Two recent legal notices sent by the illustrious musician Ilaiyaraaja have reignited the debate over the ownership of rights over musical compositions synchronised in movies.
The first notice was sent to Sun Pictures for using the song “Va Va Pakkam Va”, composed by Ilaiyaraaja for the 1983 movie Thanga Magan, without his permission in the teaser of the upcoming movie Coolie. The second notice was directed at the producers of the Malayalam blockbuster Manjummel Boys for using the music “Kanmani Anbodu Kadhalan”, without authorisation. This song, also composed by Ilaiyaraaja, was originally synchronised in the 1991 movie Guna.
Anecdotal evidence suggests that the use of this song significantly contributed to the success of the Manjummel Boys and despite this, no money was paid to Ilaiyaraaja. The producers claim that money was given to music recording companies who own the rights to the music. Many mainstream media outlets have made use of this opportunity, possibly due to conflicts of interest (as many news organisations own music recording or movie production companies) or to fan local sympathies, to portray Ilaiyaraaja as a greedy musician obstructing legitimate uses by movie companies, recording companies, and singers.
However, a closer examination of these controversies may reveal that Ilaiyaraaja might be drawing attention to a broader issue that lyricists and music composers in India have faced for over four decades.
Copyight in music
It is important to view songs as a composite work, wherein different kinds of copyright co-exist. For example, independent copyrights exist for lyrics, with the lyricist recognised as both the author and first owner of copyright. Similarly, musical compositions have their own independent copyrights, with the music composer identified as the author and first owner of the copyright. Singers also have certain rights under copyright law as performers. Additionally, sound recording companies that bring together artists enjoy protection over the recordings they produce. The producer of a sound recording is considered the author and first owner of copyright in that recording.
When it comes to the question of rights or infringement of rights in a song, one has to carefully map all the copyrights involved. For example, when the recording of a song is streamed online or played in a restaurant, the rights of all the concerned copyright holders are involved. On the other hand, if someone performs the same music using their own instruments and artists, instead of the original sound recording, only the rights of the lyricist and music composer would be infringed. Copyright law has explicitly recognised this independent existence of rights through different provisions and it is necessary to keep this basic principle in mind while analysing controversies like the present one.
Did the Supreme Court make a mistake?
Regrettably, in a judgement delivered in 1977, the Supreme Court did not give due attention to this dimension. In the Indian Performing Rights Society v. Eastern India Motion Pictures Association case, the court adjudicated the question of who owns the rights over a musical composition synchronised in a movie.
Justice Jaswant Singh, who authored the judgment, ruled in favour of movie producers by stating that “… the rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act.” Justice Krishna Iyer, who concurred with the opinion, added what he called a “footnote” to the judgement, suggesting a more harmonious construction of the provisions to balance the interests. According to Justice Krishna Iyer, while the producer may have the rights to use the music as part of the exhibition of the film, music composers retain the rights for other uses, including playing music in a restaurant or radio station. He also opined that works falling within the ambit of Section 17(c) would be an exception to this approach.
This should prompt us to carefully look at Section 17 of the Copyright Act 1957, which provides some limited exceptions to the general principle that authors are the first owners of copyright in their works. Section 17 (b) lists certain specific subject matters like cinematograph films and photographs. For those subject matters, the provision specifies that when such works are created in return for a valuable consideration, the person for whom such work was created will become the first owner of the copyright, in the absence of any agreement to the contrary. However, the list of subject matters mentioned in Section 17 (b) doesn’t include literary and musical works. If the court had realised that the dispute in question concerned copyright ownership in musical works, and not cinematograph works, the court could have only concluded that Section 17(b) is inapplicable.
Section 17 (c) covers works created in the course of employment and vests the first ownership in the employer. Through various decisions, courts in India have highlighted several factors that may be considered in determining employer-employee relationship. Application of those principles would suggest that when a music composer like Ilaiyaraaja or A. R. Rahman compose a piece of music that might be synchronised in a movie, they are not in an employee-employer relationship with the movie producer. This means that Section 17(c) is also not applicable. The net result is that with respect to musical works that are synchronised in a movie, lyricists and musical composers retain their copyright ownership and there is no automatic vesting of ownership on movie producers.
2012 Amendments
The Supreme Court ruling in the 1977 IPRS case was followed by various high courts, leading to constant rejection of claims for royalty by lyricists and composers. Lyricists and composers were deprived of monetary remunerations even when their creations were making millions through new modes of use such as caller tunes and ring tones. Thanks to the efforts led by Javed Akthar, the parliament made certain amendments to the copyright legislation in 2012. Apart from adding certain additional author-friendly changes, these amendments were expected to reclarify the basic concept of independent existence of rights.
Correcting the copywrongs
In a recent judgment by the Calcutta high court, in a matter involving the use of music by telecom companies, the court has clarified that the authors of the literary and musical works incorporated in the sound recordings have the right to receive royalties. While it is a ray of hope for the correction of injustice, as the Coolie and Manjummel Boys controversies indicate, lyricists and composers in India often face backlash from different corners, including mainstream media, when they attempt to enforce their minimum rights under copyright law.
If renowned composers like Ilaiyaraaja struggle to receive acknowledgement and monetary remunerations for the use of their works, one can imagine the plight of the vast majority of emerging artists in the country. It is high time that the courts in India and policymakers take more concrete steps to correct the copywrongs emerging from the 1977 Supreme Court judgment.
Arul George Scaria is an Associate Professor of Law and LL.M. Chair at the National Law School of India University, Bengaluru. He is also an affiliate faculty of the CopyrightX and PatentX courses offered under the auspices of Harvard Law School. He was formerly an Associate Professor and Co-Director of the Centre for Innovation, Intellectual Property Property and Competition (CIIPC) at NLU Delhi.
