A copyright society is a registered collective administration society under Section 33 of the Indian Copyright Act, 1957 (interchangeably used as Indian Copyright Act or Act). A minimum of seven members is required for the registration of a society. Generally, only one society is registered to conduct business related to the same category of work. A copyright society has the authority to issue or grant licenses for any work that is protected by copyright or any other right provided by the Indian Copyright Act. Specifically, a copyright society is responsible for issuing or granting licenses for literary, dramatic, musical, and artistic works incorporated in cinematograph films or sound recordings. To fulfill this role, the copyright society must be duly registered under the Indian Copyright Act. The registration granted to a copyright society is valid for a period of five years and can be renewed periodically before the end of each five-year term upon submission of a request in the prescribed format.
At present there are five prominent registered Copyright Societies in India. We have briefly summarized the evolution, role, functions and challenges of the societies below.
Indian Performing Rights Societies (IPRS)
The IPRS came into existence on 23rd August 1969. The IPRS is a representative body of owners of music, viz. composers, lyricists (or authors) and the publishers of music and is also the sole authorized body to issue licenses for usage of Musical Works & Literary Music within India.
The role of IPRS is to legitimize use of copyrighted music by music users by issuing them licences and collecting royalties for and on behalf of IPRS members i.e. authors, composers and publishers of music. Royalty thus collected is distributed amongst members after deducting IPRS’s administrative costs. Composers are artists who are better known as music directors, authors are better known as lyricists, publishers of music are the music companies, or those who hold publishing rights of the musical & literary Works. Authors and Composers are sometimes referred to as writers which can mean any or both of them.[1]
The IPRS has been actively fighting legal battles demanding recognition of moral rights of authors and music composers. The Indian Copyright (Amendment) Act of 2012 was implemented to protect the rights of authors, including their moral rights and the right to benefit from their original literary, musical, sound recording, and cinematographic works. However, despite the amendment, the moral rights of creators were not duly acknowledged. They not only faced challenges in claiming royalties from music producers of sound recordings for their original works, even courts were weary of recognizing the rights of authors of underlying work in sound recordings. This led to confusion and a sense of injustice among creators in the industry.
However, recently in a breakthrough judgement in favour of IPRS, the Bombay High Court in the cases of Indian Performing Right Society Limited vs. Music Broadcast Limited[2] and Indian Performing Right Society Limited vs. Rajasthan Patrika Pvt. Ltd.[3] brought about clarity in terms of enforcing rights and distributing royalties within the entertainment industry, thereby easing the prolonged struggle faced by original creators. The ruling establishes that when a lyricist or composer grants permission to a producer to use their work in a sound recording for a cinematographic film, the producer possesses rights over the entire cinematographic film rather than the individual underlying works.
IPRS was successful in nullifying the stand taken by the Supreme Court in 1977 in IPRS v. Eastern Indian Motion Pictures Association[4] where the court interpreted that once the underlying works become a part of the cinematograph film, the author of the underlying work loses their rights owing to Section 17 (b) and Section 17 (c) of the Indian Copyright Act. The Bombay High Court relied on the Parliamentary Standing Committee Report, where the Committee had mentioned that independent rights of authors of literary and musical works in cinematograph films are being wrongfully exploited by the producers and music companies by virtue of Supreme Court judgment in Indian Performing Rights Society vs. Eastern India Motion Pictures Association (AIR 1977 SC 1443) and suggested for amendments to rectify this. The Bombay High Court in a single order recognized the rights of the authors of underlying works in clear terms.[5]
Indian Reprographic Rights Organisation (IRRO)
This copyright society was established in the year 2000 under the Section 33 of the Indian Copyright Act, 1957. The primary reason behind its establishment is to safeguard and represent the rights of authors and publishers in India. It is internationally affiliated with global organizations such as International Federation of Reproduction Rights Organisations (IFRRO).
Functions of IRRO include accepting mandates from authors for the exclusive authorization to administer the right of original work through issuance of licenses and collection of license fees on behalf of authors.
It issues blanket licenses to organizations annually, after the payment of an annual fee. It covers use of the work for the entire year. The copyright society is indemnified by the licensees if any of the work is copied beyond the terms and conditions of the license.
IRRO is responsible for distributing licensing fees to its members, based on its distribution scheme, after deducting up to 15% of the collected amount for administrative expenses.
Its functions also include entering into bilateral agreements with foreign copyright societies and distributing license fees to Indian members based on the distribution scheme.[6]
M/s Cinefil Producers Performance Limited
On April 18, 2023, M/s Cinefil Producers Performance Limited (CPPL) was officially registered by the Central Government as a copyright society under Section 33(3) of the Indian Copyright Act. This society comprises film producers and other rights holders in the domain of cinematographic film works.[7]
It will be intriguing to observe the dynamics and interactions between various copyright societies associated with cinematographic films, including areas such as music, where the rights are usually underlying and/ or overlapping. In a recent ruling in the year 2022, by Kerala High Court in Satyam Audios v. Jimmy Alias[8], the holder of rights in cinematographic films sought an injunction against the holder of audio rights, who also possessed corresponding commercial rights. The injunction was prayed against the holder of audio rights, claiming that he was using unauthorized still images from the movies for promotion purposes. However, the High Court declined to grant this relief, stating that the use of still images did not infringe the rights in cinematographic films.
Recorded Music Performance Limited (RMPL)
Recorded Music Performance Limited (RMPL) is an entity dedicated to the management and licensing of public performance and radio broadcasting rights on behalf of its member companies. On May 22, 2018, RMPL submitted an application to the Registrar of Copyrights seeking registration as a 'Copyright Society' specifically operating in the domain of 'sound recording works'. The licenses granted by RMPL are subject to conditions, are non-exclusive, and have a limited duration within which they can be exercised.
On June 18 2021, the Registrar of Copyrights granted due registration to RMPL as a Copyright Society under sub-section (3) of Section 33 of the Indian Copyright Act.
Despite Section 33(3) of the Indian Copyright Act stipulating that typically only one copyright society can be registered for conducting business in the same category of works, RMPL India has become the second registered Copyright Society in the class of 'sound recording works'. The first society in this category was the Phonographic Performance Limited India (PPL), which held copyright society registration status from 1996 until May 2014. PPL applied for re-registration in May 2013 but later requested to withdraw its application in a letter to the Registrar in May 2014. In the letter, PPL stated that it did not consider itself a copyright society and instead regarded itself as a private company governed by the Indian Companies Act. Subsequently, PPL's registration application was rejected by the Registrar of Copyrights, compelling PPL to approach the Delhi High Court. One of their pleas before the court was to prevent the government from processing any other applications for registering a copyright society for sound recordings. The court denied this relief’; however, noted that the government should not take any actions inconsistent with the possibility of PPL's registration application being revived based on the outcome of the case.
In an order[9] dated April 11, 2022, the Delhi High Court provided relief to both RMPL and PPL in their dispute regarding registration as a copyright society. The Court concluded that the most appropriate course of action would be a temporary measure, wherein the Government of India should consider PPL's application for re-registration while awaiting the outcome of the appeal. The Court has further clarified that the registration of RMPL would not influence the decision regarding the registration of PPL, considering the general restriction on having multiple societies in the same category of works. Additionally, before concluding, the Court has made a preliminary observation that PPL had received indications of potential registration through correspondences from the Government of India, giving them a sense of hope.
Indian Singers Rights Association (ISRA)
ISRA is the sole Copyright Society in India administrating the rights of singers as a category of performers. A singer is the owner of the performer’s rights in a song. As such, they have the inalienable right to receive royalties when others use their performance for commercial purposes.
The Right to Receive Royalty (R3) can only be assigned to either the legal heirs of a singer or a collecting society for collection and distribution. ISRA collects R3 on behalf of its members and provides a Collection Clearance Certificate (C3) to those users who wish to commercially use the work of ISRA’s members.
Music users who wish to make use of songs sung by ISRA members obtain a clearance certificate from the copyright society by paying the royalty as per prescribed fees. [10]
Performers’ Society Registration
As per Section 38 of the Indian Copyright Act, performers are granted the exclusive right and authority to perform any act related to their performance, without infringing on the rights of the authors. This provision allows performers to receive payment in the form of royalties, which are contingent on the authorized use of their performance.
The 2012 amendment to the Indian Copyright Act gave recognition to the rights of the performers. According to Section 2(qq) of the Indian Copyright Act, the term "performer" encompasses various individuals such as acrobats, musicians, singers, actors, jugglers, snake charmers, individuals delivering lectures, and any other person engaged in making a performance.
Section 38 of the Indian Copyright Act grants rights to performers, including actors, dancers, jugglers, acrobats, and others. This leads us to the role of the Performing Rights Society , which acts as an intermediary to facilitate the collection of royalties between copyright holders and parties seeking to publicly use copyrighted works in places like shopping malls, clubs, restaurants, and similar venues.
The Performing Rights Society typically collects royalties in cases where the use of a work is secondary or incidental to an organization's main purpose; for example, when an app or website is selling a video, song, etc. to its users, wherein the performer’s work is also involved. However, when it comes to works that are essential to an organization's purpose, such as those used in theaters or singers singing a song on the radio, the negotiation of royalties is usually conducted directly with the rights holder.
Provisions Related to the Power, functions and scope of Copyright Societies
As per Section 34 of Indian Copyright Act,1957, a copyright society may accept from an author and other owner of rights, exclusive authorization to administer any right in any work by issuing of licenses or by collecting of license fees or both. It is also competent for a copyright society to enter into agreement with any foreign society or organisation administering rights and further delegate its powers within the scope of the Indian Copyright Act.
According to Rule 44 of the Indian Copyright Rules, 2013, any group or organization that is established with the intention of engaging in the issuance or granting of licenses for specific categories of works may submit an application to the Registrar of Copyrights for registration as a copyright society..
According to Section 33(3) of the Indian Copyright Act, 1957, during the process of granting registration, the government is required to consider the interests of authors/rights owners, the general public, and potential licensees, as well as evaluate the applicants' ability and professional competence. Additionally, the section specifies that normally only one copyright society should be registered for a particular class of works.
In accordance with Section 35 of the Indian Copyright Act and Rule 44(2) of the Copyright Rules, every copyright society must have a governing body that includes equal representation from both authors and other rights owners.
Under Rule 49, the decision regarding the grant of registration to an applicant should be made within a period of 60 days.
The registration granted to a copyright society is valid for a period of five years and can be renewed periodically before the end of each five-year term. To renew the registration, a request must be submitted in the prescribed format, and the Central Government will consider the report from the Registrar of Copyrights on the functioning of the copyright society under Section 36. The renewal of registration for a copyright society is contingent upon the continued collective control of the society being shared with authors as copyright owners or those entitled to receive royalties. Furthermore, any copyright society that was already registered prior to the enactment of the Indian Copyright (Amendment) Act, 2012, must complete the registration process under this Chapter within one year from the commencement date of the Indian Copyright (Amendment) Act, 2012.[11]
Are Copyright Societies The Only Entity Authorized To Grant Licenses?
Although the Government's intention to introduce amendments, especially with respect to copyright societies is commendable, certain unfortunate discrepancies in the 1994 and 2012 Amendments pose a serious threat to the rights and interests of non-author owners of copyright in creative works. The 1994 Amendment, through the insertion of Section 33, mandates that only copyright societies can engage in the "business of issuing or granting licenses" for creative works. However, it remains silent on the matter of assigning rights in copyrightable works. Section 18 of the Indian Copyright Act states that a copyright owner/author of creative works has the right to assign copyright to any "person". Logically, an author can assign their copyright to a production company, which can further assign it to others. In such cases, a copyright society is not necessary. However, Section 33 specifically restricts any other entity, from issuing licenses on behalf of copyright owners. The anomaly is that due to Section 33, only a copyright society has the authority to engage in the business of issuing licenses, even though copyright owners have the right to license a work under Section 30 of the Copyright Act. Sections 18 and 30 are provisions of the original Act. The judgment of the Bombay High Court in Leopold Cafe & Stores v. Novex Communications (P) Ltd[12] is unique as it directly addresses the central question regarding the interpretation of Section 33 in relation to Sections 18 and 30. The judgment emphasizes that these sections should be interpreted harmoniously, ensuring that the operation of one provision does not render others meaningless or redundant. It was stated by the Court that Section 33 does not prohibit the operation of Sections 18 and 30 of the Act. The judgment differentiates between the "business of issuing or granting licenses" and the assignment/licensing envisaged by Sections 18 and 30. It interprets the phrase "business of issuing or granting licenses" to mean "conducting the business of issuing or granting licenses in its own name". Thus, according to the judgment, Section 33 prohibits the business of issuing licenses in one's own name. However, the issuance of licenses by an owner/authorized agent in the course of conducting a different business, such as film production, is not prohibited by Section 33 because it is allowed by Section 30 of the Indian Copyright Act. The judgment provides a significant insight into the interpretation of Section 33 and highlights the potential of the principle of harmonious construction to eliminate ambiguity caused by the amendments.[13]
Conclusion
The establishment of copyright societies arose from the necessity of having a structured entity responsible for licensing and overseeing copyrighted works. Without copyright societies, it would be impractical for entities such as restaurants, malls, and large events to individually obtain licenses from copyright holders and negotiate terms with them. Copyright societies play a crucial role in negotiating prices and setting tariffs on behalf of the authors they represent, thereby addressing the power imbalance between users and copyright holders.
The influence of copyright societies holds significant importance, particularly in industries such as the music and film industry, where authors and copyright owners often face disadvantages. The rise of music streaming is also seen as a challenge to the power imbalance within the music industry. The advancement of technology and the impact of music aggregators like Spotify, Apple Music, You Tube, Wynk are reshaping the current framework of copyright licensing, where the copyright societies are required to more informed, involved and active.
[1] https://iprs.org/, last accessed on July 29, 2023
[2] COMMERCIAL IP SUIT NO.84 OF 2022
[3] COMMERCIAL IP SUIT NO.193 OF 2022
[4] AIR 1977 SC 1443
[5] https://spicyip.com/2023/05/music-to-many-ears-bombay-high-court-passes-a-landmark-order-recognizing-the-right-to-receive-royalties-by-authors-of-underlying-works.html, last accessed on August 8, 2023
[6] https://www.irro.org.in/, last accessed on July 29, 2023
[7] https://www.cinefilindia.com/, last accessed in July 29, 2023
[8] FAO NO. 41 OF 2022
[9] LPA 243/2022, CAV 77/2022 & CM Nos.16964-69/2022
[10] https://isracopyright.com/, last accessed on July 29, 2023
[11] https://copyright.gov.in/Documents/Copyright_Societies.pdf, last accessed on July 29, 2023
[12] 2014 SCC OnLine Bom 4801 : (2014) 6 Bom CR 394
[13] https://www.scconline.com/blog/post/2018/03/14/a-critique-of-the-provisions-on-copyright-societies-under-the-copyright-act-1957/, last accessed on July 29, 2023