M/S Phonographic Performance Limited vs State Of Punjab Through Secretary

Civil Writ Petition No.7772 of 2011 (O&M) Date of decision:27.07.2011

M/s Phonographic Performance Limited ...Petitioner

versus

State of Punjab through Secretary, Department of Home Affairs & Justice, Civil Secretariat, Chandigarh, and others. ....Respondents

CORAM: HON'BLE MR. JUSTICE K. KANNAN ----

Present: Mr. Gaurav Chopra, Advocate, with Mr. Anurag Chopra, Advocate, for the petitioner.

Mr. Arvind Mittal, Additional Advocate General, Punjab, for respondents 1 to 3.

Mr. G.S.Punia, Advocate, for respondent No.4. ----

1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ----

K.Kannan, J.

I. Cause of action for the petition

1. The petitioner seeks for the relief of issue of writ of

certiorari to quash the order/letter dated 13.04.2011 issued by the

Additional Director General of Police, who is arrayed as the 3rd

respondent in the writ petition. By the impugned order dated 13.04.2011

(Annexure P-8), 3rd respondent has given certain directions to all the

District Police chiefs (Police Commissioners, all Senior Superintendents Civil Writ Petition No.7772 of 2011 (O&M) -2-

of Police) of Punjab, in response to a complaint from Mr. Dalip Bhanot

claiming to be a President of Light Sound & DJ Association, Amritsar

(Punjab). The complaint is purported to have been made against the

employees of the petitioner-Company pleading for suitable action on the

ground that the members of the complainant's association are being

harassed by the petitioner for making false complaints as though their

(DJs') public performances constitute violation of some copyrights

claimed by the petitioner-Company. The impugned order records the

complaint of the DJ Association that in several cases, criminal actions

are being pursued at the instance of the petitioner without appropriate

verification whether there had been any violation of copyrights and the

3rd respondent has, therefore, observed as under:

".....all Police Chiefs (Police Commissioner of Punjab &

Senior SSPs of Punjab) will check all such cases on basis of

real facts and only then they will lodge FIRs and not under

any pressure from PPL. Also all court cases against DJ

associations should be reviewed."

The impugned order contains a second part which is also reproduced

hereunder:-

"The compulsion of procuring licenses for DJ by PPL

Company is not correct according to rules, as this is the

work of Government and till Punjab Government like other

states issues any information in this regard the DJ

associations cannot be pressurized for any such licenses.

Thus PPL is advised to present their side of the case in front Civil Writ Petition No.7772 of 2011 (O&M) -3-

of the Government and must wait for any further

directions/notifications from the Government. Till then the

working of DJ associations should not be interfered with by

PPL."

II The portion of the impugned order that requires judicial review

2. I may state even at the outset that in so far as the letter states

that the police will lodge FIRs only after verifying all facts and not under

any pressure by the petitioner-Company, there cannot be a cause for any

grievance. The whole case must be only examined from the perspective

of whether the members of DJ Association would require any licence,

for, the letter states that the petitioner should present the case before the

Government and must wait for directions, as if to suggest that even if the

petitioner lodges a complaint for copyright violation, no action could be

initiated till the government signals approbation.

III. A brief survey of the provisions under the Copyrights Act that the petition traverses

3. The petition details the powers which the petitioner enjoys

under the Copyright Act by express references to the definitions

contained under Section 2 (xx) defining "sound recordings", Section 2

(ff) defining "communication to the public", Section 2(y) defining

"work", Section 34 defining "the power to administer the right of owners

of the work", Section 51 defining the circumstances when copyright

could be said to be infringed, Section 63 that refers to offences of

infringement of copyright or other rights conferred by this Act, and

Section 64 that empowers the police to seize infringing copies and the Civil Writ Petition No.7772 of 2011 (O&M) -4-

exclusive privilege registered to the registered society to grant any right

to sound recordings by license by virtue of Sections 30, 33 and 34 and

the compliance that the impugned letter cast of new requirement of

having to satisfy the Government and explained the stand in order that

the police takes appropriate action even in cases where violation of

copyright assured.

IV. The statement in defence and the apprehensions of misuse

4. The State has itself not filed the reply but the case is

contested only at the instance of the DJ Association at whose instance

the impugned order had been issued. The grievance of the DJ

Association is, it is still confusing as to the respective rights of the

petitioner-Company and IPRS that holds the right to administer the

copyrights for musical works and without a clear delineation of the

respective rights, the respondents' public performances cannot be

complained of as constituting any copyright violations. The counsel for

the DJ Association would contend that there is no transparent

functioning of the petitioner and several persons descend at party venues

and collect their ransom by falsely giving that the violations are made

and that those persons represented the petitioner-Company. There is no

authentication for any of the persons or proper identity of persons as

representing the petitioner-Company and the police merely acts to the

dictates and whims to register the complaints and harass the members of

the DJ Association. It is further contended by the learned counsel

appearing on behalf of the respondent Association that there could be no

prohibition against any of the public performances at marriage parties, Civil Writ Petition No.7772 of 2011 (O&M) -5-

since it is not covered under the definition of "public houses" or "events"

coming under any of the categories which the Government of India

notification reserves. The further grievance is that the petitioner's list of

members contains several defunct Companies. It is not possible to verify

whether the petitioner represents the owners of copyrights in any one

particular sound recording and the petitioner is not prepared to divulge

details any more than giving a list of members of the petitioner's Society.

V. The content of right for 'sound recording', as protected under the Copyrights Act

5. The petitioner's claim is that it is a registered society under

Section 33(3) of the Copyright Act of 1957, by virtue of which the

petitioner has a right to carry on copyright business in "sound

recordings". Referring to the provision of the Copyright Act, the

petitioner claims that it has the exclusive authorization to administer the

rights of its members in sound recordings. Section 34(1) of the Copyright

Act read with Rule 14-G of the Copyright Rules of 1958, authorizes the

petitioner to protect, administer and manage the same by granting/issuing

the licenses in respect thereof. The petitioner has annexed a list of

members (Annexure P-2) of the petitioner-Association, whose rights the

petitioner company espouses. It is further averred that Super Cassettes

Industries Private Limited has since become an associated member of the

petitioner-Society and it has granted exclusive authorization to it to

administer its communication, public rights in their sound recordings and

has authorized the petitioner to issue licence for public performances in

the territory of India in respect of its musical catalogue and its new

releases effective till 30.05.2013. As evidence of proof that the petitioner Civil Writ Petition No.7772 of 2011 (O&M) -6-

is the only copyright's society, the petitioner has filed copy of the letter

approved by the Ministry of Human Rights Development to the

Department of Education, Government of India, addressed to the

Director (Operations) of the petitioner-Company (PPL) authorizing the

petitioner to do copyright business in sound recordings. The same letter

also refers to the permission to do copyright business to Indian

Performing Right Society Limited (IPRS). The letter records the fact that

since public performance of music involves both mechanical rights in

sound recordings as well as rights of composers, performers etc. who

have contributed towards the making of the music, licenses from both the

societies governing these rights are required to be taken for playing

recorded music whose copyright administration vest in these respective

societies.

6. The counsel appearing on behalf of the respondent argued

that there is a confusion between the respective rights enjoyed by the

owner of sound records and the owner of the musical works. According

to him, they operate in the same field and a DJ playing music in a public

place cannot be said to infringe any of the petitioner's right. To him, a

music played by a DJ must be understood as only the user of musical

works and no right of sound recordings is ever infringed. I reject this

objection as untenable, for, such a contention fails to recognize how

'musical works' and 'sound recordings' are defined under the Act.

Section 2(p) reads as follows:-

"musical work" means a work consisting of music and

includes any graphical notation of such work but does not Civil Writ Petition No.7772 of 2011 (O&M) -7-

include any words or any action intended to be sung, spoken

or performed with the music"

The expression is defined to mean any composition that could be

represented by any graphical notation but it does not include the lyrics

intended for singing or reciting or performing with music. The use of

graphic notation itself is not a pre-requisite as the definition of composer

in section 2(ffa) states that "composer", in relation to a musical work,

means the person, who composes the music regardless of whether he

records it in any form of graphical notation. By way of illustration, a

traditional rendering of Indian music is comprised of rhythm set through

talas and composed to a musical lilt through swaras. The lyrics are yet

another component which are the words that go into music. They are the

literary component of music. When a performer sings the lyrics with

music, he expounds an artistic work. In other words, if lyrics composed

is set to music and a vocal rendition is made, it is literally a combination

of three 'works'. The lyric is the 'literary work', the musical notation is the

'musical work' and the actual performance by the singer is the 'artistic

work', as admirably summed up by a decision in Sankar Biswas Versus

Salil Chatterjee -(1992) 96 CWN 540. The fourth dimension could be

added now to understand what a sound recording is. The term "sound

recording" is defined under Section 2(xx), as follows:-

"Section 2(xx)- "sound recording" means a recording of

sounds from which such sounds may be produced regardless

of the medium on which such recording is made or the

method by which the sounds are produced."

Civil Writ Petition No.7772 of 2011 (O&M) -8-

It means a recording of sounds in any medium which when played

reproduces that sound. Under the definition, it could be any medium on

which such recording is made. It could also be by any method by which

the sound is produced. Recording could be made of the voice or from an

instrument or any form that is discerned by senses. As examples, it could

be in a CD, in a cassette, in a gramophone record, or in the device which

not merely records it but also is capable of reproducing it. A record itself

is meaningful only when it can be reproduced. It can be a music which is

recorded; it could be a speech, which is recorded; or it could any sound

which is recorded. Every one of such recording that is capable of

reproduction in any form goes for sound recording. Where do these

rights reside? They reside in author or authors of each one of the above.

Section 2(d) that defines an 'author' means, (ii) in relation to a musical

work, the composer; ...(v) in relation to a cinematograph film or sound-

recording, the producer. When is the author's right infringed? An

'infringing copy' is defined section 2 (m) that includes 3 components

viz., (i) in relation to a literary, dramatic, musical or artistic work, a

reproduction thereof otherwise than in the form of a cinematographic

film; (ii) in relation to a cinematographic film, a copy of the film made

on any medium by any means; (iii) in relation to a sound recording, any

other recording embodying the same sound recording, made by any

means.

7. The petitioner-Company represents a right to manage the

rights of persons who are owners/authors of such copyrights and

seeks for action against such infringing copy through performance or Civil Writ Petition No.7772 of 2011 (O&M) -9-

reproduction by persons without licence. This right is independent of

rights of persons, who may have scripted the words; sung the songs or

composed the rhythm or melody that is music. This distinction is brought

even through Government notification and it recognizes IPRS and PPL

as license holders for respectively the musical works and the sound

records. What IPRS could claim in respect of the music that is composed

is independently of the petitioner's rights which are recorded and

reproduced. A DJ that plays a CD or mixes sounds in his consoles

reproduces from the already existing devices which have captured that

music or sound or talk. That is enough to say that he reproduces a sound

recording and to that extent to be said to have infringed the right, if he

does not hold a licence.

VI. Performance in marriage parties, whether included in the notification and controlled by tariff regime

8. To advert to the objection by the learned counsel appearing

on behalf of 4th respondent that the categories specified in the

Government gazette does not include a DJ performance in a marriage

hall, it misses the wide expression made through as "event" which is

"birthday and other functions in commercial premises". "Other

functions" would mean just as well a pre-marriage, marriage or post

marriage function. The learned counsel for the 4th respondent seeks to

contend that a marriage function is a religious ceremony and cannot be

understood as falling within other functions referred to as an event. We

are not discussing the issue of a Prohit or a Moulvi or a Priest

performing marriages or infringement of any of their religious functions Civil Writ Petition No.7772 of 2011 (O&M) - 10 -

or trenching upon their activities. We are discussion g a situation where a

reproduction of sound recording takes place and communicated to the

public in the manner defined in Section 2(ff):

"communication to the public" means making any work

available for being seen or heard or otherwise enjoyed by

the public directly or by any means of display or diffusion

other than by issuing copies of such work regardless of

whether any member of the public actually sees, hears or

otherwise enjoys the work so made available.

Explanation.-- For the purposes of this clause,

communication through satellite or cable or any other means

of simultaneous communication to more than one household

or place of residence including residential rooms of any

hotel or hostel shall be deemed to be communication to the

public.

It would make no difference, even if it were to take place in a religious

ceremony. A sound reproduction by a DJ performing at such an event is

surely a function that is connected to marriage. It is not as if a DJ's

performance amounts to conducting the marriage. Marriage is definitely

different from the functions connected to the marriage and the tariff

regime applies to performances at such functions even if it has a

religious overtone.

VII. Examination of evidence produced by the petitioner for enforcement of rights and the apprehensions as expressed by the respondent Association

9. The vesting of the right of the petitioner-Company as duly Civil Writ Petition No.7772 of 2011 (O&M) - 11 -

authorized to administer the public performance rights in their sound

recordings as the sole designated body to issue public performance

licences in the country cannot be denied at all, in view of the gazette

notification of India published on August 15-21, 2009. This purports to

be a partial modification of the earlier notice dated 11th September,

2010/September 16th, 2005. The notification sets out the tariff scheme

and gives also the categories of various activities which could be

administered through such licenses. In part A of the notification, several

categories like, background music, music quizzes, jute boxes etc. are

given and in part B, events and special features entertainment are also set

out. Since the petitioner categorizes the activities of DJs as event

managers and entertainers in various public functions, the petitioner

points out the tariffs that are laid down in Entry 33-A that includes

promotions, fashion shows, road shows and and events described in

Entry 33-D as 'birthdays and other functions in commercial places'

where DJs' performances are displayed. 'Part C sets out temporary

embodiment/storage/transfer/hire for DJ/sound equipment service and

the differential tariffs, depending on the number of tracks used and the

actual fees thereof. The counsel for the petitioner points out that there is

no requirement of having to go groping about the tariffs payable, or to

complain that there are ad hoc demands. According to the counsel, the

gazette gives a clear delineation of categories and fairly a quick reckoner

of the regime that sets out varying tariffs depending on the size of halls,

the number of tracks used, the duty of having to pay the licence fees etc.

The petitioner also states that there are authorized representatives of the Civil Writ Petition No.7772 of 2011 (O&M) - 12 -

petitioner-Company, who can issue licences and collect the tariffs

payable. The petitioner also gives a list of all the members, who are

operating in various places in India and refers to the fact that even the 4th

respondent (President) has registered himself as the licensee with the

petitioner through their authorized representative for the period from

01.01.2007 to 01.01.2008 in his personal capacity. The petitioner has

also filed before this Court a special power of attorney showing one Mr.

Sanjeev Wadhwa as the lawfully constituted agent to do all acts on their

behalf in the State of Punjab, Chandigarh region and northern regions of

India. The petitioner has also produced various copyright agreements

which the petitioner-Company has entered into with several sound

recording Companies of various popular Companies in India to show that

the petitioner-Company is authorized as owner of copyrights in sound

recording to administer such rights in accordance with law. In the light of

express provisions provided under the Copyright Act and the evidence

produced as regards details of membership, gazette notification,

authorized representatives who could act on their behalf, it will be futile

to argue that the respondents do not know the authenticity of the

petitioner as a registered society to file complaints or their duty to pay

licence fee for their performances. The counsel for the petitioner states

that the petitioner has perforce to approach the High Court every time to

register a complaint by the non-cooperative stand of the police and the

self imposed fetters through the impugned order compelling the

petitioner to approach the Government and negotiate for how they shall

carry on with their activities.

Civil Writ Petition No.7772 of 2011 (O&M) - 13 -

10. To further allay the fears that the respondents could be

harassed by any person claiming to be a representative of the petitioner,

it can surely be expected that the person that makes a demand for

production of a licence or a DJ performing at a public event, has a right

to demand the manner of authority under which he purports to act on

behalf of the petitioner. The same way the police to whom a complaint

has been given is entitled to secure adequate proof of the authorization of

the person, who lodges the complaint and who seeks to represent the

petitioner-Company. If the question again relates to whether the

petitioner could claim to be authorized to represent the author/ owner of

the copyright to administer complaint on violation on his behalf, the

petitioner could be compelled to show the agreement with the owner of

the copyright of the particular sound recording in respect of which

violation is complained of. In these days where lakhs of musical works

are recorded, it could be difficult to carry the agreement at all times that

the petitioner-Company has it with all its members. However, at a time

when a complaint is registered and when investigation is undertaken or

civil action is led for damages, it is needless to state that the petitioner-

Company ought to show the factual foundation that it is authorized to

represent and administer the copyright of sound recording of the

particular work from the owner of such copyright. The petitioner can

disseminate the information to anyone demanding information by hosting

a website that will contain details of all members of the Company, who

are the authors/ owners of the respective copyrights of the sound

recording and the list of items with identifiable code numbers or names Civil Writ Petition No.7772 of 2011 (O&M) - 14 -

of recordings so that for all parties concerned, namely, the person that

complains of violation of copyright, the person that is required to have a

licence and the enforcer of law to know whether a copyright exists of the

subject matter.

VIII. Duty of Police to take action for copyrights violation

11. The police machinery is relevant in so far as the violation of

copyrights which Section 51 delineates and penalty that the Act imposes

for such violations. The violations give rise to civil law remedies under

Chapter XII of the Copyright Act through Section 53 to Section 62 and

remedies through Criminal Courts by constituting the violations as

offences under Chapter XIII through the provisions commencing from

Section 63 to Section 70. Section 64 of the Copyright Act empowers the

police to seize infringing copies and Section 66 empowers the Court to

try any offence under the Act to direct that all copies of the work or of

plays in the possession of the offenders to be delivered up to the owner

of the copyright. Section 70 gives the power to a Judicial Magistrate Ist

Class to try the offence under the Act. In the face of such express

provisions, there can be no doubt that the petitioner-Company shall be

entitled to enforce the rights secured under the Act, both through civil

law as well as by setting criminal law in motion.

12. The petitioner claims that there are just four complaints

registered in the State of Punjab, out of which, two at Ludhiana, one at

Amritsar and one at Moga. It is further stated that three of the complaints

were registered only after the intervention of this Court in exercise of its

powers under Section 482 CrPC. While circumspection and sure proof of Civil Writ Petition No.7772 of 2011 (O&M) - 15 -

what the complaint states are certainly desirable, a suspicion at every

turn against the complainant borne out of ignorance of the law enforcing

machinery, the police, would certainly lead to a situation of brazen

violation of copyrights, which the law assiduously protects. It should be

more to require proof of what the petitioner complains as constituting a

violation of copyright than an ostrich like approach, digging its face

fathoms deep under surface of earth. Such an attitude cannot help the

rule of law; indeed, it will amount to giving an undeserving shot in the

arm to a violator of law. The police machinery is bound to enforce the

law, without requiring the petitioner to approach the government for

further directions, for every copyright violation when public performer in

any event (that would include a marriage ceremony) reproduces a sound

recording without licence from the copyrights society.

IX. Disposition

13. Under the circumstances, the impugned letter in so far as it

directs the petitioner-Company to represent to the Government and wait

for further direction or notification from the Government is quashed. No

fresh notification from Government is necessary nor can the petitioner be

compelled to make any representation to the Government in the manner

spelt out in the impugned letter. The police is bound to act on legitimate

complaints of copyright violations in the manner explained above.

14. The writ petition is allowed on the above terms.

(K. KANNAN) JUDGE 27.07.2011 sanjeev