OWNERSHIP OF THE COPYRIGHT IN SOUND RECORDING -AN ILLUBSIONARY OR ACTUAL RIGHT

The burning question in today's business scenario is whether the owner(s) of copyright in the sound recording ceased to be the owner thereof for all practical purposes and intent? Whether owner has lost all his rights to decide and determine as to whom he ought to permit broadcasting of his recordings and with whom not to enter so? Whether the owner of copyright in sound recording is entitled only for the royalty and has lost all other rights in respect of the sound recording he owns? Whether the ownership is illusionary and not real? Whether the legal position is same for the broadcasters of Television programs?

Introduction

The recent past has seen remarkable change in the Indian eco-legal scenario, Intellectual Property Rights being one of them. A neglected Branch of law suddenly assumed great importance in the eyes of Corporates, Legal Professionals and even Law Students. The obvious reason is fierce competition at the market place and imitation and duplicate products resulting in need for better protection of the Trade Marks, Copyrights and Patents.

Legal Provisions

Copyright in India is governed by the Copyright Act, 1957, which provides that Copyright in the property subsists in:

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recordings (Section 13).

The purpose of the Copyright Act is to grant a statutory right and protection to the author / owner of the work in which copyright subsists, as reorganization of his efforts and to grant him monopoly rights for its exploitation (commercial or otherwise). Interestingly this Act does not require compulsory registration of the copyright for availing the benefits and protection available to the owner under the Act and the registration of copyright has been made optional. Owner of the Copyright work has been empowered to grant license to various persons for use of his work. (Section 30)

Nonetheless, in the interest of the general public the copyright board has been empowered to grant compulsory license (i) where the copyright work is withheld from the public (Section 31); (ii) in case of unpublished Indian work (Section 31A); (iii) to produce and publish Translation (Section 32); (iv) to reproduce and publish work for certain specified purposes (Section 32A).

The understanding of the industry experts on the subject was that under the provisions of section 31 of the Act, the Copyright Board can grant a compulsory license on the satisfaction of the following conditions :—

(1) The work in respect of which the compulsory license is sought is withheld from the public.

(2) Owner has refused to make the work available to the public.

(3) The ground(s) for refusal by the owner are not reasonable.

(4) Owner is being afforded an opportunity of being heard.

(5) The license is granted subject to the payment of royalty fixed by the Copyright Board.

Recent Supreme Court Landmark Judgment

The Hon'ble Supreme Court in its landmark judgment of “M/s Entertainment Network (India) Ltd. v. M/s Super Cassettes Industries Ltd” delivered on 16 th May, 2008 by a b ench constituting of Hon'ble Mr. Justices S.B. Sinha and Lokeshwar Singh Panta, has clarified the legal position in this respect. The Supreme Court, after taking stalk of the legal position and also the international treaties entered into by India and the legal position in different countries of the world, held that ‘There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property.'

A copyright, however, unlike a trade mark is a right created under the Act as is evident from section 16 thereof. When an author of a copyright and any other claim a copyright, it is subjected to the provisions of the Act.

The legal position of the Copyright in original work and sound recording stands on the different footing as copyright in original literary, dramatic, musical and artistic works not only remains protected in the entire life time of the author but also until 60 years from the beginning of the calendar year next following the year in which the author dies. Whereas in case of sound recording, it subsists only for 60 years. Nonetheless, it does not mean that right in sound recording is, in any way, inferior to that of right in original literary work etc. There are indications in the Act that sound recording and literary, dramatic or musical work operate on different fields and cannot be equated.

Though the Copyright law has not been amended in terms of the International Conventions, the Supreme Court has, at several times, applied the International Conventions to interpret domestic laws.

The Supreme Court has also taken note of the fact that both “ Berne ” and “ Rome ” Conventions provide for the liberalized process of the broadcasting of the sound recordings.

International Position

Under section 109 of the Australian Copyright Act, a free to air broadcaster of a sound recording requires a license and all that is to be done is to give an undertaking to pay a royalty for broadcasting of published sound recording.

China follows the Berne Convention for International recordings. Domestic recordings can be broadcasted on the radio or television without any license or payment. However, commercial broadcast requires a license and all that is to be done is to give an undertaking to pay a reasonable sum which in the event of dispute will be decided by a competent tribunal.

In Japan , Director General of the Cultural Affairs Agency will determine the compensation required to be paid by a Broadcaster. Non-profit transmission of works already made public is exempted from paying any royalty.

In U.K. statutory licensing and compulsory licensing exists.

Law As Laid Down

To put it in the common man's language, the law laid down by the Supreme Court is-

Sound Recording stands on a different footing than that of other literary, dramatic or musical works and there is no statutory requirement that a compulsory license can be granted only once the work is withheld from the public.

Compulsory License can be granted even if the work is not withheld from the public and is made available to the public, but on owner's refusal to permit a broadcaster to broadcast the work. Refusal also means demanding of the royalty or compensation which is high or imposing unreasonable restrictions therein.

Only because the compulsory license has been granted to one person, it will not take away the jurisdiction of the Copyright Board to grant compulsory license to another person(s).

Critical Analysis of the Judgment

We are moving towards the market driven economy in which all the market forces are permitted to play its role for the determination of demand and supply and we have travelled much on such road since 1991 when India had slowly started deregulating its economy. In such a scenario will the Landmark Judgment act as a catalyst or accelerator for the industry? Is it necessary to curtail the contractual rights of the owner of the sound recording of the copyright on the premises that the owner enjoys the monopoly powers and therefore even though the work is available to the general public but since the owner has refused to allow the broadcast through a particular channel, Copyright Board has the power to grant compulsory license to the broadcaster? Or is it the International Conventions which has tilted the mind of the Hon'ble Judges to the effect?

If it is the monopoly, it is worth mentioning that the contractual powers of even the monopolistic establishment in respect of its dealing with the customers / buyers / purchasers were not taken away under the MRTP Act. If the legislature thought it prudent not to place any restraint on the contractual powers of monopolistic undertaking which, obviously, controls a sizable portion of trade and commerce in the field in India, is their any justification for doing so in case of a Music Company? Besides, had it been only the monopoly rights which the owner of the sound recording enjoys, there would not have been any reasons as to why the owner of other copyrights (who also happen to enjoy the monopoly powers) ought to have been exempted. Or are we in the transition phase and the concept of monopoly powers will be carried forward to curtail the contractual rights of all the copyright owners, in times to come? Unfortunately, only time has the answer.

Conclusion

Law of the land is the ratio laid down by the Hon'ble Court and it has to be adhered to. But the question of the competence of the Hon'ble Supreme Court to legislate is still a debatable issue.

Last but not the least is whether the proposition laid down above in case of broadcasting of sound recordings will also hold good for the broadcasting of the programs by televisions channels? Unfortunately, the obvious answer seems to be, yes.

The factors which have resulted in the delivery of the judgment in issue are many, whatsoever the reasons may be, but it is an undoubted position that at least the sound recording industry will be hit by the judgment to a large decree. This also opens a watch gate for other industries which are copyright protected that the concept of monopoly, international conventions and applicable law in various other countries may, at some point of time, also take away their contractual rights and confer on the Copyright Board the power to grant compulsory license.

Praveen Agrawal
Advocate on Record, Supreme Court of India
dokania100@gmail.com