Indian PPL has no right to enforce copyright

By a strange coincidence, only minutes after posting the piece below about German copyright owners being able to sue for damages for infringement of their dramatic performance rights even though the right to perform the music has been assigned to a collecting society, we have some news from India, from the IPKat's old friend Mustafa Safiyuddin (DSK Legal).

Right: learning the ropes -- training for PPL inspectors enables them to mix with infringing Indian performers without attracting attention

This news is all about -- you probably didn't guess it -- whether collecting societies can enforce right in respect of unauthorised public performances. The Delhi High Court delivered a salient ruling earlier this month in Phonographic Performance Limited v Hotel Gold Regency and others (MANU/DE/0942/2008), on which Mustafa says:

"In a landmark decision, Phonographic Performance Limited v Hotel Gold Regency and others, the Delhi High Court held that copyright societies such as PPL, representing the interest of the music companies, cannot initiate copyright infringement actions to protect the interest of their members against unauthorized public performances of sound recordings. According to the Court, the Indian copyright statute only permits a copyright owner or its exclusive licensee to initiate an action for infringement. Since the copyright society PPL is neither the copyright owner or the exclusive licensee of the sound recording of its member companies, it is debarred from initiating such actions against unauthorized communication of the sound recordings to the public through a radio broadcast or a telecast or any other public performance. This decision will create enormous difficulties for the copyright society PPL and its member music companies in enforcing their copyrights and can have a deep impact in the collection of royalties for public performances of sound recordings.

Music companies such as Saregama have granted authorizations to PPL to administer their right of communication to the public in respect of their sound recordings and to administer such right by the grant of licences and collection of royalties. The music companies’ agreements with PPL also authorize PPL to initiate any actions for the enforcement of their rights for which authorizations were granted to PPL. Nevertheless the Delhi High Court held that PPL merely had the authority to administer the licences and collect royalties from the licensees -- but the statute did not permit PPL to initiate a copyright action. This is in view of the statutory provisions which only authorize a copyright owner or its exclusive licensee to initiate an infringement action and PPL was neither the copyright owner nor an exclusive licensee.

By way of further elucidation, the court held that the authority that a copyright owner gives to a copyright society for the collection of fees relates to the fees in respect of the licences granted by the copyright societies. It is arguable that such an authority to an agent like PPL would include the authority to recover royalties from delinquent licensees by filing a civil suit. However, the situation is entirely different where persons to whom no licence has been granted by the copyright society unauthorisedly uses the copyright work. In such cases where no licences have been granted to such a person, the copyright society would have no authority to file a suit against such persons either for infringement or for recovery of royalties or for damages. The suit, if any, would have to be filed by the copyright owner or its exclusive licensees".

The IPKat feels some sympathy with copyright owners here, who were almost certainly not alert to the problem, or its very simple solution, at the moment at which they entrusted the administration of their rights to the PPL. Doubtless a lot of paperwork and inconvenience will result if PPL is to be vested with the necessary powers. Merpel says, not all is lost -- presumably the copyright owners can still sue in their own names.

See post and comments on Spicy IP here
Cats of India here