Delhi High court’s ex parte order in Indian Singers Rights Association Vs. Night Fever Club & Lounge, in December, 2014, restraining the latter from communicating to the public, the Indian Singers Rights Association’s (ISRA) repertoire comprising of performances of all its member-singers without obtaining a license from ISRA or doing any other act infringing the singers performer rights till further orders.
This development will be closely watched and pursued by the various stakeholders in the entertainment industry as this is for the first time since June 2012 when the Copyright (Amendment) Act, 2012 was made effective that one of the key provisions of the amendment copyright law will have direct forbearance in the manner in which the Performer’s right under sections 38A and 38B are interpreted and applied for the purpose of collection of royalties by ISRA, a society registered as a copyright society under the copyright law for the purpose of collection and administration of the rights of the singers and their royalties.
The rich literary history of India has left its footprints in the domain of performance art. The ancient Indian Sankrit treatise on the dramatics and drama, Natyashastra provides for the methodology for play production and it is in Chanakya’s Arthashastra, that natakamandalis or dramatic troupes get mentioned about salaries for different categories of stage players. Such performers or artist formed a separate social group or sub-caste who on one hand were economically less prosperous but on other hand controlled there art form on a hereditary basis. However, there is no unitary recognition of performer’s rights per se in these ancient texts.
The demand for a separate right for performers started gaining momentum with the invention of sound recording devices. Earlier, the artist’s right was limited to seeking remuneration for appearance and it was only by way of personal attendance that one could enjoy performer’s art. However, sound recording devices allowed the fixation of the performance, thus transforming the intangible performance into tangible object with its own economic value, and enabling a listener to enjoy a performance without having to be present during the live performance. This also brought about an era of contracting between the individual singers and opera companies of the cities like New York, Paris and Berlin wherein these Performers agreed to storing of their performances on such devices that allowed mechanical reproduction of their performances for an agreed remuneration and a royalty linked to each record sale. However, with easy reproducibility of such mechanical storing devices, the competitors started copying the performances on such devices to enter the market at a cheaper price without investing in the talent/performer. The situation was similar to that of author’s right after invention of the printing press.
The ability of the performances to exist independent of the performer on the sound recording devices was on one hand hitting the rights of the producers of the sound recording devices who had initially invested in the performer by way of exclusive contracts and on the other hand was depriving the performers of their royalties which they would have otherwise received. In absence of performer’s right to his performance, the producers of the sound recording devices could not seek any claim against such acts of infringement by third parties. The Courts, starting from the case of Fonotipia Ltd. v. Bradley, ruled in favour of singer’s recorded performance as eligible for copyright protection thus protecting the “capital and labor” invested to produce a sound recording which lead to protection of performer’s rights and their performances.
At an international level, the need for protecting the rights of the producers of the records, the performers and the broadcasting organisations within the Berne Convention was gaining ground before and during the Brussels conference to revise the Berne Convention in 1948 to arrive at an international agreement on the rights of per¬forming artists, the producers of phonograms and broadcasters similar to copyright, with reference made to the “droits voisins du droit d’auteur” (rights neighboring on copyright).
The rights of the Performers was treated differently than author’s right owing to argument that while authors were creators of original work, performers were merely adapting or interpreting an existing original work and not creating, so they need to be treated separately thus reaching a compromise in the Rome Convention to treat the rights of producers of phonograms, performers and broadcasting orgnaisations differently, not as copyright but as ‘related rights’ in the Rome Convention, 1961 which for the first time established a minimum guaranteed protection for performers, producers of phonograms and broadcasting organisations. Article 7 of the Rome Convention granted the Performers with the right to (a) prevent the broadcasting and communication to the public of their live performances without their consent; (b) Right to prevent fixation of their live performances without their consent; and (c) prevent reproduction of the fixation of their live performances without their consent if, (i) the original fixation was made without their consent; or (ii) if reproduction is made for purposes different from these for which the performers gave their consent. Article 7 further deals with relations between performers and broadcasting organisations. If performers give their consent for broadcasting then, it shall be a matter of the domestic law of the contracting state where protection is claimed to regulate the protection against rebroadcasting, fixation for broadcasting purposes. The next step for the protection of performers was in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. TRIPS followed the concept of related rights as established by the Rome Convention, distinguishing between authors’ rights and the rights of performers, producers of phonographs, and broadcasting organizations.
India amended its copyright law in 1994 following the signing of the TRIPS and included the performer’s right in its copyright laws by amending the Copyright Act, 1957.
Internationally, the third international instrument was the WIPO Performances and Phonograms Treaty (“WPPT”), in 1996, which follows the same approach of inclusion of member parties to prior conventions. WPPT is limited to the protection of performers and producers of phonograms and not for broadcasting organisation unlike Rome Convention. WPPT was agrred to incorporate within the international treaty provisions to meet the challenges of the “New Technology” that eventually led to an expansion of the scope of protection of performers’ rights at the international level. Additionally, WPPT provided for moral rights to the performers. Article 5 of the Treat approximates Article 6 of the Berne Convention Paris Act in requiring that performers receive rights of attribution and integrity in their live aural performances or performances fixed in phonograms. WPPT requires that the performers receive the economic rights to fix their performances and to broadcast and communicate unfixed performances to the public, to reproduce their performances fixed in phonograms, directly or indirectly, and to distribute performances fixed in phonograms to the public. The Treaty also requires a limited right for commercial public rental of performances fixed in phonograms and a right of making available fixed performances that correspond to the WIPO Copyright Treaty’s right of communication to the public and encompasses means by which members of the public may access them from a place and a time individually chosen by them. The Treaty gives phonograms producer comparable rights of reproduction, distribution rental and making available. Article 15 entitles both performers and phonogram producers to equitable remuneration for the use of phonograms for broadcasting or communicating to the public. Article 17 of the Treaty extends the Rome Convention’s minimum term of protection for a performance fixed in phonograms to fifty tears from the year of fixation, in the case of phonogram producers, protection lasts for fifty years from the phonogram’s publication or failing publication within a prescribed time, fifty tears from the year of fixation.
The definition introduced to the copyright laws in 1994 provided for a wide interpretation of the term “Performer” under Section 2(qq) of the Copyright Act, 1957 to include “an actor, singer, dancer, musician, acrobat, jugglers, acrobats, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance” and defined “performance” under Section 2(q) as “any visual or acoustic presentation made live by one or more performers”. It is noteworthy that Rome and WPPT defines “Performers” but not “performance” and this leaves open the interpretation of the word “live” in the performance.
Inadequacy in the definition gets more significant when the entire gamut of performer’s right as included the Copyright (Amendment) Act, 2012 under sections 38-A and 38-B is read.
While Sec. 38-A sub sections (1) and (2) more or less replicates the provisions of Sec. 38 (3) and 38 (4) of the 1994 amendments, the proviso added in 38 A which entitles a performer to receive ‘royalties in case of making of performances for commercial use’ is the most challenging aspect added to the Performer’s right regime for the entertainment and more particularly for the film entertainment sector. Importantly, the previous provision for Performer right made it clear that communication of “the performance to the public otherwise than by broadcast, except where such communication to the public is made from a sound recording or a visual recording or a broadcast”, such communication shall be infringement of performer’s right.
The amendment in 2012 enlarges the scope to include “any communication to the public”.
Therefore, from a business perspective, any entity which wants to play a song in a commercial establishment will have to take license not only from the owners of the sound recording companies but also the performers or collective society of the performers, like ISRA. This will not be limited to payment of royalty but taking separate licenses as well.
And ISRA is only the collective rights society for singers, there can be such similar copyright societies for actors and musicians as well or any other performers, whose performance though incorporated as part of a film, will still entitle them for a separate royalty. The entitlement of the performer for royalties is not there in any of the international treaties.
More problematic for the entertainment sector is absence of the definition of “live” in the quagmire of definitions and interpretations by the Courts. There can be two possible meanings, performance that is not “recorded” and, a performance given in the presence of an audience. Therefore a performance in a recording studio of a film or a radio or television, will not be interpreted as “live” as it is a pre-recorded performance.
However, in the case of Neha Bhasin v. Anand Raj Anand, Delhi High court has observed that every performance has to be “live” in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed.
Such a broad interpretation of the word “live” will be an operational nightmare for the entertainment sector, as for every exploitation of any sound recording or cinematographic films other than in theatres, the performers whose performances have been incorporated in the films, including television serials, such performers will be entitled to royalties over the above the fixed remuneration. And the list of such performers will be all of them who are credited in the film and television serials because the explanation to section 2(qq) introduced by the 2012 amendments provides every performer whose performance is not casual or incidental in nature and who is credited in the film, shall fall within the definition of a “performer” and each such performer shall be entitled to royalties.
ISRA, in its Tariff Scheme, details sector wise segregation of the rate of tariff payable for each category of usage. For television broadcast alone, it is ` 25000 per song for utilisation of the Performance of a Performer in a Musicbased TV Show/Program, same for in a Non-Music-based TV Show/Program (like quiz/talk show/featured program/serial), and for Broadcast to the Public on a Music Channel, it is ` 5,000/- per hour or 5% of the gross revenue of the Channel for that TV, whichever is higher. It is also mentioned in the Tariff Scheme that this tariff is due on or after 21st June, 2012 which means that royalties/license fee for all the performances used till date can be claimed by ISRA from the Satellite Tv channels which broadcast the performance of its members, most importantly the music channels and music based TV shows.
This is just for the performance royalties of the singers and one can only imagine the economic fall out if same or similar tariffs are made applicable for actors and all those performers who are credited in a film or television serials because every time a film is broadcast, performers would be entitled for royalties.
Added to this is the entitlement for moral rights of the performers in sec. 38- B which has the scope of subjective interpretations as to what is ‘prejudical to reputation’ and the explanation to this section that allows editorial rights for “purely technical reasons” to be out of the catch of “prejudicial to the performer’s reputation” serves little purpose because the entertainment sector being a creative industry, these provisions limit the creative discretions of the producer as to what he can do with a performance which has been recorded for the purpose of a film or TV serial. The explanation to sec. 2(qq) to provide moral rights to all the performers irrespective of whether their performance is “casual or incidental in nature” in a film is a cause of worry for the film producers because it gives a whole lot of performers whose performances are recorded in a film to object to any modification which they think is prejudicial to their reputation thus giving a scope of unnecessary litigations. Conclusively, one can only hope that these anomalies are ironed out by the judiciary in the days to come and that any stakeholder is not given any benefit of doubt till clarifications are arrived at, including any orders like the order of ex parte injunction as passed by Delhi High Court in Night Fever Club matter
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