Performer’s Rights under the Indian Law

Picture Courtesy: http://i.hurimg.com/i/hdn/75/0x0/59f8827867b0aa36e0751977.jpg

This article was written by Saptashya Roy Chowdhury, a student of School of Law, KIIT.

The Indian film industry has been known for it’s melodious and catchy Bollywood songs. However, it is important to ask if the singers singing these songs are getting their due credit. Before the 2012, Rights of performers, including singers, was not recognized in India. A work-for-hire system was followed in the Industry, where the composer became the copyright owner of the “musical works” and the producer became the copyright owner of the “cinematograph film” or “sound recording”. Thus, the composers and producers enjoyed various rights under the Indian copyright law; however, the singers and musicians did not receive any royalties. Many of the musicians and singers even died in penury.

In 2012, the Indian Copyright statute, i.e., The Copyright Act, 1957 (“The Act”), was amended to introduce expansive rights for performers. The Copyright Amendment Act, 2012, (“2012 Act”), provided authors of underlying works used in cinematograph films and sound recordings with inalienable right to royalty in certain circumstances, irrespective of the fact that they had assigned the copyright in those works to the film producer or music composer[1]. The 2012 Act, also conferred the performers with right to receive royalties if their performances were being used for commercial purposes[2], even though he would have agreed to incorporate the performance in a cinematograph film. It was also ensured that the performer’s rights were in consonance with the international treaties, i.e., Article 14 of the TRIPS agreement as well as Articles 5 to 10 of WIPO Performances and Phonograms Treaty. The musicians, singers and other performers of the industry, saw this amendment as a welcome move, as they were no more merely vocal instruments.

We will now try to understand the scope of the performer’s rights under the amended Act and the extent to which it benefits the music artists of the country.

Scope of Performer’s Rights

The Act provides an inclusive definition of the term “performer[3]” which states that it “includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance”. The phrase “any other person who makes a performance” expands the meaning of the word “performer” to a great extent. However, the provision also provides a limitation that a person whose performance is casual or incidental in nature to a cinematograph film, would not be considered a “performer” under the Act.

Section 2(q) of the Act, defines “performance” to means any visual or acoustic presentation made live by one or more performers. Thus, the term “performance” appears to be restricted to only live performances. However, Explanation 3 to Rule 68 of the Copyright Rules, 2013, (“the Rules”), expands the meaning of “performance” to include “recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise”. Moreover, the Delhi High Court has observed, “Every performance has to be live in the first instance whether it is before an audience or in a studio”[4]. Thus, upon harmoniously reading the Act and the Rules, it can be said that the term “performance” is not restricted to live performances before an audience, but also includes live performances in a studio.

Right to Royalties

The performer’s right subsists for 50 years from the date on which the performance is made[5].

Section 38A of the Act confers an exclusive right upon performer’s to do or authorize the doing of any of the following acts in respect of the performance or any substantial part thereof :

• to make a sound recording or a visual recording of the performance;
• to reproduce the performance in any material form including the storing of it in any medium by electronic or any other means;
• to issue copies of the performance to the public not being copies already in circulation;
• to communicate the performance to the public;
• to sell or give the performance on commercial rental or offer for sale or for commercial rental any copy of the recording and;
• to broadcast or communicate the performance to the public except where the performance is already a broadcast.

It is important to note that performer’s rights would run parallel to the copyright of the producers/ music composers and both are entitled to economic benefits from the commercial use of the performance[6]. However, once the performer has agreed in writing to incorporate his performance in a film, the performer cannot prevent the producer of the film from enjoying performer’s rights in the same film. Further, the performer has an un-assignable right to receive royalties in cases where the performance is being communicated to the public, other than along with the film in which the performer has agreed to incorporate his performance[7].

Additionally, authors of underlying works in a cinematograph film cannot waive their right to receive royalties on an equal basis along with the assignee, in cases where the work is being used other than along with the cinematograph film.[8] Similarly, authors of literary or musical work included in a sound recording have a continuing right to receive royalties, on an equal basis along with the assignee, upon use of their work in any form.[9]

Thus, performers and authors of underlying works included in films/ sound recordings have an inalienable right to receive royalties under the amended Act. The Performer can assign the right to receive royalties to a copyright society or his legal heir; any agreement to the contrary shall be void.

Moral Rights

Section 38 B of the Act confers moral rights upon performers. The Performer will have the right to claim to be identified as the Performer of his performance except where omission is dictated by the manner of the use of the performance[10]. He will also have the right to restrain or claim damages in respect of any distortion, mutilation or other modifications of his performance that would be prejudicial to his reputation[11]. However, the law clarifies that mere removal of any portion of a performance for the purpose of editing, or to fit the recording within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the reputation of the Performer[12].

Judicial Approach

The judiciary has also been proactive in enforcing the performer’s rights. The Delhi High Court held that playing songs in the restaurant for two hours without obtaining the Clearance Certificate or without paying royalty constituted infringement of the Copyright Law[13]. The Court further clarified that any public performance of a song, even at a public event that did not charge a price of admission, needs a No Objection Certificate (NOC) from the collecting society, and payment of royalties.[14]

Similarly, in the case of Indian Singer’s Rights Association “ISRA” vs. Night fever club and lounge[15], public performance of songs of the members of the collecting society at the Defendant’s Club and Lounge, without the permission of the Plaintiff and without payment of royalties, was held to be illegal and in violation of Plaintiff’s Performers Rights. This case was different from the prior case as recorded versions of the song were being played instead of someone performing the songs live. Thus, we can see that judiciary has also expanded the scope of performer’s rights.

Indian Singer’s Rights Association and their initiatives

Indian Singer’s Rights Association (“ISRA”), a registered Copyright Society under the Copyright Act, was formed to create tariff rules, and to collect and distribute royalties to Performers. Most commercial performers in the Indian film and music industry are the members of ISRA. Any person making commercial use of a performance must obtain a “Performer’s Rights Clearance Certificate” from ISRA and pay royalties.

ISRA has decided tariff rates and distribution scheme covering all types of public performances — at public events, restaurants, clubs, malls, shops, dance schools, and even on board commercial vehicles such as buses and taxis. Thus, a restaurant, being a public space, needs to pay royalty to the Performer for playing music in their restaurants for commercial purposes. The restaurant owner must also obtain a No-Objection Certificate from ISRA, and pay the price of “the least priced drink on the menu card” per day to each singer whose song it plays.

ISRA has also taken several initiatives for protecting rights of its members. It has issued nearly 750 claim letters since its creation in 2012 to restaurants, hotels, production houses, radio stations, TV channels, mobile operators, web sites, DJ events, and sporting events. The aim so far has been to educate and then collect royalties for singers, as the performer’s right is a fairly new right.

Conclusion

The introduction of performer’s rights has been much appreciated by various music artists of the Indian film industry. However, this is a fairly new right and we need to see how it is interpreted to see its actual benefits. With the coming of the performer’s rights, public places have to take permissions from both performer’s societies and copyright societies before using any performance for public purposes. India also has a huge community of unprotected folklore, these new rights will also help in safeguarding their interests and giving them due recognition.

[1] Section 18 and 19, Copyright Act 1957.

[2] Section 38A, the Copyright Act, 1957.

[3] Section 2(qq) , the Copyright Act, 1957.

[4] Neha Bhasin v. Anand Raj Anand, 2006 (32) PTC 779 Del.

[5]  Section 38, the Copyright Act, 1957.

[6] Section 38A (1), Copyright Act, 1957.

[7] Section 38A(2), Copyright Act, 1957.

[8] Section 18 and Section 19(9), Copyright Act, 1957.

[9] Section 18 and Section 19(10), Copyright Act, 1957.

[10] Section 38B (a), Copyright Act, 1957.

[11] Section 38B (b), Copyright Act, 1957.

[12] Section 38B (b) explanation, Copyright Act 1957.

[13]Indian Singer’s Rights Association v. Chapter 25 Bar and Restaurant, CS (OS) 2068/2015 & IA No. 14261/2015

[14]Ibid.

[15] CS (OS) No. 3958 of 2014.