As has been reported by multiple news outlets there is a copyright dispute brewing between Ilayaraja and SP Balasubramanyam (SPB), both of whom are national treasures. While Ilayaraja is a music composer, SPB is a singer. Currently on an international tour giving performances around the world, SPB posted an update on his Facebook page informing his fans that he had received a legal notice from Ilayaraja demanding royalties for performing his compositions during the tour. In the same post, SPB expresses his ignorance over these legalities and expresses his willingness to comply with the law.
The legal issues raised by this dispute are rather simple. When a music composer creates a new composition the Copyright Act, 1957 automatically creates a copyright in the music without the requirement for any pre-formalities such as registration with the Copyright Office. Per Section 17 of the Copyright Act, the copyright will vest either in the music composer or alternatively, if the composer is an employee of a music label or production house, the ownership of the copyright will vest in the employer, depending on the terms of the contract. In this case, since Ilayaraja has reportedly issued the legal notice in his name, it is most likely that he has retained the copyright in his own name for the international territories in which SPB is performing. Once the ownership question is clear, it is necessary to move on to the rights vested in owner of the copyright. This question can be answered by looking at Section 14(a)(i) which gives the copyright owner a bundle of several rights, including the right to reproduce or perform the work or communicate it to the public. This means that anytime a person is performing the music composition in public or communicating it to the public via a live broadcast, they require the prior permission of the copyright owner.
In this case, there is little doubt the SPB should have secured the necessary copyright permissions from not only Ilayaraja but also from the persons owning the copyrights in the lyrics in the songs that he is singing. I’m really quite amazed that somebody with as much experience as SPB is not aware of these basic requirements under copyright law or rather it is amazing that the event managers did not know of these requirements because under American law (where SPB is currently performing) the event managers and the venue owners can also be made liable for copyright infringement.
As is normal in such cases, the media has got itself into knots trying to explain the copyright issues in this dispute. For instance, take this piece in the Outlook, which gets the entire legal dispute wrong when it concludes “Balasubrahmanyam has a right to sing his songs. That’s no copyright violation. Ilayaraja may want his share of the proceeds.” The article quotes Senior Advocate Pratibha Singh of the Delhi High Court as saying “But as a copyrights lawyer, let me tell you performers have their own copyrights as per law. The singer always is entitled to rightly perform. The only thing is, the composer may want his share of the royalty. That’s what the notice by Shri Illayaraja may be but understand the caveat that I haven’t seen the notice.” It is likely that she’s been misquoted or misinterpreted on this point because the statement published in the article is wrong in law.
Under the Copyright Act, performers have a performer’s right and not a copyright. Section 38 of the Act states:
“(1) Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.”
The definition of performance in the Act is as follows: “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers”;
In other words, this means that any person who wants to record or broadcast a singer on stage requires the prior permission of the performer or the person to whom the performer has assigned this right. However this does not mean the performer can sing whichever song he wants to – he is required under law to take the permission of the person owning the copyright in the music and lyrics. The performer’s right to perform a particular song is therefore contingent on the person owning the copyright in the underlying music and lyrics.
There is an urgent need of a new and robust IPRS type organization with broad based membership and democratic and transparent governance. Government has sent the old IPRS to cold box and rightly so, but attempts need to made to create better alternate. A one stop shop to obtain live performance rights from musician, lyrist and performers. Respective rights of these creators are non-issue, the only issue is easily accessible and reasonable licensing mechanism.
Your whole article is based on the assumption that since Ilayaraja has sent legal notice, he must have retained his rights. How Prejudice assumption it is? That also by you who is supposed to be writing on facts not assumption. Isn’t it quite often in copyright dispute that people tend to issue legal notice which is bad in law. How are you assuming that Ilayaraja must have retained his rights whereas prior to the Copyright (Amendment) Act, 2012 (that’s when Ilayaraja had created most of his compositions) as a rule de facto all the rights vested in the producer. It is well known fact that during his times possibilities of retaining rights was quite impossible due to two reasons firstly as most of the work was done on work on hire basis for lump sum consideration and secondly there was hardly any agreement between producers and creators. As per law applicable at that time and SC Judgment, Producers defeated rights of music composers and lyricist in absence of contract to the contrary. In your article you have criticized few for setting their article on wrong facts but what about your article?
haha! How is that prejudiced assumption? Some composers do retain their copyrights. If Ilayaraja sent a legal notice I am obviously going to presume that he retains the copyright to the music being performed at SPB’s concerts.
There are two issues here: ownership and public performance.
Ownership
It has first to be established that Mr Illyaraja’s claim to be the owner of his copyrights is valid for ALL his songs. Secondly, he is not a lyrics writer: therefore, he can at best claim a co-ownership.
Public Performance
Ilaiyaraaja is a member of the British PRS (IPI no. 619442541) and as such has assigned his public performance rights for all his songs to the PRS for the world. In doing so, he has allowed anyone to perform his songs provided the organisers of the event pay the local PRO.
Mr Illyaraja needs to consult urgently a good copyright lawyer who can explain to him the basics of copyright and the futility of his stand.
PROs usually only collect royalties when use of a work is incidental to an organisation’s purpose. Royalties for works essential to an organisation’s purpose, such as theaters and radio, are usually negotiated directly with the rights holder.. says wikipedia
“usually”, “incidental to purpose”, “essential to purpose”, “organization”, “wikipedia”… I rest my case.
Thanks for that comment Achille. If PRS is willing to confirm that they have licensed the rights to SPB, I would be glad to post a clarification.
The shows have taken place in the USA, so they must have been licensed by ASCAP. As I said, only 180 of his songs are registered in that database: https://www.ascap.com/repertory#ace/writer/619442541/ILAIYARAAJA
In France, only 2 of his works are registered; blanket licenses are issued by the French PRO for EVERY public performance but the money can be distributed only if the works are in their database, else the money goes into a suspense account.
https://repertoire.sacem.fr/resultats?filters=parties&query=ILAIYARAAJA#searchBtn
More than 100 of his works are registered in Hong Kong: http://www.workonline.hk/onr/jsp/WorkSearchResultForm.jsp?pageno=1&doctype=DIST&WorkType=DIST&languageInUse=&titleopt=contains&titlestring=&artistopt=contains&artiststring=&PWopt=contains&PWstring=&Writeropt=contains&Writerstring=ILAIYARAAJA
Therefore, the cause for Mr Ilaiyaraaja’s (and many others) ire should be traced to a lack of registration. And lack of registration – which afflicts most Indian works – can be traced to the absence of real music publishers in the country and to the non-performance of the Indian Performing Right Society.
Take the song AADANDI PADANDI originally performed, precisely, by SPB: it is registered in the USA, but not in France, not in Germany, not in Hong Kong… If SPB sings this song, as he is likely to do, during his concerts around the world, every PRO in every country will collect the royalties for the songwriters but only ASCAP will be able to link the name of the song to the name of the composer: in all other countries the composer will be “UNKNOWN” and the money go into a suspense account.
It is mindless to drag singers into this issue because the cause of the problem is really the songwriters themselves and their music publishers who do not do their jobs. Full stop!
Pashant Reddy does not know the difference between a music composer and a lyricist.
A music composer uses no words unless they are incorporated in the music.
A lyricist uses only words and uses no music.
Illyaraja is a music composer and his copyright is limited to the music composed by him.
SPB is a singer – he does not sing a music composition.
Others accompanying him may use that music- but they violate no law when they do so.
If there is a third party whose lyrics SPB is using, he has a right to protest – not a music composer.
Ashok Mathur
To speak about a subject that one is totally ignorant of is never a good idea.
Sigh! When was the last time a singer performed at a concert without any music being played to accompany the lyrics?
Sigh,
When will a copyright expert listen to music and learn that the music used subsequently with a song need not be the same with which it was composed?
Ashok
So, its your case that a singer will be using different music with the same lyrics at different points in time?
Thanks for the post Prashant. I have a few questions under Indian copyright law pertaining to these issues, and was wondering if someone could please answer them.
1. When a song, the copyright of which vests with the composer or a corporation, as the case may be, is sung by a participant of a competition, or a talent show, will permission from the copyright holder be required?
2. When a song, the copyright of which vests with the composer or a corporation, as the case may be, is used by someone as the background for the performance of a dance as part of a live concert, will permission from the copyright holder be required even then?
Looking forward.
Regards
Anyone who becomes a member of a Copyright Society assigns his/her performing right (in some countries other rights too) to the Society. As a result, they are no more empowered to stop any performance of their works: only a Performing Right Society (PRO) can do that when the organisers of an event refuse to pay the license fee.
That’s why Collective Licensing Societies were created: because individual licensing being impossible, creators get paid whenever anyone performs their work. The first was set up for dramatic authors, in 1791, which still exists today (SACD, France). The first Society for musical performances was created in 1850, again in France (SACEM, still flourishing today).
Check out: http://www.wipo.int/copyright/en/management/
Hi Jayant,
Yes, permission will be required from the copyright owner in both scenarios. There are some exceptions in Section 52 of the Copyright Act which you may want to check out. Also if the performance is a private performance, there is no need to seek a licence from the copyright owner. The exact line between “private” and “public” performance is not clear but if tickets are being sold for the performance it is almost certainly a public performance. A performance for just family and friends will not be considered a public performance. My advice would be to consult a lawyer .
Great post Prashant!
I just had one query however. When it comes to musical copyright, the first owner of the underlying musical work is the composer, and in the case of a sound recording, the producer. Is your argument that Ilayaraja, like other musical directors, MIGHT have handed over even the right to the underlying musical work to producers? Not saying it happened in this situation regarding these songs, but in general, that musical composers hand over their underlying Copyright too?
Thanks Harsh.
From what I hear that is the general rule – composers and lyricists hand over their right to the producer. But like I said earlier, there are reports that big shots like Rahaman retain their rights.
Post by one Mrs. Seetha Ratnkar in FB
This is her post and not my personal comments
I am a great admirer of all artists and I don’t like to comment on controversies unless they affect me personally. Recently I was deeply saddened to see a post by one of our greatest singers, Shri S.P. Bala Subramaniam mentioning that he got a legal notice not to sing any songs composed by the maestro Ilaya Raja during his present US tour. While I do not want to quibble about the rights and wrongs of the matter I have only one question to ask Mr. Raja. Recently I saw a Telugu film called “LEADER” which was probably released several years ago in which he has used a patriotic song
JAYA JAYA JAYA PRIYA BHARATHA which was composed by my mother VINJAMURI
ANASUYA DEVI in 1936
for a college function in
Kakinada. The lyrics were written by my great uncle Padmabhushan Devulapalli Krishna Sastri. On further probing and information received from friends I found out that it was originally used by Ilaya Raja in a film titled RAKSHASUDU. Neither was permission taken to use the tune nor was any royalty paid. Worse still, not even an acknowledgement was made and when you search YouTube for the song, it comes up as his music and sung by S. Janaki. I am going to upload the old mono recording of the song by my mother and aunt recorded many , many years ago. Our family remained silent because we did not know how to fight this injustice but I feel it is time to make this information public now as my mother is 97 years old and it will mean a lot to her to be acknowledged for her creative work by the gentleman who strongly advocates intellectual property rights. I wonder who gave him the right to use her tune ??? Not my mother!!!
Why Section 38A applies to SPB?
Why Section 38A will not apply to SPB which should give him exclusive right to perform?
I have detailed my view on this subject here:
http://www.thehindu.com/todays-paper/tp-opinion/my-songs-my-royalties/article17692046.ece
Thanks Achille – good piece!
What I have read is Ilaya raja has secured the rights to his songs through his company wcho long time ago. And he has produced all his songs through his music company. Just wondering what the concert halls require so they are not held liable. What kind of paperwork do they go by to make sure there will be no issues at a later stage. And can they refuse permission due to this.
Whichever country you live in, if you want to organise an event where music is performed, then you need to obtain a prior license from the local PRO; many PROs offer now this service online. And if you use recorded music, you need to obtain an additional license from the local PPL in remuneration for the owners of the sound recording.
songs by Ilayaraja were mainly part of movies and before the copyright amendment act 2012, generally all copyright in the song(music+lyrics) were assigned to the Producer or Producer was by default owner of such rights under a made for hire agreement. Even rights to receive royalties were assignable before the amendment. I strongly beleive these rights still vest with the Producer and Mr Ilayaraja had no business to issue notice of Infringement. We will have to see what songs were performed, were they part of an individual album whose copyright belonged to IIayaraja, in that case things would be different
In 1977 AIR 1443, which you must have in mind, the question before the SC was whether IPRS (authors/composers/publishers) has a right to collect when a film is performed in a cinema hall. That was the question before the SC and it replied to that question.
Justice Krishna Iyer, seeing the potential for mischief, in his obiter clarified the court’s decision (it is not a dissenting view but an obiter): “The film producer has the sole right to exercise what is his entitlement under s. 14(1)(c) qua film, but he cannot trench on the composer’s copyright which he does only if the ‘music’ is performed or produced or reproduced separately, in violation of s. 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, proviso (c). So, beyond exhibiting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer’s copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts (sic!) Society.”
Additionally, Section 13 (4) of the Act clarifies that “the copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which the film … or … the sound recording is made.”
Finally, in relation to the question beofre the SC, Justice Jaswant Singh ignored the basic principle of the Berne Convention, to which India i a signatory since (by memory) 1952, that a film is a composite piece of rights (not to be confused with ‘ownership’). This principle of co-existence of copyrights has been clearly re-iterated by Justice Ranjan Gogoi in CIVIL APPEAL Nos.9412-9413 OF 2016 (20 September 2016) in CISAC vs Aditya Pandey ( reported by the media of the Defendants as a “loss for the authors”): “A reading of the provisions of the Act show that such copyright co-exists.”
Congrats Achille Forler for becoming the Permanent Advisor to IPRS
Dear Achille,
I agree with you regarding the co-existence of copyrights but as you must be aware before the copyright amendment of 2012 Film producers used to sign agreements with the music composers as work made for hire and additionally used to get assignment of rights in their favour. Also during such stage performances organisers of such shows take rights from their respective IP societies. This notice is only valid if Mr Ilayaraja has not parted with his rights and kept his music composition rights with himself and he has not licensed any such rights to any society for exploitation and receiving royalties
The performing right is never kept by the author or the publisher as they cannot exercise it on their own but only through a collective licensing society. My two points were:
1) once he becomes a member of a PRO, the author or publisher has no right to interfere in the public performance of the works of which he is the author/publisher.
2) but wherever the collective licensing system is broken, a legitimate sense of frustration arises for authors/publishers.
“The performing right is never kept by the author or the publisher as they cannot exercise it on their own but only through a collective licensing society.” this implies that once an author becomes a member of a copyright society all his work is licensed to such society to collect royalties on his behalf OR does he have to categorically register each individual work with them? and he can chose to reserve some works with him, but what will he do with them as he cannot exercise them on its own? If Mr Ilayaraja is a member of any such society then the matter becomes simple!
Performing Right is always done under a blanket license, not à la carte. But you need to register all your works with every Society if you want to get paid.
So can we conclude that Mr IIlayaraja has given a blanket license to IPRS to collect royalty on his behalf and IPRS has not registered all his works with International PR societies as an individual cannot directly register with international copyright society, either Mr Ilayaraja has registered through a music publisher or IPRS and if IPRS has not registered all his songs with International Copyright Societies then royalty goes in suspense accounts, is IPRS to be blamed for not registering all his songs?
His IPI number shows that Mr Illyaraja is a member of the British PRS. I am not aware if he is a member of IPRS. The IPI number indicates the “Society of origin” to whom the other Societies have to send any royalties collected for the performance o the works of the songwriter. However, the general practice is that it is the publisher who registers the works of his songwriter globally. Which is not an easy task because the databases are not uniform, neither at the publisher’s end nor at the Societies’ end. The Global Repertoire Database Project was supposed to solve this problem but it was abandoned 3 years ago. See: http://bit.ly/1TrWzNz A new, better solution is said to be in the making.
Thanks for your reply Achille, when you say that Mr Ilayaraja is a member of the British PRS don’t you think that the US organizers must have taken license from US copyright society which in turn would have contacted the British PRS or the British PRS has not registered all his songs globally and as you said there is no single global society to handle single database!
No. Societies don’t do that. If you look at his works registered in the USA, they have all (to a couple of exceptions), been registered by the Indian Record Mfg. Company. It means that only that publisher, Mr S.L. Saha, has done his job correctly, all his other publishers have failed Mr Ilayaraja.
Thanks Achilles, It’s a pity that despite a copyright society giving blanket license, if the work is not registered royalty goes into a suspense account! And is a lose-lose situation for all. Is registration of work mandatory under Berne convention? Or which other law governs it? Does registration of work mandatory in India as well? If yes, which body controls or governs it? It’s a pity that the concept of Music Publishers is so bleak in India!!
Well, Vivek, you agree that for a Society to pay out monies it can do so only if it knows who are the Interested Parties in that work? Everyone in the industry, globally, knows that a lot of collections are untraceable to any work and, hence, go into a “black box”, i.e. “unlogged” in technical terms. This “black box” money is redistributed according to the rules set by each Society; and these rules will reflect the power structure within that particular Society.
The silver lining is that new tools have come into the market – audio finger printing, blockchain, etc. that will enable better “logging” of exploited works, i.e. above 90% (against the 1% – 80% among various Societies). We will only have to solve now the global registration challenge of the works. Here too there has been progress. because computerisation of Societies started in the early 1990s, there were up to 54 different metadata formats. These have been reduced to less than 30. I think that within 5 years we will have a manageable number of databases and formats.
Thanks for your valuable time and information Achille, Im sure there’s going to be some path-breaking changes in the workings of IPRS with you on board. All my best wishes for your new role!
Ilayaraja claims his copyright
SPB will comply by law
What more fuss by SPB sympathizers