Skip to content


The Wellington Cinema Vs. the Performing Right Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 55 of 1936 and Suit No. 1585 of 1934
Judge
Reported inAIR1937Bom472; (1937)39BOMLR654
AppellantThe Wellington Cinema
RespondentThe Performing Right Society Ltd.
DispositionAppeal dismissed
Excerpt:
indian copyright act (iii of 1914), schedule 1, section 19(1)-(english) copyright act (1911) (1 & 2 geo. v. c. 46), section 19(1)-copyright in record of musical work reproducing sound-its extent-copyright must be lawful-consent of author of original work necessary-owner entitled to refuse consent-consent may be given on conditions-such conditions may impose restrictions on owner of copyright in record-construction of document-when reading into document words which are not there justified.;copyright conferred by section 19(i) in schedule i of the indian copyright act, (corresponding with section 19(z) of the english copyright act of 1911), on the maker of a record of a musical work, by means of which sounds are mechanically reproduced, presupposes that the making of the record was a..........of copyright law. the plaintiffs in their plaint allege that they are the assignees of the copyright in four songs, and they annex to the plaint the assignments to themselves of such copyright. the relevant assignment annexed to the plaint is exhibit p, which as matter of construction, in my opinion, clearly assigns to the plaintiffs the copyright in the songs in question. the date of exhibit p is september 13, 1934. at the trial the plaintiffs sought to rely on an earlier assignment made in january, 1934, but the learned judge, rightly in my opinion, refused to let them rely on a document of title which they had not pleaded. the relevance of the point is that the license on which the defendants base their title was granted in july, 1934, and an assignment made in the following.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a judgment of Mr. Justice Barlee, and the case raises certain questions of copyright law. The plaintiffs in their plaint allege that they are the assignees of the copyright in four songs, and they annex to the plaint the assignments to themselves of such copyright. The relevant assignment annexed to the plaint is exhibit P, which as matter of construction, in my opinion, clearly assigns to the plaintiffs the copyright in the songs in question. The date of exhibit P is September 13, 1934. At the trial the plaintiffs sought to rely on an earlier assignment made in January, 1934, but the learned Judge, rightly in my opinion, refused to let them rely on a document of title which they had not pleaded. The relevance of the point is that the license on which the defendants base their title was granted in July, 1934, and an assignment made in the following September would be subject to the license previously granted by the assignors, whereas if the assignment was made in January, before the defendants' license, the assignment would not be subject to the license. However, we must, in my opinion, deal with the case on the footing that the plaintiffs' title accrued in September, 1934, and is therefore subject to the Performing license to the defendants, whatever that license may amount to.

2. The plaintiffs allege in the plaint that the defendants infringed their copy-right by giving a public performance of these songs as part of the exhibition of a film entitled 'Love, Life and Laughter.' A public exhibition of the film in question, which admittedly contained these songs, was given on September 20, 1934, and the question is whether in law the giving of that performance of the film 'Love, Life and Laughter' embodying these songs amounted to an infringement - of the plaintiffs' copyright.

3. Copyright in works which are mechanically performed was given for the first time by the Imperial Copyright Act of 1911, which is extended to India by the Indian Copyright Act, 1914. Under Section 1(2) of the Act of 1911 copyright is defined, so far as material for this case, as meaning the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, and it is provided that the right shall include the sole right, in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered, and to authorise any such acts as aforesaid. Then Section 2 defines what amounts to infringement of copyright, and in Sub-section (I) it is provided that copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole, right to do which is by the Act conferred on the owner of the copyright. So that copyright would be infringed under that section by making any cinematograph record of a musical work, in which copyright existed, without the consent of the owner of the copyright. Then Section 5 provides that subject to the provisions of the Act, the author of a work shall be the first owner of the copyright therein. Then we come to Section 19, on which the defendants base their title. That section provides that 'copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works, but the term of copyright shall be fifty years from the making of the original plate from which the contrivance was directly or indirectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of the work.' Now it is curious that Section 19, which confers copyright on the maker of a record, to use a compendious term, on the basis that he is to be deemed to be the author of the work, does not provide that the making of the record must be a lawful act. It does not in terms provide that the copyright under Section 19 only exists where a record is made with the consent of the owner of the copyright in the original work, if such a person exists. But, in my opinion, we must limit the section to a lawful making of a record. It cannot be supposed that the legislature, which had conferred by the earlier sections of the Act the right to restrain the reproduction of a literary, dramatic or musical work by mechanical means without the consent of the owner of the copyright, intended by Section 19 to confer copyright on an infringer of the owner's rights. In my opinion, therefore, the copyright conferred by Section 19 on the owner of the plate from which the record is made, presupposes that that Performing plate came into existence lawfully. If that is so, then, where the original work is the subject-matter of copyright, it necessarily follows that the consent of the owner of that copyright must be obtained to the making of the plate, and if such consent must be obtained, obviously it would be lawful for the owner to refuse such consent, and if the owner is entitled to refuse his consent, I apprehend that it is legitimate for him to give his consent subject to certain conditions, and that those conditions may involve restricting the copyright which the owner of the plate would otherwise acquire under Section 19. Such copyright might be restricted in various ways, amongst others, by restricting the public performance of records made from the plate.

4. There is very little authority on Section 19, but we have been referred to the case of Gramophone Co. v. Stephen Cawardine & Co. [1934] 1 Ch. 450 in which Lord Maugham, then Mr. Justice Maugham, discussed the section in some detail, and expressed opinions on various difficulties which arise under it. That was a case in which copyright in the original work had expired, and the work was in what is usually called 'the public domain,' so that the actual point with which we have to deal in this case did not arise. But Lord Maugham notices the difficulty that Section 19 does not in terms require the making of the record to be a lawful act, and he assumes for the purposes of his judgment that the rights under Section 19 would only accrue where the making of the record was lawful, and it is, I think, clear from his judgment that he considered that such assumption was well-founded in law. He also expressed the opinion, which was material in connection with the reasons which he gave for his decision, though it did not actually arise for decision in that case, that the copyright which is conferred upon the maker of a plate under Section 19 is subsidiary to any subsisting copyright in the original work. Mr. Lalji for the appellants has contended that that opinion of Lord Maugham is not correct, and should be treated as obiter, because in the case before him there was no copyright in the original work. It is not, in my opinion, necessary for us to express any opinion on that particular point; and for this reason, that the license which was given to the defendants in this case to make a record of these songs was not a license which merely authorised the making of the record, leaving it then a question to be determined whether the rights which accrued to the maker of the record under Section 19 were subject to the rights of the owner of copyright in the original work, but it was a license which imposed definite conditions, and either, as the appellants say, expressly authorised the public performance of the record containing the songs in question, or, as the respondents say, expressly negatived such right of public performance. Assuming, therefore, that I am right in thinking that under Section 19 the right to copyright in the maker of the record would only accrue if the record were properly made, and that that right is subject to any conditions imposed by the license under which the record is made, then the sole question on this appeal turns on the construction of the license which was given by the predecessors of the plaintiffs to the defendants or those under whom they claim. Now that license is exhibit K, and, so far as material, is in these terms. It is a license to the Associated Talking Pictures Ltd., through whom the defendants claim, 'to make and or import films and or records recording or reproducing the Performing musical works and or parts thereof the title and particulars whereof are Right So-set forth in the Second and Third columns of the Schedule hereto' (and the schedule includes these four songs) 'for use in the production and exhibition of the Film entitled 'Love, Life and Laughter' at Cinemas or Theatres situate in the territory of Great Britain, Northern Ireland, the Irish Free State and the Dominions and Colonies of the British Empire (excepting Australia, New Zealand and Canada).' Then follows this provision, 'This license shall not confer on the licensee the right to perform the said musical works or any part thereof in public and permission to perform the same shall (if required) be obtained by the licensee from the owner or controller of the performing right therein.' It is contended on behalf of the appellants that the first portion of that license is a license to make a film or record reproducing the songs in question for use in the exhibition of the film entitled 'Love, Life and Laughter' at the places specified, and that that involves a right to exhibit the film including these songs in public, and it is contended that the second part of the license which provides that the license shall not confer the right to perform the musical works in public applies only to the performance of those works apart from the film, that is, to the performance of the songs as songs, independently of their performance as part of the film of 'Love, Life and Laughter.' That construction undoubtedly involves reading into the second portion of the license some words which are not there. After the word 'perform' one would have to read some such words as 'apart from performance as part of the said film.' A Court of construction is entitled to read words into a document if that procedure is necessary in order to reconcile conflicting clauses or otherwise to give effect to what the Court considers from a perusal of the whole of the document to have been the real intention of the parties, but, on the other hand, a Court of construction is not entitled to read words which are not there into a document if the document as it stands can be given a rational meaning. The construction which the respondents ask us to place upon the license is this. They say it is a license to make a film or record recording or reproducing the songs in question, the purpose for which the songs are to be reproduced being for use in the production and exhibition of the film 'Love, Life and Laughter' at the places specified. They dispute that the first paragraph of the license would by itself confer any right to perform the film including these songs in public. They say that the license is confined to making copies of the works in question, and does not deal with performing rights. But, even assuming that Clause 1, standing by itself, would authorize the performance of these songs in public, it is contended that the second part is not really inconsistent with the first part. The first part authorizes the making of a film reproducing these songs the purpose of such reproduction being for use in the production and exhibition of the film at the places specified, and then the second part of the clause merely amounts to a proviso restricting to a limited extent the carrying out of that purpose by providing that so far as the purpose of user of ton Cinema these songs 'n the exhibition of the film involves public performance of the songs, that purpose cannot be carried into effect without obtaining the license Performing of the owner of the copyright in the songs. It seems to me that the respondents construction of the license is the right one, and that we should not, in the circumstances, be justified in reading into the license the words which the appellants ask us to read into it. I think the license merely confers a right to make a film including these songs, the purpose being the use of the songs in the production and exhibition of the film, but so that that purpose cannot be carried out to the extent of performing in public the film including the songs without obtaining a license from the owner of the copyright in the songs. That was the view substantially which the learned Judge took of the meaning of the license. In my opinion the Judge was right in granting an injunction, and damages, the amount of which has been agreed at Rs. 150. The appeal, therefore, must be dismissed with costs.

Blackwell, J.

5. I am of the same opinion. Although Section 19 of the Copyright Act does not in terms contain any provision requiring a person who makes a record of a musical work to obtain the consent of the owner of the copyright in that work, I think that the obtaining of such consent is necessarily involved by reason of other sections in the Act. Section 2(1) provides that copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by the Act conferred on the owner of the copyright. Among other rights conferred upon the owner by Section 1 is the sole right, in the case o(f a musical work, to make any record or other contrivance by means of which the work may be mechanically performed, and to authorize that act among other acts. Again Sub-section (2) of Section 19 provides that it shall not be deemed to be an infringement of copyright in any musical work for any person to make, among other things, records, if such person proves that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright. These various provisions, in my opinion, clearly indicate that no person is entitled to make a record without first obtaining the consent of the original owner of the copyright.

6. Sub-section (2) of Section 5 provides that the owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations, and may grant any interest in the right by license. By Section 1 copyright includes various rights, which are distinct and independent rights, viz., the right to produce or reproduce the work, the right to perform it, and the right to make records or other mechanical contrivances. By virtue of Sub-section (2) of Section 5, therefore, the owner may grant any interest in any of those rights by license, and any person who seeks to make a record of a musical work, and has to obtain the consent of the original owner so to do, can, in my opinion, only make that record strictly in accordance with the license granted to him.

7. I come now to the construction of exhibit K, upon the true construction: of which, in my opinion, this appeal turns. It is a license to make and or import films and/or records recording or reproducing the musical works specified in the schedule for use in the production and exhibition of the film entitled 'Love, Life and Laughter' at the places therein mentioned. It has bee contended on behalf of the appellants that the moment the Associated Talking Pictures Ltd., through whom the appellants claim, obtained the license to make Performing and import the films as provided in the first part of the license, they acquired thereby a statutory right of copyright as provided by Sub-section (1) of Section 19. it is argued that by reason of that statutory copyright the Associated Talking Pictures Ltd., necessarily acquired the right of public performance, and that the only way in which they could thereafter be deprived of that right would be by an assignment by them back to the original owner of the copyright in the musical work or to some other person. In my opinion that argument is fallacious. It assumes that the license was a license to make and import the films simplicities. It has been contended by the respondents that the first part of the license is merely a license to make and import the films for use in the production and exhibition of the film of 'Love, Life and Laughter' at the places therein mentioned, and that the first part of that license does not per se give a right of performance. It has been said that it would have been quite easy to use the words 'and to perform the said film' if a license to perform had been intended to be given. I think that there is great force in this argument. But, even assuming that the first part of the licence as it stands would, if there were nothing else in the license to indicate the contrary, have conferred a right of public performance, in my opinion it is essential to read the license as a whole before deciding what rights were intended to be conveyed by that license. The second part of the license in terms provides that it is not to confer on the licensee the right to perform the said musical works or any part thereof independently, and that permission to perform the same shall be obtained by the licensee from the owner or controller of the performing right therein. It is contended for the appellants that the meaning of this part of the license is that the license is not to confer the right to perform the musical works except so far as the right is given by the first part of the license to perform the musical work by means of a record in the production and exhibition of the film. That, however, obviously involves reading into the second part of the license words which are not there. I do not think that the Court is justified in doing that, if, looking at the license as a whole, the Court as a matter of construction comes to the conclusion that the intention of the grantor of the license was to grant a license in respect of one only of the rights which he has by virtue of Section 1 of the Copyright Act. In my opinion, therefore, the appellants did not acquire through the Associated Talking Pictures Ltd., the right of performance of these songs in connection with the films without first obtaining the consent of the owners of the copyright. Accordingly, I think the learned Judge came to the right conclusion, and that this appeal must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //