Recognition of Performers’ Rights by the Indian Courts

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The Copyright Act, 1957 was amended and came into effect on June 21, 2012. One of the major amendments that it brought along with it is with respect to Performers’ right in India. Chapter VIII of the Copyright (Amendment) Act, 2012 is now in consonance with Article 14 of the TRIPS agreement as well as with Articles 5 to 10 of WIPO Performances and Phonograms Treaty.

This amendment brought good fortune to all the singers as can be read in sections 38 and 39 of the Act. The creativity in a song is now well recognized and the singers’ can avail royalties from the exploitation of their performances commercially according to section 38-A. The Act provides for further economic rights of performers’ and such performers’ rights subsist for 50 years from the date of the performance. The amendment of 2012, brought about a number of changes in respect of rights of composers, lyricists and performers. The ownership of copyright in a given song or piece of music involves several aspects. The lyrics of the song can be protected as literary work and the owner of the copyright is the lyricist. The music of the song can be protected as a musical work and the owner of the copyright is the composer. The song together with music and lyrics which is recorded can be protected as a sound recording and the owner of the copyright will be the producer of the sound recording (the record label). However, with the amendment, performers’ rights have been recognized and these rights shall run parallel with the rights of the Composers/Songwriters & Producers/Music Companies.

In a recent suit by the Indian Singers’ Rights Association (“ISRA”) filed against Chapter 25, Bar and Restaurant operating at the Metropolitan Mall in Pushp Vihar, New Delhi, an interesting turnout of events occurred whereby Performers’ Rights under the Indian Copyright Act was challenged.

The ISRA, the plaintiff in the suit is a company limited by guarantee and registered under Section 25 of the Companies Act 1956. The plaintiff filed for Registration as a Copyright Society as per Section 33 of the Copyright Act and received its Certificate of Registration from the Central Government. It was in fact one of the 1st Copyright Societies to be registered by the Central Government after the 2012 amendments to the Copyright Act. Under section 38 A (1) of the Act, performers’ right is an exclusive right which includes the right to make a sound recording or a visual recording of the performance including “communication of it to the public”. The proviso to Section 38 (2) of the Act further states that notwithstanding anything contained in the said sub-section “the performer shall be entitled for royalties in case of making of the performances for commercial use.” The fourth proviso to Section 18(1) states that “Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.”

The members of the Plaintiff society are reputed singers and owners of the performers’ rights in the songs performed by them. Besides exclusive Performer’s right, each singer also has the inalienable Right to Receive Royalty (the R3) under section 38A of the Act for the commercial exploitation of their performance as a Singer. Each member of the Plaintiff society has a Deed of Exclusive Authorization (DEA) authorizing the Plaintiff in respect of their R3 under Section 38A of the Act. The Plaintiff is, therefore, the exclusive owner of the performance rights for its members.

The Defendant, Chapter 25 Bar and Restaurant, through an investigation conducted by the Plaintiff was found to be playing songs containing the performances of singers belonging to the Plaintiffs repertoire in the month of April 2015. Original CDs comprising of the infringing songs were submitted as evidence before the Court and was taken on record as it was in compliance with section 65-B of the Evidence Act, 1882.  The Plaintiff addressed a cease and desist notice dated April 16, 2015 to the Defendant directing it to obtain a “Performers‟ Rights Clearance Certificate” from the Plaintiff. However, the Defendant did not comply with such notice. The public performance of the Plaintiffs’ repertoire at the Defendants’ Bar and Restaurant without permission of the Plaintiff and without payment of royalties is an infringement of the Plaintiffs’ Performers’ Right and further a violation of the R3. Accordingly, both the Plaintiff and its members were suffering loss of their legitimate dues because of the Defendants’ refusal to pay the license fee to the Plaintiff.

Learned Counsel appearing for the Plaintiff, Mr. Pravin Anand directed attention to the Plaintiffs’ rights and presented graphical depiction of the rights construed in a performance throwing light on the amendments of the 2012 Act. Furthermore, Explanation 3 of Rule 68 of the Copyright Rules, 2013 enunciates that performance includes recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise.

In lieu of the facts and circumstances of the case, the Court conformed that the Defendant was infringing the Plaintiffs’ and its members’ rights. The exploitation of the performances of the members of the Plaintiff society by the Defendant which was playing the plaintiff members’ performances in its bar and restaurant without obtaining the Performers’ Rights Clearance Certificate and without payment of royalties to the Plaintiff is a violation of the R3 of the performers of the Plaintiff society and thus constitutes an infringement of the R3 of the members of the Plaintiff Society (u/s. 38 A of the Copyright Act).

Thus, a decree of permanent injunction was issued restraining the Defendant from communicating to the public the Plaintiffs repertoire comprising of performances of all its members without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other act infringing the Plaintiffs Performers’ rights through any medium and violating their Right to Receive Royalties and their Performers’ Rights. The Defendant was further required to render to the Plaintiff the accounts of all the monies earned by it from the performance of the Plaintiff members’ repertoire. The suit was decreed with costs of Rs. 20,000 to be paid by the Defendant to the Plaintiff within the stipulated time of four weeks.

The Performers’ rights as amended in the Copyright (Amendment) Act, 2012 has been given judicial recognition by the Delhi High Court. Such implementation of the amendments in the Act could be a stepping stone to protect the rights of performer’s in the coming years.

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