Understanding EEMA's & PPL’s Points of View on the Ongoing Legal Case of Music Licensing
by Shantanu Jain Industry Watch | January 6, 2017 | Feature
It was on December 23, 2016, when the Delhi High Court issued an injunction against music licensing bodies PPL, IPRS & Novex from granting licenses as registered copyright societies. This directive by the court was promulgated after a writ was filed by EEMA in the Delhi High Court wherein it was highlighted that neither PPL, IPRS or Novex (that were issuing ‘licenses’) are in fact Registered Copyright Societies. The Delhi High Court had thus granted an ex parte injunction inter alia, restraining PPL and the two other respondents from committing any breach of Section 33 of the Indian Copyright Act.
While the injunction came as positive news for EEMA which has been engaged in a long-drawn legal battle against organizations like PPL, IPRS, and Novex for years now, the same was not welcomed by music licensing bodies as the writ petition was challenged by PPL, IPRS, and Novex. The court was convened before the Vacation Judge at length on December 28 and 29, 2016.
The three bodies were represented by senior lawyers including ex-law minister Dr. Ashwani Kumar who made strong arguments to the court requesting that the interim order passed by the court on December 23, 2016 be vacated and that EEMA should put in a bank guarantee if its members do not want to take the music license. EEMA agreed through its senior counsel that “…the order of 23.12.2016 cannot be read to the extent that it obliterates all rights of copyright owners.” However, the Delhi High Court did not cancel or revoke its previous order and instead, provided a process for the Licensing in the immediate interim period till a final order is made on the ongoing EEMA Vs Union of India & ORS case.
The substance of the consent order agreed upon by both parties and passed by the Delhi High Court as stated by each party’s press release are as follows:
PPL’s press release states:
1. The event manager/hotel/restaurant etc. will pay PPL’s invoice before publicly performing PPL’s sound recordings.
2. In case any such user wants documentary evidence of PPL’s rights, the same shall be supplied within a week. (This does not qualify the requirement of payment of licence fee as per invoice prior to publicly perform PPL’s repertoire.)
3. If EEMA, the petitioner, raises a legal dispute “apropos moneys paid”, PPL will retain the licence fee paid but will not be deemed to have appropriated it and EEMA, the petitioner, will have the right to take recourse to legal remedies.
3. PPL will upload its assignment agreements on to its website www.pplindia.org on 31.12.2016 at latest; commercial information will be redacted at PPL’s discretion.
4. Within four weeks, PPL will put in place a search engine option on its website so that the owner of the copyright can be identified through the search engine.
5. PPL will try to explore the possibility of accepting payments through Internet Payment Gateways and endeavour to put in place the requisite systems in this regard within four weeks.
A copy of the order is available on PPL’s website.
EEMA’s official statement reads:
1. The Judge did NOT cancel or vacate the previous order - so the injunction obtained by EEMA against the collection of licence fees under Section 33 (reserved for copyright societies) by these parties continues. PPL, IPRS and Novex have accepted in court that they are not copyright societies.
2. Therefore copyright licence fees can only be collected under Section 30 which is reserved for owners of the copyright with the clear proviso that when called upon to do so they need to prove their ownership.
3. The court has provided a process for the Licensing in the immediate interim period:
- Our members / the event organizer will provide PPL/IPRS/Novex a list of songs that they intend to play BEFORE the event on mail.
- The respondents (PPL / IPRS / Novex) will thereafter need to confirm in writing if they own the tracks mentioning the assignment no / details on the invoice
- The event organisers will pay the amount before the event as per mutual negotiation with the copyright owner
- The License issuing company/entity shall provide proof by way of legal agreements within 7 days of the invoice, to the satisfaction of the event organiser.
- In case the event organiser is not satisfied by the proof provided, a refund can be claimed through the courts. The money will not be appropriated till such time that the matter is mutually resolved.
4. Additionally, PPL and other bodies are required to put up a detailed list on their website listing all songs they own including the names of the authors / producers they have acquired them from along with the dates of validity of the contract - TILL 31st December 2016
5. In addition to this, the licensing companies without fail need to also upload the valid legal agreements by which they claim ownership of these tracks by 31st December which will be available for all to see and check.
6. The Court instructed PPL/IPRS/Novex to set up an online payment gateway within 1 month of this hearing wherein we will be able to easily obtain permissions online.
7. IPRS has been given a period of 15 days to complete this entire process.
As can be seen from reading both sets of points agreed upon, each party have worded the same to reflect them being in the right. However, one point that is important to acknowledge is EEMA’s claim that till now PPL have charged a flat licensing fees under the Indian Copyright Act. But in fact are not registered under the copyright society, so can only claim license fees for that music property that they can prove representation / ownership of.
Ahead of further proceedings in the case which is slated to take place on April 24, 2017; EVENTFAQS reached out to Ankur Kalra, Director, Vibgyor Brand Services and Secretary (Legal) EEMA and Sowmya Chowdhury, Country Head, PPL to get a clear sight on each party’s stance on the issue…
Speaking on the subject Ankur Kalra commented, “EEMA as an organization believes in complete transparency in the sense that if someone has produced a creative property of any kind and if that is to be used, then it is only its rightful creator that must be compensated for it. We are not against any organization, but against the prevalent culture of exploitation of the event industry which has been happening for the last few years. The music licensing bodies in question were registered copyright societies till the year 2014 and were in the business of issuing copyright licenses but after that, they have been de-registered and thus unless they prove ownership of the music property, they do not have any legal rights to charge licensing fees.”
Kalra further added, “This is the first time in history that these bodies are challenged and with the new licensing process in the interim period they now have to prove ownership of the music in lieu of an agreement. Neither I, nor any event manager has a problem in paying for the music we are using, but the problem is in paying to the wrong party, the wrong amount of money.”
Elaborating further, he said, “While the court did agree that these bodies have ownership of certain songs but on-ground what happens is that they claim ownership of the entire music universe which is wrong. What used to happen was that these bodies never used to ask for what songs are to be used at the event. Instead, they used to say if you are doing an event, take a PPL license and pay a fee that they determined (without substantiation). This is the on-going practice that we are against.”
Sowmya Chowdhury has invalidated all such claims and explains, “We refute all such claims because EEMA has never checked any of our papers. We are not a copyright society but we challenged the writ petition on the basis that irrespective of whether we are a copyright society or not we can charge fees because the creators of the musical property have assigned their ownership rights to us. What the law of the land is and what even the High Court has resigned is that if you are using music property then you need to take permission and pay a license fees based on an invoice raised.”
In response to charging a flat licensing fees rather than one based on exact songs being played / performed at an event, Chowdhary commented, “We have the ownership rights to over a million songs and these have been given to us by their rightful creators, hence we were charging a license fees. It is in no event agency’s capacity to determine exactly what songs will be used, and then go to each music label before an event and seek permission. If I am staying at a hotel and paying for it, does that allow me entry into all the events that the hotel is hosting? Of course not, because of the event is someone else’s property and it is their decision to charge me for the entry.”
On being questioned about the legal battle against the Event and Entertainment Management Association, Chowdhary replied, “I would like to point out that it’s not that all event agencies are against PPL, most of them actually apply for licensing before the event and function smoothly without any hassles.”
As both PPL and EEMA relentlessly work with their legal teams to prove their point in the ongoing EEMA Vs Union of India & ORS case, it is only a matter of a few more days before the Delhi High Court issues a clear-cut order on the subject. In the interim, it will be interesting to see how effective the process of gaining music licenses will be. If event agencies will be able to enlist exactly what songs they will play / perform as part of an event? Whether PPL, IPRS and Novex as societies will be able to prove their ownership of music properties and also enlist these in detail on their websites? And of course, if the whole process will succeed in being simplified and even move online, where each party can see through the process in the most convenient and efficient manner.
Ankur Kalra - EEMA and Sowmya Chowdhury – PPL share their views on the ongoing EEMA v/s Union of India & ORS case.