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Section 14 in the Copyright Act, 1957
Section 2 in the Copyright Act, 1957
Section 17 in the Copyright Act, 1957
Section 13(4) in the Copyright Act, 1957
the Copyright Act, 1957
Citedby 31 docs - [View All]
Ficci - Multiplex Association Of ... vs United Producers/ Distributors ... on 25 May, 2011
Eastern India Motion Pictures And ... vs Performing Right Society Ltd. And ... on 25 April, 1978
Fortune Films International vs Dev Anand And Anr. on 14 March, 1978
Srushti Vision And Others vs Shri Ulhas Buyao on 1 October, 1999
Shree Venkatesh Films Pvt. Ltd vs Vipul Amrutlal Shah & Ors on 1 September, 2009

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Supreme Court of India
Indian Performing Right Society ... vs Eastern India Motion Pictures ... on 14 March, 1977
Equivalent citations: 1977 AIR 1443, 1977 SCR (3) 206
Author: J Singh
Bench: Singh, Jaswant
           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.
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