Sankar Prasad Mitra, C.J.
1. This is an appeal under Section 72(2) of the Copyright Act, 1957 from a decision or order of the Copyright Board dated the 16th May, 1973. Section 2(r) defines a 'performing right society'. It 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. The Indian Performing Right Society Ltd. (hereinafter referred to as IPRS) has been incorporated in terms of the provisions of the Act. On September 27, 1969 and on November 29, 1969, the IPRS has published in the Statesman and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposes to collect for the grant of licences for performance in public of works in respect of which it claims to have authority to grant such licences. The producers of cinematograph films who claimed to be owners of the respective films including the sound track thereof raised objections to the imposition of the proposed tariff. They are the appellants before us. Their contention is that they are the first copyright-holders of the cinematograph films including the musical work contained in the sound track. The IPRS contends on the other hand that the composers of lyric and music are its members. The IPRS is the assignee from them of the copyright in these works. And anyone performing them in public can only do so under and in accordance with a licence granted by the IPRS for which the fees, charges and royalties laid down in the tariff have to be paid.
2. The dispute, in the instant case is confined, therefore, to the sound track in a cinematograph film. The case of the IPRS is that the copyright in the musical works incorporated in the sound track of a cinematograph film vests in the composers of lyric and music. When that musical work is performed in public the composers are entitled to a fee or royalty in that behalf. And since the IPRS is the assignee of the copyright from the composers it has the right to collect that fee or royalty.
3. The main question, therefore, is whether the composers of lyric and music, in fact, have a copyright in the musical works incorporated In the sound track of a cinematograph film.
4. The Copyright Board has expressed the view that in the absence of proof the composers of lyric and music retained the copyright in their musical works provided that such musical works were printed or written and that they could always assign the performing right in public to the IPRS. The Board has held, in view of its conclusion aforesaid, that it has jurisdiction to deal with the tariff published by the IPRS which is entitled to the fees and royalties specified therein. The Board has held further that the IPRS has the right to grant a licence for the public performance of the said music in the sound track of a cinematograph film and can 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.
5. To test the correctness of the decision or order of the Copyright Board it would be necessary to go through various provisions of the Copyright Act, 1957. At one stage of the hearing before us of this appeal it was suggested that the Copyright Board had no jurisdiction to determine the disputes that arose between the parties; but this argument was not ultimately pressed by counsel for any of the parties and we proceed to express our views on the merits of the controversy indicated above.
6. Section 2 of the Copyright Act, 1957, is the section on interpretations. Section 2(d) defines an author. An 'author' means in relation to a cinematograph film, the owner of the film at the time of its completion : vide Section 2(d)(v). The 'work' en which a copyright exists has been defined in clause (y) of Section 2. This clause is as follows:--
' 'Work' means any of the following works, namely:--
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film; (iii) a record.'
7. This shows that a musical work and a cinematograph film are not one and the same thing. A cinematograph film is a 'work' in itself and the 'author' of the work is the owner of the film at the time of its completion. A 'musical work' is also a separate kind of work and its author is the composer thereof: vide Section 2(a)(ii). In the instant appeal the competition as to copyright is between the composer of the musical work and the owner of the cinematograph film.
8. Before we proceed further a few other definitions may be noted. Section 2(f) defines a 'cinematograph film'. For or purposes it includes the sound track. 'Exclusive licence' has been defined in Section 2(j). It means a licence which confers on the licensee or on the license 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 'an exclusive licensee' shall be construed accordingly. In the instant case the IPRS by reason of certain Deeds of Assignment is claiming to be the exclusive licensee in respect of musical works recorded on the sound track of cinematograph films to the exclusion even of the composer.
9. The next section, important for our purposes, is Section 13. It deals with works in which copyright subsists. Subject to the provisions of the Act copyright subsists, inter alia, in (a) original musical works and (b) in cinematograph film: vide Section 13(1)(a) and (b).
10. Then Sub-section (3), clause (a) of S. 13 lays down that copyright shall not subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work. In other words, if a cinematograph film infringes the copyright of any other work no copyright on the film can be claimed. We then come to Sub-section (4) of Section 13 which says that the copyright in a cinematograph film or a record shall not affect the separate copyrigirt 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.
11. The relevant provisions of Section 13, therefore, indicate (a) that copyright subsists in a musical work as well as in a cinematograph film, (b) if a substantial part of the cinematograph film is an infringement of the copyright in any other work, no copyright shall subsist in the cinematograph film and (c) the copyright in a cinematograph film and the copyright in any work may co-exist.
12. Let us now proceed to Section 14(1)(c) which deals with the meaning of copyright in the case of a cinematograph film. Broadly speaking, 'copyright' means the exclusive right to make a cinematograph film and. 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 consists 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 recording in any part of the sound track associated with the film by utilising the sound track;
(iv) to communicate the film by radio-diffusion,
13. We find, therefore, that the owner of a copyright in a cinematograph film has the exclusive right over the film and further the right to do or to authorise the doing of certain specified acts in respect of the film. The question is who is this owner?
14. Section 16 of the Act provides inter alia, that no person shall be entitled to copyright or a similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of the Act or of any other law for the time being in force.
15. The ownership of copyright and the rights of the owner have been prescribed in Chapter IV of the Act. Section 17 is the first section in this chapter. The relevant portions of Section 17 are as follows:--
Section 17. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein :
(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 agreement 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 1st owner in the copyright in the work;
(b) subject to the provisions of clause (a), in the case of ..................a cinematograph film made, for valuable consideration 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.
16-17. From this section it appears that when a cinematograph film is made at the instance of any person for valuable consideration such person is the first owner of the copyright in the film unless the writer of the story or the artist who takes part in the film or the composer or performer of music by an agreement to the contrary has reserved the copyright. Clause (c) of Section 17 is a general clause. That clause also indicates that the employer under a contract of service is the first owner of the copyright.
18. The next section to be referred to is Section 30. By this section it is provided that the owner of the copyright is 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. 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.
19. In the instant case a printed copy of the Deed of Assignment in favour of the IPRS placed before us shows that this is an assignment, inter alia, of all future works whether published or unpublished recorded on the sound track of the cinematograph film. The point for our decision is whether such an assignment is valid.
20. We then come to Section 33 which lays down, inter alia, that every performing rights society shall, within the prescribed lime and in the prescribed manner, prepare, publish and file with the Registrar of Copyrights, statements of all fees, charges or royalties which it proposes to collect for the grant of licences for performance in public of works in respect of which it has authority to grant such licences.
21. The IPRS, therefore, has the right to charge fees for grant of licences. The question to be decided in this appeal is whether under the provisions of the Copyright Act, 1957 the IPRS acquires any right of granting a licence for exhibition of a cinematograph film and if so, when and in what circumstances such right can be exercised.
22. On a conspectus of the various provisions of the Copyright Act, 1957 we have referred to, the following conclusions, it appears to us can be reached:--
(1) The owner of a cinematograph film which includes the sound track is the author of the film: vide Section 2(d)(v) read with Section 2(f).
(2) As author of the film the owner in the absence of an agreement to the contrary is the first owner of the copyright in the film: vide Section 17 proviso (b).
(3) Since he is the first owner of the copyright in the film including the sound track he has the exclusive right to do or authorise the doing of the following acts, namely,
(i) to make a copy of the film;
(ii) 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 sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track;
(iv) to communicate the film by radie-diffusion (vide Section 14(1)(c)).
(4) If a cinematograph film is produced at the instance of any person for valuable consideration that person and that person alone in the absence of an agreement to the contrary shall be the first owner of the copyright and those who participate in it or contribute to it for valuable consideration do not acquire any copyright at all. The opening sentence of Section 17 makes it clear that the author of a work shall be the first owner of the copyright therein 'subject to the provisions of this Act'. And proviso (b) to Section 17 prescribes that in a cinematograph film made, for valuable consideration at the instance of a person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. There is a marked difference between proviso (a) and provisos (b) and (c) to Section 17. Proviso (a) creates two copyrights -- one for the proprietor of a newspaper, magazine or similar periodical and the other in favour of the author in all other respects; but in provisos (b) and (c) a person under a contract of service for valuable consideration acquires no copyright at all in the absence of an agreement to the contrary.
(5) Even if we assume that a composer of music who participates in the production of a film that is produced for the first time also acquires a separate copyright, the composer's copyright does not destroy the copyright of the author of the cinematograph film. The author has also the exclusive rights described in Section 14(1)(c).
23. At this stage it would be relevant to refer to Sub-section (3) (a) of Section 13 of the Act. It says that copyrights shall not subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work. This subsection is not attracted to a case in which the composer of music for valuable consideration composes for the first time at the instance of any person for the purpose of reproduction in the sound track of a cinematograph film. Sub-section (3) of Section 13 deals with a case where a copyright already subsists and without the licence or permission of the owner of the copyright the subject-matter thereof is brought into a film. This would be an instance of infringement of copyright within the meaning of Section 51 of the Act.
24. On behalf of the respondents reliance has been placed on Section 18(1) of the Act. This sub-section runs thus:--
'The owner of a copyright in an existing work or the prospective owner of a copyright in a future work may assign to any person the copyright either wholly or partially 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.'
25. Mr. A. K. Sen, learned Counsel for the respondents, has submitted to us that the copyright in a musical work belongs to the composer of the music or his assignee; vide Section 2(d)(ii). This right may be an existing right or a right in a future work. In the instant case the terms of assignment in favour of the IPRS cover not only existing rights but also rights in future works of the assignor. In these premises a film producer needs the permission of the IPRS to perform the musical work in public. And without a licence granted by the IPRS public performance is illegal inasmuch 'copyright' in a musical work means the exclusive right by virtue of and subject to the provisions of the Copyright Act to perform the work in public: vide Section 14(1)(iii).
26. Mr. Sen relies on Article 755 at page 311 in Copinger on 'Copyright', 11th Edition. The Article deals with the meaning of 'Cinematograph film'. It says:
'A Cinematograph film is defined as any sequence of visual images recorded on material of any description (whether translucent or not). So as to be capable, by the use of that material, either of being shown as a moving picture, or of being recorded on other material (whether translucent or not) by the use of which it can be shown, and includes any associated sound track. The work protected, therefore, is the physical thing, rather than any dramatic or artistie matter embodied therein.'
27. According to Mr. Sen there is no question of automatic vesting of musical right in the producer of the film. He is entitled to exhibit only visual images and the sound but not the music in the sound track. Music is an artistic matter embodied in the film.
28. We are unable to accept the contentions of Mr. Sen. We have already pointed out that a cinematograph film includes the sound track Section 2(f). And an 'author' in relation to a cinematograph film is the owner of the film at the time of its completion, Section 2(d)(v). In Copinger on 'Copyright' 11th Edition page 306 in Article 745, it is stated:
'A cinematograph film is to be taken to include the sounds embodied in any sound track associated with the film. The expression 'sound track associated with a cinematograph film' means any record of sounds which is incorporated in any print, negative, tape or other article, on which the film or part of it, in so far as it consists of visual images, is recorded, or which is issued by the maker of the film for use in conjunction with such an article.'
29. A cinematograph film, therefore, includes the sounds embodied in a sound track. And 'sound' means anything perceived by the ear: vide Weekley's New Standard Dictionary and Encyclopaedia, p. 832. The music in the sound track is, therefore, a part and parcel of the cinematograph film itself. A composer of music can assign his copyright only when he shows that he has either an existing right or a right he would acquire in future. In the case of a cinematograph film when he composes for the first time for valuable consideration he has no existing right nor does he acquire any further right in the absence of an agreement to the contrary (Section 17 proviso (b)). The Act makes it clear that a cinematograph film includes its sound track (Section 2(f)). And 'sound track' means the area of a Motion picture film that carries the sound record: vide Webster's Seventh New Collegiate Dictionary, p. 835. The composer of music for valuable consideration as aforesaid, therefore, can have neither any existing right nor any future right (unless he enters into an agreement to the contrary) which he can assign or is capable of assigning.
30. Mr. S. C. Sen, Learned Junior Counsel for the respondents, has placed before us an observation of Maugham, J. in Gram-aphone Co. v. Stephen Cawardine & Co., (1934) 1 Ch 450 at p. 459. The Learned Judge has said:
'The conception of co-existing copyright is a familiar one in Copyright Law. A number of instances could be given. I think the best analogy for the present purpose is that of an adaptation or a new arrangement of a musical work composed by some other person. The rights of an adapter are subordinate to the rights of a composer, who is entitled to an injunction to restrain the performance of the new arrangement of his musical work so long as his copyright is still subsisting.'
31. Mr. S. C. Sen's point on the facts of this case is that the moment there is an original composition it is saddled with a copyright in favour of the IPRS under the proviso to Section 18. The law prevents the composer from bringing into existence anything which is not assigned to the IPRS. From this point of view the cinematograph film owner's copyright in the sound track cannot be born inasmuch as before it could be born it stood assigned to the IPRS.
32. This argument on behalf of the respondents we are also unable to uphold. An assignee cannot have a right higher than the right of an assignor. A composer of music for valuable consideraion who composes for the first time for a cinematograph film does not acquire any copyright in the music unless there is a contract to the contrary. Section 17 of the Copyright Act is the only section that speaks of the first owner of the copyright and under proviso (b) in a cinematograph film the first owner is the person at whose instance the film is made. Section 18 of the Act confers the power to make a contract of assignment but that power can be exercised only when there is an existing or a future right to be assigned.
33. In our opinion, therefore, when a composer of lyric or music composes for the first time for valuable consideration for purposes of a cinematograph film, the owner of the film at whose instance the composition is made, becomes the first owner of the copyright in the composition. The composer acquires no copyright at all either in respect of the film or its sound track which he is capable of assigning. In these circumstances, assignment, if any, of the copyright in any future work is of no effect. The composer can claim a copyright only on the basis of an express agreement reserving his copyright between him and the owner of the cinematograph film.
34. In view of the observations we have made in the foregoing paragraph, this appeal is allowed to the extent indicated above and the tariffs will have to be modified and/or altered accordingly. There will be no order as to costs.
Sabyasachi MukharjI, J.
35. I agree.