By – Megha Rathore (INTERN)
Introduction
The Evolution
The Copyright law across the globe was silent on the performers’ rights for a really long time. The delay in recognizing the rights, as understood by Adam Smith, was for two reasons. One, the performers- actors, musicians, opera- singers/dancers, etc. were considered examples of unproductive labour and were regarded as vagrants by the law in the formative period of copyright law. Two, the performances or the “works” of these performers would perish in the instant of their production.[1] With the development of technology is basically the 20th Century, recording and broadcasting these performances brought into light the need to protect the rights of performers.
Copyright gives rights to a creator to protect their original work. The visual or acoustic performance by a dancer, a singer, an artist, an actor or a musician, forms a significant part of creative processes that must not only be given protection but also be rewarded with a share of proceeds from its commercial exploitation.
The rights of performers were first recognized in the Rome Convention of 1961, Article 7 of which provides the performers with the right to prevent others from communicating the performance to the public or commercially exploiting it in any way. These rights were furthered by The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and WIPO Performance and Phonogram Treaty (WPPT), where the economic and moral rights of performers were recognized. It was recognized that the performers must be provided with monetary compensation for their performance and if their work was used for any other purpose, they were entitled to receive royalties.[2] Moral rights included identification of the performer and prevention from any kind of distortion.
Legislative and Judicial developments in India
It was in Fortune Films v. Dev Anand[3] that the Indian judiciary discussed performers rights for the first time. However, the Court held that an actor had no right to control in any manner the use of their performance in the film. Since the actors received a fee for the performances, the producer was said to be free to use the performances in any manner they wished to. It was in the Amendment of 1994 that performers’ rights were recognized in India. In Super Cassettes Industries v. Bathla Cassette Industries[4], it was observed that performers rights were distinct from the copyright and hence if a song is to be re-recorded, consent and permission must be taken from the performer. The scope of live performance was defined in Neha Bhasin v. Anand Raj Anand[5]. However, that is all that has been discussed in India when it comes to the evolution and development of performers’ rights.
The Copyright Act, which is currently in force in India, was passed in 1957, with major amendments in 1994 and 2012. The Amendment of 1994 introduced performers’ rights under Section 38 of the Act along with the definition of “performer” under Section 2(qq). Exclusive rights and moral rights of the performers were also incorporated in the Act under Sections 38-A and 38-B by the Amendment of 2012.
Besides, Section 55 and Sections 63 to 70 provide for remedies against infringement of performers’ rights. These include civil remedies like injunction and damages, criminal remedies of fine and imprisonment and the Anton Pillar Order. Anton Pillar Order allows the plaintiff to inspect the defendant’s premises for relevant documents and evidence.
Scope of and Lacunae in the Performers’ Protection Regime
The Vacuum
The Indian performers’ protection regime faces a significant void. It turns to the Copyright Law in order to protect performers’ rights, which in itself is not capable of protecting performers’ rights in all aspects. Copyright protects the expression of an idea, the expression which is original and creative, however, leaves the idea itself accessible freely in the public domain.[6] However, Copyright requires the expressions to be “fixed” on some tangible media and subsequently fall within the scope of “work”. This creates a vacuum in the law of protecting the performers’ rights. For instance, the Indian Copyright Law does not seem active in the debate of extending protection to sports performances as well as other impromptu performances, which in turn are not copyrighted for there is no established authorship. The recognition of an athlete’s right of publicity, however, shall provide an incentive for their investment of time, effort and energy.[7] While the economic rights of performers are protected under the Copyright regime, it is difficult to categorize the persona, identity, style or celebrity status of a performer as a factor to determine the “author” of the work.[8]
Distribution of Royalties: Digitisation and implementation
Copyright Societies in India, which include Indian Performing Rights Society (IPRS), Phonographic Performance Limited (PPL) and Indian Singer Rights Association (ISRA), were constituted to provide license for reproducing and broadcasting literary works. These Societies were formed to protect authors, creators and performers. They are registered under Section 38 of the Act and are authorized to grant licenses on behalf of the authors, creators and performers. The licenses are granted in consideration for payment of royalties, which is to be distributed by these societies to the original creator or performer. In IPRS v. Hello FM, the Court restricted the defendant by way of an injunction from playing music without receiving a license from IPRS.
Copyright Societies, post the amendment in the Copyright Rules in 2021, are required to publish, for every financial year, an Annual Transparency Report, within 6 months. This has been brought about in light of reinforcing transparency in the working of the copyright societies. New provisions are introduced for dealing with undistributed royalty amounts as well as for using traceable electronic payment methods for collecting or distributing royalties.
While the amended rules have incorporated most of the amendments proposed in the draft of 2019, it failed to consider some important changes in the draft that would have made the system of distributing royalties way more transparent. The draft proposed changes in the licensing regime by specifying that the statutory license can be sought “for each mode of broadcast” while the current phrasing restricts it to “radio broadcast or television broadcast”. This change is not present in the notified amendments. Thus, whether internet broadcasting is covered or not is a question that is still unanswered. This makes for a cause of confusion.
The confusion and subsequent backlash were seen in a row over music royalties in 2020. IPRS asked the musicians to pay Rs 20,000 for an online performance even if they were streaming it for free from a personal page. It was argued that with everyone performing in their own capacity given the unprecedented times, they themselves have to incur these costs. It was said to be unfair of the IPRS to equate the capacity of venues with those of artists. Followed by the criticism, the IPRS withdrew the idea.[9] However, even with the 2021 Amendment in the Rules, the confusion subsists.
Conclusion: An Evaluation
The key amendments largely concern regulating the management and functioning of the Copyright Societies that would result in a more transparent and streamlined functioning of such societies. However, they tone down the earlier draft as the societies are only to present broad figures with no granular details. The draft had required societies to provide information with a “breakdown for each category of rights administered and type of use” and reasons for any delay in payment of royalties. One might wonder what brought about this dilution given that it reduces the utility of the transparency report and favours the opaque copyright societies. Besides, two aspects concerning copyright societies have also been omitted from the draft. One, the draft proposed while fixing the tariff rates, the society shall consider factors such as cross-sectional tariff comparisons, the benefits to licensees and the commercial value of the rights in use etc. This might have led to a more holistic understanding and assessment of the tariff rates. This, however, is not provided in the current amendments. Two, the draft proposed altering the voting rights of members of the copyright societies. But the current scheme under Rule 61(5) provides equal voting rights to all members. The draft proposed a voting mechanism in proportion to the number of works or royalties received by a member, or their duration of the membership. Such a provision would have given a virtual free hand[10] to entities such as T-Series[11], which coincidentally joined the Indian Performing Right Society (IPRS) the day after these amendments were notified, to run societies (such as IPRS) given its large share of content.
Comparing the status of performers’ rights in the Indian Copyright regime from over 3 decades ago, the protection provisions today are appreciable. Performers today can claim remedies, both civil and criminal, against infringement of their economic and moral rights. With multiple amendments, even till very recently, the Indian Copyright regime has also made efforts to better the implementation of these provisions.
However, the lack of coherent discussions as well as that of active participation by the Indian judiciary has still left some questions unanswered. The online performances and the internal administration of the Copyright Societies that are responsible for distributing royalties are some of the issues that require immediate attention and remedying not just by the legislature but also by the judiciary.
[1] DR.V K AHUJA, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS 110 (LexisNexis 2007).[2] Ayush Verma, Performer’s rights under copyright law, iPLEADERS (Jan. 12, 2022, 9:29 AM), https://blog.ipleaders.in/performers-rights-under-copyright-law/.[3] Fortune Films v. Dev Anand, AIR 1979 Bom 17.[4] Super Cassettes Industries v. Bathla Cassette Industries, 2003 (27) PTC 280 (Del).[5] Neha Bhasin v. Anand Raj Anand, 2006 (32) PTC 779 (Del).[6] Baird Douglas G, Human Cannonballs and First Amendment, 30 (6) STANFORD LAW REVIEW, 1185-1209. (1998).[7] ARNOLD R, PERFORMERS’ RIGHTS 7 (Sweet and Maxwell 2004).[8] Pramod, Sanjna, Performers’ Rights: The Need for a Sui Generis Regime, SSRN (May 4, 2013), http://dx.doi.org/10.2139/ssrn.2604814.[9] Theres Sudeep, Row Over Music Royalties, DECCAN HERALD (Jan. 11, 2022, 4:56 PM), https://www.deccanherald.com/metrolife/metrolife-your-bond-with-bengaluru/row-over-music-royalties-870796.html.[10] Meghna Bal, Government pushes for greater transparency in proposed changes to copyright rules, FINANCIAL EXPRESS (Jan. 11, 2022, 6:15 PM), https://www.financialexpress.com/india-news/government-pushes-for-greater-transparency-in-proposed-changes-to-copyright-rules/1607684/.[11] Maryam Farooqi, T-Series Becoming Member Of Copyright Society IPRS To Further Boost Royalty Revenues, MONEY CONTROL (Jan. 12, 2022, 6:21 AM), https://www.moneycontrol.com/news/trends/entertainment/t-series-becoming-member-of-copyright-society-iprs-to-further-boost-royalty-revenues-6711601.html.