Nuances of Performer’s Royalties
Nuances of Performer’s Royalties
- Abhishek Malhotra and Urjitah Srikanth
A typical song has multiple layers – the music composition, lyrics, and vocal performances, finally put together by audio production, mixing, and mastering. While this seems simple, the complications are realized when what the contributors of each of these layers are due, in the form of royalties, is to be determined. In India, this complication is inflated owing to the lack of clarity in the law on the right to receive royalties of owners (music labels and publishers), authors, composers, and singers.
While most people are likely familiar with the issues around royalties payable to authors of lyrics and music compositions, there is another debate around the singers also receiving (or not receiving) royalties from the use of their performances. Before getting into whether singers are entitled to receive royalties, there is one rather basic question to be answered - what are the rights available to a singer in the performance? This question, mainly, because a recorded or live performance isn’t really a “work” subject to copyright protection. The Copyright Act, 1957 (“Act”), is clear on this aspect. The answer to the question is that a singer is entitled to the “performer’s rights” (and “moral rights”), instead of copyright. While performer’s rights more or less mirror the protection accorded by “copyright”, the former remain the slightly less forceful “neighbouring rights” of copyright.
By definition, the “performer’s right” is available only in respect of live performances. Once the performance is incorporated in a sound recording or an audio-visual work, such as a cinematograph film, it no longer remains a “live” performance. Thus, before we delve into the debate on whether or not, as a matter of law, a performer is entitled to any royalties beyond the compensation paid to render the performance, it is necessary that the more fundamental question is settled – i.e., can a performer claim a performer’s right in a recorded performance. The answer, as per the author, is an unequivocal No. That being said, in Neha Bhasin v. Anand Raj Anand, the High Court of Delhi has, to the author’s mind, in obiter dicta, sought to clarify that “Every performance has to be live in the first instance whether it is before an audience or in a studio”. This was a prima facie view, and the outcome of the case did not rest on this observation. However, singers are placing great reliance on this statement in arguing the currently pending case before the Hon’ble Delhi High Court.
Even if performers are entitled to any royalty, what is the basis in law to receive it? The answer to this question, unfortunately, is equally convoluted. Section 38A of the Act provides that once a performer has consented to incorporation of the performance in the film, the performer cannot object to the enjoyment, by a producer of the film, of a performer’s right in the film. So far so good. This seems consistent with the definition of a performance being limited to a “live performance”.
The proviso to Section 38A, however, seeks to clarify that a performer shall be entitled to receive royalties in case of making the performances for commercial use. What constitutes “commercial use” is left undefined in the Act. Interestingly, this lacuna is proposed to be answered via the Copyright Rules, 2013. It is another matter that the Rule making power does not extend to introducing interpretations into the Act itself. Does this proviso, then, merely save a commercial use of the “live” performance rendered outside of the film? This very question is pending consideration before the Hon’ble Delhi High Court.
It is also pertinent to note that Section 39A of the Act extends the application of certain provisions of the Act (that are typically applicable to copyright) “with necessary adaptations”, to performer’s rights. The provisions thus made applicable to performer’s rights apparently also include the right of the authors of literary and musical works, to receive royalties under Sections 18 and 19 of the Act. The question to be asked here is whether and to what extent should the “necessary adaptation” and “modification” be stretched in order to accord to the performers, the same rights as authors have under Sections 18 and 19.
It should be noted that India is a signatory and has acceded to the Agreement on Trade-Related Aspects of Intellectual Property Rights as well as the WIPO Performances and Phonograms Treaty (“WPPT”), neither of which requires the sharing of royalties between sound recording owners and performers. In fact, WPPT provides that owners and performers have the right to a single equitable remuneration for the use of phonograms, as set by national legislation. However, India has placed a reservation to the effect that this provision will not be applied in India.
There are many questions left unanswered, including (i) what is a performance? (ii) Is it limited to performances rendered live? (iii) If yes, who will be responsible to pay performer’s their royalties from live performances in concerts, for instance? (iv) If not, does it include recorded performances rendered in studios? (v) Further, will there be exceptions to the exercise of rights by performers? (vi) What are the channels of exploitation that will attract royalties to be paid to performers? (vii) Who will be liable to pay the royalties?
The questions have plagued the industry at least since the amendments in 2012. Let us see what the future of this law has in store for us.