Music Composers and Lyricists no longer hold song rights on their creations Bombay HC

In a landmark judgment given out by the Bombay HC on July 25, 2011, Justice S J Vazifdar upheld the rights of the music companies over the song recording as against its composers and lyricists. This order has come as a boon to the FM Radio stations, hotels and discotheques that used to dole out huge royalty money to the composers and lyricists every time they played their songs.

In a landmark judgment given out by the Bombay HC on July 25, 2011, Justice S J Vazifdar upheld the rights of the music companies over the song recording as against its composers and lyricists. This order has come as a boon to the FM Radio stations, hotels and discotheques that used to dole out huge royalty money to the composers and lyricists every time they played their songs.

Counsel for the Indian Performing Right Society Limited (IPRS), Senior Advocate Navroz Seervai and Advocate Sandeep Marne argued that once a song is recorded, the composers and lyricists do not lose their copyright over the work.

They claimed that the owners of the song are only paid to make a sound recording, TOI reports. "The owner of the sound recording must again approach the owner of the underlying works for a licence and pay the royalty if he wants to communicate it to the public by broadcast," the advocates are reported to have said.

Senior Counsel Virendra Tulzapurkar represented Music Broadcast Pvt. Ltd. on instructions from Advocates Amit Jamsandekar, Sanjay Kadam and Apeksha Sharma of Kadam & Co.

Senior Advocate Virendra Tulzapurkar countered the argument of IPRS saying, as the works of the lyricists and music composers are incorporated in a sound recording made by music companies, it is these companies who exclusively own the copyright over such recordings. The IPRS can claim royalty only when the song is performed live or another song is recorded, or the original song is remixed.  

The Court agreed with this view, however clarifying that the owners of the copyright-composers and lyricists-do not lose all their rights when they allow it to be recorded. "It does not prevent the owners of the copyright in the underlying musical and literary works from making any other sound recording embodying the same underlying work," Justice Vazifdar is reported to have said.

The High Court also rejected the argument that the music companies are only given the right to make CDs and cassettes and they would have to pay copyright fees if they broadcast songs.

The High Court has stayed the appeal till October 31, 2011. Advocate Marne has reportedly said that they would appeal against the verdict, TOI reports.

Speaking to Bar & Bench, Prof. Shamnad Basheer, Ministry of HRD Chair Professor in Intellectual Property Law, NUJS Kolkata, expressed his views on the judgment as follows:

“While the judgment is quite lucid and rehearses the various arguments and counter arguments in a very articulate manner, the judge unfortunately got the law wrong (in my personal view). The making of a sound recording does not extinguish any of the underlying rights in the music and lyrics (these underlying rights continue to vest with music composer and lyricist). When a song is broadcast on an FM channel, both the rights in the sound recording as also the right in the underlying works are implicated. And the FM radio station has to pay two separate license fees. 

It is pertinent to note that the Indian government has taken note of the historical exploitation of Bollywood lyricists and music composers (underlying authors) and attempted to redress the injustice through proposed amendments to the copyright act that provide for compulsory sharing of royalties. Contrast this attitude with the present judgment which effectively perpetrates grave injustice against underlying authors by denying them their rightful license fees."

Thus, it remains to be seen what outcome is reached at on October 31, 2011, when the matter comes up to its next hearing.

The judgment of the Bombay High Court is given below:

Judgment