Calcutta High Court orders Vodafone India to deposit earnings from caller tunes; limited stay on usage of IPRS musical works

A Division Bench of the Calcutta High Court has granted a limited stay on the key directive in a May 17 judgment against Vodafone Idea (VI), by which the telco was restrained from using copyrighted music in caller tunes unless it obtained a licence from the India Performing Rights Society (IPRS) and paid royalty to it [Vodafone Idea Limited v. The Indian Performing Right Society Ltd]..The stay was issued by a Bench of Justices IP Mukerji and Biswaroop Chowdhury on an appeal filed by VI. The stay has been granted till June 24, or until further orders, whichever is earlier."We direct limited stay of the order of injunction granted by the impugned judgment and order dated 17th May 2024 in paragraph 32(iv) at internal page 29 thereof till 24th June 2024 or until further orders whichever is earlier," the May 22 stay order stated..Notably, the May 17 judgment ordered Vodafone to disclose data on the actual use of these caller tunes by its subscribers within a period of five weeks from the date of passing of this order. "In the meantime, there shall also be an order of injunction restraining Vodafone its officers, servants, agents and representatives and all others acting for and on their behalf from either engaging themselves or from authorising public performance or communicating to the public IPRS’s repertoire of musical and literary works or any part of the same or doing any other act infringing IPRS’s copyright in the said works without obtaining a valid licence and making payment of royalty to IPRS," the May 17 single-judge verdict had stated.This injunction has now been stayed by the Division Bench..The Division Bench also ordered VI to deposit all earnings from IPRS' repertoire of musical and literary works."All earnings and collections from 17th May 2024 from the subject matter of the order of injunction i.e. “IPRS’s repertoire of musical and literary works or any part of the same”, made by the appellant less GST paid or payable thereon shall be deposited by the appellant through the Joint Special Officers with Standard Chartered Bank, 6, Church Lane, Kolkata," the order stated..In the May 17 judgment, Justice Ravi Krishan Kapur had noted that after amendments made to the Copyright Act in 2012, authors of literary or musical works are entitled to claim royalty each time a sound recording is communicated to the public."The underlying object being that creative work ought to belong to the authors and that the author should have a share in all future comme/ rcial exploitation of their work (except cinema hall)," the judge explained.The Court had noted that this was important to protect authors of original works or the party with weaker bargaining powers from being compelled to contract away their rights. "To this extent, 'copyright is not seen merely as an economic tool, a property right but as something like an extension of the personality of the author – something for his benefit and that of his heirs,'" the Court underlined..The amended law aims to prevent the unlawful commercial exploitation of the original works without obtaining a licence from the IPRS and the payment of royalty, the Court said.The Court had further noted that authors are also now prohibited from renouncing their rights to royalty for the exploitation of their works in any form other than cinematographic films in a cinema..The single-judge ruling (against which VI has now filed an appeal) was delivered while dealing with three suits filed by Vodafone Idea Limited, Saregama India and the IPRS.The dispute pertained to the Value Added Service (VAS) provided by Vodafone via its Caller Ring Back Tone (CRBT) service featuring music recordings. While some of these music recordings were owned by Saregama, others were protected by IPRS which represents authors, publishers, and musicians. The IPRS had contended that Vodafone needed a separate license and royalty payments to use these works. Vodafone disagreed, claiming that it only needed permission from Saregama, the owner of these recordings.The Court heard the multiple lawsuits - including those filed by IPRS seeking royalties, Saregama seeking an injunction to restrain Vodafone from using its copyrighted recordings and Vodafone that no permission or licence was required for such activity from IPRS. The telco had also sought to implead leading music labels like Sony and Tips.On May 17, the Court (single judge Bench) concluded that the rights of an author to claim royalties under the amended law cannot be bypassed, even if there was an agreement by which some rights to exploit the sound recordings were assigned to VI. .In any event, Saregama could not possibly have any right to grant any licence in respect of the musical and literary works incorporated in the sound recordings to VI since Saregama had already assigned the same to IPRS as far back as in 1993 and once again in 2017, the Court added."Thus, Saregama could not have given anything which it had no right to give. Nobody can give a better title than that he or she possesses. Prima facie, Vodafone and Saregama also appear to be acting in concert with the ulterior aim of defeating the rights of IPRS. Saregama despite being a member of the IPRS has also failed to look after the interests of the authors of the literary and musical works and has acted contrary thereto," the Court had concluded on May 17. .The appeal against this judgment is listed to be heard next on June 12. .Senior Advocates SN Mookherjee and Ratnako Banerjee along with Advocates Arunabha Deb, Soumabho Ghose, Deepan Kumar Sarkar, Ashika Daga, Samriddha Sen, Ashish Bhan, Kirti Balasubramanian, Aayush Mitruka and Lisa Mishra appeared for Vodafone Idea.Advocates Debnath Ghosh and Avijit Dey appeared for Saregama.Senior Advocates Anindya Kumar Mitra and Abhrajit Mitra along with Advocates Soumya Ray Chowdhury, Himangshu Bagai, Sarosij Dasgupta, RK Ganguly, Susrea Mitra and S Biswas represented IPRS..[Read May 17 Judgment].[Read Stay Order]