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March 11, 2021

Court Case Bulletin (CCB): Royalty not Payable for Underlying Works of Sound Recordings

Author: Intern - Sahaana Chhabria

In the matter of the Indian Performing Right Society vs Entertainment Network and others [CS (OS) 666/2006], a single Judge [ Hon’ble Rajiv Sahai Endlaw] of the High Court of Delhi vide an order dated January 4th  2020, held that royalties for  underlying works are not payable when utilized in sound recordings.

The Plaintiff  (IPRS) contended that by virtue of being the exclusive owner of the public performance right of the literary and musical works in dispute, they are authorized to license the public performing rights of literary and musical work created by its members. Further, as it is the owner who exclusively enjoys the right as set out in Section 14(a) of the Indian Copyright Act 1947, broadcasting organizations that play music belonging to IPRS infringe on this right unless a license has been obtained. Thus, the Plaintiff argued that the broadcast of music by the Defendant in three new cities, without procuring a license, amounts to infringement of the public performance rights of the Plaintiff.

The Defendants contended that no separate license fee is payable with respect to the copyright vested in the underlying literary and musical works, as they had obtained a license from Phonographic Performance Limited, which is the assignee of the IP rights related to the songs broadcast on its radio channels. The Plaintiff in turn has claimed to be the only assignee of the rights in the literary and music compositions of the songs. The counsel for the Defendants argued that as per Section (y) of the Act, copyrighted works are considered as mutually exclusive. Accordingly, a sound recording is an independent work consisting of separate and independent copyrights and thus the Defendants contended that the licenses for broadcasting purposes of the sound recording have been obtained.

The contention of IPRS that there exists a copyright in the sound recording and the underlying musical and lyrical work, is contrary to law. Accepting this argument, the Delhi High Court held that utilization of a sound recording does not amount to utilization of its underlying works, thereby there exists no requirement for obtaining permission from the creators of the underlying works. Neither is any royalty owed to them. The court stated that “‘It is the owner of the sound recording who transforms the literary work which otherwise is a mere collection of words into a sound, capable of phonetic pleasure and who gives the composition of music a sound of various musical instruments”. The Plaintiff suit was thus dismissed.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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