Raja vs SPB Copyright rights in a wrong context!

Recent copyright issue escalated by the world-famous music composer illayaraja has created a mass awareness about the intellectual property law. I mean, more than the authors and the legal fraternity, the common public got an awareness about copyright, especially about cinema songs.

However, whether royalty claims by illayarja subsists with the copyright protection, to him as a composer, or SPB infringing the copyrights knowingly or unknowingly.

There are 2 aspects in this issue of copyrights and royalty on cinema songs.

  1. Who is the original Author?
  2. What does the copyright law say?

1) Original Author: Songs from Indian cinema are not similar to the western music Songs. Because, in the west, normally the music composer or the singer produces his own albums and therefore his company holds all the rights. Further, the company offers exclusive licensee to publish and distributing rights to music publishers. Example like Sony Music. Also, they do have written agreements and agree on the royalties.

Whereas in the Indian Cinema, I think it would be very difficult to classify where the song originates from, who gives an idea, the situation of the song, music director’s plan and contribution, lyricist words, musicians contribution example: Guitarist, & Flutist, also the main role played by the Singer, and Actor as well. Further, the movie producer licenses it to a music distribution company to distribute. However, a movie as such holds distribution rights, TV license, and music license, etc. Under such circumstances, other than the producers, rest all a hired to do songs, it is an unwritten practice that most of these contributors place no written agreements and define the authorship of the song. Except the producer or the exclusive Distributor. Apart from all, Royalty has never been a practice,  except few companies who keep it as a practice.

Meanwhile, Music Directors and Singers always had a recognition for their skills and work executed in the song. However, lyricists are rarely remembered. It is key to ascertain about; why illayaraja is pretending to claim exclusive ownership? Just because, there are many raja fans!.

In 2014, when I went to illayaraja’s house, there was a spark. In my opinion, Raja was getting oriented to imagine billions of money out of royalties. He, in fact, disclosed that even if he gets 1 rupee per song when broadcasted, he would make billions! Maybe his perceptions are influenced by the western music industry.  But, frankly, Indian Music Industry which is based cinema is not the same as the Western music. Moreover, neither the market nor the consumers have a habit of paying royalties. Volunteer Internet distribution and publishing of mp3 songs by producers for the promo is an another reason, songs are considered only as a tool rather than a commercial product.

Even if a song considered as a commercial product,  a success of a Song depends on the lyrics, singer, and the background music. No independent right can be extended to an individual contributor. Fundamentally, all the contributors shall hold royalty rights of such songs. This is layman’s view.

But, what the Copyright law says?

2) Indian Copyright Act 1957

Under Section 2 definitions, subsection  (ffa) says,   “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;

Comment : illayaraj actually fits in here.

(l)  “Indian work” means a literary, dramatic or musical work,-
(p)  “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;

Comment : Musical work shall not include any words, that means illayara’s composing is not a musical work? 

(qq) “performer‘ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;
(y) “work” means any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a 33[sound recording];

Comment : Yes, SPB fits in here. This section also interprets even the actors are considered as performer and individual contributor. isn’t it.?
13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is
to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) 42[sound recordings;]

Comment: Yes, Musical work is a copyright. But according to definition “p”.  Musical work shall not include any words or any action intended to be sung, spoken or performed with the music;

(3) Copyright shall not subsist-
(a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any
other work;
(b) in any 45 [sound recording] made in respect of a literary, dramatic or musical work, if in making the 46 [sound recording], copyright in such work has been infringed.

Comment : Again, movie is dramatic, therefore, sound recording in dramatic work may not consist copyright. It is needs a clear legal framework to prove that cinema is not dramatic.

(4) The copyright in a cinematograph film or a 47 [sound recording] shall not affect the separate
copyright in any work in respect of which or a substantial part of which, the film, or as the case may
be, the 48 [sound recording] is made.

Comment : Similarly, cinematography films should mean movies, As such, sound recording in cinematographic consists copyright as a separate part.

Section 14. Meaning of copyright.-For the purposes of this Act, “copyright” means the exclusive right
subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect
of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, –
(i) to reproduce the work in any material form including the storing of it in any medium by electronic
means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;  Comment in Raja vs SPB case this meaning applies.
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation
to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
51A “(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the
computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where
the programme itself is not the essential object of the rental.”
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in three dimensions of a two
dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in
sub-clauses (i) to (iv);
(d) In the case of cinematograph film, –
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such
copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, –
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of
whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public. Comment : This applies in Raja vs SPB case
Explanation : For the purposes of this section, a copy which has been sold once shall be deemed to
be a copy already in circulation. –

Below Section, 38 is more important in Raja vs SPB dispute.

38 Performer’s right-
(1) Where any performer appears or engages in any performance, he shall
have a special right to be known as the “performer’s right” in relation to such performance.

(2) The performer’s right shall subsist until 96A fifty years from the beginning of the calendar year next following the year in which the performance is made.
(3) During the continuance of a performer’s right in relation to any performance, any person who,
without the consent of the performer, does any of the following acts in respect of the performance or
any substantial part thereof, namely :-
(a) makes a sound recording or visual recording of the performance; or
(b) reproduces a sound recording or visual recording of the performance, which sound recording or
visual recording was-
(i) made without the performer’s consent; or
(ii) made for purposes different from those for which the performer gave his consent; or
(iii) made for purposes different from those referred to in section 39 from a sound recording or visual
recording which was made in accordance with section 39; or
(c) broadcasts the performance except where the broadcast is made from a sound recording or visual
recording other than one made in accordance with section 39, or is a re-broadcast by the same
broadcasting organisation of an earlier broadcast which did not infringe the performer’s right; or
(d) communicates the performance to the public otherwise than by broadcast, except where such
communication to the public is made from a sound recording or a visual recording or a broadcast,
shall, subject to the provision of section 39, be deemed to have infringed the performer’s right.
(4) Once a performer has consented to the incorporation of his performance in a cinematograph film,
the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance.

Comment : I think, illayaraja may be relying on this? But, it is unclear that when more than one performer is involved, the right shall be a collective right. As such, every individual performer shall also have 50 years rights.

51. When copyright infringed. -Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of
Copyrights under this Act or in contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright, or
(ii)101 permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of the copyright in the work, unless he was not
aware and had no reasonable ground for believing that such communication to the public would be
an infringement of copyright; or
(b) when any person-
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire,
or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner
of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports 102***** into India, any infringing copies of the work

Comments : Here the infringement talks about the Owner. It is conflict in the case of Raja vs SPB. Because, actual owner is someone helps. Both of them are performers. Therefore, proving infringement is challenging. Except on movies, which are produced by the Raja himself.

103Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the
private and domestic use of the importer.
Explanation.- For the purposes of this section, the reproduction of a literary, dramatic, musical or
artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
52. Certain acts not to be infringement of copyright. -(1) The following acts shall not constitute
an infringement of copyright, namely:
(a) a fair dealing with a literary, dramatic, musical or artistic work 104[not being a computer
programme] for the purposes of-
(i) 105private use, including research;
(ii) criticism or review, whether of that work or of any other work; ”
(aa)106 the making of copies or adaptation of a computer programme by the lawful possessor of a
copy of such computer programme, from such copy-
(i) in order to utilise the computer programme for the purposes for which it was supplied; or
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in
order only to utilise the computer programme for the purpose for which it was supplied;”
121A “(ab) the doing of any act necessary to obtain information essential for operating inter-operability
of an independently created computer programme with other programmes by a lawful possessor of a
computer programme provided that such information is not otherwise readily available;
(ac) the observation, study or test of functioning of the computer programme in order to determine
the ideas and principles which underline any elements of the programme while performing such acts
necessary for the functions for which the computer programme was supplied;
(ad) the making of copies or adaptation of the computer programme from a personally legally
obtained copy for non-commercial personal use; ;
(b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current
events-
(i) in a newspaper, magazine or similar periodical, or
(ii) by 107[broadcast] or in a cinematograph film or by means of photographs.
108[Explanation.- The publication of a compilation of addresses or speeches delivered in public is not
a fair dealing of such work within the meaning of this clause;]
(c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial
proceeding or for the purpose of a report of a judicial proceeding;
(d) the reproduction or publication of a literary, dramatic, musical or artistic work in any work
prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the
Secretariat of either House of the Legislature, exclusively for the use of the members of that
Legislature;
(e) the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in
accordance with any law for the time being in force;
(f) the reading or recitation in public of any reasonable extract from a published literary or dramatic
work;
(g) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for
the use of educational institutions, and so described in the title and in any advertisement issued by or
on behalf of the publisher, of short passages from published literary or dramatic works, not
themselves published for the use of educational institutions, in which copyright subsists :
Provided that not more than two such passages from works by the same author are published by the
same publisher during any period of five years.
Explanation.- In the case of a work of joint authorship, references in this clause to passages from
works shall include references to passages from works by any one or more of the authors of those
passages or by any one or more of those authors in collaboration with any other person;
(h) the reproduction of a literary, dramatic, musical or artistic work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;
(i) the performance, in the course of the activities of an educational institution, of a literary, dramatic
or musical work by the staff and students of the institution, or of a cinematograph film or a 109[sound
recordings] if the audience is limited to such staff and students, the parents and guardians of the
students and persons directly connected with the activities of the institution 110[or the communication
to such an audience of a cinematograph film or sound recording].
(j) 111 the making of sound recordings in respect of any literary, dramatic or musical work, if-
(i) sound recordings of that work have been made by or with the licence or consent of the owner of
the right in the work;
(ii) the person making the sound recordings has given a notice of his intention to make the sound
recordings, has provided copies of all covers or labels with which the sound recordings are to be
sold, and has paid in the prescribed manner to the owner of rights in the work royalities in respect of
all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that-
(i) no alterations shall be made which have not been made previously by or with the consent of the
owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose
of making the sound recordings;
(ii) the sound recordings shall not be issued in any form of packaging or with any label which is likely
to mislead or confuse the public as to their identity;
(iii) no such sound recording shall be made until the expiration of two calendar years after the end of
the year in which the first sound recording of the work was made; and
(iv) the person making such sound recordings shall allow the owner of rights or his duly authorised
agent or representative to inspect all records and books of account relating to such sound recording:
Provided further that if on a complaint brought before the Copyright Board to the effect that the owner
of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this
clause, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an
order ex parte directing the person making the sound recording to cease from making further copies
and, after holding such inquiry as it considers necessary, make such further order as it may deem fit,
including an order for payment of royalty;
(k) 112 the causing of a recording to be heard in public by utilising it,-
(i) in an enclosed room or hall meant for the common use of residents in any residential premises
(`being a hotel or similar commercial establishment) as part of the amenities provided exclusively
or mainly for residents therein; or
(ii) as part of the activities of a club or similar organisation which is not established or conducted for
profit;
(iii) as part of the activities of a club, society or other organisation which is not established or
conducted for profit;

Comment : This part is an important section to quantify the infringement, calculate the profit or sale. Let us say, when SPB performs a song, or couple of songs in a event, he might be singing more than few songs belonging to different movies and composers. Therefore, it wont be possible to justify that the audience who bought tickets for the club event to appropriate that the ticket amounts to one particular song.
(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the
performance is given to a non-paying audience, or for the benefit of a religious institution;

Comment :  But, If there are no paying audience, it wont be possible to justify the damages or royalty.
(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic,
political, social or religious topics, unless the author of such article has expressly reserved to himself
the right of such reproduction;
(n) the publication in a newspaper, magazine or other periodical of a report of a lecture delivered in
public;
(o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map,
chart or plan) by or under the direction of the person in charge of a public library for the use of the
library if such book is not available for sale in India;
(p) the reproduction, for the purpose of research or private study or with a view to publication, of an
unpublished literary, dramatic or musical work kept in a library, museum or other institution to which
the public has access :
Provided that where the identity of the author of any such work or, in the case of a work of joint
authorship, of any of the authors is known to the library, museum or other institution, as the case may
be, the provisions of this clause shall apply only if such reproduction is made at a time more than 121B sixty years from the date of the death of the author or, in the case of a work of joint authorship,
from the death of the author whose identity is known or, if the identity of more authors than one is
known from the death of such of those authors who dies last;
(q) the reproduction or publication of-
(i) any matter which has been published in any Official Gazette except an Act of a Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together
with any commentary thereon or any other original matter;
(iii) the report of any committee, commission, council, board or other like body appointed by the
Government if such report has been laid on the Table of the Legislature, unless the reproduction or
publication of such report is prohibited by the Government;
(iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or
publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority,
as the case may be;
(r) the production or publication of a translation in any Indian language of an Act of a Legislature and
of any rules or orders made thereunder-
(i) if no translation of such Act or rules or orders in that language has previously been produced or
published by the Government; or
(ii) where a translation of such Act or rules or orders in that language has been produced or
published by the Government, if the translation is not available for sale to the public:
Provided that such translation contains a statement at a prominent place to the effect that the
translation has not been authorised or accepted as authentic by the Government;
(s) 113 the making or publishing of a painting, drawing, engraving or photograph of a work of
architecture or the display of a work of architecture;
(t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other
artistic work failing under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate
in a public place or any premises to which the public has access;
(u) the inclusion in a cinematograph film of-
(i) any artistic work permanently situate in a public place or any premises to which the public has
access; or
(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to
the principal matters represented in the film;
(v) the use by the author of an artistic work, where the author of such work is not the owner of the
copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of
the work :
Provided that he does not thereby repeat or imitate the main design of the work;
114******
(x) the reconstruction of a building or structure in accordance with the architectural drawings or plans
by reference to which the building or structure was originally constructed :
Provided that the original construction was made with the consent or licence of the owner of the
copyright in such drawings and plans;
(y) in relation to a literary, dramatic or musical work recorded or reproduced in any cinematograph
film the exhibition of such film after the expiration of the term of copyright therein :
Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (a) of clause (b) and clauses
(d), (f), (g), (m) and (p) shall not apply as respects any act unless that act is accompanied by an
acknowledgment-
(i) identifying the work by its title or other description; and
(ii) unless the work is anonymous or the author of the work has previously agreed or required that no
acknowledgement of his name should be made, also identifying the author.
(z) 115 the making of an ephemeral recording, by a broadcasting organisation using its own facilities
for its own broadcast by a broadcasting organisation of a work which it has the right to broadcast;
and the retention of such recording for archival purposes on the ground of its exceptional
documentary character;
(za) 116 the performance of a literary, dramatic or musical work or the communication to the public of
such work or of a sound recording in the course of any bona fide religious ceremony or an official
ceremony held by the Central Government or the State Government or any local authority.
Explanation.- For the purpose of this clause, religious ceremony including a marriage procession and
other social festivities associated with a marriage.
(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of
a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as
they apply in relation to the work itself.

CHAPTER XII
Civil Remedies
54. Definition. -For the purposes of this Chapter, unless the context otherwise requires, the
expression “owner of copyright” shall include-
(a) an exclusive licensee;
(b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the
publisher of the work, until the identity of the author or, in the case of an anonymous work of joint
authorship, or a work of joint authorship published under names all of which are pseudonyms, the
identity of any of the authors, is disclosed publicly by the author and the publisher or is otherwise
established to the satisfaction of the Copyright Board by that author or his legal representatives

Section 54 would define who is the actual owner, the copyright board would be to do this.

Conclusive comment: Actually, when nothing is reproduced, only performed for club or a social event, in which the performer also as a separate copyright, and even if the event was ticket based, it won’t be possible to fix a royalty for a particular song of that event. Therefore, any performer when uses a copyrighted song in which other performers have a right, then the performer himself must make it a practice to pay the royalty to other performers voluntarily.

Otherwise, Legally, existing copyright framework may not cover the rights of individual performer’s rights, especially in Indian cinema songs, and as long as the song is not reproduced/counterfeited the original track and sold through the medium it may not amount to infringement.

As such, there is no clear framework to define the rights of multiple performers against the exclusive rights of the producer. I wonder, in marriage music parties, no more illayaraja songs???, if this drift of restriction by Raja continues, illayaraja’s background music may become worthless, especially when the lyrics and voice are not mingled together.

As far as the raja’s legal notice to SPB is concerned, my guess is that there may be an exchange of letters and replies, and the issue may get settled through mediation, because movie associations may interfere and settle the issue. Otherwise, raja’s notice may have a negative impact on Raja’s brand image and his continuing legal threat to radio and tv channels in prohibiting to play his titles may make raja’s music unreachable to the next generation. Rather than they may compare it like luv kusa and siva kavi songs. Raja should remain as human being than a business man!

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