35.

Control over the copyright society by the [authors and other owners of right].
(1) Every copyright society shall be subject to the collective control of the [authors and
other owners of right] under this Act whose rights it administers (not being [authors and
other owners of right] under this Act administered by a foreign society or organisation
referred to in sub-section (2) of section 34) and shall, in such manner as may be
prescribed,
(a) obtain the approval of such [authors and other owners of right] for its procedures
of collection and distribution of fees;
(b) obtain their approval for the utilisation of any amounts collected as fees for any
purpose other than distribution to the owner of rights; and
(c) provide to such owners regular, full and detailed information concerning all its
activities, in relation to the administration of their rights.
(2) All fees distributed among the [authors and other owners of right] shall, as far as may
be, be distributed in proportion to the actual use of their works.
[(3) Every copyright society shall have a governing body with such number of persons
elected from among the members of the society consisting of equal number of authors
and owners of work for the purpose of the administration of the society as may be
specified.
(4) All members of copyrights society shall enjoy equal membership rights and there
shall be no discrimination between authors and owners of rights in the distribution of
royalties.]

72. Appeals against orders of Registrar of Copyrights and Copyright Board. - (1)
Any person aggrieved by any final decision or order of the Registrar of Copyrights may,
within three months from the date of the order or decision, appeal to the Copyright
Board.
(2) Any person aggrieved by any final decision or order of the Copyright Board, not being
a decision or order made in an appeal under sub-section (1), may, within three months
from the date of such decision or order, appeal to the High Court within whose
jurisdiction the appellant actually and voluntarily resides or carries on business or
personally works for gain:
Provided that no such appeal shall lie against a decision of the Copyright Board under
section 6.
(3) In calculating the period of three months provided for an appeal under this section,
the time taken in granting a certified copy of the order or record of the decision appealed
against shall be excluded.

33. Registration of copyright society. - (1) No person or association of persons shall,

after coming into force of the Copyright (Amendment) Act, 1994 commence or, carry on
the business of issuing or granting licences in respect of any work in which copyright
subsists or in respect of any other rights conferred by this Act except under or in
accordance with the registration granted under sub-section (3):
Provided that an owner of copyright shall, in his individual capacity, continue to have the
right to grant licences in respect of his own works consistent with his obligations as a
member of the registered copyright society:
[Provided further that the business of issuing or granting license in respect of literary,
dramatic, musical and artistic works incorporated in a cinematograph films or sound
recordings shall be carried out only through a copyright society duly registered under this
Act :-
Provided also;]
Provided also that a performing rights society functioning in accordance with the
provisions of section 33 on the date immediately before the coming into force of the
Copyright (Amendment) Act, 1994 shall be deemed to be a copyright society for the
purposes of this Chapter and every such society shall get itself registered within a period
of one year from the date of commencement of the Copyright (Amendment) Act, 1994.
(2) Any association of persons who fulfils such conditions as may be prescribed may
apply for permission to do the business specified in sub-section (1) to the Registrar of
Copyrights who shall submit the application to the Central Government.
(3) The Central Government may, having regard to the interests of the authors and other
owners of rights under this Act, the interest and convenience of the public and in
particular of the groups of persons who are most likely to seek licences in respect of the
relevant rights and the ability and professional competence of the applicants, register
such association of persons as a copyright society subject to such conditions as may be
prescribed:
Provided that the Central Government shall not ordinarily register more than one
copyright society to do business in respect of the same class of works.
[(3A) The registration granted to a copyright society under sub-section (3) shall be for a
period of five years and may be renewed from time to time before the end of every five
years on a request in the prescribed form and the Central Government may renew the
registration after considering the report of Registrar of Copyrights on the working of the
copyright society under section 36 :
Provided that the renewal of the registration of a copyright society shall be subject to the
continued collective control of the copyright society being shared with the authors of
works in their capacity as owners of copyright or of the right to receive royalty :-
Provided further that every copyright society already registered before the coming into
force of the copyright (Amendment) Act, 2012 shall get itself registered under this
Chapter within a period of one year from the date of commencement of the Copyright
(Amendment)Act,2012.]
(4) The Central Government may, if it is satisfied that a copyright society is being
managed in a manner detrimental to the interests of the [authors and other owners of
right] concerned, cancel the registration of such society after such inquiry as may be
prescribed.
(5) If the Central Government is of the opinion that in the interest of the [authors and
other owners of right] concerned, [or for non-compliance of sections 33A, sub-section (3)
of section 35 and section 36 or any change carried out in the instrument by which the
copyright society is established or incorporated and registered by the Central
Government without prior notice to it] it is necessary so to do, it may, by order, suspend
the registration of such society pending inquiry for such period not exceeding one year
as may be specified in such order under sub-section (4) and that Government shall
appoint an administrator to discharge the functions of the copyright society.
34. Administration of rights of owner by copyright society. - (1) Subject to such
conditions as may be prescribed,
(a) a copyright society may accept from an [authors and other owners of
right] exclusive authorisation to administer any right in any work by issue of
licences or collection of licence fees or both; and
 (b) an [authors and other owners of right] shall have the right to withdraw such
authorisation without prejudice to the rights of the copyright society under any
contract.
(2) It shall be competent for a copyright society to enter into agreement with any foreign
society or organisation administering rights corresponding to rights under this Act, to
entrust to such foreign society or organisation the administration in any foreign country
of rights administered by the said copyright society in India, or for administering in India
the rights administered in a foreign country by such foreign society or organisation:
Provided that no such society or organisation shall permit any discrimination in regard to
the terms of licence or the distribution of fees collected between rights in Indian and
other works.
(3) Subject to such conditions as may be prescribed, a copyright society may
(i) issue licences under section 30 in respect of any rights under this Act;
(ii) collect fees in pursuance of such licences;
(iii) distribute such fees among owners of rights after making deductions for its
own expenses;
(iv) perform any other functions consistent with the provisions of section 35.

▼
35. Control over the copyright society by the [authors and other owners of right].
(1) Every copyright society shall be subject to the collective control of the [authors and
other owners of right] under this Act whose rights it administers (not being [authors and
other owners of right] under this Act administered by a foreign society or organisation
referred to in sub-section (2) of section 34) and shall, in such manner as may be
prescribed,
(a) obtain the approval of such [authors and other owners of right] for its procedures
of collection and distribution of fees;
(b) obtain their approval for the utilisation of any amounts collected as fees for any
purpose other than distribution to the owner of rights; and
(c) provide to such owners regular, full and detailed information concerning all its
activities, in relation to the administration of their rights.
(2) All fees distributed among the [authors and other owners of right] shall, as far as may
be, be distributed in proportion to the actual use of their works.
[(3) Every copyright society shall have a governing body with such number of persons
elected from among the members of the society consisting of equal number of authors
and owners of work for the purpose of the administration of the society as may be
specified.
(4) All members of copyrights society shall enjoy equal membership rights and there
shall be no discrimination between authors and owners of rights in the distribution of
royalties.]

2. Interpretation. - In this Act, unless the context otherwise requires,

(p) musical work means a work consisting of music and includes any graphical notation
of such work but does not include any words or any action intended to be sung, spoken
or performed with the music;
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) [sound recording].
(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work
to which the provisions of section 40 or section 41, apply, unless,
(i) in the case of a published work, the work is first published in India, or where
the work is first published outside India, the author is at the date of such
publication, or in a case where the author was dead at that date, was at the
time of his death, a citizen of India;
(ii) in the case of an unpublished work other than an work of architecture,the
author is at the date of the making of the work a citizen of India or domiciled
in India; and
(iii) in the case of an [work of architecture], the work is located in India.
Explanation. In the case of a work of joint authorship, the conditions conferring
copyright specified in this sub-section shall be satisfied by all the authors of the work.
(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 [sound recording] made in respect of a literary, dramatic or musical work, if
in making the [sound recording], copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a [sound recording] 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 [sound recording] is made.
(5) In the case of an [work of architecture], copyright shall subsist only in the artistic
character and design and shall not extend to processes or methods of construction.

[14. Meaning of copyright. - (1) For the purposes of this Act, copyright means the
exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the
following acts in respect of a work or any substantial part thereof, namely:
(a) in the case of a literary, dramatic or musical work, not being a computer
programme,
(i) to reproduce the work in any material form including the storing of it in
any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in
circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the
work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
 (vii) to do, in relation to a translation or an adaptation of the work, any of the
acts specified in relation to the work in sub-clauses (i) to (vi);

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
(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 insofar 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
painting or portrait drawn, or an engraving or 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 authors 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;
[(cc) in the case of any address or speech delivered in public, the person who has
delivered such address or speech or if such person has delivered such address or
speech on behalf of any other person, such other person shall be the first owner of
the copyright therein notwithstanding that the person who delivers such address or
speech, or, as the case may be, the person on whose behalf such address or
speech is delivered, is employed by any other person who arranges such address
or speech or on whose behalf or premises such address or speech is delivered]
(d) in the case of a Government work, Government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein;
[(dd) in the case of a work made or first published by or under the direction or control
of any public undertaking, such public undertaking shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein.
Explanation. For the purposes of this clause and section 28-A, public undertaking, means
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956); or
 (iii) a body corporate established by or under any Central, Provincial or State
Act]
(e) in the case of a work to which the provisions of section 41 apply, the international
organisation concerned shall be the first owner of the copyright therein.
[Provided that in case of any work incorporated in a cinematograph work nothing
contained in clauses (b) and (c) shall affect the right of the author in the work referred to
in clause (a) of sub-section (1) of section 13;]

The facts of the case are that The Performing Right Society Ltd., London, the respondent was
a Performing Right Society within the meaning of the said Act. The Society is an association
of Composers, authors and publishers of Music having its Head Office in London.

There have been revision of tariff and the revised tariff erroneously got published in the
Statesman Calcutta and Indian Express Bombay dated the 9th Jan. 1971 and the Gazette of
India Part IV dated 23rd Jan. 1971 which was subsequently withdrawn and substituted by the
revised tariff as required by Sub-section (1) of Section 33 of the Copyright Act, 1957.

from 1947 to 1959 the Society was recovering the minimum annual license fee for a cinema
at Rs. 40/.

On 28th of June 1969 a fresh Tariff was published whereby the minimum annual licence fee
for a cinema was raised from Rs. 40/- to Rs. 100/.

On Feb. 7, 1971 the Society withdrew the fresh Tariff and had the revised Tariff published in
official Gazette dated the 13th of Feb. 1971. By its decision dated 1st April 1974, the Board
passed the order that “For all the above reasons we are not inclined to revise the tariff as
published in the Gazette of India dated 13th of Feb. 1971”

Regarding the first preliminary point raised by the objectors that the Society had no standing
to require objectors to obtain licence, it was pointed out by the Board that the issue is whether
the musical work that automatically is exhibited and performed in public when the
Soundtrack and cinematograph film is exhibited requires licensing as there is copyright on
such musical work. In this context it was observed by the Board as follows:
“Once a film is exhibited, along with it the music is also played, whether it forms an integral
part, is not very material. The question is when the whole is being shown. Whether the owner
of the copyright of a part of the whole can say that his copyright is being infringed.”
“The only question that is in dispute is, whether the composer of the music who has got a
copyright undoubtedly in the musical work, can say that the owner of a cinematograph film
cannot show his film unless the licence fee is paid to the composer or the Performing Right
Society who is acting on behalf of the composer (for the (sic) being we are taking that the
Performing Right Society is a representative of the composer of the music and has been duly
authorized) for the music incorporated in the film-track or whether the owner of a film can
exhibit the film without caring for the composers of music incorporated in the film.”
The Board came to the conclusion that the Society had authority in fact and in law to grant
licence in respect of the music contained in the Soundtrack of a cinematograph film.

On the question of the reasonableness of the rates, though the Board observed that there was
no cause for enhancement of tariff, it recorded that it was not inclined to revise the tariff as
published in 1971.

Argument

Appellant
3 fold submissions were made by the appellant:
1) that the composers, lyricists and musicians have no copyright in the soundtrack of the
film; that the Society is representing only the Composers and not the producers in this
case.
2) that the Board had jurisdiction to determine the reasonableness of the rate when the
right of the Society to grant licence or collect fee is admitted but not where the alleged
copyright of the Society and the authority of the Society to grant licence or to fix rates
itself was disputed
3) that the Board was "not inclined to revise the tariff as published in the Gazette of
India dated the 13th of Feb. 1971. In the earlier part of the Board's decision the Board
itself had said that "there was no case for enhancement of tariff". Accordingly the
final order of the Board, according to Mr. Bachawat must be held to be perverse.
Respondent
"performing right" means the right of (a) performing the said music in public (b) broadcasting
the said music (c) causing the said music to be transmitted to subscribers to a diffusion
service, and (d) authorising other person to do any of the said acts in relation to the said
music."
The composer of music incorporated in the soundtrack of a film is the first owner of the
copyright in that music and, as already explained in previous replies the composers of all film
music controlled by PRS reserve, when entering into contracts with the film producers, the
public performance elements of the copyrights in their music. These performing rights are
assigned to their respective societies and are not available to the film producer
scope of enquiry under Sections 33, 34 and 35 of the Act was normally limited only to the
reasonableness of fees, charges and royalties.
in respect of such an enquiry, the Board should not go into the question of the authority of the
Society and the Board had no jurisdiction to do so. The Board's decision is only confined to
the question of reasonableness.
Mr. Sen submitted that we have ample jurisdiction to go into the matter and in any event the
Court should remand this matter to the Board for a fresh hearing limited on this point.

Application of Law
Supreme Court in the earlier case of Eastern India Motion Pictures Association1 have held
that:
The composer of a lyric of 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
restrained from doing so.
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 has thereby permitted him to
appropriate his work by incorporating or recording it on the soundtrack 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
that the rights of a music, composer or lyricist can be defeated by the producer of a
cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act

Judgement

Sub-section (1) of Section 33 of the Act specifically uses the expression "in respect of which
it has authority to grant such licence".

1
MANU/SC/0220/1977 : [1977]3SCR206.
it was held by Supreme Court that the Society therein had no authority. Accordingly it was
held that the Board had jurisdiction to decide the question of authority of the society
concerned.

The Society in the present case is an association of composers, authors and publishers of
music. Composers, authors etc. have no copyright in the sound-track and accordingly their
association cannot have a better right in spite of any alleged assignment.
By its final order the Board has held that the Board was not inclined to revise the tariff as
published in the Gazette of 13 of Feb. 1971. On the other hand, just few sentences before that
it has been observed by the Board that the Board was of the view that there is no case for
enhancement of tariff. This, in our opinion, shows non-application of mind on the part of the
Board.

Analysis

The present case is clearly covered by the judgment of the Supreme Court in the case of
Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association.

The distinction sought to be made on the basis that the Supreme Court in that case was
concerned with the claim of copyright of Indian Performing Society in the exhibition of
Indian films and the present case relates to the claim of copyright of the Performing Right
Society Ltd., of London in respect of exhibition of foreign films in India, is clearly without
any substance

The Supreme Court has clearly laid down that when a cinematograph film producer
commissions a composer of music or a lyricist for reward or valuable consideration for the
purpose of making his cinematograph film or composing music or lyric therefore i.e. the
sounds for incorporation or absorption in the sound track associated with the film, which 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 materials on record in the instant case do not indicate or establish any such contract to
the contrary.

Conclusion
In this case, the Society is an organisation of composers, authors, and music publishers.
Composers, authors, and others do not have copyright in the sound track, hence their
association cannot have a superior right notwithstanding any supposed assignment. In the
lack of adequate documents, it is impossible to determine whether or not there is a contract to
the contrary in the facts of a case of the author.

The Board's final order in the dispute contradicts its prior observations on the topic of the
rates' appropriateness. The Board stated in its final order that it was not inclined to change the
tariff as published in the Gazette on February 13, 1971. The Board, on the other hand, has
stated that it believes there is no justification for a tariff increase. This demonstrates the
Board's lack of mental acuity. Objectors called this into question. The Board made
inconsistencies in its remarks and orders after failing to thoroughly consider the information.

that the rights of a music, composer or lyricist can be defeated by the producer of a
cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act