Last year, we had written about two victories scored by the performer’s rights society – Indian Singer’s Rights Association (ISRA) before the Delhi High Court against a restaurant and lounge located in Delhi for alleged violation of its performers rights. Both judgments were delivered ex-parte i.e. the defendants never appeared before court. As Balu and I had earlier noted, the manner in which the Delhi High Court proceeded to hear the case ex-parte was not proper in law.
In any case, I was recently informed that both those judgments have been appealed before a Division Bench of the Delhi High Court, not by the original defendants, but by Saregama (and possibly T-Series). The appeal number is RFA(OS)(COMM) 16 of 2017 and at the last hearing on August 25, 2017 (ISRA’s counsels were a no show on this date) the Division Bench of the Delhi High Court ordered ISRA to maintain accounts of the sums that it collected and has scheduled the case for a hearing on October 23, 2017.
Although Saregama was not arrayed as a defendant in the original lawsuits, it has filed the appeal on the grounds that it was an affected party since ISRA was in effect seeking to enforce rights that belonged to Saregama.
This case opens a can of worms for ISRA for two reasons: first, it gives the court a chance to offer a much-needed clarification under the Copyright Act, 1957 and second it will force ISRA to provide evidence of ownership of the rights that it is trying to enforce.
Scope of performer’s rights
Performers are defined in the Copyright Act as “performer’ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;” and a performance is defined as “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers”.
A plain reading of the law suggests that a performer can claim performance rights only in “live performances” i.e. where the performer is performing before a live audience. Thus, any person who wants to record a live performance by a performer at a live concert, will need to have the permission of either the performer or the person to whom the performer has assigned this right.
This interpretation obviously excludes a recording session in a studio, where the producer is producing a master track since the same does not qualify as a “live” performance before an audience. However, the Delhi High Court in the case of Neha Bhasin vs Anand Raj Anand held otherwise i.e. even the performance in the studio is a live performance. This interpretation allows performers to seek a royalty fee every time even a recorded version of their music. (Presuming they retain these rights which is rarely ever the case).
The judgment in Neha Bhasin has been criticized and rightly so, because “live” performances is typically understood to be performances before a live audience in a concert or show. Since Neha Bhasin was decided by a Single Judge, it can be over-ruled by the Division Bench which is hearing Saregama’s present appeal. The only possible hurdle to overturning Neha Bhasin is the Rule 68 that was inserted into the Copyright Rules, 2013. This rule contains an “explanation” which explains that “performance shall include recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise”. These rules framed by the central government are completely contrary to the definition of performance in the Copyright Act and represents a completely illegal effort by the government to try and amend a parliamentary statute via executive action. Rule 68 is but one of the many disgraceful examples of how flippantly the government went about drafting the Copyright Rules, 2013. Ideally, Saregama should have challenged the constitutionality of Explanation 3 to Rule 68 in a separate writ but even if it hasn’t, the present Division Bench should simply follow the text of the statute and not the rules. Presuming the court rules that performance rights don’t emanate from studio recording, ISRA will be in deep trouble.
What are the rights that ISRA actually owns?
Ever since ISRA was formed there have been several questions about the rights that are owned by ISRA. At the time ISRA was registered as a copyright society, the Registrar of Copyrights should have verified ISRA’s Register of Owners before registering it as a Copyright Society. I doubt if this was ever done and ever since it was registered, ISRA has not made available on its website the rights that it owns despite Rule 66 of the Copyright Rules, 2013 required such details to be made available online.
The confusion and lack of transparency over ownership rights is what led to all the problems at IPRS now ISRA is stuck with the same issues. One would have expected Sanjay Tandon, the top honcho at ISRA to have taken care of these issues appropriately since he was also at the helm of IPRS when the same issues arose over there. In 1996 when IPRS was being registered as a copyright society, he informed the then Registrar of Copyright that a Register of Owners was not required and because IPRS was registered without a ‘Register of Owners’being finalised, the music labels and authors were thrown into litigation for more than a decade when the former disputed the rights of the latter. (I have the file noting from the Copyright Office, recording Tandon’s submissions over here)
In any case now that Saregama has filed this appeal challenging ISRA’s ownership of rights in certain performances, the appeals court will likely remand the matter to the Single Judge for trial, at which point in time ISRA will have to prove its claimed ownership of performer’s rights and my guess is that ISRA will not be able to submit a single shred of evidence to this effect. What then happens to ISRA?