Recently, the Hon’ble Bombay High Court, in the matter of Indian Performing Rights Society Limited vs. Music Broadcast Limited, while granting interim reliefs in favour of Indian Performing Rights Society (IPRS), decided the lis as to whether a broadcasting organisation needs a separate licence for underlying literary and musical compositions incorporated within a sound recording (underlying works) when a sound recording is broadcast. The judgement of the Hon’ble Bombay High Court is based on the amendments to the Copyright Act, 1957 (hereinafter, “Copyright Act” or “the Act”) introduced by way of the Copyright (Amendment) Act, 2012.
The defence taken by the radio broadcasters in the suit filed by IPRS was that there is no requirement under law for obtaining a separate licence for underlying works when a sound recording is broadcast with a valid licence. The argument of the radio broadcasters was that the amendments to the Copyright Act in 2012 had no effect in respect of a licence for underlying works as the relevant provisions i.e. Section 13 and Section 14 were not amended and the amendments to Sections 17, 18, and 19 of the Copyright Act were not relevant to this claim.
The Hon’ble Bombay High Court while analysing Section 13 and Section 14 along with the provisions Sections 17, 18, and 19 of the Copyright Act held that while Sections 13 and 14 are subject to other provisions of the Act, such restrictions do not exist in Sections 18 and 19. Therefore, Sections 13 and 14 must be read in conjunction with Sections 17, 18, and 19 of the Copyright Act, and consequently, the 2012 amendments contemplated a change in the position of law in favour of authors of underlying works. It must also be borne in mind, that the purpose of the 2012 amendments was to ensure that authors, being lyricists and composers of the underlying works incorporated in sound recordings, are given a share of revenue when the underlying works were communicated as part of the sound recordings and therefore the Court was confronted with two interpretations, the one making the amendments otiose and the second to give meaning to the amendments. The author of a sound recording is not the lyricist or composer but the producer of the sound recording, and therefore to ensure a share to the lyricist and composer, the interpretation of the amendments could not have ignored the need for a licence for underlying works when a song recording is communicated. In its analysis, the Hon’ble Bombay High Court considered earlier judgments, relating to the 2012 amendments to the Copyright Act, the first being the order of the Hon’ble Intellectual Property Appellate Board which supported the view that the 2012 amendments contemplate the requirement of a separate licence to be obtained for underlying works when a sound recording is broadcast and also the judgment of the Hon’ble Delhi High Court which, though did not contain a detailed analysis of the impact of the 2012 amendments, did observe that a separate licence for underlying works was not required. The Hon’ble Bombay High Court delved into the Judgment of the Hon’ble Delhi High Court and pointed out that the said judgement didn’t take into account the language of Sections 13 and 14, which made Sections 13 and 14 subject to the other provisions of the Copyright Act, as opposed to Sections 18 and 19 of the Copyright Act. Further, the Hon’ble Delhi High Court had stated in its judgement that it was not required to consider the law post the 2012 amendments in the facts of the case before it.
A significant decision that IPRS needed to take was whether the 2012 amendments clarified the position or changed the position of law. This is obviously a very difficult strategic decision to take because IPRS has always maintained that a separate licence fee is payable for underlying works and has been litigating this for decades even prior to the 2012 amendments. In the present matter IPRS stated that it is only looking at the law post the 2012 amendments which perhaps meant less obstacles to deal with. There is one area of submission which I tend to disagree with IPRS and that is where IPRS argued that under the unamended Copyright Act, such exclusive rights in the underlying works of the authors were protected, and that the Supreme Court in the case of IPRS vs. Eastern Motion Pictures Association had erroneously interpreted the provisions of the unamended Copyright Act to hold against the authors of such underlying works. The Hon’ble Bombay High Court, of course, rejected this argument outright.. The fact remains that the Hon’ble Supreme Court in IPRS vs. Eastern Indian Music Pictures Association was considering that IPRS did not have owners as members, but only authors, being lyricists and composers. Again, this was in the context of a cinematographic film and the Hon’ble Supreme Court held that a producer defeats the rights of the authors under Section 17 of the Copyright Act. The important issue to consider here is that the Supreme Court merely found that the producers defeated the rights of the Authors and not that the rights of the authors extinguish. In other words, the rights transferred from the authors to the producers, who in turn may have transferred it to music companies. The rationale that follows is that the rights do exist, however, the owner of the rights, is not the Author. This is where I believe that IPRS could have pitched its argument differently, however, this is perhaps academic now given that the owners of underlying works have become members of IPRS.
The fact remains that post 1977 owners became members of IPRS and therefore this issue is no longer relevant. The Hon’ble Bombay High Court also considered the judgement in ICSAC vs. Aditya Pandey. In the said judgement, the Hon’ble Supreme Court, though not looking at the law post the 2012 amendments, and leaving the questions of law prior to 2012 open, observed that the 2012 amendments did create an entitlement in favour of Authors. The seed in ICSAC Judgment of the Supreme Court in 2016 has now germinated into the Hon’ble Bombay High Court’s Judgement.
(READ THE HON’BLE BOMBAY HIGH COURT’S JUDGEMENT HERE)
 Order dated 28th April 2023 in [Commercial IP Suit No. 193 of 2022].
 Order dated 31st December 2020 of the Hon’ble Intellectual Property Appellate Board.
 Order dated 4th January 2021 in [C.S.(OS) 666 of 2006].
 (1977) 2 SCC 820.
 (2017) 11 SCC 437.