—By Riya Thawani
Copyright Societies play an important role in safeguarding the blood and sweat of artists, producers and broadcasters. Indian laws provide for singular copyright societies i.e. one society per class of work, unlike the United States and the United Kingdom, where societies compete with one another on pricing and incentives. Although the statute does not place an absolute bar on multiple societies in the same class, the intent of the drafters as well as the Indian market indicates that the singular society rule is appropriate for India. Problems have arisen due to the reluctance of these societies or acting societies to register themselves under the Copyright Act, 1957 (“the Act”), as mandated by 2012 Amendment, and operate as private limited companies. This has led to the existence of more than one agency granting licenses in same class of work without falling under the rigorous singular society rule. In a recent decision of Delhi High Court in the case of Novex Communications v Lemon Tree Hotels, the Court upheld the right of Novex to file a suit for injunction and damages against infringers, regardless of the fact that it was not a copyright society.
In this post, the author seeks to analyse the legal provisions that relate to the working of copyright societies, the singular society rule vis-à-vis registration of societies and aims to determine if the singular society rule has become a mere legal fiction that has no bearing on reality.
Peeping into the Statute!
The creation of musical, artistic and other work generally involves efforts of more than one person, which makes the determination of the rights of different persons to receive royalty, grant licenses etc. extremely hectic and confusing. The release of one song includes the work of the lyricist, composer, producer and broadcasting agency. In such a situation, the users of these works that include hotels and cafes, remain puzzled as to who should be approached for the license, and even if they are able to obtain this information, it is impractical for them to run around for a separate license for each song to be played. Copyright societies were incorporated into the statute precisely for this reason, which would have authors, composers and other owners of copyright as its members for the grant of a single license for numerous works. This saves copyright owners from the herculean task of tracking down infringements of their work.
In the Indian context, the registration of a copyright society is mandatory under Section 33(1) of the Act, and only such registered copyright societies can carry on the business of granting licenses and collecting royalties. Further, Section 33(3) says that there shall not ordinarily be more than one copyright society per class of work. The oldest and most popular copyright societies include The Indian Performing Right Society (“IPRS”) for lyrical and composition work, the Phonographic Performance Limited (“PPL”) for sound recordings and the Indian Singer’s Rights Association (“ISRA”) for singers’ rights. However, the 2012 amendments to the Copyright Act, which required all the societies to re-register themselves and provided for additional safeguards in the interest of the members of copyright societies, have modified the existent scenario to a great extent.
Assignment & Agency versus Copyright Society—
The insertion of copyright societies under the Act has not taken away the individual rights of copyright owners. They enjoy the liberty of assigning their rights under Section 18 of the Act and appointing an agent to manage these rights under Section 30 of the Act. The unregistered societies use these provisions to their advantage and function as agent or assignee while carrying out the same operations as the copyright societies. The impetuses behind this escape are the strict regulations of internal management of the society, control on tariff rates and other directions that would have to be complied with had they been registered as copyright societies under the Act.
The stand of the courts on whether or not these private companies can issue licenses, collect fees from users and sue the infringers have been contradictory and the exact position is still not clear. The Delhi High Court in Event and Entertainment Management Association v Union of India & Ors decided in favour of Novex while holding that it could operate its business within the scheme of Sections 18 and 30 of the Act as it held the copyright works of its members as an assignee, even if it was not registered as a copyright society under section 33. This case opened the gates for private companies which could now easily pass over the provisions of the Act and perform all the functions that copyright societies could, without being bound by the regulatory provisions that these registered societies were subjected to.
In a contradictory opinion, the Bombay High Court, in Leopold Café & Stores v Novex Communications imposed a temporary ban on Novex and restrained it from issuing a public performance license, which it holds as an assignee. The court observed that the plaintiff, as an agent of the copyright owner, cannot issue a license or sue in its own name as it has to be acting on behalf of the owner. This is in clear contrast with the status of copyright societies which are permitted to issue licenses, collect royalties and sue for infringement, all in their own name. However, in a recent judgment of Delhi High Court, it was held, yet again, that Novex had the right to sue against the defendants on two grounds, firstly, that there is no registered copyright society in that class of work (it is important to note here that PPL grants licenses in sound recordings as Novex but it is not registered) and secondly, that the prohibition under Section 30 is not applicable to sound recordings. The court reasoned that Section 30, which allows only copyright societies to engage in the business of issuing licenses, uses the phrase ‘literary, dramatic and musical works in sound recordings’ such that there is no prohibition for other bodies to engage in business of issuing licenses of sound recordings.
This opinion is highly problematic as it will give a freeway to private companies to function as copyright societies while avoiding the directions and regulations under the Act. It will also create a possibility of multiple societies (acting) granting licenses in the same class of work. This would add to the confusion of the users while trying to acquire and attain licenses, given that they are already required to acquire three different licenses- one for the sound recording, another for lyrics and composition and the third from singers. If there are multiple societies in each class of work, it would become impossible for hotels, DJs, etc. to play variety of music as they would have to research for each and every song and find out if they have the license from the appropriate society or company.
Currently, there are three registered societies i.e. IPRS, ISRA and Indian Reprographic Rights Organisation (“IRRO”) (for photocopying rights). PPL has still not been able to re-register itself and is operating as a private limited company acting as agent of copyright owners.The list also presently includes Novex Communications which provides licenses in sound recordings, but is not a registered society. Recently, Recorded Music Performance Limited (RMPL) has also submitted an application for registering itself as copyright society and grant license in sound recordings. Since PPL and Novex are not registered societies, the rule of one society per class of work would not be a hindrance for RMPL in getting registered. Nevertheless, it will create a scenario with three agencies granting rights in the same class of work, which would undoubtedly create complications for the users of these works.
The situation is far from normal at present and the possibility of multiple societies paving their way in the same class of work has become a near reality. Right before the New Year’s Eve of 2020, many clubs and party organizers expressed their concern on the consumption of their finances in acquiring expensive licenses from four different societies. If it is further left to the companies acting as societies to function as they want, the condition would lead to losses for both the parties, users as well as the owners.
The Way Forward—
The contradictory opinions of the courts have resulted in a lot of ambiguity on the issue and thus it is imperative for the Supreme Court to step in and rule in favour of one of the opinions so as to gain clarity on the matter. As far as the singular society rule is considered, India is not in a position to scrape it off and as claimed and advised by various scholars and lawyers, this rule is appropriate for India and the only change needed is in the implementation of the rules and the Act. The confusion regarding agent, assignee and society’s functions and status has been appropriately resolved by the Bombay High Court in Leopold wherein it was opined that the agent or assignee cannot operate in its own name unlike the copyright societies.
Further, it is imperative that the phrase ‘carrying on business of issuing licenses’ be clarified so as to prohibit private companies from taking undue advantage of the provisions of the Act. To that extent, the companies engaged solely in issuing licenses and collecting royalties for copyright owners, whether registered or not, should be deemed to be copyright societies and the regulations of the Act should be made applicable to them. It is imperative that the copyright office, in pursuance of the same, not register multiple societies to operate in the same class of work.
About the Author
Riya Thawani is a third year student pursuing B.A. LL.B(Hons.) at National Law University, Odisha.
Image Credits: Photon Legal (https://photonlegal.com/role-of-copyright-societies-in-the-music-industry/).
Himani Kohli and Pratik Das, ‘Legitimacy of IPRS and PPL’ (Mondaq, 4 September 2017). <https://www.mondaq.com/india/copyright/625742/legitimacy-of-iprs-and-ppl> accessed 20 September 2020.
Devika Agarwal, ‘After IPRS, PPL next to claim that it is not a ‘copyright society’ (Spicyip, 30 March 2015) <https://spicyip.com/2015/03/after-iprs-ppl-next-to-claim-that-it-is-not-a-copyright-society.html> accessed 24 September 2020.
Simrat Kaur, ‘Registration of RMPL as a Copyright Society – Will It Set the Stage for New Repertoire of Problems?’ (Spicyip, 28 October 2018) <https://spicyip.com/2018/10/registration-of-rmpl-as-a-copyright-society-will-it-set-the-stage-for-new-repertoire-of-problems.html> accessed 22 September 2020.
Manojna Yeluri & Artistik License, ‘Copyright Societies Monograph’ <https://artistiklicense.files.wordpress.com/2017/12/artistik-license_csm-2017.pdf> accessed 23 September 2020.