Delhi High Court rules that three Indian collection societies must cease to issue licences

In a blow to three Indian music copyright collection societies, the Delhi High Court has restrained them from granting any such licence till April 24th 2017. Justice Sanjeev Sachdeva, in an interim order, restrained the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd from contravening section 33 of Copyright Act,  which provides that only registered societies can grant licences in respect of copyrighted work(s). 

In the order issued on the 23rd December the court ruled:

“Since the respondent 1 (Centre) and 2 (Copyright Office) have already initiated an inquiry and are taking action vis-a-vis the respondents 3 (PPL) and 4 (IPRS) and their stand is that neither of the three respondents, i.e 3, 4 and 5 (Novex) are registered in terms of section 33 of the Act, till the next date of hearing, respondents 3 to 5 are restrained from acting in contravention of section 33 of the Act..”. The  court listed the matter for a further hearing on April 24th.

In July 2015 The Delhi Organisers and Artists Society and the Mumbai based Organisers and Artists Welfare Trust said that the IPRS and PPL had been de-registered after the amendment to the Copyright Act in 2012 when it was laid down that any organisation had to re-apply for registration, which would be valid for five years. They also complained that IPRS had failed to make royalty payments to artistes.

The Event and Entertainment Management Association of India (EEMA) had filed a enquiry with the court, and EEMA said that iy had been working towards regularising and streamlining the music licensing regulatory framework for many years now. It has been engaged in a "long, slow but constant legal battle against the exploitation by the so called ‘Registered Copyright Societies’ who charge a ‘royalty’ for music played out at events." EEMA argued before the court that PPL and IPRS's registrations had lapsed in June 2013, and these had not been renewed, whilst Novex has never been registered as a copyright society.

Ankur Kalra, Secretary (Legal), EEMA, said, “The music licensing lobby (PPL / IPRS / Novex) has been engaged in illegal issuance of licences for over two years now and flouts all laws by openly threatening venues to stop events unless the licence is procured. Venues in turn pressurise event managers to do the same who despite knowing that it is wrong are forced to procure these licences to safeguard their events. The music licensing ‘societies’ today are private limited companies operating purely for profit and very little or no money actually reaches the artists. It has become an organised syndicate and when we highlighted the same to the court we got an injunction almost immediately. We will take this battle forward and ensure that all event managers, venues and police departments are educated on this matter.”

Abhishek Malhotra, Legal Counsel, EEMA, said, “The music industry has been going through a flux. While the law clearly provides that issue and grant of licences can be done only through a registered copyright society, these three entities have been effectively carrying on this business in violation of the clear legal provisions. This order as well as the government of India’s endorsement of the issues facing the users of music is a welcome development.”

The court also directed the Centre and the Copyright Office “to take action in accordance with law for any breach of provisions of section 33 by the respondents 3 to 5”. The Centre and the Copyright Office submitted that they have received complaints that PPL and IPRS were violating the Act and had already initiated an enquiry.

http://copyright.gov.in/Documents/Copyright%20Societies.pdf

http://www.jantakareporter.com/india/music-copyright-hc-restrains-three-bodies-issuing-licences/88410/

http://www.bestmediainfo.com/2016/12/eema-gets-court-stay-against-music-licensing-societies/

http://www.radioandmusic.com/biz/music/representative-bodies/collection-royalty-iprs-and-ppl-illegal-says-artistes-and-organisers-delhi-and-mumbai

2020 future vision for Azerbaijan -- but what of the present?

According to the Petosevic newsletter, in a news item prepared by Jelena Jankovic, great things are starting to happen in Azerbaijan -- a country that doesn't often get a mention on this weblog. In fact, this is only the second time. Anyway, the news is this:

Since 2005, the level of piracy in Azerbaijan in the area of book publishing has dropped from 61 to 30 percent, in the area of audiovisual and musical works from 90 to 67 percent, while the software piracy rate has dropped from 96 to 87 percent [perhaps "dropped" might be too strong a word for what is, after all, just a gentle decline ..], Azerbaijani Copyright Agency Chairman Kamran Imanov stressed at a recent seminar on copyright protection in Baku, organized by the Copyright Agency of Azerbaijan and the World Intellectual Property Organization (WIPO).

Imanov added that the Copyright Agency registered 21 copyrighted and related rights works in 2013, applications for which were submitted through the newly established online registration service. The total number of registered copyrighted works in Azerbaijan since the agency’s establishment is more than 9,000 [this doesn't sound like a large number, but presumably anything is better than nothing].

Azerbaijan is preparing national intellectual property strategy called “Azerbaijan 2020: Vision into the Future”, which will be presented soon. Part of the strategy involves possible amendments to the copyright legislation to ensure better online copyright protection.

This blogger wonders how, precisely, the system for copyright registrations works and whether it is a precondition for protection, noting that Azerbaijan has been bound by the terms of the Berne Convention since 1999 and that this Convention is not what one might call registration-friendly.  The Agency's own website has a link to a web page titled "Registration of intellectual property objects" but, when clicked, it leads to a blank page.  So too, sadly, does the link to the page titled "International cooperation".

Do any readers have detailed knowledge or experience that they'd like to share with us?

US Copyright Registration: $35 Insurance?

Formalities may not be allowed thanks to Berne, but that doesn’t stop the United States from encouraging copyright owners to register their works.  With so many everyday people creating copyrighted works – photos, emails, blog posts, tweets – a question to the necessity of copyright registration arises.  When should you bother registering?  Jonathan Bailey over at Plagiarism Today has a great post seeking to answer this question.

Once upon a time, there were formalities…

One answer is that you should register your work if it was created back when registration was required (i.e. under the old 1909 Copyright Act).  That’s something blues musician Syl Johnson learned the hard way.  Although in this instance, Syl had some bigger problems.

Part I

The case, Johnson v. Cypress Hill, et al. [Johnson II], Nos. 08-3810, 09-2213 & 10-1733 (June 1, 2011), involved legendary rap group Cypress Hill and Syl’s song “Is It Because I’m Black.”  Syl recorded two versions of this song, one in 1969 and one in 1972.  In 2003, he sued Cypress Hill for using his song in one of their 1993 songs.  As is the case with most copyright suits about hip hop tracks, the portion of the song used was small (2.5 seconds) and looped.  (Not relevant, but interesting all the same.)

Syl believed that his federal lawsuit was valid based on his recollection of having registered the 1972 recording in 1997.  But he ran into two problems.  First, he didn’t actually register the 1972 song (other songs were contained in the registration, but not the one at issue here).  Second, Cypress Hill didn’t use the 1972 recording, they used the 1969 recording.  The problem with that?  Sound recordings weren’t eligible for federal copyright protection until 1972.  Cypress Hill: 2, Syl: 0.

Syl’s next move was to try to sue under laws that applied to his work: common law misappropriation and federal copyright infringement for a different copyright.  Compositions were eligible for copyright protection in 1969 so Syl registered the work as a composition, in 2003.  That is the registration he used for the basis of the federal copyright claim in his motion to amend his complaint.  By this point, it was 2008, five years after the suit began and 15 years after the Cypress Hill song at issue was released.  The judge denied Syl’s motion to add these claims to the case and granted Cypress Hill summary judgment.  Cypress Hill: 3, Syl: 0.

Syl tried to get the court to vacate the summary judgment and just dismiss the case for lack of subject matter jurisdiction.  In a nice twist, Syl argued that since he didn’t have copyright in the first place, the court didn’t have jurisdiction.  Instead he got an order to pay attorney’s fees and costs for Cypress Hill, a judgment in excess of $300,000.  Cypress Hill: 4, Syl: –300,000.

But wait, it turns out that was only the first half.  If you’ll notice above, the case citation has the nickname “Johnson II.”  All that stuff above, that’s all in Johnson I.  So could Syl come back and even the score in the 2nd half?

Part II

Syl came back with a new case, Johnson II, in state court, again bringing the state law misappropriation claim.  Cypress Hill had the case moved to federal court.*  Once that happened, Syl tried to amend his complaint to add the composition infringement claim, basically attempting to make Johnson II exactly like what he tried to make Johnson I.  It didn’t work any better the second time.  The court dismissed the case with prejudice, meaning Syl couldn’t try to bring the same case for a third time.  The reason: Syl’s claims were barred by res judicata.  Cypress Hill: 5, Syl: still –300,000.

Syl fights hard and doesn’t give up.  He appealed, and he appealed everything: the first courts grant of summary judgment, his motion for dismissal based on lack of subject-matter jurisdiction, the attorney fees and costs award, and the dismissal of his claims in the new case.

Syl lost on all four. The first court didn’t abuse it’s discretion when granting summary judgment because of the long delay in attempting to amend the complaint.  The court had subject matter jurisdiction over the case because a valid copyright registration is a requirement for filing a claim but does not affect the court’s jurisdiction over the case.  The fees and costs award was valid because the US Copyright Act gives the court discretion to award costs and attorney’s fees to the prevailing party in an infringement suit.  And finally, dismissal of the new case was correct because the second case involved the same people, involved the same events, and the first case was decided on its merits.

Final score: Cypress Hill: 300,000.  Syl: –300,000.

 

* For those unfamiliar with US civil procedure, there are basically two ways to have a case heard in federal court, have a claim under a federal law (federal question jurisdiction) or have the two parties be from different states (diversity jurisdiction).  Johnson I was brought in federal court under the first type; Johnson II was moved to federal court under the second type.

Hat tip to Joe Forward and the State Bar of Wisconsin for their post on this case.