On August 12, 2016 Justice S. Murlidhar of the Delhi High Court passed a short 8 page final judgment restraining a Delhi food establishment from infringing the performing rights being administered by the Indian Singers’ Right Association (ISRA). This judgment is the first judicial victory for the performer’s society since it was was registered by the Registrar of Copyrights under the Copyright Act, 1957. The first lawsuit is always the most crucial lawsuit for new performing societies like ISRA because their licensing model is usually based on an enforcement campaign that is centered on civil lawsuits. If the first lawsuit goes bad, the entire enforcement campaign can collapse. Luckily(?) for ISRA, the defendant didn’t turn up before the High Court and the lawsuit proceeded ex-parte.
ISRA was extremely lucky that the defendant didn’t turn up because if the lawsuit was contested, the defendant would have questioned the very basis of ISRA’s registration as performing rights society – questions that may have ended ISRA’s existence. Before I explain the various issues with ISRA’s registration as a performer’s society, let me first explain the manner in which the Delhi High Court decided to proceed ex-parte against the Defendant – Chapter 25 Bar and Restaurant – in this case.
Summons & Service
When a lawsuit is admitted by a High Court, the judge is required to issue summons informing the defendant that a lawsuit has been filed against it and inform it of the next date of hearing before court. As per the Order V Rule 9(1) of the Code of Civil Procedure, 1908 summons are required to be served on the defendants by the court – this usually means that a process server in the court’s registry will personally go to the premises of the Defendants and serve the court summons on the defendant. Order V also allows for the court to hand over the summons to the plaintiff who can simultaneously serve the defendant. A third way, to issue summons is through speed post or courier service approved by the High Court.
In this case, when the lawsuit was admitted on August 18, 2015 the hearing judge, Justice Najmi Wazri ordered summons to be served through Ordinary Process, Speed Post and Courier. On the next date of hearing, September 10, 2015 Justice Wazri’s order records “The service report shows that defendant No.1, who was stated to be a tenant, was not available at the said address. Accordingly, Mr. Sudhir Chandra, the learned counsel for the plaintiff states, upon instructions, that the said defendant No.1 be deleted from the array of parties. It is so ordered.”
And then it notes: “As per the report of the Process Serving Agency, defendant No.2 also remains unserved. However, Mr. Sudhir Chandra would submit that the said defendant has been served through courier as well as Speed Post. An affidavit dated 3rd September, 2015 has been filed along with Tracking Reports, the latter shows that the notice was served/delivered through courier on 27th August, 2015 and the Speed Post was delivered on 29th August, 2015. None appears for the defendants. They are proceeded ex parte.”
Thus on the basis of tracking reports of speed post and courier service and the plaintiff’s own affidavit, the court decided to proceed ex-parte, less than 30 days after notice was first issued. Most judges have little faith in delivery of summons through speed post/courier and prefer waiting for summons to be served by the court’s own process server – if even the process server is unsuccessful in serving notice, the court may order substituted service by publishing a notice in a newspaper. Service of summons by courts can be riddled with several problems due to bureaucratic incompetence within the court registry or because of corruption. This is what the Supreme Court had to say, fifteen years ago, about the service of summons by the Delhi High Court’s registry
“8. The above findings/observations of the High Court reveal a pathetic state of affairs and bring to focus the factum of abuse of the process of the Court by manipulating the records to show due service while there was none. Elementary care was not exercised by the concerned officer of the Court in checking up whether the summons were duly served and whether there was a case for effecting substituted service and whether mandatory provisions as to the service of summons were complied with. The entire picture was not placed before the Court and the Court readily accepted the report of the Deputy Registrar and proceeded on the basis that service was complete and the defendants failed to respond to the summons.”
In this present case, Justice Wazri acknowledges that Defendant No. 2 (who was ultimately the only defendant on record) had not yet been served by the court’s process server – he presumes that service has been effected because an affidavit has been filed by the plaintiff along with the copy of the tracking reports of the speed post and courier. His order does not mention the provision of law which allows him to presume that service has been deemed just because the plaintiff filed an affidavit with tracking reports.
Order V Rule 9(5) of the CPC does create a limited presumption of deemed service in case of “properly addressed, pre-paid and duly sent by registered post acknowledgement due” after the passing of 30 days. In this case, notice was not sent by registered post AD and in any case Justice Wazri proceeded ex-parte in less than 30 days – most importantly, as explained earlier, Indian judges have little faith in postal delivery because they are aware of how the system works on the ground – litigants often report receiving envelopes (supposed to contain summons) which are either empty or with partial copies of the summons – it is therefore important to wait for the process server to serve summons or else proceed to substituted service. The speed with which this court decided to proceed ex-parte in this case is surprising.
Let’s now move to everything that could have gone wrong if the defendant had actually put in an appearance and contested the lawsuit.
Performer’s rights – The scope under the Copyright Act, 1957
To briefly introduce the concept of performer’s rights, it may help to refer to the statutory definition of “performers” in Section 2(qq) of the Copyright Act – “performer” includes an actor, singer, musician, dancer, acrobat……….or any other person who makes a performance”. The phrase “performance” is defined in Section 2(q) as “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers”. In simple English, in the music industry, the singers – people like Lata Mangeshkar or Sonu Nigam who sing the song are performers.
One of the critical 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.
A Delhi High Court judgment in the case of Neha Bhasin vs Anand Raj Anand [2006 (32) PTC 779 Del] however interpreted “live” to cover even studio recordings – the court reasoned that even studio recording happened “live”! At the time nobody really bothered about the judgment because like the authors, performers could easily be forced to assign away all their rights to the music labels and from what I understand, this did happen. So for pre-2012 recordings, it is highly unlikely that any of the performers retain any of their rights.
The 2012 amendments to the Copyright Act added a healthy dose of confusion – including an “explanation” to Rule 68 of the Copyright Rules, 2013 which sought to “explain” that for the purposes of Chapter XII of the Rules, performance includes recording of a performer in the studio or otherwise. This rule is ultra vires the definition of “performance” in the Copyright Act, 1957 and is bound to be struck down if ever challenged in court. A few years ago we published a detailed ghost post explaining the ramifications. Post 2012, there is also substantial confusion on whether performer’s had an equal right to royalties, like composers and lyricists – I’ll leave a detailed explanation for another day. Several of these issues are waiting to explode into litigation.
Together, the issues discussed above raise several questions pertaining to the scope of rights being administered by ISRA and the legality of these rights – these issues would have been raised in a contested case.
The questions over the registration of ISRA as a performing right society
Post the 2012 amendments, the Registrar of Copyrights registered only one copyright society – ISRA. The registration was somewhat of a landmark event because so far the music industry had only two copyright societies – IPRS & PPL. While IPRS, administers copyrights pertaining to the underlying works like the music and lyrics, PPL administers the copyright in the sound recording. Both IPRS and PPL have been subject to severe criticism for the lack of transparency and have not been re-registered since 2012. Given the confusion regarding ownership rights in the music industry, it was surprising how easily the Registrar of Copyrights registered ISRA. Ideally, the Registrar should have published ISRA’s application online and sought comments from the industry. Unfortunately, the registration proceeded under the cloak of darkness. If ISRA’s application was made publicly available pre-registration, it would have been contested by the music industry.
Since its registration, ISRA has been in violation of Rule 66 of the Copyright Rules, 2013. This provision requires all registered copyright societies to make available on their websites, crucial details such as the memorandum of association, articles of association along with the repertoire of works being administered by the society.
I have checked the website of ISRA – neither the incorporation documents nor the society’s repertoire of works are made available. The society however did produce before the Delhi High Court a list of works administered by it. Why then has it not made the list available on its website?
All these issues raise multiple red-flags about ISRA’s continued existence as a copyright society. It is very likely that the Delhi High Court is unaware of these issues but I am quite sure a contested lawsuit would have raised several of these issues. ISRA may have postponed the inevitable questions but it’s only a matter of time before it is forced to answer these questions.