The Judicial Interpretation And Legislative Dichotomy On Royalty Payable To Playback Singers

INTRODUCTION:

When a playback singer has rights to their song, they may be entitled to a royalty payment. The main issue is whether or not they have any legal claim to their songs. The Copyright Act defines ‘performers’ as any person who does a performance[1], but the definition of a performance is “any visual or auditory presentation produced live by one or more performers”[2]. A performer may only legally assert their entitlement to performance royalties during “live performances”, or when they are presenting their work to an actual audience. To record a live performance by an artist during a concert, one must thus have either the performer’s permission or the permission of the person to whom the performer has delegated the right to do so.

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COURT’S INTERPRETATION (INDIAN JURISICTION):

IPRS v. Aditya Pandey[3] was improperly cited by the Delhi District Court in Sushila v. Hungama Digital Media Entertainment Pvt. Ltd. & Super Cassettes Industries Private Limited.[4] According to the court’s decision, “Performers Rights introduced by the 1994 amendment required a division of the subject pertaining to live performances while communicating the work to the public and when communication was by way of diffusion”, proving that the legislature intended to divide live performances from other forms of communication. According to the court, this intent showed that the legislature did not want to include studio performance as “Live Performance”

Since a recording session in which the producer is making a master track does not qualify as a “live” performance in front of an audience, this interpretation makes it very obvious that such a session is not included. However, the Delhi High Court disagreed in Neha Bhasin vs. Anand Raj Anand[5], ruling that a performance recorded in a studio still counts as a live performance. The court reasoned that any performance that has occurred and been given is presumed to be live, whether the performance was planned for studio recording or for a concert. The Court observed that live studio performances (studio recordings) are a testament to a singer’s expertise, and they should be compensated for by anybody who uses them to market to the public.

For the sake of “performers” as a group, Performers’ Rights were introduced to increase output by rewarding artistic efforts. After the fact, such an interpretation is required since the performer employs sufficient talent and exhibits sufficient skill in any given forum. The purpose of performer’s rights is to guarantee that only the performer, or someone authorised by the performer, can collect royalties or air the performance with their consent. Therefore, it is contrary to the intended meaning of Performers Rights as a concept and a breach of precedent to restrict it on the condition that there be an audience or that it take place in a certain venue. Why? Because the point of Performers Rights is to safeguard artists.

THE COPYRIGHT ACT AND COPYRIGHT RULES DICHOTOMY:

The Neha Bhasin case[6] establishes that musicians have the right to collect royalties for any performance or recording that uses their work. Section 2(q) of the Copyright Act[7] limits performance to be only live performance.  Section 38A (2)[8] makes it clear that once a performer has agreed in writing to having his performance included in a cinematograph film, he has no right to object to the producer’s enjoyment of the film, which includes his performance. But the proviso to Section 38A (2)[9] says that performers are only entitled to royalties if the performances are used for commercial purposes. Rule 68 of the Copyright Rules, 2013’s explanation not only clarifies “commercial use” includes reproduction and broadcasting of the performer’s performance[10], but also specifies that “performance must include recording of visual or acoustic presentation of a performer in the sound and video recordings in the studio or otherwise.”[11]

By this logic, if a play back performance is used for such commercial purposes, the performer will be liable to receive royalties. But Section 2(q) again limits royalties receivable only to the performers to make a live performance. In the same lines, while the definition of ‘performance’ under Section 2(q) limits performance to ‘live performance’ only, the explanation to Rule 68 expands the definition of performance to include ‘recordings’.

Talking about the Aditya Pandey case,[12] diffusion does not negate protection for a previously recorded and dispersed performance, despite the fact that live public communication has distinct advantages. Diffusion allows an audience to see a performance, hence artists should be compensated for their work. The distinction between live and diffuse public communication is only made in the explanation to section 2 (ff). Section 2 (ff)[13] defines communication of a work to the public to be either directly or through diffusion. It doesn’t imply that “live” under Section 2(q) is limited to performances in front of an audience and not to recorded or televised performances. Therefore, the differentiation made is illogical.

COURT INTERPRETATION (UK JURISDICTION):

The word “live” has a more expansive meaning in the United Kingdom. In his seminal work, Sir Justice Richard Arnold argues that many artists, including movie actors who perform in front of a camera, would lose their rights if “live” were narrowly defined.[14] A limited interpretation would overturn the Queen’s Bench ruling in Rickless v. United Artists Corps[15]., which concerned film performances. The United Kingdom has given its approval to the proposed definition of “living”. Studio performances in the United Kingdom are protected by UK law and can get compensation from UK courts. Sir Justice Arnold argued that the Rome Convention, the WPPT convention, and Article 14 (1)[16] of the TRIPS Agreement would all be broken if “live” was defined narrowly. This is because performers would not be able to ban fixation of their performance without their agreement.

CONCLUSION:

Though the Neha Bhasin case sets a precedent of allowing studio recording performance to royalty, The Copyright Act and Copyright Rules needs to be harmonised. There cannot disparities in the same. The legislation needs to be stronger and air-tight to avoid any further confusion of the same.

Author: Nandini Biswas, IV-year BBA LLB (Hons.) student at NMIMS School of Law, Bangalore,  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Section 2(qq), Copyright Act, 1957

[2] Section 2(q), Copyright Act, 1957

[3] (2012) 50 PTC 460

[4] C.S 426/18

[5] 132 DLT 196 (2006)

[6] ibid

[7] Section 2(q), The Copyright Act, 1957

[8] Section 38A (2), The Copyright Act, 1957

[9] ibid

[10] Explanation 2, Rule 68, The Copyright Rules, 2013

[11] Explanation 3, Rule 68, The Copyright Rules, 2013

[12] Supra Note 3

[13] Explanation, Section 2(ff), The Copyright Act, 1957

[14] Sir Justice Richard Arnold,  ‘Reflections on “The Triumph of Music: Copyrights and Performers’ Rights Music”’ Oxford Intellectual Property Seminar, (2009)

https://www.law.ox.ac.uk/sites/default/files/migrated/mr_justice_arnolds_paper.pdf

[15] 1988 QB 40

[16] Article 14(1), WIPO Performances and Phonograms Treaty, 1996

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