Performers rights conundrum – Patiala House Court, Delhi clarifies on several controversial issues

In June, 2018 there was an interesting judgement passed by the Patiala House Court, Delhi in relation to performers rights. A judgement which if relied on by any of the higher courts would be catastrophic for ISRA (Indian Singers Rights Association) and performers claiming right to receive royalties in studio recorded performances.

As has been covered earlier (see relevant guest interviews of Mr. Sanjay Tandon (CEO-ISRA)  and Ankit Relan’s interview here and here), one of the main bone of contention between ISRA and the music labels has been in relation to the issue of whether “performance” right is limited to ‘live performance’ or includes recording made in studio by a performer?

While ISRA has been contending that performance includes studio recorded performances and hence right to receive royalties extends to such studio recorded performances, the music labels have been arguing that ‘performance’ as defined in Section 2(q) of the Copyright Act is limited to live performance and does not include studio recorded performances.

This issue has been discussed at length in the matter of Sushila vs Hungama Digital Media Entertainment Pvt Ltd & Super Cassettes Industries Pvt. Ltd (READ JUDGEMENT HERE).

Plaintiff’s case:

The plaintiff, Ms. Sushila, a singer by profession filed a suit against Hungama Digital Media Ent. Pvt. Ltd and Super Cassettes Industries Pvt. Ltd. She claimed that she had signed various legal agreements in respect of songs rendered by her with T Series (Def No. 2). The rights included recording rights as well as performance rights in vocal songs. These songs were recorded by T-series and released through CDs and VCDs in the market. She alleged that Hungama (Def No. 1) had been broadcasting the songs of the plaintiff without taking any permission from her or paying performance royalties to the plaintiff in violation of Section 38 of Copyright Act. A legal notice was sent by her to Hungama asking to cease & desist to which Hungama refused to comply and stated that they had acquired the rights from T Series. The Plaintiff claimed that whenever a singer performs, he receives 50% royalty under the law and that non-payment of such a royalty results in infringement of performer’s right to receive royalty which is sacrosanct under the Copyright Act, 1957. This right has been given to the lyricists, music composers and singers of a song under Section 18 third and fourth provisos of the said Act. All are entitled to an equal share whenever their song is commercialized.


The following issues were dealt with by the Patiala House Court:

(i) What is the extent of performance right – whether the same includes recording made in studio / renditions given by a vocal performer / artist in a studio / recording?

(ii) What is the effect of contract which has been entered into between defendant no. 2 and plaintiff whereby plaintiff had entrusted / assigned all her rights in her recordings including performance rights?

(iii) Whether plaintiff can otherwise make out a case on the basis of proviso(s) to S 18(1) r/w Section 38 A of the Act and / or u/s 39A as amended by the Act of 2012?

Issue 1: Interpretation of ‘live’ performance: The Court observed as under:

  • The definition of ‘performance’ as defined in Section 2 (q) is evidently in relation to a performer’ rights- any visual or acoustic presentation made live by any performer. What is most important or the crux of the section or the distinguishing feature is the use of the word ‘made live‘. The word ‘made’ denotes a process / the way or manner in which the performance is rendered or it can be said to have been originated. The other word ‘live’ in the context of performance is more important and the most obvious reason of placing the same, which I could decode is that it restricts the ambit of performer’s rights to only those performances which are played / made ‘live’ before an audience or viewers.”
  • Dictionary meaning of the word ‘live’: The Oxford dictionary describes the same as under: Relating to a musical performance given in concert, not on a recording.  Example: ‘there is traditional live music played most nights’ ‘a live album’ (of a broadcast) transmitted at the time of occurrence, not from a recording.            Example: ‘live coverage of the match’ . The said definition / words also implies that the performance is instantaneous, immediate and directly emanating from the ‘performers’ skills or efforts in a form of a vocal or acoustic presentation.                                     The word ‘live’ as mentioned herein above also defines the scope of performance right. In the context of the controversy herein by no means a performance given in a studio or a recording done in a studio can be said to be a performance ‘made live’. To put it otherwise the word ‘live’ connotes that there is a direct connect with the audience / viewers without there being any break or any intervention through any other medium – it should be performed directly in front of them. The skills or unique efforts being displayed by the performer should be directly seen or heard by the audience.
  • The plaintiff’s premise or claim herein that there exists the performance rights in the songs recorded by her in studio is completely untenable or a misconceived argument. Accepting such a contention would be playing havoc with the entire scheme of the Copyright Act which has different conclaves or defines rights of various persons / stake holders.
  • The Defendant’s counsel raised the argument that insofar as studio performance(s) are concerned the same per se are not one continuous performance or rendition. Rather songs are recorded in bits and pieces, mixed with music and instruments, improved with technology so on and so forth which signifies that there are various independent processes or components which put together constitutes one song. This process continues for many days / there are many sittings. Thus, under studio conditions the question of there being a ‘live’ performance otherwise also does not arise.
  • While dealing with the issue that studio recorded performance is not a “live” performance as it is being done in a closed controlled environment and not in front of the live audience, the Court referred to the Delhi High Court’s judgement in Indian Performing Right Society Ltd vs. Aditya Pandey 2012 SCC Online Del 2645 :             “19. Whereas IPRS contends that by virtue of Section 17 of the Copyright Act 1957, the authors of literary and musical works; “work” as defined in Section 2(y) of the Act, are the first owners of the copyright therein i.e. the lyrics and the musical score respectively and by virtue of Section 18 of the Act can assign the copyright, as per mode of assignment contemplated by Section 19 of the Act, the rights vested in them under Section 14 of the Act. The licensing provisions as per Section 30, Section 30A, and Section 31 of the Act being the source of the power of IPRS to prevent infringement of the copyright in the lyrics and the musical score of its members, who have assigned the copyright to IPRS in the lyrics and the musical score. It is the assertion of IPRS that these authors, being the original owners of the works, are entitled to exploit their works, to the exclusion of all others, on the subjects enumerated in sub-clauses (i) to (vii) of clause (a) of Section 14 of the Copyright Act 1957. Highlighting sub-clause (iii) and sub-clause (iv), IPRS argues that the authors of the lyrics and the musical scores have the exclusive right to perform the work in public or communicated to the public and also to make a sound recording in respect of the work, and dove-tail the twin rights, to subsection 4 of Section 13 of the Act by highlighting that if the author of the musical score and the lyric exploit their right under sub-clause (iv) of clause (a) of Section 14 of the Act by permitting a third party to make a sound recording, the copyright in the sound recording (as per sub-section 4 of Section 13) shall not affect the separate copyright in their works; and thus IPRS highlights that the creation of a sound recording i.e. a derivative copyrightable work does not affect, in any manner, the right in the underlying (lyric and musical score) works. IPRS urges that the right of the owners of the underlying works to perform the work in public or communicate the work to the public (a right conferred by Section 14(a)(iii) of the Act) is distinct from and not a sub-set of the right to make a sound recording (a right under Section 14(a)(iv) of the Act) and enlist the effect of the argument to mean that once the owners of the lyrics and the musical scores exploit their right to permit a sound recording, it would not mean that their works have become a sub-set of the sound recording, in that, he who obtains a permission or a license from the owner of the copyright in the sound recording, can either perform in public by an acoustic presentation or a live performance or by broadcasting the sound recording, without obtaining a parallel permission from the owner of the copyright holders of the underlying works i.e. the lyricist and he who set the musical score, and for which IPRS highlights the definition of the word “broadcast” as per Section 2(dd) of the Act, the definition of the expression “communication to the public” as per Section 2(ff) of the Act, the definition of the word “performance” as per Section 2(q) and the definition of the word “performer” as per Section 2(qq) of the Act. IPRS highlights that broadcast has been defined in the broadest term to mean any mode of communication of a sign, sound or a visual image by wire or wireless diffusion and linking the broadcast to the expression “communication to the public” highlights that if a work is made available for being seen or heard or otherwise enjoyed by the public directly by means of display or diffusion, logic demands to infer that, pertaining to a song, when a sound recording is communicated to the public the underlying musical score and the lyrics are simultaneously communicated and thus an acoustic or a visual presentation of a lyric and the musical score as also a sound recording, makes available to the public each of the three works and there is a communication to the public of each such work. IPRS asserts that with respect to performing a work in public or communicating it to the public, the Copyright (Amendment) Act 1994 has not changed the legal position. It asserts that the amendment brought into the statute book in the year 1994 introduced Performers Rights in the context of performance which was live Section 2(q) and in the context of communication by display or diffusion 2(ff), which hitherto-fore found themselves integrated in the definition of the word “performance” in Section 2(q) of the Act, when brought in force in the year 1957, and for which IPRS places reliance upon the Notes on Clauses to the 1994 Amendment which undisputably bring out that the Performers “Rights introduced by the 1994 Amendments, required a division of the subject pertaining to live performances while communicating the work to the public and when the communication was by way of diffusion .The Court held that the underlined portion defines the intent of the legislature to segregate / restrict such performance rights by the usage of the word ‘live’.

Issue 2: Effect of contractual obligations entered between the Parties:

The Court held that the Plaintiff herself has admitted that she had parted with all such rights and had executed various agreements with T- Series. The Court observed that there was obviously no element of fraud or any question of coercion or duress. Plaintiff having exhaustively assigned her rights insofar as the songs are concerned to defendant company and taken valuable consideration cannot now resile or claim to the contrary moreso without challenging those agreements.

Issue 3: Whether performers can be equated with authors qua Section 18 of the Act

The plaintiff had contended that by virtue of the proviso(s) to Section 18(1) r/w Section 38 A and Section 39 A which are recent additions in the Copyright Act makes her / equates or puts her similarly to the position of authors of literary or musical works. That the proviso(s) to Section 18 (1) are ipso facto grafted under section 39A in reference to performance right or have to be otherwise accordingly read.

The Court held as under:

“In my opinion this contention though on the face of it appears to be attractive, however upon a slight probe is also misconceived. Now proviso(s) to Section 18(1) were added by virtue of the amendments carried out in the year 2012 when section 39A was also accordingly modified / amended. Had the intention of the legislature been to equate the ‘author’ of the literary or musical work and the ‘singer’ then in such a scenario the name of the singer would have been mentioned in the proviso itself and not left it for interpretation as sought to be done by the plaintiff herein. The difference between the rights of singers (performer) and authors of literary and musical works has been retained and the proviso only takes within its sweep the authors of musical or literary work only. This distinction is made more prominent or apparently decipherable by the use of the words “without prejudice to the rights conferred on the authors” in Section 38A. Thus, the contention of the plaintiff herein that she is entitled or should be equated with authors of literary and musical work is also an untenable contention.

Needless to state that even in Section 39A the words used are “with necessary adaptations and modifications” which also points to the intent of the legislature that the authors of literary and musical works as well as performers are treated differently. Thus, this contention of seeking parity and claiming on the same footing as authors of musical and literary work is also without any substance.

The said observations are very pertinent inasmuch as the rights of different stake holders are being harmoniously constructed without there being any dispute or overlap or there being any conflict. Taking cue from the said observations and in view of the facts and circumstances of the case, in my considered opinion the real import or scope of the performance right is guided / restricted by the word ‘made live’, which I had stated earlier thus, these rights are a sort of secondary / residuary rights or it can be said to be neighbouring rights. Primary rights in sound recordings remains / is retained by the defendant no. 2 by virtue of the fact that it had engaged the plaintiff contractually for the said specific purposes coupled with the fact that the act recognizes sound recording as a distinct right.

The upshot of the aforesaid discussion is that the contention of the plaintiff that the performer’s right enables or vests with her rights wherein she can claim parity to authors by virtue of the proviso(s) to Section 18(1) of the Act is also an untenable contention.”

The Court accordingly dismissed the suit as it did not find any substantive right infracted upon / infringed and found the suit to be devoid of cause of action or bereft of any merits.

It appears that the Plaintiff in the instant case did not raise some of the key arguments which ISRA has been arguing in the Delhi High Court including the clarification provided in Rule 68 of the Copyright Rules, 2013 i.e. performance includes recording of visual or acoustic presentation of a Performer in the sound and visual records in the studio or otherwise. The Plaintiff also did not refer to the decision of Delhi High Court in Neha Bhasin Vs. Anand Raj Anand & Anr., 2006 (32) PTC 779 (DEL) wherein it was held:

While the definition of “Performer” in Section 2 (qq) of the Copyright Act, 1957 includes within its sweep a singer, Section 2(q) defines “Performance”, in relation to Performers’ right wish to mean any visual or acoustic presentation made live by one or more Performers. Every performance has to be live in the first instance whether it is before an audience or in a studio.”

The decision of the Patiala House Court has not been appealed by the Plaintiff. It would have to be seen whether the Delhi High Court decides on similar lines in the ISRA disputes pending before it. These issues dealt with by the Patiala House Court are currently being argued by ISRA and music labels like T Series and Saregama before the Delhi High Court. As per the last order of the Delhi High Court, Zee Entertainment Enterprises Limited has also filed an intervention application and the matters are next listed on December 3, 2018.

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