Calcutta High Court
Vodafone Idea Limited vs The Indian Performing Right Society … on 8 May, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
COMMERCIAL APPELLATE DIVISION
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
A.O (COM) No. 17 of 2024
CS-COM 140 OF 2024
IA NO. GA-COM 1 OF 2024, GA-COM 2 OF 2024,
GA-COM 3 OF 2024
VODAFONE IDEA LIMITED
Vs.
THE INDIAN PERFORMING RIGHT SOCIETY LIMITED
AND
APOT 300 OF 2024
CS-COM 93 OF 2024 (OLD NO. CS 23 OF 2018)
IA NO. GA-COM 1 OF 2024
VODAFONE IDEA LIMITED
Vs.
SAREGAMA INDIA LIMITED & ANR.
For the Appellant : Mr. S. N. Mookherjee, Sr. Adv.
Mr. Arunabha Deb, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Gourav Malhotra, Adv.
Ms. Ashika Daga, Adv.
Mr. Raunak Das Sharma, Adv.
Ms. Sanchali Bhowmik, Adv.
Mr. Yash Singhi, Adv.
Mr. Ayush Mitruka, Adv.
Mr. Karan Kaul, Adv.
For the Indian :Mr. Soumya Ray Chowdhury, Adv.
Performing Right Society Mr. Ameet Datta, Adv
Ltd. Ms. Susrea Mitra, Adv.
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Ms. Samina Khanum, Adv.
Ms. Ojasvi Gupta, Adv.
Mr. Kaustav Misra, Adv.
Mr. Mukul Kochhar, Adv.
Mr. Naimish Tewari, Adv.
Mr. Ritesh Ganguly, Adv.
Mr. Surajit Biswas, Adv.
Mr. Awani Kumar Roy, Adv.
For the Saregama India :Mr. Debnath Ghosh, Sr. Adv.
Limited Mr. Avijit Dey, Adv.
Hearing Concluded on : April 20, 2026
Judgement on : May 8, 2026
DEBANGSU BASAK, J.:-
Contents
Contentions of the Appeals ............................................................................................................ 3
Contentions of Vodafone ................................................................................................................. 6
Contentions of IPRS ....................................................................................................................... 11
Contentions of Saregama ............................................................................................................. 17
Nature of the Suits and Parties .................................................................................................. 17
Issues .................................................................................................................................................. 18
Analysis .............................................................................................................................................. 19
Act of 1957 and the subject amendments .......................................................................... 19
Definitions under the Act of 1957 ......................................................................................... 22
Sections 13, 14, 15, 17, 18 and 19 of the Act of 1957 ................................................... 24
Authorities on Copyright of Literary and musical works ............................................... 31
Rights of IPRS............................................................................................................................... 36
Answer to Issue (i) ........................................................................................................................... 39
Answer to Issue (ii) and (iii) ......................................................................................................... 39
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Contentions of the Appeals
1. Two appeals have been heard analogously as they
emanate out of the same impugned judgment and order dated
May 17, 2024 passed in IA GA 1 of 2018, IA GA 3 of 2019, CS
23 of 2018, IA GA 1 of 2018, IA GA 2 of 2018, IA GA 3 of
2018, IA GA 5 of 2022, CS 155 of 2018 and IA GA 1 of 2018,
IA GA 2 of 2019, IA GA 4 of 2021, CS 210 of 2018.
2. By the impugned judgment and order, learned Single
Judge has held that, the respondent No. 1 in AO (COM) 17 of
2024, has rights independent of the respondent in APOT No.
300 of 2024. Learned Single Judge has issued various
directions, in order to safeguard and protect the rights of the
Indian Performing Right Society Limited (IPRS).
3. AO (COM) No. 17 of 2024 and APOT No. 300 of 2024
are at the behest of a telecommunication service provider. For
the sake of convenience, the appellant in the two appeals is
referred to as Vodafone. The respondent in AO (COM) 17 of
2024 is referred to as IPRS for the sake of convenience while
the respondent No. 1 in APOT No. 300 of 2024 is referred to as
Saregama for the sake of convenience.
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4. The appellant Vodafone had filed an interpleader suit
being CS No. 23 of 2018 in which, Saregama and IPRS are
party defendants.
5. Saregama had filed CS No. 155 of 2018 seeking
injunction against Vodafone from exploiting the copyright in
the sound recording or copyright works in relation to Value
Added Services (VAS) provided by Vodafone.
6. IPRS had filed CS 210 of 2018 seeking injunction on
Vodafone from authorizing the public performance or
communicating to the public IPRS’s repertoire of musical and
literary works or any part of the same or doing any act
infringing the copyright of IPRS in any of the non-Saregama
works.
7. In the three suits from time to time, the parties had
filed several applications. In CS No. 23 of 2018, Vodafone had
filed IA GA No. 1 of 2018 seeking interim relief. Court had
passed an ad interim ex parte order dated October 1, 2018
therein restraining IPRS and Saregama from raising any claim
on Vodafone on account of royalty for the usage of VAS and
for depositing a sum of Rs. 3.5 crore with the Registrar
Original Side, High Court at Calcutta. In such suit IPRS had
applied by way of IA GA 3 of 2019 seeking vacating of the ex
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parte ad interim order dated October 1 of 2018. In such suit,
Court had passed an order dated July 7, 2022 and December
15, 2022 pursuant to which copies of the memorandum of
settlement and the new agreement dated September 20, 2019
executed between Vodafone and Saregama were brought on
record.
8. In the suit CS No. 155 of 2018, Saregama had filed IA
GA 1 of 2018 seeking interim relief. Vodafone had filed IA GA
2 of 2018 seeking stay of the suit. Vodafone had filed IA GA 3
of 2018 seeking impleadment of IPRS in that suit. IPRS had
filed IA GA 5 of 2022 seeking impleadment in the suit and
seeking restraint orders on the withdrawal of the sum
deposited in term of the same order dated October 1, 2018.
9. In CS No. 210 of 2018, IPRS had filed IA GA 1 of 2018
seeking an injunction restraining Vodafone from exploiting
any of the musical and associated literary works recorded in
the sound recording and cinematograph film without payment
of royalty to IPRS. In such application Court had by the order
dated October 12, 2018 allowed Vodafone to continue with its
VAS subject to deposit of a sum of Rs. 2.5 crores with the
Registrar Original Side. Vodafone had filed IA GA 2 of 2019 for
impleadment of Sony and Tips in the suit. IPRS had filed an
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application being IA GA 4 of 2021 seeking vacating of the
order dated October 12, 2018 or in the alternative injunction
restraining Vodafone from exploiting the right of IPRS without
making a payment of Rs. 18 crores for the period until March
31, 2019 and also to disclose the data and logs of the content
being exploited by the Vodafone.
Contentions of Vodafone
10. Learned Senior Advocate appearing for Vodafone has
contended that, Vodafone entered into an arrangement with
Saregama. By virtue of such arrangement with Saregama,
Vodafone is not responsible and liable to pay any royalty to
IPRS. According to him, Saregama and IPRS have to resolve
their claims amongst each other.
11. Learned Senior Advocate appearing for the appellant
has referred to the Copyright Act, 1957. He has contended
that, prior to the amendment to the Act of 1957 introduced in
1995, the producer became the owner of the copyright in the
musical and literary works. In support of such contentions, he
has referred to Section 2(o), (q), (uu), (xx), (y), 13 (1), (3), (4),
14(a), (c), (d), (e), 16, 17, 18, 19, 33, 34 and 35 of the Act of
1957.
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12. Learned Senior Advocate appearing for Vodafone has
submitted that, the High Court in AIR 1974 Cal 257
(Eastern India Motion Pictures Association Versus Indian
Performing Rights Society) held that, IPRS did not have any
right over the musical and literary works. He has contended
that, the decision of the Calcutta High Court was affirmed by
the Supreme Court in 1977 (2) SCC 820 (Indian Performing
Rights Society Versus Eastern India Motion Pictures
Association). He has contended that, subsequently such
decision was followed in AIR 1978 Cal 477 (Eastern India
Motion Pictures Association Versus Indian Performing
Rights Society).
13. Learned Senior Advocate appearing for the Vodafone
has contended that, both before and after the Copyright
(Amendment) Act, 2012, sound recording continues to be
recognized as a separate copyright. In support of such
contention, he has relied upon 2011 SCC OnLine Del 3113
(The Indian Performing Rights Society Versus Aditya
Pande). He has contended that, the Single Bench decision
was affirmed by the Division Bench in 2012 SCC OnLine Del
2645 (The Indian Performing Rights Society Versus
Aditya Pande). Supreme Court has also noted and affirmed
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the view of the Delhi High Court in 2008 Volume 13
Supreme Court Cases 30 (Entertainment Network India
Limited Versus Super Cassette Industries Limited).
14. Learned Senior Advocate appearing for Vodafone has
contended that, after the Copyright (Amendment) Act, 2012
and upon incorporation of musical and literary works into
sound recording, the producer, as the owner of such sound
recording, continues to be regarded as the owner of the work
in its composite form, as also the musical and literary works
embodied therein, subject to the statutory obligations to share
royalties with the authors thereof in respect of the musical
and literary works embodied in the sound recording. He has
contended that, where license is granted to exploit the sound
recording no separate licence is required in respect of musical
and literary works embodied therein. In support of such
contention, he has referred to and relied upon Sections 2(ff),
(ffd), (o), (p), (q), (uu), (xx), (y), 13, 14(a) (iv), (e), 17 (proviso), 18
(1st and 3rd proviso), 19(3), (8), (9), (10), 30, 33, (new 2nd
proviso), 33(3A), (4), (5) and 35 of the Act of 1957.
15. In support of the contention with regard to the change
of law consequent upon the amendments incorporated learned
Senior Advocate appearing for Vodafone has drawn the
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attention of the Court to a chart and comparison of
amendments. He has also relied upon 2017 Volume 11
Supreme Court Cases 437 (International Confederation of
Societies of Authors and Composers (ICSAC) vs. Aditya
Pandey and Others), 2021 SCC OnLine Del (1) (The Indian
Performing Rights Society vs. Entertainment Network
(India) Limited & Ors.) and order dated December 20, 2021
passed in Entertainment Network (India) Limited & Ors.
vs. The Indian Performing Right Society by the Division
Bench of the Delhi High Court.
16. Learned Senior Advocate appearing for Vodafone has
contended that, the consequence of the Copyright
(Amendment) Act, 2012 is that, the owner of the copyright in a
sound recording granting a licence to communicate such
sound recording to the public, no separate licence is required
from the owner of the musical and literary works embodied
therein. In such circumstances, he has contended that, where
the producer licences or assigns the musical and literary
works independently of the sound recording then the authors
of such works become entitled to share in royalty. Further,
where the musical and literary works embodied in a sound
recording are utilized independently thereof such as for the
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purpose of creating a different sound recording, such
utilization constitutes use of the musical and literary works
independent of the original sound recording and thus will
require royalties to be shared with the authors of the musical
and literary works.
17. Learned Senior Advocate appearing for Vodafone has
contended that, the assignments made by Saregama does not
pertain to utilizing of sound recording. It pertains only to the
utilization of musical and literary works and in substance
does not constitute an assignment of a copyright therein, but
merely confers an exclusive right to collect royalties. He has
contended that, inasmuch as the arrangement contemplates
sharing of royalties with the authors, IPRS operates only as a
collecting agent in respect of such works. In support of such
contention he has relied upon the deed of assessment dated
May 22, 2017, and the amendment agreement dated May 22,
2017. He has contended that the Articles of Association would
reflect that Section 19 read with Section 30 of the Act of 1957
have no application to the present proceedings as assignment
is limited to exclusive authorization.
18. Learned Senior Advocate appearing for Vodafone has
contended that, Vodafone settled CS No. 155 of 2018 which
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was instituted by Saregama. He has contended that, the terms
of settlement filed therein indicate that no amounts are
presently payable. Referring to the Settlement Agreement
dated September 20, 2019, Extension letter dated December
2, 2020, agreement dated September 20, 2019 and Extension
and Renewal agreement (CRPT) dated May 5, 2021, he has
contended that they were disclosed in the interest of full and
fair disclosure.
19. Learned Senior Advocate appearing for Vodafone has
contended that, Vodafone was complying with the interim
directions passed by the Division Bench. He has suggested
few modalities through which, the subsisting interim order
passed in the appeal may be continued till the disposal of the
appeal.
Contentions of IPRS
20. Learned advocate appearing for IPRS has referred to
the sequence of events and the list of proceedings. He has
contended that, the core issue is, whether Vodafone possesses
licence to commercially exploit the underlying contents of
sound recording, namely musical and literary works
incorporated in the sound tracks/sound recording or not.
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21. Learned advocate appearing for IPRS has contended
that, Vodafone has neither produced any evidence nor claimed
to have obtained licence from Saregama or any other music
company in terms of Section 30 read with Section 19 and 30A
of the Act of 1957 to commercially exploit musical and literary
works incorporated in the sound recordings.
22. Learned advocate appearing for IPRS has contended
that CS No. 23 of 2018 is an interpleader suit. Therefore,
Vodafone as the plaintiff in such suit cannot contend that,
IPRS has no right in the underlying musical and literary
works incorporated in the sound recordings. He has
contended that, the Master Agreement dated March 14, 2014
between Vodafone and Saregama is of an unspecified
duration. He has referred to Section 19 (5) of the Act of 1957
and contended that, even if copyright licence was granted by
Saregama, the same expired on March 30, 2019 in view of the
provisions of Section 19(5) of the Act of 1957 and
consequently, the same has ceased to be in force.
23. Referring to the Master Agreement dated March 14,
2014, learned advocate appearing for IPRS has contended
that, the same refers to further agreements to be entered into
between the parties therein, in the future. One of such
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agreement is dated June 16, 2016 by which, parties have
acknowledged that, Vodafone may be required to procure
licence from IPRS and that, procurement of such licence will
be the responsibility of Vodafone at its sole cost. According to
him, therefore, reading the Master Agreement dated March 14,
2014 and Clause 13 of the subsequent agreement dated June
16, 2016, have established that, Saregama did not grant any
licence to Vodafone to exploit the underlying musical and
literary works incorporated in the sound recordings of
Saregama.
24. Learned advocate appearing for IPRS has referred to
the order dated October 1, 2018 passed in CS No. 23 of 2018
where, the submission on behalf of Saregama was recorded to
the effect that, Vodafone’s obligation to IPRS was independent
to the obligations of Vodafone to Saregama.
25. Learned advocate appearing for IPRS has contended
that, Saregama did not have any right to grant licence in 2016
or in 2019 in respect of the underlying musical and literary
works incorporated in the sound recordings to Vodafone as
Saregama had already assigned the same to IPRS in 1993 and
in 2017.
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26. Learned advocate appearing for IPRS has contended
that, two agreements between Vodafone and Saregama were
produced in Court pursuant to orders passed by the Court.
Such agreements are, a Memorandum of Settlement dated
September 20, 2019 and a new agreement dated September
20, 2019. He has contended that, neither the Memorandum of
Settlement dated September 20, 2019 nor the new agreement
of the same date are of any avail because all of them expired
on March 31, 2021. Moreover, Vodafone has not amended its
plaint to incorporate the subsequent events. In any event the
two subsequent agreements are contrary to the contention of
the Vodafone that, no further licence is required from IPRS.
27. Learned advocate appearing for IPRS has contended
that, Saregama restricted right to sound recordings only.
Saregama has not granted right to commercially exploit the
underlying musical and literary works incorporated therein
after acknowledging that IPRS is the owner of the copyright in
respect thereof.
28. Learned advocate appearing for IPRS has referred to
various clauses of the Memorandum of Settlement dated
September 20, 2019 as well as the new agreement of the same
date and contended that, the same does not and cannot be
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construed to mean that, right in respect of underlying musical
and literary works incorporated in the sound recording have
been granted by Saregama to Vodafone. He has contended
that, Saregama could not have granted such right, since, it
did not possess the same and in any event assignment thereof
would be violation of Section 19(8) of the Act of 1957.
29. Learned advocate appearing for IPRS has referred to
the stand taken by Saregama in the proceedings and
contended that, Saregama never contended that it assigned
the underlying musical and literary works in the sound
recordings of Vodafone.
30. Learned advocate appearing for the IPRS has
contended that, Saregama and other music companies do not
have any legal authority or competence to grant licence in
respect of underlying musical and literary works incorporated
in the sound recordings to Vodafone for commercially
exploiting the same. In support of such contention, he has
drawn the attention of the Court to the various provisions of
the Act of 1957 as also the dates on which agreements were
executed by and between Vodafone and Saregama. He has
contended that, licence if any granted, is void in view of the
provisions of Sections 18, 19, 33 and 34 of the Act of 1957. He
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has submitted that, Vodafone did not obtain and could not
have obtained any licence or authorization from music
companies including Saregama for commercial exploitation of
the underlying musical and literary works incorporated in the
sound recordings or any right to collect royalties in respect of
such underlying works.
31. Learned advocate appearing for IPRS has contended
that, the authorities cited on behalf of the Vodafone are pre
amendment authorities and have no relevance to the facts and
circumstances of the present case.
32. Learned advocate appearing for IPRS has relied upon
1997 (2) MHLJ 55 (Mangal Bhikaji Nagpase vs. State of
Maharashtra and Another) in support of the contention, in
an interpleader suit, in the event the plaintiff claims any
interest in the suit property, such suit has to necessarily fail.
He has relied upon 2023 SCC OnLine Bom 944 (Indian
Performing Right Society Limited vs. Rajasthan Patrika
Pvt. Ltd.) to contend that Vodafone has to obtain licence from
IPRS.
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Contentions of Saregama
33. Learned Senior Advocate appearing for Saregama has
submitted that, the claims of his client vis-à-vis Vodafone
stands settled. He submits that, his client is not liable to pay
any amount to IPRS.
Nature of the Suits and Parties
34. The parties have settled one suit being CS No. 155 of
2018 out of the three suits.
35. In the two remaining suits essentially there are three
parties namely Vodafone, Saregama and IPRS. Vodafone is a
tele-communication service provider. IPRS is a copyright
society within the meaning of the Act of 1957. Saregama is a
company engaged in the manufacture, sales and publication
of sound recording including digital downloads of
cinematograph films songs as also non-cinematograph films
songs.
36. The two remaining suits revolve around competing
rights recognized under the Act of 1957. The three parties in
the two remaining suits claim competing rights.
37. Vodafone as a telecommunication service provider
introduced a value added service (VAS) for its customers.
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Such value added service (VAS) permitted customers to use
caller tunes and ring tones of songs both film and non-film.
38. Vodafone claims that Saregama possesses the
copyright of the sound recordings. Vodafone entered into an
arrangement with Saregama for use of the copyright of sound
recording.
39. According to Vodafone no further royalties are payable
to IPRS upon Vodafone entering into an arrangement with
Saregama. Saregama does not claim any amount from
Vodafone subsequent to the arrangement entered into
between them. While Saregama does not claim any amount
from Vodafone, it is also categorical that, it is not liable to pay
any royalties to IPRS that IPRS may be found entitled to under
the provisions of the Act of 1957 from Vodafone.
Issues
40. The following issues have fallen for consideration in
these appeals:-
(i) Do the amendments introduced by the Copyright
(Amendment) Act, 2012 allow IPRS to claim royalties in
respect of the underlying musical and literary works in
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a sound recording when such sound recording iscommercially exploited?
(ii) Do any music company including Saregama have any
legal authority or competency to grant licence in
respect of the underlying musical and literary works
incorporated in sound recordings to Vodafone for
commercial exploitation ?
(iii) Does Vodafone have licence to commercially exploit the
underlying contents of musical and literary works
incorporated in the sound recordings?
Analysis
Act of 1957 and the subject amendments
41. In order to arrive at the conclusions of the three issues
noted above, one has to assess the provisions of the Act of
1957 and the rights recognized thereunder.
42. Parties have referred to the legislative evolution of the
copyright law in India. It would appear from the statement of
objects and reasons of the Act of 1957, that, the existing law
relating to copyright as contained in the Copyright Act, 1911
and as modified by the Indian Copyright Act, 1914 had been
in existence prior to the Act of 1957 coming into force.
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43. The Act of 1957 has come into force on January 21,
1958. It had been enacted so as to amend and consolidate the
law relating to copyright. The Act of 1957 has been amended 8
times namely in, 1983, 1984, 1992, 1999, 2012, 2017 and
2021. The last two amendments have been introduced
through the Finance Act, 2017 and the Tribunals Reforms Act,
2021.
44. Largely the amendments that have been introduced to
the Act of 1957 with effect from June 21, 2012 by the
Copyright (Amendment) Act, 2012 are the bone of contentions
between the parties.
45. Parties have referred to the statement of objects and
reasons to the Amendment Act of 2012. Learned Single Judge
has referred to the statement of objects and reasons to the
Amendment Act of 2012 in paragraph 16 of the impugned
judgment and order.
46. The Amendment Act of 2012 has taken into
consideration, World Intellectual Property Organization
(WIPO), Internet Treaties, namely, WIPO Copyright Treaty
(WCT), 1996 and WIPO Performances and Phonograms Treaty
(WPPT), 1996. It has noted that, such treaties have set the
international standards in these spheres. It has also noted
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that, such treaties have addressed challenges posed to the
protection of Copyrights and related rights by digital
technology, particularly with regard to the dissemination of
protected material over digital works such as the Internet.
47. Statements of objects and reasons to the Amendment
Act 27 of 2017 has noted that the amendments sought to be
introduced to the Act of 1957 were framed in order to extend
protection of copyright material in India over digital works and
to amend the Act of 1957 to harmonize with the provisions of
two WIPO Internet Treaties, to the extent considered
necessary and desirable. It has noted that, WCT deals with
issue for the author of literary and artistic work such right,
writings, computer programmes, original data bases, musical
works, audio and visual works, works of fine art and
photographs. It has also noted that WPPT protects the rights
of the performers and producers of phonograms. Although,
India has not signed the two treaties, in order to encourage
creativity for promotion of culture, enterprises and innovation
so that creative people realize their potential and to keep pace
with the challenges for a fast growing knowledge and modern
society, the amendments have been proposed.
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48. The provisions of the amendments that were
introduced to the Act of 1957 have to be considered and
understood on the anvil of the statements of objects and
reasons to the Amendment Act 27 of 2012.
Definitions under the Act of 1957
49. Parties have highlighted various provisions of the Act
of 1957. Parties have referred to the definitions appearing in
the Act of 1957. Section 2(ff) has defined communication to
the public to mean making any work or performance available
for being seen or heard or otherwise enjoyed by the public
directly or by any means of display or diffusion other than by
using physical copies of it, whether simultaneously or at
places and times chosen individually, regardless of whether
any member of the public actually sees, hears or otherwise
enjoys the work or performance so made available. It has
explained that, communication through satellite or cable or
any other means of simultaneous communication to one or
more household or place of residence including residential
rooms of any hotel or hostel shall be deemed to be
communication to the public.
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50. Section 2(ffd) of the Act of 1957 has defined a
copyright society to mean a society registered under Sub-
Section (3) of Section 33. Section 2(o) of the Act of 1957 has
defined literary work to include computer program, table and
compilations including computer data base. Musical work has
been defined in Section 2(p) to mean a work consisting of
music and includes any graphical notations of such works but
not to include any words or any action intended to be sung,
spoken or performed with the music.
51. Section 2(uu) of the Act of 1957 has defined producer
to mean a person who takes initiative and responsibility for
making the work in relation to a cinematograph film or sound
recording. Section 2(xx) has defined sound recording to mean
a recording of sound from which such sound may be produced
regardless of the medium on which such recording is the
medium by which the sounds are produced. Section 2(y) has
defined work to mean any of the works namely the literary,
dramatic musical or artistic works, cinematograph film, or a
sound recording.
52. Section 2(ff) has been amended lastly by the
Amendment Act of 2012. Section 2(o) has been amended by
the Amendment Act of 1994 and subsequently, by the
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Amendment Act of 1999. Section 2(e) has been amended by
the Amendment Act of 1999. Section 2(p) has been amended
by the Amendment Act of 1994 while Section 2(uu) has been
inserted by the Amendment Act of 1994.
Sections 13, 14, 15, 17, 18 and 19 of the Act of 1957
53. The Act of 1957 has been divided into 15 chapters.
Chapter III has dealt with copyright. Section 13 has delineated
the works in which copyright subsists. Section 13(1)(a) has
recognized copyright to subsist in original, literary, dramatic,
musical and artistic works. Section 13(1)(c) has recognized
subsistence of copyright in sound recording. In the two
subsisting suits, the dispute revolve around the right, if any,
of IPRS to collect royalties for the original literary and musical
works in sound recording.
54. Section 13 of the Act of 1957 has delineated various
copyrights that subsist in respect of different classes of work.
Literary and musical works are independent copyright which
have been recognized under Section 13(1)(a) of the Act of 1957
to subsist as that of sound recording recognized in Section
13(1)(c) thereof.
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55. Sub-sections (2) and (3) of Section 13 of the Act of
1957 have stipulated that copyright in respect of literary,
musical and sound recordings, amongst others, shall not
subsist in the eventualities specified there occurring. Such
eventualities have not arisen in the facts and circumstances of
the present case.
56. Section 14 of the Act of 1957 has specified the
meaning of copyright. It has explained the meaning of all the
categories of copyright noted in Section 13(1) of the Act of
1957 including literary, musical and sound recording
copyrights.
57. Section 15 of the Act of 1957 has made special
provisions for copyright in design registered or capable of
being registered under the Design Act, 2000. Section 16 of the
Act of 1957 has stipulated that, no copyright shall exist except
as provided under the Act of 1957.
58. Chapter IV of the Act of 1957 has dealt with the
ownership of copyright and the rights of the owner. Section 17
of the Act of 1957 falling under Chapter IV has identified the
first owner of copyright. Essentially, it has stipulated that, the
first owner of the copyright shall be the author when it is a
case of literary, dramatic or artistic works if not employed to
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do so by any other person. In the eventuality the author is
employed by any employer to create the work then the
employer becomes the first owner.
59. Section 18 of the Act of 1957 has dealt with the
assignment of copyright. It has recognized that the owner of
the copyright or the prospective owner in a future work may
assign to any person the copyright either wholly or partially
and either generally or subject to limitations either for the
whole of the copyright or any part thereof. Section 18 of the
Act of 1957 has four provisos. The 2nd, 3rd and 4th provisos to
Section 18 have been introduced by the Amendment Act of
2012 with effect from June 21, 2012.
60. The 3rd and 4th proviso to Section 18 (1) of the Act of
1957 has assumed significance in the facts and
circumstances of the present case since, they have dealt with
the literary or musical work and the sound recording. The 3rd
and 4th proviso have made every assignment of copyright
made contrary to the stipulations therein void.
61. The 3rd proviso has stipulated that, the author of
literary or musical works included in a cinematograph film
shall not assign or waive the right to receive royalties to share
on equal basis with the assignee of copyright for the utilization
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of such work in any form other than the communication to the
public of the work along with the cinematographic film in
cinema hall. Any assignment to the contrary shall be void. The
4th proviso has stipulated that the author of the literary or
musical works included in the sound recording but not
forming part of any cinematograph film shall not assign or
waive the right to receive royalties to be shared on equal basis
with the assignee or copyright for any utilization of such work
except to the legal heirs of the authors or to a collecting
society for collection and distribution of any assignment to the
contrary shall be void.
62. The effect of the 3rd and the 4th proviso under Section
18 (1) of the Act of 1957 is that with effect from June 21, 2012
that is the date when the such provisos have come into effect,
all assignments excepting such portions which are saved, are
void.
63. It is nobody’s case before us that, the authors in the
literary or musical works included in the sound recording
forming part of a cinematographic film as also those not
forming part of a film, have assigned their rights to Vodafone.
In our view, these two provisos have recognized that, copyright
in literary or musical works included in a cinematograph film
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or in a sound recording but not forming part of any
cinematograph film, exist and that, such copyrights have to be
assigned validly in accordance with the Act of 1957. In
absence of valid assignment in accordance with the Act of
1957, the persons using such works would be guilty of
violation of the provisions of the Act of 1957.
64. Sub-section (2) of Section 18 of the Act of 1957 has
recognized that, an assignee of a copyright shall be treated as
the owner of the copyright and that the provisions of the Act of
1957 shall have affect accordingly. Sub-section (3) of Section
18 of the Act of 1957 has explained that the expression
‘Assignee’ as respect the assignment of the copyright in any
future works includes the legal representative of the assignee,
if the assignee expires before the work comes into existence.
65. Section 19 of the Act of 1957 has laid down the mode
of assignment. Sub-section (1) thereof has specified that, no
assignment of the copyright in any work shall be valid unless
it is in writing signed by the assignor or by his duly authorized
agent. Sub-section (2) has stipulated that, the assignment of
copyright in any work shall identify such work, and shall
specify the right assigned and the duration and territorial
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extent to all such assignment. Sub-section (3) has dealt with
the amount of royalty and other consideration payable.
66. Section 19 (4), (5) and (6) of the Act of 1957 have dealt
with the time period and the territorial extent within which
the assignment of copyright may be exercised. Sub-section (7)
of Section 19 has stated that, nothing in Sub-sections (2), (3),
(4), (5) and (6) shall be applicable to assignments made before
the coming into force of the Copyright (Amendment) Act, 1994.
67. Sub-sections (8), (9) and (10) of Section 19 of the Act of
1957 have been inserted by the Amendment Act, 2012 with
effect from June 21, 2012. Sub-section (8) has stipulated that,
assignment of copyright in any work contrary to the terms and
conditions of the right already assigned to a copyright society
in which the author of the work is a member shall be void.
Sub-section (9) has stipulated that no assignment of copyright
in any work to make a cinematograph film shall affect the
right of the author of the works to claim an equal share of the
royalties and consideration payable in case of utilization of the
work in any form other than for the communication to the
public of the work, along with the cinematograph film in a
cinema hall. Sub-section (10) of Section 19 has stipulated that
no assignment of copyright in any work to make a
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cinematograph film shall affect the right of the author of the
work to claim an equal share of the royalties and
consideration payable for any utilization of such work in any
form.
68. In the context of copyright existing in the underlying
literary and musical work in a sound recording forming part of
a cinematograph film or a non-cinematograph film songs
Section 13(4) of the Act of 1957 has stipulated that, copyright
in the cinematograph film or a sound recording shall not affect
the separate copyright in any work in respect of which or
substantial part of which, a film, or, as the case may be, a
sound recording is made. Read with Section 19(10) of the Act
of 1957, Section 13(4), in our understanding, has, in fact,
recognized that, copyright in the underlying literary and
musical works in a sound recording both in case of
cinematograph film or a sound recording shall exists. Since,
Section 13 of the Act of 1957 has recognized the existence of
such right, while Section 19(9) and (10) have ensured that, no
assignment of copyright in any work to make a cinematograph
film or to make a sound recording shall affect the right of the
author to claim an equal share of royalties and consideration
payable in case of utilization of the work.
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69. In our understanding, therefore, the Act of 1957 has
recognized the right of the author of literary and musical work
in a sound recording to receive royalties and consideration in
the event, sound recording is used for commercial exploitation
other than when, such sound recording is forming part of
cinematograph film which is exhibited in a cinema hall.
Therefore, author of underlying literary and musical work in a
sound recording is entitled to royalties and other
consideration when such sound recording is commercially
exploited. Same and except when, a sound recording forms
part of cinematograph film and such cinematograph film is
exhibited in a cinema hall.
Authorities on Copyright of Literary and musical works
70. One of the authorities that the parties have cited,
Eastern India Motion Pictures Association (supra) is a
decision of the Division Bench of this Court. The issue that
had fallen for consideration in such proceeding was whether
the composers of lyrics and music, have copyright in the
musical work incorporated in the soundtrack of a
cinematograph film or not. IPRS had succeeded on such issue
before the Copyright Board. Such issue has been answered by
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holding that, when a composer of lyric or music composes for
the first time for valuable consideration for purposes of
cinematograph film, the owner of the film at whose instance
the composition is made, becomes the first owner of the
copyright in the composition. The composer acquires no
copyright at all either in respect of the claim or sound track
which he is capable of assigning.
71. The appeal from the Calcutta High Court’s decision
noted above has resulted in the celebrated Indian
Performing Right Society Ltd (supra) of the Supreme Court.
Affirming the decision of the Calcutta High Court, it has held
that, when a cinematograph film producer commissions a
composer of music or a lyricist for reward or valuable
consideration to make the cinematograph film, or to compose
the music or lyric thereof, that is, the sounds for incorporation
or absorption in the soundtrack associated with the film, the
producer becomes the first owner of the copyright therein and
no copyright subsists in the composer of the lyric or music so
composed unless there is a contract to the contrary between
the composer of the lyric or music, on the one hand, and the
producer of the cinematograph film, on the other.
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72. Indian Performing Right Society Ltd (supra) has
highlighted the “un-Indian feature in the Indian Copyright
Act” in paragraphs 19 onwards. These observations have
formed part of the amendments introduced to the Act of 1957.
73. Levy of tariffs by the Performing Right Society Ltd had
fallen for consideration before the Division Bench in Indian
Performing Right Society Ltd and others (supra). The
Copyright Board did not interfere with the tariff introduced by
the Performing Right Society Ltd of London. The Division
Bench had set aside such order of the Copyright Board on the
strength of the ratio laid down in Indian Performing Right
Society Ltd (supra) of the Supreme Court.
74. Supreme Court in International Confederation of
Societies of Authors and Composers (supra) has considered
the Single Bench decision of the Delhi High Court in Aditya
Pandey and Others (supra) as also the Division Bench of the
Delhi High Court arising therefrom, in Mr. Aditya Pandey
and Another (supra). Supreme Court has held that, there is a
distinction between assignment of copyright of a work and
licence to use the work. It has held that, in assignment,
normally, ownership of the copyright is transferred but in the
case of licence another person is allowed to use the work of
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the author. It has also clarified that, with effect from June 21,
2012 in view of Sub-Section (10) of Section 19, the assignment
of the copyright in the work to make sound recording which
does not form part of any cinematograph film, shall not affect
the right of the author of the work to claim an equal share of
royalties and or consideration payable for utilization of such
works in any form.
75. In Entertainment Network (India) Limited (supra)
Supreme Court has interpreted Section 31 of the Act of 1957
in the light of the disputes and differences in regard to
broadcasting of songs in the free to air private FM radio. It has
noted that, in a given case, where, the owner of the copyright
has refused to republish or allow republication or allow
performance or refuse to allow communication of the
copyright both to direct grant of licence to republish the work,
perform the work in public or communicate the work as the
case may be.
76. A Single Judge of the Delhi High Court in the
Entertainment Network (India) Limited and others (supra)
has held that, the 2012 Amendment does not alter the
provisions of the Act of 1957. It has held that, Section 19(10)
of the Act of 1957, does not mean that utilization of the
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underlying literary and musical works as embodied in the
sound recording entitles the ownership of the copyright in the
underlying works to demand equal share of royalties and
consideration payable in the sound recordings. It has read
Section 19(10) of the Act of 1957 as not affecting the right of
the author of the underlying work in sound recording to claim
share in royalties payable for utilization of such works
although identically as in the sound recording but not in any
other form. Significantly, such observations have been made
in suit filed prior to the amendments of 2012 having been
introduced to the Act of 1957.
77. The Division Bench of the Delhi High Court in a batch
of appeals being Entertainment Network (India) Limited
and Others (supra) has noted various issues falling for
consideration in such appeal. One of such issues which the
Division Bench has noted is whether the 2012 Amendment of
the Act of 1957 alters the position of law as it exists prior to
the 2012 amendment where separate authorization for licence
was not necessary from the author of musical and literary
works embodied in the sound recording when such sound
recording was broadcast through radio and whether the 2012
amendment is only clarificatory in nature.
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Rights of IPRS
78. Section 13 of the Chapter III of the Act of 1957 has
recognized that, copyright in original literary and musical
works shall subsist throughout India, subject to the
provisions of Section 13 and other works of the Act of 1957.
We have limited ourselves to literary and musical works and
sound recordings inasmuch as, these three rights are subject
matter of the disputes between the parties.
79. Parties have acknowledged that, copyright in literary
and musical works as also sound recordings exists. Parties
have not claimed that such copyrights in those three
categories stand affected by reason of any of the events
specified in Section 13 of the Act of 1957. Section 17 of the
Act of 1957 has identified the first owner of the copyright
mentioned in the categories under Section 13. The first
ownership of such copyright is again subject to the provisions
of the Act of 1957.
80. As has been noted above, three provisos have been
added to Section 18(1) of the Act of 1957 by the Amendment
Act of 2012. The three provisos that have been introduced are
the 2nd, 3rd and 4th. The 3rd and 4th provisos have made any
agreements contrary to those two provisos void. Essentially,
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the 3rd and the 4th provisos have permitted the author of
literary and musical work included in a cinematograph film
and the author of literary and musical works included in the
sound recording but not forming part of any cinematograph
film to assign their copyright to the heirs of such authors or to
the copyright society or the collecting society as the case may
be. Apart from such assignments or grant of licence, all
agreements have been declared to be void.
81. Section 19(10) of the Act of 1957 has specified that, no
assignment of the copyright in work to make a sound
recording which does not form part of the cinematograph film
shall affect the right of the author of the work to claim an
equal share of royalty and consideration payable for any
utilization of such works in any form.
82. Section 2(d) of the Act of 1957 has defined author to
mean in relation to literary work, the author of the work; in
relation to a musical work, the composer; and in relation to a
cinematograph film or sound recording, the producer. Section
2(y) of the Act of the 1957 has defined work to mean, in the
context of the present case, a literary work or musical work or
a sound recording.
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83. Therefore, in our understanding, upon reading Section
18(1), 2nd and 3rd provisos, Section 19(10) and Sections 2(d)
and (y) of the Act of 1957, grant of licence or any agreement
entered into by the author of literary and musical works other
than the assignment to their heirs or to a copyright society or
a collecting society as the case may be, is void. The producer
of a cinematograph film can play a cinematograph film at a
cinema hall without being liable to pay any royalty to any of
the authors of the literary or the musical works, if such
producer has engaged them for the purpose of production of
such cinematograph film. The entirety of the cinematograph
film has to be played at a cinema hall for the producer of the
cinematograph film not to be liable to pay to the authors of
the literary and the musical works incorporated in such films.
Any other method of use will attract the liability of payment of
royalties to such authors. Any agreements contrary to the
provisions of Section 18(1) and 19(10) are void by virtue
thereof.
84. The Amendments to the Act of 1957 incorporated by
the Copyright Amendment Act, 2012, have ushered in a
paradigm shift in the rights of owners of literary and musical
rights. They are now protected and entitled to receive royalties
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for the use of their literary and musical works incorporated in
the sound recordings. This paradigm shift in the copyright of
the musical and literary works embodied in the sound
recording when, such sound recording is commercially
exploited, has been recognized in International
Confederation of Societies of Authors and Composers
(supra).
Answer to Issue (i)
85. In view of the discussions above, the first issue is
answered in the affirmative. The amendments introduced by
the Copyright Amendment Act, 2012 allow IPRS to claim
royalties in respect of musical and literary works in a sound
recording when such sound recording is commercially
exploited.
Answer to Issue (ii) and (iii)
86. Chapter VII of the Act of 1957 has dealt with Copyright
Society. Section 33 of the Act of 1957 has modulated the
manner and method as also the rights of the Copyright
Society. A substantial portion of Chapter VII has been
substituted by the Copyright Amendment Act, 1994. With the
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coming into existence of the Copyright Society, rights of the
authors of musical and literary works have vested with a
Copyright Society incorporated in terms of Section 33 of the
Act of 1957. However, an individual author is at liberty to exit
such a society, if such individual has chosen to do so.
87. The Act of 1957 has therefore, by various
amendments, permitted the Copyright Society to claim
royalties in respect of musical and literary works in a sound
recording when such sound recording is commercially
exploited.
88. In course of hearing of the appeal, our attention has
been drawn to various deeds executed between Vodafone and
Saregama and other parties. Two deeds of assignments
executed between Tips Cassettes and Records Company and
IPRS and a deed of assignment between Saregama and IPRS
have been relied upon. There is also a deed of assignment
executed between Sony Music Entertainment (India) Private
Limited and IPRS dated June 30, 2000.
89. Parties have drawn our attention to the Master
Agreement dated March 14, 2014 entered into between
Vodafone and Saregama along with two annexed agreements
dated March 14, 2014 and annexed agreement dated May 31,
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2014, December 1, 2015 and June 16, 2016. The terms and
conditions of these agreements, do not make it the right of
IPRS to collect royalties in respect of musical and literary
works in sound recording when such sound recording is
commercially exploited by Vodafone. These agreements, do not
survive Section 19(10) of the Act of 1957 to the extent, where,
it is proposed to construe these agreements to mean a denial
of such right of IPRS. On the parity of the same reasoning, the
subsequent agreements also entered into by Vodafone with
the sound recording companies, do not negate the right of
IPRS to royalties in respect of musical and literary works in a
sound recording when such sound recording is commercially
exploited.
90. Parties have disclosed various agreements that,
Vodafone and Saregama have entered into with regard to the
sound recordings. None of these agreements have provided for
payment of royalties that the IPRS is entitled to. On the
contrary, some of the agreements between Vodafone and
Saregama have noticed that, IPRS is entitled to royalties upon
Vodafone commercially exploiting sound recordings. In any
event, agreements between Vodafone and Saregama cannot
affect the right of IPRS, if they otherwise exists.
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91. In view of the discussions above, the second and third
issues are answered in the negative. Saregama does not have
any legal authority or competence to grant licence in respect
of underlying musical and literary works incorporated in
sound recording of Vodafone for commercial exploitation.
Vodafone does not have licence to commercially exploit the
underlying contents of sound recording incorporated in the
sound recordings without express permission from IPRS.
92. In these appeals, Coordinate Benches had passed
orders requiring deposit of money with Joint Special Officers
dated May 22, 2024 and June 12, 2024.
93. In view of the discussions above, it would be
appropriate that, all money lying in deposit with the Joint
Special Officers and with the Registrar, Original Side, be made
over to the IPRS on IPRS submitting an undertaking in writing
in the pending suits that, IPRS will refund such amount to the
rightful owner thereof, in the event, IPRS does not succeed in
the suit.
94. We have found no ground to interfere with the
impugned judgment and order.
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95. A.O (COM) No. 17 of 2024 and APOT 300 of 2024 along
with connected applications are disposed of without any order
as to costs.
[DEBANGSU BASAK, J.]
96. I agree.
[MD. SHABBAR RASHIDI, J.]
Later:-
Prayer for stay made on behalf of the Vodafone is
considered and refused.
[DEBANGSU BASAK, J.]
I agree.
[MD. SHABBAR RASHIDI, J.]
