IN THE

HONORABLE
SUPREME COURT OF INDIA AT DELHI

CASE CONCERNING

SECTION 18 OF THE COPYRIGHT ACT 1957

INDIAN PERFORMING RIGHT SOCIETY

V.
EASTERN MOTION PICTURES

MEMORANDUM ON BEHALF OF THE APPELLANT

NAME -AMIT KUMAR KAYAL
SECTION- A ROLL NO- 18
INTELLECTUAL PROPERTY RIGHTS
DATED: 07.04.2015
 MEMORANDUM ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...........................................................................................................I

INDEX OF

AUTHORITIES ............................................................................................................1

LIST OF CASES
REFERRED ..............................................................................................2

LIST OF STATUTES REFERRED ........................................................................................2

LIST OF BOOKS
REFERRED .............................................................................................2

LIST OF DICTIONARIES REFERRED .................................................................................2

STATEMENT OF JURISDICTION.......3

STATEMENT OF FACTS ...........................................................................................................4

ISSUES RAISED ..........................................................................................................................5

SUMMARY OF ARGUMENTS .....................................................................................................6

I. THE COMPOSERS, LYRICISTS IS CAPABLE OF ASSIGNMENT UNDER S.18 WHEN HE GRANTS

A LICENSE OR PERMISSION U/S 30 TO AN AUTHOR (OWNER) OF A CINEMATOGRAPH

FILM.......................................................................................................................................7

II. THE WORK DONE BY COMPOSERS AND LYRICISTS FOR A CINEMATOGRAPH FILM COMES
WITHIN THE MEANING OF THE TERM CONTRACT FOR SERVICE..
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PRAYER ..................................................................................................................................VIII

LIST OF ABBREVIATIONS

& And
A.I.R. All India Reporter
 MEMORANDUM ON BEHALF OF THE APPELLANT

All Indian Law Reports Allahabad Series

Assn. Association
Anr. Another
Art. Article
Bom. Bombay
cl clause
Del. Delhi
ed. Edition
Honble Honourable
Id. Ibid
Jhar Jharkhand
Mad. Madras
MHC Madras High Court Reports
MPLJ Madhya Pradesh Law Journals
Nag. Nagpur
Ors. Others
p. Page
Para Paragraph
Punj Punjab
Raj Rajasthan
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Review
Supp Supplementary
U.O.I. Union of India
v. Versus
vol. Volume

INDEX OF AUTHORITIES

LIST OF CASES REFERRED:

Eastern Book Company v. D.B. Modak (2008)

Sulumangalam R. Jayalakshmi and Another v. Meta Musicals Chennai and Others,
2000
Simmons v. Heath Laundry Co. (1910)
Gee Pee Films Pvt. Ltd. v. Pratik Chowdhury & Others 2002

STATUTES, RULES AND CONSTITUTIONS REFERRED:

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 MEMORANDUM ON BEHALF OF THE APPELLANT

Constitution of India, 1950

Copyright Act, 1957

LIST OF BOOKS REFERRED:

P. NARAYANAN, INTELLECTUAL PROPERTY LAW (3RD Edition, Eastern

Publishing Company)
STEPHEN ELIAS AND RICHARD STIM, TRADEMARK: LEGAL CARE (6TH
Edition, Oxford Publising House)
V.K. AHUJA, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS (2ND
Edition, Lexis Nexis Butterworths Wadhwa)

DICTIONARIES REFERRED:

GARNER BRYAN A., BLACKS LAW DICTIONARY (8th edn, West Group 2002)
PEARSALL JUDY, CONCISE OXFORD DICTINARY (10th edn, Oxford University
Press)
WEBSTER, NEW WORLD DICTIONARY (2nd edn, Houghton Miffin Hurcourt
2002)

STATEMENT OF JURISDICTION

THE COUNSEL ON BEHALF OF THE IPRS HAS APPROACHED THE HONBLE SUPREME COURT OF
INDIA UNDER ARTICLE 133 OF THE INDIAN CONSTITUTION, 1950.

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 MEMORANDUM ON BEHALF OF THE APPELLANT

STATEMENT OF FACTS

Indian Performing Right Society(hereinafter IPRS) was incorporated in

terms of section 2(r) of the copyright Act 1957 in the State of Maharashtra
on August 23,1969 as a company limited by guarantee.

IPRS was incorporated for the purpose of carrying on business in India of

issuing or granting licenses for performance in public of all existing and
future Indian musical works.

IPRS has amongst its members the composers of musical works, authors
of literary and dramatic works and artistes.

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 MEMORANDUM ON BEHALF OF THE APPELLANT

On September 27, 1969 and November 29, 1969 IPRS published 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 granting of
licenses for performance in public of works in respect of which it claimed
to be assignee of copyrights.

Against this publication, various associations including the Cinematograph

Exhibitors Association of India filed objections before the Copyright Board.

Tribunal rejected there objection and held in favour of IPRS, after which
respondents appealed which was accepted by the High Court. Hence, this
appeal against the decision of High Court by IPRS.

ISSUES RAISED

I. Whether the Composer of music, lyricists is capable of assignment u/s. 18 when he

grants a license or permission u/s 30 to an author of a cinematograph film for its
incorporation in the sound track of a cinematograph film.

II. Whether the work done by the Composers, lyricists etc in a cinematograph film comes
within the term Contract for service.

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 MEMORANDUM ON BEHALF OF THE APPELLANT

SUMMARY OF ARGUMENTS

I. THE COMPOSERS, LYRICISTS IS CAPABLE OF ASSIGNMENT UNDER S.18 WHEN HE GRANTS

A LICENSE OR PERMISSION U/S 30 TO AN AUTHOR (OWNER) OF A CINEMATOGRAPH FILM.

The composers, lyricists who have the right to further let their work exploit by anyone other
than the producer of the film. The owner of copyright in a work may assign copyright either
wholly or partially for the whole or any part of such copyright to any person.

II. THE WORK DONE BY COMPOSERS AND LYRICISTS FOR A CINEMATOGRAPH FILM COMES
WITHIN THE MEANING OF THE TERM CONTRACT FOR SERVICE.

A contract for service basically means where the person without any directions given to him
work for the person who hires him, where the degree of the control over the person who has
been hired is minimal. The greater the amount of direct control exercised over the person
rendering the services by the person by the person contracting for them the stronger the
grounds for holding it to be a contract of service.

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 MEMORANDUM ON BEHALF OF THE APPELLANT

ARGUMENTS ADVANCED

I. YES, THE COMPOSERS, LYRICISTS IS CAPABLE OF ASSIGNMENT UNDER S.18 WHEN HE

GRANTS A LICENSE OR PERMISSION U/S 30 TO AN AUTHOR (OWNER) OF A

CINEMATOGRAPH FILM.

The composers, lyricists in a cinematograph film composes the music, writes the lyrics for
the film. Now the owner of the film i.e. producer of the film owns such work which has been
done by the composers, lyricists for the film. But the real owner of the work happens to be
the composers, lyricists who have the right to further let their work exploit by anyone other
than the producer of the film.

I.A COMPOSERS, LYRICISTS ARE THE OWNERS OF THE WORK

To assign the work u/s 18 of the Copyright Act 1957, one should be the owner of the work
which is being assigned by him. Section 2 (d) defines the author means;

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 MEMORANDUM ON BEHALF OF THE APPELLANT

i)in relation to a literary or dramatic work, the author of the work;

ii)in relation to a musical work, the composer;
iii) in relation to a cinematograph film, the owner of the film at the time of its completion;

Now when a composer of music composes the music for a producer of a film, producer
reserves the right to use such work in his film, but the real owner shall be the composer who
thereof reserves the right to assign his work to anyone u/s 18. Although for establishing a c 1
copyright, the creativity standard applies was not that something must be novel or non
obvious, but some amount of creativity in work to claim a copyright was required. 1 In the
present case the composers, lyricists apply the creativity thus creating the work on their own.
Section 2 (ffa) defines composer to mean the person who composes the music regardless of
whether he records it in any form of graphical notation.

I.B. THE COMPOSERS AND LYRICISTS HAVE THE RIGHT OF ASSIGNMENT

U/S 18 OF THE COPYRIGHT ACT

The owner of copyright in a work may assign copyright either wholly or partially for the
whole or any part of such copyright to any person. Copyright may also be assigned by a
prospective owner of the copyright in a future work subject however to the condition that the
assignment shall be effective when the work comes into existence. The assignment of
copyright may be made generally or subject to limitation.2

The author 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 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 work or musical work which is
incorporated in the cinematograph film, as according to section 1,3(4) of the Act, the

1 Eastern Book Company v. D.B. Modak (2008) 1 SCC at pg. 113

2 Section 18 of the Copyright Act. In Sulumangalam R. Jayalakshmi and Another

v. Meta Musicals Chennai and Others, 2000 PTC 681 at p. 687

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 MEMORANDUM ON BEHALF OF THE APPELLANT

copyright in a cinematograph film doesnt 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,
that the provisions of section 17(b) of the Act have no application to a literary or musical
work or the separate right therein and dont take away the copyright in a literary or musical
work embodied in a cinematograph film.

The only modes in which the author of a literary or musical work ceases to be the owner of
copyright 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 employment of
the author to produce a work under a contract of service.

In the present case the composers; lyricists had no contract of service with the owner of the
film. They voluntarily became member of IPRS and chose IPRS to exhibit their work, and the
objections raised by the defendants in the present case are not valid and doesnt hold good.

II.THE WORK DONE BY COMPOSERS AND LYRICISTS FOR A CINEMATOGRAPH FILM COMES
WITHIN THE MEANING OF THE TERM CONTRACT FOR SERVICE.

The composers and lyricists in a film work at their discretion, without the directions given to
them by the producer. The producer i.e. the owner of the film doesnt have any control over
the composers and lyricists. A contract for service basically means where the person without
any directions given to him work for the person who hires him, where the degree of the
control over the person who has been hired is minimal.3

The greater the amount of direct control exercised over the person rendering the services by
the person by the person contracting for them the stronger the grounds for holding it to be a
contract of service, and similarly the greater the degree of independence of such control the
greater the probability that the services rendered are of the nature of professional services and
that the contract is not one of service.4

3 Halsbury laws of England, Vol,9 4th edition, para 860.

4 Simmons v. Heath Laundry Co. (1910) 1 KB 543

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 MEMORANDUM ON BEHALF OF THE APPELLANT

Composers and lyricists are considered the professionals who work for the money given to
them by the producer. Producers enjoy very little control over the lyricists and composers etc.
and the latter work at their discretion. Here the degree of control over the lyricists and
composers etc. is very minimal. So it can easily be concluded that the work done by the
composers and lyricists come under the meaning of the term contract for service.

So, the work done by the composers and lyricists come under the term contract for services,
the real owner happen to be the composers and lyricists of their work, they reserve the right
to let others exploit their work u/s 18 of the Copyright Act, 1957 i.e. they have the right to
assignment u/s 18 of the Copyright Act 1957.

II.A THE WORK DONE BY THE COMPOSERS AND LYRICISTS IS IN THE

NATURE OF COMMISSIONED WORK.

Commissioned work is done under contract for services. In a case 5 of contract for services,
the plaintiff commissioned defendants 3 to 5 in 1999 to compose Bengali non film lyrics and
music. Defendant no. 1 had to sing the songs. The Plaintiff published sound records that were
based on commissioned work. Subsequently, defendants no. 1 and 2 released music cassettes
containing eight songs from the plaintiffs cassettes. The Plaintiff filed a suit for infringement
of his copyright of his copyright in the sound records mainly on two grounds. Calcutta High
Court aptly rejected the contention of the plaintiff, held that it was a clear case of contract for
services and not of contract of service.
Section 17 (b) of the Act specifies the only instances where an author, although engaged
under contract for services loses copyright. Those are the cases of taking photograph, drawing
painting or portrait, engraving and making cinematograph film. 6 In the present case the
composers, lyricists hold the right to grant the permission to anyone who could use their
work. The producer holds the right in terms of cinematograph film but the ultimate owner of
the work done are the composers and lyricists.

5 Gee Pee Films Pvt. Ltd. v. Pratik Chowdhury & Others 2002 (24) PTC 392

6 Ibid at p.399

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 MEMORANDUM ON BEHALF OF THE APPELLANT

PRAYER

Wherefore, in the light of facts stated, arguments advanced and authorities cited, it is most
humbly prayed that this Honble Supreme Court may be pleased to adjudge and declare:

That the appeal filed is accepted.

That the rights of producer of film is subject to the right of composer, lyricists in a
film;
That the service rendered by composers, lyricists comes under the term Contract for
service.

The Supreme Court may also be pleased to pass any other order, in light of justice, equity and
good conscience.

All of which is most humbly submitted.

Place: New Delhi S/d-

Date: 07.04.2015 On Behalf of the Appellant

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