 2 CPC filed by l^jRS, it was held by the learned Single Judge that IPRS has bes^n "prima facie" able to t.' I FAO(OS)-423, 424 &425/2011 '| establish that Muthoot has no right to'' broadcast the songs of members of IPRS through its FM station without obtaining separate license from IPRS. In coming j-b the said conclusion, it was held by the learned Single Judge: that the definitions of 'broadcast' and. 'communication to the public' contained in Sections 2(dd) and (ff) of the Copyrig|t Act respectively show that broadcasting of songs by a'l FM station involves communication of music to the public which is heard and enjoyed by them.The owner of copyright in literary and musical:Worl< has an exclusive right to communicate the same to the public and in view of such exclusive; right of the owner of copyright in literary and musical work,!:Muthoot has no right to communicate the songs of members (,l)f IPRS to the public by way of broadcasting of.songs. v

55. The aforesaid decision was carrie|d in appeal by Muthoot before a Division Bench of Madras High Court in OSA I No.64/2009 titled as Muthoot Finance Pi^t Ltd v IPRS 6i Ors. After tooting that the license granted to Muthpot by PPIL recorded that Muthoot has no right to use literary or|nnusical works embodied in sound recordings licensed to it and the legal position that the Court has to only examine whether a prime facie case has been' made out by the applicant while deling with an application under Order XXXIX Rule 1 and 2 (iPC the Division Bench •\] dismissed the appeal filed by Muthoot. i!

56. Notwithstanding that the aforesaid decision (s) was rendered in respect of application unddi; Order XXXIX Rule 1 and. I 2 CPC filed by IPRS and in. no wav^i finally determined the controversy involved in the suit filed by! jlPRS, we have examined the said decision (s) and have founcj a fundamental fallacy therein. While holding,that owner of fJopyright in literary or nnusical works has the exclusive right to; comnnunicate the said works to the public the learned Single jipdge failed to note the rights conferred upon the owner of the copyright in sound recording by Section 14(e) of the Copyright Act, particularly his right of communicating the sound recording to the public.

57. With respect to the argument ofplearned senior counsel appearing for IPKS predicated upon international conventions suffice would it be to state that it is set;tled law that unless an international convention finds itself legislated in municipal law it would be impermissible to import the tfrinciple deducted from an international convention. In any cas^ii, if the Legislature has M legislated the intention has to be gathjered from the Statute, and while so doing guidance may be!^|had from international conventions, on the presumption that Legislature had kept the international conventions in r| \\ unambiguous language of a Statute ao; the golden rule of interpreting the StatuJ It is always open to a Legislature kee economic conditions in a country to rights. This would not mean that th isolation. ind, but where the nits of no 2 meanings, e has to be resorted to. oing in view the socio-:onfer lesser or larger 2 said country sits in

58. For our reasons hereinabove,:\Ve find in the crossobjections filed pertaining to the vievy Single Judge with respect to- live perform discussed the same. The appeals ar accordingly dismissed and while so dd; record our appreciation of the high quai by Shri P.V.Kapur, learned senior counse taken by the learned ances. We have already id cross-objections are ng, we would place on ty arguments advanced I who appeared for iPRS 2012:DHC:9527-DB.y*. and Shri Neeraj Kishan Kaul, who opposed the debate set in motion by the appellants; and needless to state the valuable assistance provided to them by junior members of the Bar whose names we have noted while recbrding representation by counsel in the memo of parties above. It indeed were pleasurable moments to hear high quality arguments which kept us captive for a number of days when learned counsel showed their legal forensic skills. j

59. The contentions urged in the appeal being plausible, it not being a case of filing of appeal just because an appellate remedy is available, we refrain from imposing any costs.