How many entertainment events can one recollect where popular music is not played – probably none! While it has become a norm for catchy numbers to be played at social do’s, chances are that few people stop to think about the legality of using such music.
But performers and music composers are increasingly becoming aware of their rights and this has resulted in several interesting legal cases. So, it is important to understand what a performer’s rights are.
Know your rights
These rights are vested in any perfomer, be it a musician, actor, artist, juggler, acrobat or dancer, who has an intellectual input in a performance. According to the Indian Copyright Act, 1957, the rights of a performer subsist for 50 years from the beginning of the calendar year following the year in which the performance was made.
During the period of a performer’s right, a performer has the exclusive right to prevent unauthorized recording, reproduction, communication and rental in any form of their performance. This excludes the use of the performance for research, news reporting, educational or personal purposes.
However, in recent years classical musicians in India have faced problems from unauthorized recording and sale of their live performances. Without any professional help these performers are unequipped to negotiate with people misusing their intellectual property. With this in mind, the act provides for societies such as the Indian Performing Rights Society (IPRS), which administers and controls performers’ rights in musical works, and Phonographic Performance Limited (PPL), which handles the rights of the music companies.
So, to broadcast a Hindi song that has three parts – the lyrics (literary works), the music (musical works) and its recordings (the sound recording) – it is necessary to obtain two licences: one from IPRS for the lyrics and the musical works and another from PPL for the sound recording. The task of obtaining two licences for one song can be a burden for broadcasters and some have tried to avoid it.
Recently, in Music Broadcast Pvt Ltd & Ors v Phonographic Performance Ltd, the Copyright Board settled a long-standing royalty dispute between private FM stations and music companies. In a landmark order in this case, the board fixed the royalty rate for broadcast of sound recordings by FM radio stations at 2% of net advertisement earnings, which is to be distributed on a pro rata basis to all music providers.
Another interesting case – Indian Performing Rights Society Ltd & Ors v Branch Manager, Muthoot Finance Pvt Ltd – involved a private FM radio station (Chennai Live 104.8 FM) that was allegedly broadcasting recorded songs that were the copyright of the plaintiff. The respondent claimed it had received licences from PPL, which allowed it to broadcast the works without obtaining licences from IPRS. The plaintiff, IPRS, argued that literary and musical works constitute a separate category of work that was separate from sound recordings. The court agreed with IPRS, holding that unless the respondent obtained licences from the plaintiff society for broadcasting literary and musical works of its members, it had no right to broadcast those works.
A third interesting case arose between Radio Today Broadcasting and IPRS. In it Radio Today was unwilling to pay royalties to IPRS, which resulted in the latter threatening legal action. Radio Today’s main contention was that once a song is composed and marketed through its producers, the complete product would be eligible for royalties and individual performers were not entitled to the same. As a result Radio Today was only required to seek permission from the producers’ society and not from IPRS.
When asked to rule on this dispute, Calcutta High Court held that the rights of a lyricist and composer, in respect of a song that is part of an original film track, are extinguished as soon as they are paid for their work. However, they retain their right to assign it to others for commercial exploitation in other forms, if they had reserved their right to do so while striking a deal with the film producer. The court held that the members of IPRS did not assign their exclusive rights to the producers by agreement. IPRS was thus entitled to claim royalties from Radio Today if they wanted to exploit the work.
Better protection ahead?
These cases show that artists and musicians are vulnerable in many aspects. Nonetheless, performers’ rights are increasingly recognized. Better protection and compensation not just to artists and musicians, but also to creators of literary, musical, dramatic and artistic works in India is expected with the government set to introduce a bill to amend the Copyright Act.
Shalika Bhalla is an associate specializing in trademark opposition and cancellation with Lall Lahiri & Salhotra, an IP boutique based in Gurgaon.
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