By, Ankita Aseri
The Amending Act has given affirmative rights to the performers by omitting Sub-sections 3 & 4 of Section 38 and inserting a new section in compliance with Article 6 to 10 of WPPT. Section 2(qq) of the Act defines “performer” whichincludes an actor, singer, musician, dancer, acrobat or any other person who makes a performance.[i] It is a clarifying definition i.e. a definition that clarifies the meaning of a common word or phrase by stating that it does or does not include specified matters.[ii] The Act divides the performers into three categories –
- Performers giving live performances.
The performer when he performers in front of the audience (live) or engages in any performance he has right over that performance.
- Performers in a cinematograph film with credits in the film.
The performer when he gives his rights to the person with any written agreement to make it a part of any commercial use, the performer shall be entitle to have royalties or some monetary benefit.
- Performers in a cinematograph film without credits in the film.
There are many performers in supporting cast which are commonly termed as “extras” in any play, film etc. The Copyright Act till now doesn’t give any protection to such people except moral rights which might be prejudicial to their reputation.
Section 38A(1) of the Act mentions ‘without prejudice to the right of the authors included in the work’.[iii] This is relevant because SPB (the performer here) should not hamper the right of Ilayaraja, as he is the composer and the lyricist. So, each of them have an equal right to get royalty. Ilayaraja has only a right to receive royalty and cannot block a singer from singing the song. Interpretation of ‘without prejudice’ in the copyright law cannot be read as ‘without consent’[iv]
Under Section 38A(2) of the Act no performer’s right will apply in a case where the performer has consented to the incorporation of his performance in a cinematograph film. The Amendment contemplates that the consent of a performer for the incorporation of his performance in a cinematograph film would be in writing, and would not merely be oral. Further, if valid consent has been given by the performer for the incorporation of his performance in a film, he would not oppose to the enjoyment of his performer’s right by the film Producer. There are two important caveats here: firstly, the performer may enter into an agreement to the contrary i.e. an agreement stating that the performer can object to the enjoyment of his performer’s right by the film’s producer. Secondly, the Producer cannot enjoy the performer’s right for the purpose of out-film use such as in ring tones or public performances.
Performer’s Rights: Inconsistencies in the Amendment
It will be pertinent to highlight few inconsistencies in the amendments pertaining to performer’s rights. Section 2(q) of the Act defines “performance” in relation to performer’s right to mean any visual or acoustic presentation made live by one or more performers;[v]It is a clarifying definition. The purpose of a clarifying definition is to avoid doubt as to whether the term does or does not include specified matters.[vi] Proviso states that ‘notwithstanding anything contained in Section 38A(2), the performer shall be entitled for royalties in case of making of the performances for commercial use’.[vii]While the Act fails to clarify what construes to be “commercial use”, the explanations to Rule 68 of the Copyright Rules, 2013[viii] clarify three things:
- The royalty collected from enjoyment of the performer’s right in (i) to (v) of clause (a) of sub section (1) and proviso to sub.-section (2) of Section 38 A, shall be shared equally between the performer and other owner of copyright.[ix]
- Commercial use as mentioned in proviso to sub-section (2) of Section 38A, means the exploitation of the performers right by way of reproduction , issue of copies or distribution, communication to public including broadcasting and commercial rental of the cinematograph film.[x]
- Performance includes recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise.[xi]
The intention of the legislature, as indicated in the enabling Act i.e. Indian Copyright Act must be the prime guide to the meaning of delegated legislation i.e. Copyright Rules, 2013 and the extent of the power to make it.[xii] It is referred to as the rule of primary intention. Allowing for the difference in juridical nature and provenance, delegated legislation is to be construed in the same way as an Act.[xiii]
Harmonious Construction: Broadening the Scope of the term “Live Performance”
One of the problematic components of the definition of “performance” in Section 2(q) is the word “live”. The word “live”, in the music industry, is used in opposition to “studio” i.e. performer’s rights were to extend to only live acts and not mere studio recordings. Section 38 guarantees these performers certain rights such as the right to authorise the audio or visual recording of the performance and to communicate such recording to the public.[xiv]It can thus be seen that Explanation 3 to Rule 68 has not only expanded the scope of the term “performance” but is clearly inconsistent with the definition of performance provided under Section 2(q) of the Act. While the Act limited the definition to “live performances” i.e. performances which are not pre-recorded, the Rules have included within its scope pre-recorded performances. What constitutes “live performance” was addressed in the case of NehaBhasin v Anand Raj Anand wherein the Delhi High Court observed that “Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed.”[xv] In that sense, Explanation 3 to Rule 68 could be in conformity with Delhi HC’s interpretation of live performance, but clearly ultra vires its parent Act.
In the case of The Indian Singers’ Rights Association v Chapter 25 Bar and Restaurant, the Plaintiff’s members are Singers as a category of Performers. “Each Singer is the Performer of the performance and/or the owner of the Performer’s right in a song i.e the ‘Performer Owner’ of a song and each singer apart from the exclusive Performer’s right 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.”[xvi] Explanation 3 of Rule 68 of the Copyright Rules, 2013 was used to interpret “performance” in this case.[xvii] It is clearly ultra vires the Act. Similar interpretation was given in the case of The Indian Singers’ Rights Association v Night Fever Club & Lounge.[xviii]
“Where, on the facts of the instant case, the literal meaning of the enactment under inquiry is inconsistent with the literal meaning of one or more other enactments in the same Act, the combined meaning of the enactment must be arrived at and to the extent that this combined meaning is inconsistent with the literal meaning of the enactment under inquiry, a strained meaning of that enactment is required. This is without prejudice to the possibility that the interpretative criteria may require some other meaning to be treated as the legal meaning of the enactment. This is also called harmonious construction.”[xix] Another continuing question is whether performers in films i.e. actors would be considered to have a performer’s right at all — this is because Section 2(q) of the Act which defines a performance states that, in relation to performer’s right, a performance is any visual or acoustic presentation made live by one or more performers. Although a live performance has not been separately defined, it is not entirely clear how the recording of an actor’s performance in a film could be attended by the performer’s right. So a harmonious construction will be given to the term live performance and it will be interpreted broadly to include studio performance so as to include actors in the ambit of performers. If the term live performance is narrowly construed then the actors cannot be termed as performers as their performance happens live in a studio which is not provided by the Statute.
Proviso: rendering a Literal Interpretation
The Producer’s enjoyment is limited to the film and this prohibition is buttressed by a Proviso which states that ‘Provided that notwithstanding anything contained in Section 38A(2), the performer shall be entitled for royalties in case of making of the performances for commercial use’.[xx] A proviso is a formula beginning ‘Provided that…’, which is placed at the end of a section or sub-section of an Act, or of a paragraph or sub-paragraph of a Schedule, and the intention of which is to narrow the effect of the preceding words.[xxi] A proviso is usually construed as operating to qualify that which precedes it.[xxii] The term ‘literal meaning’ corresponds to the grammatical meaning where this is straightforward.[xxiii]
Before this amendment, the producers were enjoying the royalties and performers were only paid once a fixed amount by the producers at the time of completing the ‘work’. The negative right to prohibit ‘fixation’ of their live performances has now been converted to the positive rights. In stark contrast to Section 17 of the Act, the Performer’s right to royalty is a statutory inalienable right. The “Performers Right” runs parallel to Rights of Composers/Songwriters, Producers & Music Companies. A literal interpretation will be given to the proviso as the grammatical meaning is clear in this case. The Rules accompanying the Copyright Act have also been amended to provide the setting up of a separate performers’ society for each class of performer, while also stating that the royalty collected from enjoyment of the performer’s exclusive rights as stipulated in Section 38A of the copyright act “shall be shared equally between the performer and other owner of copyright.” Performer can assign his copyright but cannot assign or waive the right to receive royalties for the utilization of such performance in any form other than for the communication to the public of the performance along with the film in a cinema hall. The performer can assign the right to receive royalties to either his Legal Heir or a Copyright Society for collection and distribution. This cannot be even circumvented by contract to the contrary.
To address the ambiguities of Section 38A, harmonious construction must be applied to cover actors under the ambit of performers as the Statute does not provide for studio performance but live performance. Therefore, the term ‘live performance’ will be interpreted broadly. Literal construction will be applied to the Proviso to Section 38A as the grammatical meaning of the provision is clear and therefore the literal meaning of the provision will be followed. Therefore, the performer will be entitled to royalty in case of making of the performances for commercial use and it will be shared equally by the owner of the copyright and the performer.
To remedy the ambiguities of Section 38A, harmonious construction must be applied to cover actors under the ambit of performers as the Statute does not provide for studio performance but live performance. Therefore, the term ‘live performance’ will be interpreted broadly. Literal construction will be applied to the Proviso to Section 38A as the grammatical meaning of the provision is clear and therefore the literal meaning of the provision will be followed. Therefore, the performer will be entitled to royalty in case of making of the performances for commercial use and it will be shared equally by the owner of the copyright and the performer.
[i] §2(qq), Indian Copyright Act, 1957.
[ii]Francis Bennion, Bennion on Statutory Interpretation517, (6th ed., 2013) (hereinafter “Bennion”).
[iii] § 38A(1), Indian Copyright Act, 1957.
[iv]SanyuktaBiswas, Copyright Enjoyed by Musician, available at http://www.khuranaandkhurana.com/2013/12/16/copyrights-enjoyed-by-musicians/.
[v] §2(q), Indian Copyright Act, 1957.
[vi]Bennion, supra note 2 at 524.
[vii]Proviso to § 38A, Indian Copyright Act, 1957.
[viii]Rule 68, Copyright Rules, 2013.
[ix]Explanation 1 to Rule 68, Copyright Rules, 2013.
[x] Explanation 2 to Rule 68, Copyright Rules, 2013
[xi] Explanation 3 to Rule 68, Copyright Rules, 2013
[xii]Bennion, supra note 2 at 236.
[xiii]Bennion, supra note 2 at 237.
[xiv] §38, Indian Copyright Act, 1957.
[xv]NehaBhasinv Anand Raj Anand, (2006) 132 DLT 196, ¶ 45.
[xvi]TheIndian Singers’ Rights Association v Chapter 25 Bar and Restaurant, (2016) 159 DRJ 244, ¶ 9.
[xvii]Id. at ¶ 15.
[xviii]The Indian Singers’ Rights Association v Night Fever Club & Lounge, (2017) 161 DRJ (SN), ¶ 5.
[xix]Bennion, supra note 2 at 437.
[xx]See supra note 7.
[xxi]Bennion, supra note 2 at 674.
[xxii]Bennion, supra note 2 at 675.
[xxiii]Bennion, supra note 2 at 780.