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.

Playback Singer[Image Source: Shutterstock]

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

Leave a Reply

Categories

Archives

  • November 2024
  • October 2024
  • September 2024
  • August 2024
  • July 2024
  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010