India: Delusion Over Indian Performance Rights Society Being A Part Of Copyright Society

Last Updated: 22 June 2018
Article by Shwetha

Copyright is a part of the intellectual property which gives an exclusive legal right to the original creator of a work. The copyright law protects the intellectual creations in the work that is original. Earlier the concept of Copyright was limited to books, painting, and films, but now the ambit is widened to even include computer software and compilation of data. Before the amendment of the Copyright Act in 1994, no protection was given to actors, musicians, jugglers, dancers etc. The Copyright Act, 1957 (hereinafter referred to as the Act) was silent on the performers' rights, however, after the amendment in 1994, it recognized the rights of the performer under Section 38 of the Act and hence the concept of 'Performers Rights' was introduced.

Section 38 of the Act, as Performer's Rights, provides exclusive right or authority to the Performer for doing any act in respect of the performance without prejudice to the rights conferred on its authors. This provision enables the performers for payment of royalties which are subjected to committed use.

The 2012 amendment to the Act gave recognition to the rights of the performers. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. Musicians, singers, actors, acrobat etc. come in the category of performers. Under Section 2(qq) of the Act "performer" includes an acrobat, musician, singer, actor, juggler, snake charmer, a person delivering a lecture, or any other person who makes a performance. Section 38 of the Act confers right on performers' like actors, dancers, jugglers, acrobats etc. and this takes us to Performing Rights Society (PRS) which provides intermediary functions, particularly collection of royalties, between copyright holders and parties who wish to use copyrighted works publicly in locations such as shopping, dining venues, etc. A legal purchase of works, such as buying CDs from a music store, confers to private performance rights. PRS usually collects royalties when the use of a work is incidental to an organization’s purpose. The royalties for works essential to an organization’s purpose, such as theatres and radio, are usually negotiated directly with the rights holder.

In some countries, PRSs are called copyright collectives or copyright collecting agencies. A copyright collective is more general than a PRS as it is not limited to performances and includes Reproduction Rights Organisations (RROs). RROs represent works distributed via mediums such as CD, audiocassette, or computer file rather than the use of works in public settings.

In India, PRS is embodied through the Indian Performing Right Society Ltd. (IPRS), which was registered as a copyright society under Section 33 of Copyrights Act, 1957, but post amendment of the said Act in 2012, the IPRS lost its registration. Though the IPRS had an opportunity to re-register as a copyright s society, it chose to register itself as a company under the Companies Act, 1956.

The IPRS's official website gives the readers an indication that it is a representative body of owners of music, viz. for the composers, lyricists (or authors) and the publishers of music and is also the sole authorized body to issue licenses permitting usage of music within India by any person. The composers are those who are better known as music directors, authors are better known as lyricists, publishers of music are the producers of films and music companies or those who hold publishing rights of the musical works.

The website further states that IPRS grants 'Blanket Licences' for a moderate annual charge which authorises the public performance, broadcast or diffusion by wire or by any other means of any of the numerous works which IPRS controls on behalf of its members and that of its affiliated societies throughout the world, and the website gives us a wide range who all are the Affiliated authorities of IPRS in different countries. The licenses cover both – live performances as well as performances by any mechanical/electronic means. As per there website, IPRS conducts its business of granting licenses per Section 30, as the IPRS is an owner of the copyrights as per the assignment deeds executed with its members who are owners and have assigned the same to it. The website also provides an insight as to what are the tariffs collected by it in form of royalties which is precisely sorted in 43 different classification which includes airlines, airports, bowling alleys, banks and offices, radio broadcast, karaoke service on the internet, petrol pumps etc.

In an interesting outlook, The Honourable Delhi High Court in the matter of IPRS vs. Hello FM Radio  (2012 (50) PTC460(Del)), granted an injunction by restricting Hello FM Radio from playing music without obtaining a license from the Indian Performing Rights Limited (IPRS). IPRS is a non-profit making company authorized under Section 33 of the Copyright Act 1957 to operate as a copyright society for ‘musical works’ and ‘literary works’ performed along with the ‘musical works’. But this judgment dates back to 2012 which is prior to the amendment of the Act when IPRS was a registered as a Copyright Society.

Through the years Copyright laws have evolved and post the amendment of the Act in 2012, the IPRS had also lost its registration under Section 33 of Copyright Act (Registration of Copyright Society). The Bombay High Court in the matter of Leopold Café Stores v. Novex Communications Pvt. Ltd. (2014(59) PTC505 (Bom)) held that "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."  Further, the licenses can then be issued by IPRS only in the name of the copyright holder, and not in their own name. In such a scenario, IPRS would also be prohibited from initiating any legal proceedings in case of unauthorized use of sound recordings etc. because the agents of copyright holders cannot institute legal suits under section 55 of the Copyright Act.

Just a glance at the Copyrights Act gives us a clear depiction as to-dos and don'ts before using a recorded music in public and that it is necessary to obtain the licenses from each and every right owner in the recording. Anyone failing to do so might result in a cognizable and non-bailable offense with huge penalties, which can extend up to 3 years and 2 lakhs respectively under Section 51 and Section 63 of Copyright Act. Hence it becomes important to procure the appropriate license from either the duly registered copyright society (which IPRS is not) or the individual owner of the copyright.

There seems to be conflict in the interpretation of Section 30 (licences by copyright owner) and 33 (registration of copyright society) of the Copyright Act which seem to overlap each other as Section 30 clearly says that "The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent" and from a glimpse of the Bombay High Court Judgement in the matter of Leopold Café Stores which implies that entities such as IPRS is not an authorised agent or licensee as it is not registered under Section 33 of the Act and that will affect the licensing of music through third parties such as IPRS or Novex.

In theory, it is easy for such companies to reclassify themselves as agents in line with the Court’s ruling, but this may seriously hamper their ability to initiate legal proceedings because Section 55 of the Copyright Act allows only owners or exclusive licensees of copyrighted work to initiate legal proceedings for the infringement of a copyright. Therefore, as an agent, such companies cannot initiate legal proceedings. Such a conclusion will significantly disrupt the licensing models currently followed by several Indian music labels, which are not members of collecting societies.

In my opinion, IPRS cannot function within the ambit of Section 33 of the Copyright Act, as they are not registered copyright societies. If at all they wish to continue to be in business, they must transform their functioning to suit the legalities of Sections 30 and 33 of the Copyright Act. Also, not being registered as a copyright society, creels the ability to initiate legal proceedings.

December 22, 2017

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