Performers Rights to Royalty

Picture courtesy: http://www.worldipreview.com/media/image/moody-pianist.jpg

THIS ARTICLE WAS WRITTEN BY BRINDA. G. LASHKARI A STUDENT OF PRAVIN GANDHI COLLEGE OF LAW.

Art has always been appreciated , from the medieval ages to today, art in all forms such as paintings , dancing and  singing has been recognised worldwide. Performing arts has been seen to be encouraged  in India. Everyone loves the new song by Arijit Singh or the dance item by Deepika Pudokone. The question that arises is that with rapidness and ease at which songs and other performing arts can be viewed and displayed, what do the artists who perform it get in return, for everytime someone hears a song on the radio or views a dance item on tv? When we hear songs being played in restaurants and hotels and theatres etc.  They are not been played by the premises free of charge nor are radios or TV channels allowed to display performances of performer’s for free. The restaurant, radio channel or TV channel being a commercial set up is entitled to pay a royalty to the performer in return of playing his or her song. This is brought about by the new Amendment made in 2012 to the Indian Copyright Act of 1957.

Under the Indian Copyright Act of 1957, Section 2(qq) states that a performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance

Under the amendment brought about in 1994 in the Indian Copyright Act of 1957, a new right known as the “PERFORMER’S RIGHT” came to be recognised . The term/duration of this right is 50 years from the beginning of the calendar year next following the year in which the performance is made. The “Right to Receive Royalty” on the performance emerged by an amendment made in 2012 by adding Section 38(A). Another right known as the “Moral Right” of the performers came to be recognised under Section 38(B) which permits the performer to claim to be identified as the performer of the performance and also restrain or claim damages in respect of any distortion, mutilation or other modification made to his performance which is prejudicial to his reputation.

.Section 18(1) of the Act when read along with section 38(A) of the Act ( which deals with exclusive rights of performers) gives the performer an ill-alienable “RIGHT TO RECEIVE ROYALTY” for –

Utilization of performance incorporated in-

• (a) to make a sound recording or a visual recording of the performance, including reproduction of it in any material form including the storing of it in any medium by electronic or any other means;
• (b) issuance of copies of it to the public not being copies already in circulation;
• (c) communication of it to the public;
• (d) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording;
• (e) to broadcast or communicate the performance to the public except where the performance is already broadcast.

(2) Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film

 Provided that, notwithstanding anything contained in this sub-section, “the performer shall be entitled for royalties in case of making of the performances for commercial”.[1]

This Right to Receive Royalty can only be assigned to a legal heir of the performer or a collection society for collection and distribution. In India there are three bodies that perform this function. They are-

• IPRS –Indian Performing Right Society , that looks after royalties of composers and lyricists
• PPL – Phonographic Performance Limited, that deals with Royalties of music labels
• ISRA- Indian Singers Right Association- deal with rights of singers.

As per the Act, Section 38A(2) states that the performer shall be entitled for royalties in case of making the performance for commercial use even though he has consented by agreement to the incorporation of his performance in a cinematographic film. Section 18(3) & (4) further state that the royalties earned from the commercial exploitation of the performer’s performance shall be divided equally among the performer and the producer. This signifies that if a third party commercially utilizes the performance of the performer, the performer stands a right to receive a royalty.

The tariffs of these royalties have been fixed by the bodies and non- payment of these tariff’s lead to infringement of the performers right to receive royalty. The establishments such as restaurants , cinema halls ,events, hotels have to apply for a Performer’s Right Clearance Certificate so as to display or showcase the performance of the performer. Several cases such as “ISRA v. Chapter 25, Bar and Restaurant”[2] decided by the Delhi High Court support the rights of Performer’s to Receive Royalties. For example once a pub or a club receives a Performer’s Right Clearance Certificate , It can by paying Rupees 10 per sq.ft p.a as royalty to ISRA( as tariff fixed by ISRA) ,  play the songs of the performer .

These tariffs can be challenged as given under the Act as follows under Section 33A-

“33A. (J) Every copyright society shall publish its tariff scheme in such manner as may be prescribed (2) Any person who is aggrieved by the tariff scheme may appeal to the Copyright Board and the Board may, if satisfied after holding such inquiry as it may consider necessary, make such orders as  be required to remove any unreasonable element, anomaly or inconsistency therein: Provided that the aggrieved person shall pay to the copyright society any fee as may be prescribed that has fallen due before making an appeal to the Copyright Board and shall continue to pay such fee until the appeal is decided, and the Board shall not issue any order staying the collection of such fee pending disposal of the appeal: Provided further that the Copyright Board may after hearing the parties fix an interim tariff and direct the aggrieved parties to make the payment accordingly pending disposal of the appeal.”.[3]

A restaurant for that matter on receiving a Performer’s Right Clearance Certificate has to pay up a royalty which is calculated at the price of the Least Priced Drink on the menu card , which is subject to a minimum of Rs.3650/- p.a.

The right to receive royalty are not negotiable and contractual as in accordance with Section 38(A).  This right can also not be assigned or waived off by the performer.

The royalties are distributed among the members equally after deducting the administrative costs. The net royalties are distributed as far as possible in accordance to the extent of the work which has been broadcasted or publicly performed.

This right to receive royalties goes unexercised on several occasion’s and bodies such as ISRA, PPL & IPRS are regularly trying hard to implement these rights, create awareness of wrong utilisation of performances and protect the rights of the performers through the correct implementation of the Copyright Act.

[1] http://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf

[2] CS (OS) 2068/2015 & IA No. 14261/2015

[3] http://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf