Nearly two months after the Intellectual Property Appellate Board (IPAB) upheld the rights of the Indian Performing Rights Society Ltd (IPRS) and its lyricist, music composer and music publisher members to claim separate royalties by FM radio stations in India, the two are still at loggerheads.
Even as the appellate board ruled in favour of IPRS, early January, a Delhi high court order disposed an older dispute of statutory licensing between IPRS and Entertainment Network India Ltd (ENIL) that runs Radio Mirchi. The court ruling that when a particular sound recording is broadcast (in this case, on radio), copyright on musical notes or literary works (lyrics) are not considered to be utilized independent of the sound recording, therefore, no separate licence needs to be obtained or royalties to be paid to IPRS at all. The only payments that need to be made are to the music labels themselves who own all the music rights.
The IPAB has been constituted by the central government in the ministry of commerce and industry to hear appeals of the registrar in cases relating to patents and registered trademarks.
Following this Delhi high court order for Mirchi, radio operators have challenged the broader IPAB judgment relating to all players in the industry. The next hearing of the case is listed for 3 March.
Having waged a long battle for the benefit of its members, IPRS points to its biggest weapon—an amendment to the Copyright Act 1957 brought about in 2012 that had strengthened the position of the author if new modes of exploitation of the work come to exist. The body says it is simple logic that the lyricist and composer make a huge contribution to the song turning out the way it is to go on to be broadcast on any platform. “It is hypocritical to make money off our work especially when so much of monetization on radio happens because of music, whether it is played in the background or for promotions,” lyricist Mayur Puri, an IPRS member said.
Rakesh Nigam, CEO, IPRS said the radio industry should be paying lyricists and music composers anything between ₹10 crore and ₹25 crore per annum. He said even event companies do not make payments citing the example of radio, a bigger and more powerful category.
The Indian music industry barely earned a revenue of ₹1,068 crore, according to the Digital Music Study 2019 by the Indian Music Industry (IMI). To be sure, new-age digital companies such as YouTube and Facebook as well as some audio streaming sites have signed deals to pay the IPRS.
Private FM radio firms, including ENIL and Music Broadcast Ltd, declined to comment on Mint’s queries. A legal spokesperson for HT Media that owns Fever and Radio Nasha brands of stations, however, pointed to the reply filed by the organisation in IPAB which referred to provisions of the Copyright Act. Among other things, it said, “the rights in a sound recording… can be enjoyed by the owner…without any interference from the owners of the underlying works viz. the literary works and the musical works” referring to composers and lyricists.
Once the sound recording is legally created, the owner of the underlying works loses all its rights of communicating the same to the public nor can they demand any share in the royalty, the provisions add. “IPRS in its suggestions, in essence, claimed a right in the sound recording for receiving royalties when sound recording is being exploited. This claim is contrary to the provisions of the Copyright Act and such a claim is in fact barred by the provisions of Section 16 of the Copyright Act,” the HT reply said.
It added that specific sections of the Act were not modified in 2012 and in any event, the obligation to share the royalties, if any, with the authors, is not that of the broadcasters, but that of the record companies or producers of films.
“We are in active discussions with all of the societies on this issue and are hopeful of arriving at a consensual model between All India Radio, Prasar Bharati and the societies soon,” Shashi Shekhar Vempati, CEO, Prasar Bharati said.
HT Media Ltd, the publisher of Mint and Hindustan Times newspapers, owns the Fever 104 FM and Radio Nasha brands. Live Mint