Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act.

The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect 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 record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright 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 one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. 1977 AIR 1443, 1977( 3 )SCR 206, 1977( 2 )SCC 820, , PETITIONER: INDIAN PERFORMING RIGHT SOCIETY LTD. Vs. RESPONDENT: EASTERN INDIA MOTION PICTURES ASSOCIATION DATE OF JUDGMENT14/03/1977 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1977 AIR 1443 1977 SCR (3) 206 1977 SCC (2) 820 ACT: Copy Right Act (Act 14 of 1957), 1957--Whether in view of the provisions of the Copy Right Act 1957 an existing and future rights of music .... composer, lyricist is capable of assignment under s. 18 when he grants a licence or per- mission u/s. 30 to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film--Whether the producer of a cinematograph film can defeat the same by engaging in the same person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13,14,17,18, 19 22, 26, 30 and 34 of the Act. HEADNOTE: The appellant society was incorporated in terms of section 2(r) of the Copyright Act. 1957 (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of s. 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy- rights and to have authority to grant the aforesaid li- cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel- lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li- cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub- lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos- er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato- graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per- mission not only of the owner of the copyright in the cine- matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor- porated in the cinematograph film, as according to s. 13(4) of the Act, the copyright in a cinematograph film or a record does not effect 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 record is made (4). The provi- sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18(b) by relinquishment under s. 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro- ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under s. 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat- ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo- nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under s. 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith- standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of s. 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co-exist and need not conflict. [223 A-C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F-G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer's copyright which he does only if the 'music' is performed or produced or repro- duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta- tion or cinema theatre. [223 C-E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist each fulfil- ing itself in its delectable distinctiveness. [224 A-B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder- ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un-Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga- tion each country in its law must protect such rights wher- ever originally is contributed. [224 E-H] Per Jaswant Singh J. (1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine- matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of s. 34, s. 14(1)(a)(iii) and s. 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro- ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu- sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex- press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G-H; 221 A-G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music ........ composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of s. 17, a cinematograph film producer becomes the. first owner of the copyright 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 one hand and the producer of the cinemato- graph film on the other. [222 D-F] Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 967 of 1975. (From the judgment and order dated 13-2-1974 of the Calcut- ta High Court in Copyright No. 2/73). A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud- hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant. S. Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22. J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6- 8. B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 12 and 22. J.L. Nain, Atul Munim and B. R. Agarwala, for re- spondent No. 19. The Judgment of the Court was delivered by Jaswant Singh, 3., V.R. Krishna Iyer, J. also gave a separate opin- ion. JASWANT SINGH, J. This appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance :-- "Whether in view of the provisions of the Copyright Act, 1957, an existing and future rights of music ...... composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person." The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS'), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting li- cences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the Copyright Act, 211 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences far perform- ance in public of works in respect of which-it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of- the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for. performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averted inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their mem- bers-producers of the cinematograph films--having been utilised and incorporated in the sound track of the cinemat- ograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright sub- sisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members i.e. the producers of cine- matograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be beard in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it through- out the world; that having regard to the provisions of the Act the' copyright in the case of 212 a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapa- ble of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides raising contentions identical to those raised by various associations of producers they averred that copyright in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distributors of films the exhibition of cinematograph film includes the right to play in public the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors an agreement and that when an exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors. On the aforesaid objections being referred to it for determination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in public to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of India. Aggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valuable considera- tion for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning and that under proviso. (b) to section 17 of the Act, the owner of the film at whose instance, the composition is made, becomes the first owner of the copy- right in the composition. The High Court further held that "the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright". The High Court also held that "though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when 213 there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect". Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicat- ed because of the involved language in which some of its provisions are couched and the case being of first impres- sion, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or performs the work in public by exhibiting the cinematograph film; that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 1. 3 (4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work i.n respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work em- bodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright m the work are (a) by assignment, '(b) by relinquishment and (c) by the composer composing the work in 'the course of his employment under a contract of service with an employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employ- ment of the author to produce a work under a contract of service, the question of priorities will be decided ac- cording to the principle "where equities are equal, the first in time shall prevail". Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinemato- graph film (which expression, according to Copinger and Skone James on COPYRIGHT, means "any record of sounds which is incorporated in any print, negative, tape or other arti- cle on which the film or part of it, in so far as it con- sists of visual images, is recorded, or which is issued by the maker 214 Of the film for use in conjunction with such an article"); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfound- ed; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically repro- duced, it is not musical work within the meaning of the Copyright Act and there is no copyright 'in songs or orches- tral pieces sung or played directly without its notation being written' that since a 'cinematograph film' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph' is required to be construed to include any work produced by any process analogous to cine- matography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in stan- zas falling within the purview of the expression "literary work" as defined in section 2(0) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the. right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. They have further urged that it is not correct to say that under section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commis- sioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a sepa- rate copyright on a cinematograph film as a film, the pro- ducer can exercise both the rights conferred on him under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the 215 copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submis- sions made by learned counsel for the parties. So far as the first part of the question reproduced above is con- cerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that--"(1) the owner of the copyright in an existing work-or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partial- ly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2)where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly", the first part of the question should be answered in the affirmative. It is accordingly held that an existing and future right of music ...... composer and lyricist in their respective 'works' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent. It is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled. The main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2(p) of the Act means only a notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incor- poration in the sound track of a cinematograph film. For a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provi- sions of the Act. The terms 'author', 'Cinematograph film', 'exclusive licence', 'infringing copy', 'musical work', 'performance' performing rights society', 'radio-diffusion' and 'work' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under :-- "(d) author means,-- (i) in relation to a literary or dramatic work, the author of the work; 5--240SC I / 7 7 216 (ii) in relation to a musical work, the com- poser; (iii) ** ** ** (iv) ** ** ** (v) in relation to a cinematograph film, the owner of the film at the time of its comple- tion; and (vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate". "(f) cinematograph film includes the sound track, if any, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography." "(j) exclusive licence means a licence which confers on the licensee or on the licen- see and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly." "(m) infringing copy means,-- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** ** ** (iv) ** ** **" "(p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced". "(q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodif- fusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture". "(r) performing rights society means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists". 217 (v) radio-diffusion includes communication to the public by any means of wireless diffu- sion whether in the form of sounds or visual images or both". "(y) work means any of the following works, namely-- (i) aliterary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a record". Section 13 of the Act provides as follows :-- "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) records. (2) ** ** ** (3) Copyright shall not subsist-- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a liter- ary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record 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 record is made. (5) ** ** ** Section 14 of the Act which contains the meaning of the expression "copyright" is to the following effect :-- "14. Meaning of copyright."--(1) For the purposes of this Act: "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this Act,-- (a) in the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely-- (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; 218 (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio-diffu- sion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely- (i) to make a copy of the film; (ii) to cause the film, in so far as it con- sists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the record- ing in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio-diffu- sion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely-- (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio-diffusion. (2) Any reference in sub-section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof". Section 17 of the Act which relates to ownership of copyright provides as under :-- "17. First owner of copyright.---Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein; Provided that-- 219 (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agree- ment to the contrary. be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) Subject to the provisions of clause (a), in the case of a photograph taken, or a paint- ing or portrait drawn, or an engraving or a cinematograph film made. for valuable consid- eration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect :-- "22. Term of copyright in published liter- ary, dramatic musical and artistic works.--Except as otherwise hereinafter pro- vided, copyright shall subsist in any liter- ary, dramatic, musical or artistic work (other than a photograph) published within the life- time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation.--In this section, the refer- ence to the author shall, in the case of a work of Joint authorship, be construed as a reference to the author who dies last . "26. Term of copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next fol- lowing the year in which the film is pub- lished". 220 Section 30 of the Act which deals with grant of licences by owners of copyright runs thus :-- "30. Licences by owners of copyright.--The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation.--When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence". The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is asso- ciated with the film. Section 13 recognises 'cinematograph film' as a distinct and separate class of 'work' and de- clares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinemato- graph film means. among other rights, the right of exhibit- ing or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record 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 record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and sec- tion 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)'(e) of the Act on completion of the cinematograph film a copyright which gives 221 him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in pub- lic. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film pro- ducer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strained from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropri- ate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio-diffu- sion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a 222 bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its com- pletion which is said to take place when the visual portion and audible portion are synchronized. This takes us to the core of the question namely, wheth- er the producer of a cinematograph film can defeat the right of the composer of music .... or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there- fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he 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. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice.ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinemat- ograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain- tiff in pursuance of his engagement to give effect to cer- tain situations in the drama entitled "Lady Andley's Secret", which was to be put on the stage was not an inde- pendent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Conse- quently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. KRISHNA IYER, J.---The judgment just delivered is on behalf of the Court, which makes this footnote, in a sense, otiose. But I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that 223 ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but s. 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwith- standing its confluence in the film. This persistence of the aesthetic 'personality' of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned broth- er's judgment, set out indubitably in s. 14(1)(c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub-rights spelt out in s. 14(1)(a). A harmonious construction of s. 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject. The artist enjoys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily co- exist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on I the composer's copyright which he does only if the 'music' is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhib- iting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles. In 'a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guard- ians material works possessing spiritual values. The enig- matic small of Mona, Lisa is the timeless heritage of man- kind but, till liberated by the prescribed passage of time, the private copyright of the human maker says, 'hands off'. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masterS, whose works are invaluable, are victims of piffling payments. World opinion in defence of the human right to intellectual property led to internation- al conventions and municipal laws, commissions, codes and organisations, calculated to protect works of art. India responded to this universal need by enacting the Copyright Act, 1957. 224 Not the recommendations in conventions but provisions in municipal laws determine enforceable rightS. Our copyright statute protects the composite cinematograph work produced by lay-out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exiSt, each ful- filling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the Scheme. A somewhat un-Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work', as defined in s.2 ( p) reads: "(p) musical work means any combina- tion of melody and harmony or either of them printed, re duced to writing or otherwise graphically produced or reproduced." Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful render- ing. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in s.2(d), in rela- tion to a musical work, is only the composer and s. 16 confies 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitle- ment of the musician or group of musical artists to copy- right is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is con- tributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant. S.R. Appeal dismissed. 225

copy rights- M/s. Vijaya Production Private Limited (hereinafter referred to as "the Producer") produced 15 Telugu films. By an agreement dated 28.9.1987, the Producer granted the sole and exclusive video rights of the films to M/s. Jyothi Video for a period of seven years. During the currency of that agreement, the Producer gifted the films to M/s. Nagireddy Charities (respondent No.3) represented by its Managing Trustee, Shri B. Nagireddy. Respondent No.3 entered into an agreement of lease with respondent No.2- M/s. Vijaya Pictures whereby the rights of theatrical and non-theatrical distribution, exhibition and exploitation including video and TV rights were given to respondent No.2 for the areas of Andhra and Nizam for a period of 20 years commencing from 1.1.1975 for a consideration of Rs.20 lakhs. By another agreement dated 25.6.1990 (Exhibit A-4) the term of agreement dated 10.1.1975 was extended by 70 years with effect from 1.1.1995. The relevant portions of that agreement are extracted below: "Whereas the Lessors are the absolute owners in possession of the negatives, holding the entire rights for the Indian Union of the Telugu Talkie pictures produced by M/s Vijaya productions Private Ltd., as specified hereunder, the rights of which have been assigned absolutely by way of gift by the said Vijaya Productions Private Ltd., in favour of the Lessors. Whereas the Lessors have already granted to the Lessees, the exclusive lease rights of exploitation of their several Black and White and Colour pictures for the territory of Andhra and Nizam by way of agreement of lease dated 10.1.1975 for a

                                                                NON-REPORTABLE




                     IN THE SUPREME COURT OF INDIA


                       CIVIL APPELLATE JURISDICTION




                       CIVIL APPEAL NO.6438 OF 2005










M/s. Divya Exports                                                   ... Appellant




                                          Versus




M/s. Shalimar Video Company


and others                                                           ... Respondents








                                   J U D G M E N T








G.S. Singhvi,  J.








1.     This   appeal   is   directed   against   the   judgment   of   the   learned   Single 




Judge   of   the   Andhra   Pradesh   High   Court   whereby   he   allowed   the   appeal 




filed by respondent No.1 and decreed the suit filed by the said respondent 




for grant of a declaration that it is having exclusive worldwide video rights 




of VCD/DVD and other formats of video rights in respect of 15 Telugu films 




for   which   it   had   entered   into   an   agreement   dated   27.8.2001   with   M. 




Srinivasa   Rao   and   also   for   restraining   the   appellant   and   respondent   Nos.2 




and 3 from producing or selling VCDs/DVDs or any other video format of 




those films in any form of exploitation. 



                                                                                             2










2.     M/s. Vijaya Production Private Limited (hereinafter referred to as "the 




Producer")   produced   15   Telugu   films.     By   an  agreement  dated   28.9.1987, 




the Producer granted the sole and exclusive video rights of the films to M/s. 




Jyothi   Video   for   a   period   of   seven   years.     During   the   currency   of   that 




agreement,   the   Producer   gifted   the   films   to   M/s.   Nagireddy   Charities 




(respondent No.3) represented by its Managing Trustee, Shri B. Nagireddy. 




Respondent No.3 entered into an agreement of lease with respondent No.2-




M/s.   Vijaya   Pictures   whereby   the   rights   of   theatrical   and   non-theatrical 




distribution, exhibition and exploitation including video and TV rights were 




given to respondent No.2 for the areas of Andhra and Nizam for a period of 




20 years commencing from 1.1.1975 for a consideration of Rs.20 lakhs.  By 




another   agreement   dated   25.6.1990   (Exhibit   A-4)   the   term   of   agreement 




dated 10.1.1975 was extended by 70 years with effect from 1.1.1995.   The 




relevant portions of that agreement are extracted below:




       "Whereas the Lessors are the absolute owners in possession of 


       the negatives, holding the entire rights for the Indian Union of 


       the Telugu Talkie pictures produced by M/s Vijaya productions 


       Private   Ltd.,   as   specified   hereunder,   the   rights   of   which   have 


       been   assigned   absolutely   by   way   of   gift   by   the   said   Vijaya 


       Productions Private Ltd., in favour of the Lessors.




       Whereas   the   Lessors   have   already   granted   to  the   Lessees,   the 


       exclusive lease rights of exploitation of their several Black and 


       White   and   Colour   pictures   for   the   territory   of   Andhra   and 


       Nizam   by   way   of   agreement   of   lease   dated   10.1.1975   for   a 



                                                                                          3






period   of   20   years   from   1st  of   January,   1975.     Whereas   the 


Lesees   have   approached   the   Lessors   to   grant   unto   them   the 


exclusive   lease   rights   of   Theatrical   and   Non-theatrical 


distribution, exhibition and exploitations of the several pictures 


by way of lease, in respect of the areas of Andhra and Nizam as 


known in the Film Trade, for a further period  of 70 (seventy) 


years from the date of expiry of the present lease agreement i.e. 


from   1st  January   1995   and   to   transfer   complete   pictures 


negatives in favour of the Lesees herein.  




NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:-




1.   The   Lessors   hereby   grant   us   the   Lessees   as   the   rights   of 


Theatrical   and   Non-Theatrical   distribution,   exhibition   and 


exploitation by way of lease of the following Black and White 


Telugu Pictures produced by M/s Vijaya Productions Pvt. Ltd. 


Madras 600 020 including the video and T.V. Rights thereof




1. Shavukaru


2. Pathala Bhairavi


3. Pellichehi Choodu


4. Chandraharam


5. Missamma


6. Maya Bazar


7. Appuchesi Pappukudu


8. Jagadekaveerunikatha


9. Gundamma Katha


10. C.I.D.


12. Umachandi Gowrishankula Katha


13. Rechukka Pagatichukka


for   the   Areas   of   Andhra   and   Nizam,   and   to   appropriate   to 


themselves the proceeds earned by them on the said pictures by 


such   exploitation   for   a   period   of   70   (seventy)   years   from   1st 


January 1995.




4.   The   Lessees   shall   have   the  power   to  assign   this   agreement 


either   in   part   and/or   whole   to   third   parties   at   their   discretion, 


without in any manner affecting the rights of the Lessors under 


this agreement.



                                                                                              4






       5. It is agreed that the Lessors shall not lease out, sell or exhibit 


       the pictures in the territories for which the rights of exploitation 


       are   herein   be   granted,   till   the   expiry   of   the   agreement.     The 


       Lessees also shall not exhibit the pictures in any station outside 


       the territory leased herein.








       7.   It   is   understood   between   the   parties   herein   that   this 


       agreement   is   without   prejudice   to   the   16mm   rights;   T.V.   and 


       Video   rights   committed   by   the   producers   Vijaya   Productions 


       (P) Ltd for the various periods with the parties concerned and 


       the Lessees herein are entitled for the said rights after the expiry 


       of the periods committed thereunder."








3.     A   third   agreement   dated   11.12.1995   (Exhibit   A-5)   was   entered   into 




between   respondent   Nos.3   and   2   whereby   and   whereunder   copyright   for 




broadcasting of films through satellites, cassettes, disc, cable, wire, wireless 




or any other system including its transmission through cable system without 




restriction of geographical areas was assigned to respondent No.2 for a sum 




of   Rs.8   lakhs.     The   relevant   portions   of   the   third   agreement   are   also 




extracted below:




       "Now, This Agreement Witneseth:




       1.   The   Assignors   irrevocably   assign   to   the   Assignees   the 


       copyright   for   broadcasting   the   said   films   through   satellite, 


       cassette,   disc,   cable,   wire,   wireless   or   any   other   system 


       including   its   transmission   through   cable   system   without 


       restriction   of   geographical   areas   and   for   this   purpose   the 


       assigners are authorized to make such copies of recordings on 


       film, taps, disc or such other media as may be required.



                                                                                               5






       2.   The   Assignors   have   already   delivered   to   the   Assigners   the 


       concerned version of the picture and sound negatives of the said 


       films   as   per   the   Agreement   dated   25-6-1990   between   the 


       Assignors and Assignees. 




       3. The Assignees shall have the full right to broadcast the said 


       Films   after   subtitling,   editing,   deleting   any   portion,   altering 


       colour or inserting advertisement, or broadcasting the excerpts, 


       or   programme   including   the   excerpts,   or   part   of   whole   of   the 


       sound track only, at their sole and absolute discretion.




       4.  The   Assignees   shall  be  entitled  to  assign  their  rights   under 


       this   Agreement   in   part   or   in   full   to   any   other   party   and   to 


       broadcast   through   any   authority   or   agency,   at   their   sole   and 


       absolute   discretion   including   Doordharshan's   Terrestrial 


       Primary Channels."








4.     After five years, respondent No.2 entered into an agreement of lease 




dated 30.7.2001 with M. Srinivasa Rao and granted him rights of theatrical 




and   non-theatrical   (excluding   satellite   rights)   exhibition   and   35   mm 




exploitation,   video,   VCD,   DVD,   Audio   and   16   mm   by   way   of   lease   in 




respect  of 14  films  for  the areas   of  Andhra  and  Nizam for  a  period   of  60 




years for a consideration of Rs.10 lakhs.  Paragraphs 5 to 9 of that agreement 




read as under:




       "5. The Lessees shall have the power to assign this agreement 


       either   in   part   or   whole   to   third   parties   at   their   discretion, 


       without any manner affecting the rights of the lessors under this 


       agreement.




       6. The lessors hereby grant to the lessees the rights of theatrical 


       and   non-theatrical   (excluding   satellite   rights)   exhibition   and 



                                                                                               6






       35mm   exploitation,   video,   VCD,   DVD,   Audio   and   16mm   by 


       way of lease of the following.




       7. It is agreed the lessors shall not lease out, sell or exhibit the 


       pictures   in   the   territories   for   which   the   rights   of   exploitations 


       herein granted till the expiry of this agreement.




       8. In case the original procedures M/s Vijaya Productions Pvt. 


       Ltd. or lessors herein require any prints of the pictures lease out 


       herein for any overseas exploitation the same share be delivered 


       by the lessees herein at cost.




       9. It is understood between the parties herein that 16mm rights, 


       video   rights   committed   by   the   producers   Vijaya   Productions 


       Pvt. Ltd. with the parties concerned was expired.   The lessees 


       herein are entitled for the said rights."








5.     M. Srinivasa Rao executed an agreement dated 17.8.2001 in favour of 




respondent   No.1   and   granted   CDs,   VCDs,   DVDs,   copyrights   for 




transferring, processing, recording, duplication, copying, taping on to video 




grams, discs, CDs, VCDs, DVDs and the digital formats for commercial and 




private exhibition of the 15 films for the entire world.










6.     Three   days   prior   to   the   execution   of   the   aforesaid   agreement, 




respondent   No.3   entered   into   an   agreement   dated   14.8.2001   with   the 




appellant   and   assigned   it   exclusive   DVD   rights,   VCD   rights   and   internet 




rights (worldwide web TV rights) by way of lease in respect of the 15 films 



                                                                                              7






for the entire world including Indian Union Territory for a period of 60 years 




in lieu of a consolidated royalty amount of Rs.1,50,000/-. 










7.      Within   8   days   of   the   execution   of   agreement   dated   17.8.2001, 




respondent   No.1   got   published   a   notice   in   the   newspaper   dated   25.8.2001 




declaring  that it had purchased DVD and VCD rights for 15 Telugu films 




produced   by   M/s.   Vijaya   Production.     Thereupon,   respondent   No.3   issued 




telegram to respondent No.1 and called upon it to stop production of DVDs 




and   VCDs.     In   its   reply   dated   31.12.2001,   respondent   No.1   relied   upon 




agreement dated 17.8.2001 executed by M. Srinivasa Rao and claimed that it 




had purchased all the rights in respect of the 15 films.  By way of rejoinder, 




respondent No.3 informed respondent No.1 that it had not sold or assigned 




any   rights   to   respondent   No.2  or  M.   Srinivasa   Rao   to  produce   DVDs  and 




VCDs. 










8.      After   exchange   of   notices,   respondent   No.1   filed   suit   for   grant   of 




relief   to   which   reference   has   been   made   in   the   opening   paragraph   of   this 




judgment.  It also applied for and was granted ex parte injunction by the trial 




Court on 23.6.2003, which was vacated on 22.8.2003. The appeal preferred 




by respondent No.1 was dismissed by the Division Bench of the High Court.



                                                                                              8










9.      In the written statement  filed by the appellant  through its Managing 




Partner Bh. Sudhakar Reddy, which was adopted by respondent No.3, it was 




pleaded that the rights of VCDs/DVDs had not been assigned by respondent 




No.3 to respondent No.2 and, as such, M. Srinivasa Rao could not acquire 




any   such   rights   from   respondent   No.2   and   assign   the   same   to   respondent 




No.1.  In a separate written statement, respondent No.2 claimed that in terms 




of   agreement   dated   15.12.1995   executed   with   respondent   No.3,   it   had 




acquired   the   rights   for   future   technical   development   in   the   field   of 




cinematography.     Respondent   No.2   pleaded   that   after   accepting   a   sum   of 




Rs.8   lakhs,   respondent   No.3   had   assigned   irrevocable   copyright   for 




broadcasting   the   said   films   through   satellite,   cassette,   disc,   cable,   wire, 




wireless or any other system including its transmission through cable system 




without restriction of geographical areas and for this purpose, the assignees 




were   authorised   to   make   copies   of   recording   of   films,   disc,   tape   or   such 




other   media   as   may   be   required.     Respondent   No.2   admitted   that   it   had 




entered   into   an   agreement   dated   30.7.2001   with   M.   Srinivas   Rao   for 




assignment   of   the   rights   acquired   by   it   under   agreements   dated   25.6.1990 




and 15.12.1995.



                                                                                                     9






10.     On the pleadings of the parties, the trial Court framed the following 




issues:




        "1)      Whether this court has territorial jurisdiction to maintain 


                 the suit?




        2)       Whether   the   suit   is   bad   for   non   joinder   of   necessary 


                 parties?




        3)       Whether   the   agreement   dt.   25.6.1990   will   include 


                 VCD/DVD rights and whether the plaintiff is entitled to 


                 claim the broadcasting rights thereunder coupled with the 


                 agreement   dt.   15.2.2002   and   thereby   the   plaintiff   is 


                 entitled for the manufacture and sale of the VCDs/DVDs 


                 of the suit films?




        4)       Whether   the   plaintiff   is   entitled   for   the   relief   of 


                 declaration and the injunction sought for?




        5)       To what relief?"










11.     After considering the pleadings of the parties and evidence produced 




by   them,   the   trial   Court   held   that   the   suit   was   bad   for   non   joinder   of   M. 




Srinivasa Rao, who is said to have assigned rights to respondent No.1.  This 




is evinced from the following observations made by the learned trial Court:  




        "The   plaintiff   is   claiming   his   right   through   M.   Srinivasa   Rao 


        from   whom   the   plaintiff   has   obtained   an   agreement   for 


        assignment of the rights over the suit schedule films.  When the 


        defendants   1   and   3   have   come   forward   with   a   specific 


        contention   that   the   M.   Srinivasa   Rao   have   no   right   at   all   to 


        assign   the   VCD   and   DVD   rights   the   plaintiff   ought   to   have 


        impleaded the said M. Srinivasa Rao as a party to the suit.  But 


        the plaintiff has not chosen to bring him on record and he has 



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       deposed in his cross examination that he has no grievance at all 


       against M. Srinivas Rao and therefore he thought that it is not 


       necessary to bring him on record.   It is important to note that 


       the plaintiff is claiming right through M. Srinivas Rao.  He has 


       purchased   the   rights   from   the   2nd  defendant   and   because   the 


       dispute   is   that   he   has   conveyed   the   rights   which   was   not 


       covered by the agreement under which he got the assignment in 


       his   favour   from   the   2nd  defendant   the   plaintiff   ought   to   have 


       impleaded M. Srinivasa Rao as one of the parties and in spite of 


       the objection taken by the other side the plaintiff has not chosen 


       to   bring   the   Srinivasa   Rao   on   record   but   only   satisfied   by 


       saying   that   he   has   no   grievance   against   Srinivas   Rao.     This 


       issue   to   be   held   as   against   the   plaintiff   holding   that   the 


       necessary   party   Srinivas   Rao   is   not   brought   on   record   and 


       therefrom the suit is bad for non joinder of necessary party and 


       Issue No.2 is held accordingly."  










12.    The   trial   Court   then   referred   to   agreements   dated   25.6.1990   and 




15.12.1995   executed   between   respondent   Nos.2   and   3,   agreement   dated 




30.7.2001   entered   into   between   respondent   No.2   and   M.   Srinivasa   Rao   as 




also agreement dated 14.8.2001 executed by M. Srinivasa Rao in favour of 




respondent No.1, referred to the provisions of the Copyright Act, 1957, two 




judgments   of   the   Madras   High   Court   and   concluded   that   the   plaintiff   has 




failed to make out a case for grant of declaration and injunction.










13.    In   the   appeal   filed   by   respondent   No.1,   the   learned   Single   Judge 




framed the following questions:



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        "1.     Whether the assignment of copyrights made by the third 


        defendant in favour of first defendant is true and valid?




        2.      Whether the assignment of copyrights made by the third 


        defendant   in   favour   of   second   defendant   confers   the   right   of 


        manufacturing and selling VCDs/DVDs and whether the rights 


        assigned and conferred under Exs.A.4 and A.5 are only meant 


        for   `broadcasting'   the   suit   films   and   if   so,   what   is   the   effect 


        thereof?




        3.      Whether   the   non-joinder   of   the   person   by   name 


        Srinivasarao,  who was allegedly  the assignee from the second 


        defendant and assignor in favour of the plaintiff, would vitiate 


        the suit?                                 or




        Whether the plaintiff can be non-suited for non-joinder of one 


        Srinivasarao   who   was   allegedly   the   assignee   from   the   second 


        defendant and assignor of the plaintiff?"










14.     Although, the trial Court had not framed any issue which could give 




rise   to   question   No.1   and   in   the   appeal   filed   by   the   respondent   no   such 




prayer was made, the learned Single Judge invoked Order XLI Rule 24 of 




the Code of Civil Procedure, 1908 (CPC) and justified the framing of first 




question by recording the following observations:




        "The first point as formulated by this Court in this appeal was 


        not framed by the trial court as an issue in the suit.  But in my 


        considered view, the trial court ought to have framed this issue 


        also in the light of the specific averment made by the plaintiff 


        in the plaint that the acquisition of rights by the first defendant-


        M/s   Divya   Exports   from   the   3rd  defendant-M/s   Nagireddy 


        Charities,   represented   by   its   Trustee-Venugopal   Reddy   was 


        totally  false and  baseless  having regard to the fact  that Sri  B. 


        Nagireddy, the original Managing Trustee of the 3rd  defendant-



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       M/s   Nagireddy   Charities,   had   already   given   away   the 


       copyrights during the year 1995 itself in favour of the second 


       defendant.   Hence, having regard to the said specific averment 


       made  by the plaintiff  in the plaint and also in the light of the 


       specific ground taken by the plaintiff in this appeal with regard 


       to the application of Section 73 of the Indian Trusts Act 1881 


       (for short "the Trusts Act"),  I deem it absolutely  necessary to 


       formulate   the   first   point   for   consideration,   exercising   the 


       jurisdiction of this Court under Order 41, Rule 24 C.P.C.   For 


       this reason, this Court formulated the first point as stated supra.




       From the submissions made at the Bar by the learned Counsel 


       appearing   for   the   parties,   it   could   be   seen   that   the   whole 


       controversy   revolves   around   Exs.A.4   and   A.5   and   Ex.A.3   on 


       one side and Ex.A.3 on one side and Ex.B.1 on the other." 








       The   learned   Single   Judge   then   referred   to   the   pleadings   and   oral   as 




well as documentary evidence produced by the parties, Sections 73 and 74 of 




the   Trusts   Act   and   held   that   Exhibit   B.1   executed   by   respondent   No.3   in 




favour  of the appellant  was not valid.   Paragraphs 52 to 55 and 58 of the 




impugned   judgment,   which   contain   the   reasons   recorded   by   the   learned 




Single Judge for arriving at the said conclusion, are extracted below:




       "52.    What is more interesting to note is that no trust deed or 


       any   other   document   was   pressed   into   service   by   the   first 


       defendant  while getting  himself examined as D.W.1 to clarify 


       or explain that Mr. Venugopalreddy had acquired the status of a 


       trustee   of   M/s   Nagireddy   Charities   in   order   to   effectively 


       represent the trust and to execute Ex.B.1 document in favour of 


       the first defendant.  Interestingly, D.W.1 was the Special Power 


       of Attorney Holder also, representing M/s Nagireddy Charities.




       53.     In   other   words,   totally   an   alien,   not   connected   with   the 


       affairs   of   M/s   Nagireddy   Charities,   but   a   beneficiary   under 



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Ex.B.1,   was   examined   as   D.W.1,   representing   both   defendant 


No.1   and   defendant   No.3.     No   document   relating   to 


appointment of Venugopalreddy as a trustee of M/s Nagireddy 


Charities,   authorizing   Venugopalreddy   to   represent   trust   has 


been brought on record and no person directly connected with, 


and having knowledge of the affairs of M/s Nagireddy Charities 


had been examined on behalf of the defendants.




54.    It is to be remembered that the suit was instituted in the 


year 2003 and during the pendency of the suit Mr. B. Nagireddy 


was   very   much   alive,   of   course,   totally   in   a   state   of 


indisposition.     In   such   circumstances,   I   am   of   the   considered 


view that the burden heavily lies on either the first defendant or 


the third defendant to establish the change in trusteeship of M/s 


Nagireddy Charities, in which case alone Ex.B.1 document can 


be   called   as   a   validly   and   legally   executed   document   by 


Venugopalreddy in the capacity of the trustee of M/s Nagireddy 


Charities   in   favour   of   the   first   defendant.     Unfortunately,   no 


other witness, except D.W.1, was examined in this behalf.




55.    It   is   well-known   principle   that   a   person   who   has   no 


proper   authorization   to   represent   a   trust   cannot   enter   into 


agreements with third parties in order to bind the trust - even if 


such agreements are entered into, such agreements are not valid 


in the eye of law.  In the instant case, the first defendant and the 


third   defendant   -   M/s   Nagireddy   Charities,   represented   by   its 


Power   of   Attorney   Holder   have   utterly   failed   to   establish   the 


capacity   of   Venugopalreddy   as   trustee   to   execute   Ex.B.1 


agreement assigning the VCDs and DVDs copyrights in respect 


of the suit schedule films in favour of the first defendant during 


the   lifetime   of   Sri   Nagireddy,   the   Managing   Trustee   of   M/s 


Nagireddy   Charities.   This   is   a   strong   and   suspicious 


circumstance,   which   compels   this   Court,   to   hold   that   Ex.B.1 


was   not   executed   by   a   proper   and   authorized   person 


representing the third defendant-trust, conveying the copyrights 


of VCDs and DVDs in favour of the first defendant.   Further, 


when   Mr.   Venugopalreddy's   authority   as   trustee   to   execute 


Ex.B.1   is   in   serious   doubt,   first   defendant,   who   is   the 


beneficiary of the said document cannot be placed on a higher 


and comfortable position that Mr. Venugopalreddy.



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58.     From the perusal of the impugned judgment it could be 


seen the court below while discussing issues 3 and 4, without 


going to the aspect of validity or otherwise of the assignment of 


copyright   in   favour   of   first   defendant   by   third   defendant, 


incidentally recorded a finding basing on the Xerox copy of a 


document Ex.A-12, that the plaintiff is estopped from raising a 


plea   that   B.   Venugopal   Reddy   has   no   authority   to   represent 


third defendant trust.  But a perusal of Ex.A-12 discloses that it 


is   only   a   reiteration   of   assignment   of   broadcast   rights   under 


Ex.A-5.   In this context it is to be noted that Ex.A-12 is only a 


Xerox   copy   and   the   original   is   not   filed.   No   reasons   were 


recorded by the trial court with regard to the admissibility of the 


said   document.   Even   assuming   that   the   said   document   was 


really   executed   by   B.   Venugopal   Reddy   in   favour   of   second 


defendant,   as   already   noticed,   it   is   only   a   reiteration   or 


confirmation of Ex.A-5. Further there  is no cross-examination 


by  the  defendants   1  and  3  on  this  aspect  and  there  is   also  no 


reference   to   this   document   in   the   written   statements   filed   by 


them. Therefore, so long as the execution of Ex.A-4 was agreed 


to   have   been   in   subsistence   by   virtue   of   its   execution   by   B. 


Nagi   Reddy,   Managing   Trustee   of   third   defendant   assigning 


rights for a period of seventy years, Ex.A-12 does not gain any 


significance. If Ex.A-12 is to be accepted, notwithstanding the 


admissibility   or   otherwise   of  it,   at   best   it   has   to   be   presumed 


that B. Venugopal Reddy had become the Managing Trustee of 


third   defendant   as   on   the   date   of   execution   of   Ex.A-12   dated 


15-2-2002.   But   in   the   present   case,   the   whole   dispute   is   with 


regard to the authority of B. Venugopal Reddy to execute Ex.B-


1   document   in   the   capacity   of   trustee   of   third   defendant   in 


favour of first defendant, which is a prior transaction. In other 


words   the   genesis   of   the   rights   of   assignment   of   broadcast   is 


Exs.A-4 and A-5, but not Ex.A-12. Furthermore, the reasons for 


bringing   into   existence   of   the   controversial   Ex.A-12   is   not 


explained   in   the   evidence   of   either   of   the   parties   and   as   its 


execution  is  subsequent  to the  execution  of  Ex.B-1,  on which 


defendants   1   and   3   are   mustering   their   claim   of   copyright   of 


VCDs and DVDs, the same is not relevant and inconsequential. 


Hence, the finding of the trial court that the plaintiff is estopped 



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        to   question   the   validity   or   otherwise   of   the   trusteeship   of   B. 


        Venugopal Reddy for third defendant is not justifiable."










15.     Although,   learned   senior   counsel   appearing   for   the   parties   made 




elaborate   arguments   on  the   merits   of  the   findings  recorded   by   the   learned 




Single   Judge   with   reference   to   questions   No.2   and   3   and   produced 




publications  titled  Copinger and Skone James  on Copyright  (15th  Edition), 




Goldstein   on   Copyright   (3rd  Edition)   Volume   1   and   the   judgments   of 




different High Courts, we do not consider it necessary to examine the same 




because   in   our   considered   view,   the   learned   Single   Judge   was   not   at   all 




justified in non-suiting the appellant by recording a finding that Exhibit B.1 




was invalid.










16.     Since   the   trial   Court   had   not   framed   specific   issue   touching   the 




validity   of   agreement   Exhibit   B.1,   the   parties   did   not   get   effective 




opportunity   to   lead   evidence   in   support   of   their   respective   cases.     In   the 




absence   of   any   issue,   the   trial   Court   did   not   even   advert   to   the   question 




whether or not agreement Exhibit B.1 was valid.  The evidence available on 




the   record   was   not   at   all   sufficient   for   deciding   that   question   and   yet   the 




learned Single Judge decided that question by drawing inferences from the 




statements made by the witnesses examined by the parties with reference to 



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the issues framed by the trial Court and returned a negative finding on the 




validity of Exhibit B.1.










17.     In our view, in the peculiar facts of this case, the learned Single Judge 




was not at all justified  in invoking Order  XLI Rule  24 CPC.   If  at all the 




learned   Single   Judge   felt   that   the   trial   Court   should   have   framed   specific 




issue   on   the   validity   of   agreement   Exhibit   B.1,   then   he   should   have 




remanded the matter to the trial Court with a direction to frame such an issue 




and decide the suit afresh.   The omission on the part of the learned Single 




Judge to adopt that course has resulted in manifest injustice to the appellant. 










18.     In   the   result,   the   appeal   is   allowed.     The   impugned   judgment   is   set 




aside and the case is remitted to the trial Court with the direction that it shall, 




after considering the pleadings of the parties, frame an additional issue on 




the validity of agreement Exhibit B.1 executed between respondent No.1 and 




respondent   No.3,   give   opportunity   to   the   parties   to   produce   evidence   and 




decide the suit afresh without being influenced by any  of the observations 




made by the High Court and this Court.    



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19.     Since the matter is sufficiently old, we direct the trial Court to dispose 




of the matter as early as possible but latest within nine months from the date 




of receipt/production of copy of this judgment.   The parties are directed to 




appear before the trial Court on 10.10.2011.










20.     The   Registry   is   directed   to   send   a   copy   of   this   judgment   to   IX 




Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad by 




fax.










                                                       .....................................J.


                                                        [G.S. Singhvi]










                                                                 ..............................


                                                                                    ........J.


                                                       [Asok Kumar Ganguly]


New Delhi;


September 02, 2011.