Performance Rights Licensing and Royalties in India

April 23, 2019
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One of the most common questions asked these days is whether the musical work, videos and sound recording requires copyright licensing in India. To answer this, it is required to throw some light on the abovementioned issue. Copyright forms part of Intellectual Property structure which provides an exclusive right to the creator of the original work. Initially, Copyright Act, 1957 was only concerned in providing protection to work limited to books, painting and films but later, on account of amendment brought forth in Copyright Act, 1994, the right of the performers was recognized under Section 38 of the said Act and the concept ‘Performers Right’ was introduced. Copyright in any musical work or sound recording lies with the original author of the work. Section 38 of the Copyright Act, 1957 (hereinafter referred to as “the Act”) provides exclusive right to the performers for the performance without prejudice to the rights conferred on the authors. The performers are entitled for the payment of royalties subject to committed use.

Performer defined

Due to advancement of technologies, the law considered it essential to intervene and protect the rights of the performers in India. It is relevant to understand at this stage, who are performers? As per Section 2(qq) of the Act, states that “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

Copyright Society

The Copyright Societies were formed in order to provide license for the songs and other literary works as well as to provide protection to various authors and creators such as singers, artists, lyricist, sound recording companies etc. Copyright Societies are required to registered under Section 38 of the Act in order to be authorized to grant licenses on behalf of the owners of the work to other persons requiring to use to the same.

The Copyright Societies that exists in India are: Indian Performing Rights Society (IPRS), Phonographic Performance Limited (PPL) and Indian Singer Rights Association (ISRA).

IPRS is concerned with granting license to the users of music in consideration for payment of royalties on behalf of the authors, composers and publishers of music. It is deals with the live performances and performance through electronic means. In the case of IPRS v.
Hello FM[1] The Delhi High Court granted injunction by restriction Hello FM from playing music without obtaining license from IPRS.

PPL claims that whoever plays pre-recorded music in the form of Gramophone Records, Music cassettes or CDs or Radio or TV or Audio-visual etc. for non-private purpose or in public places, commercial establishments or non-commercial establishments, is required to take prior license from Phonographic Performance Limited (PPL) otherwise it would amount to infringement under the Act. It includes Radio License, Public Performance (Background music) license of sound recording in public, Public Performance (Events) license, Public Performance (storage) license.

ISRA is a separate copyright society constituting of performers. It claims to have the right to collect royalties on behalf of singers.

After the Copyright (Amendment) Act, 2012 the copyright societies were required to be re-registered under Section 33 of the Act within the period of one year from the date of commencement of the said amendment which came to effect on 8 June, 2012. IPRS lost its registration post the amendment under Section 33 of the Act and got itself registered under the Companies Act. In the case of Leopold Café Stores v. Novex Communications Pvt. Ltd[2] it was held “in order to qualify an agent, it is necessary for the agent to disclose that it is acting for and on behalf of the copyright owner in all the relevant documents.” It was specifically stated that the license can be issued only in the name of the copyright holder and IPRS also cannot initiate any legal proceedings against any illegal sound recording etc. Even, PPL had not got itself re-registered itself after the 2012 amendment. However, IPRS has been re-registered as a copyright society, in 2017 and while the application of PPL is still pending.

As far as ISRA is concerned, it is a Registered Society and authorized to grant license for the performers or merely collect royalty fees on their behalf. In the case of Indian Singers’ Rights Association v. Night Fever Club and Lounge [3], the Delhi High court observed that the Defendants were using the Plaintiff’s society’s repertoire of songs without obtaining a ‘Performers’ Rights Clearance Certificate’ while playing songs during live performances. Therefore, it is infringing the Copyright of the singers and their right to receive the royalties. Inclusion of Section 38A after the amendment, states the right of the performers to receive royalty for the commercial use of their musical work. The societies have also given the power to decide the tariff on the basis of which royalties is claimed.

Another company named Novex Communications Limited (“Novex”), a satellite channel distribution company which grants license for (1) Yash Raj films Private Limited (2) UTV Software Communications Limited and (3) Shemaroo Entertainment Limited and (4) Zee as they claim to be authorized agent to do so under Section 30 of the said Act.

Performing Right Societies
Section 33 to 36 of the Act deals with Performing Right Societies which deals with the issuance and grant of licenses for the performance of any work in which copyright subsists in India. Section 31C deals with the Statutory Licensing, which facilitates the making of cover versions of the sound recording five years after the first sound recording on payment of royalties of a minimum of 50,000 copies during each year when the copies are made. Section 31D of the Act enables any broadcasting organization communicating to the public by way of broadcast or by way of performance of a literary and musical work and sound recording which already been published by the way of payment of royalties to the copyright owner. In both the cases, royalties are fixed by the Copyright Board.

It is perused that after the 2012 amendment, the right of the performers right is protected in India to a great extent. As per the said amendment, 50% of the royalties earned by the music companies, shall be given to the authors and composers. India is taking a step forward in every perspective to protect the Performer’s right through licensing and most importantly the creators and authors of the work are protected via these registered societies who also helps them earn royalties for their work.

[1]2012(50) PTC 460(Del)
[2]2014 (59) PTC 505
[3]234 (2016) DLT 22

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