In a new guest post, Rajesh Kumar and Akanksha Badika discuss Section 2(q) and the relevance of the word “live” in defining what legally constitutes performance. By applying the statutory rules of interpretation, they conclude that the qualifier “live” added after the 2012 amendments limits the scope of what constitutes performance to live performances and not studio performances. Rajesh Kumar works as the Head of Legal, and Akanksha Badika works as the Senior Legal Manager at Bhansali Productions, Mumbai (a film production house). Their practice predominantly revolves around copyright law, litigation and advising on all matters related to films, emanating from script to screen. They write on varied aspects of copyright law, including films and music. Though the authors principally deal with copyright and music-related matters, the thoughts and opinions expressed here are personal.
Are You a-live Performer? A Question to Studio Recordist
By Rajesh Kumar and Akanksha Badika
In India, there has been a long standing debate as to whether singers and other performers are entitled to royalty and whether the definition of performance under Section 2(q) applies to them in a true legislative sense. It is to be kept in mind that the intent behind the 2012 Amendment to the Copyright Act was to compensate the authors (writers & lyricists) and composers, who, after parting ways with their rights in favor of the label, were not entitled to any money. The discussion at the time of amendment of the Act, was very restrictive to the royalties payable to the authors and composers, with no intention to include the singers in the same category. Interestingly, the singers /performers have not even asserted their right to royalties till recently. Moreover, any further dilution of royalties raises uncomfortable questions of equity in the existing regime of payment of royalties to authors and composers. It is to be understood that introducing a separate royalty stream for singers would not create new money; it would merely carve it out of the existing pie, thereby shrinking the shares of authors and composers in the process, which would create disharmony between the contributors. By mandating an equal split of royalties between authors (lyricists and composers) and publishers, the law already ring-fences their economic interests. The issue with respect to the royalties has been dealt with in an earlier post (link here) however, we thought that it would be interesting to see the definition of performers along with the sections, by applying the tests provided in the interpretation of statutes to ascertain the true intent of the draftsmen.
The draftsmen have thoughtfully inserted the word “live” in Section 2(q), which conveys a particular meaning and intention thereto. On careful reading of the section, it appears to us that only the “performance” which is made “live” is to be construed as “Performance” under the scheme of the Act, but the question remains- what is the meaning of “live”?
Section 2(q) of the Copyright Act states that “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.
“Key practical distinctions between live and studio performances are summarised in the table below.”
| LIVE PERFORMANCE | STUDIO PERFORMANCE |
| Directly performed in front of audience. | It is not a continuous performance. |
| Direct connect with the audience/viewers without a break. | Recorded in bits and pieces. |
| It is a spontaneous act. | The process of studio recording continues for many days/sittings. |
| There is no scope for correction/modification. | There is always a scope for improvement with improved technology. |
In a studio/recorded performance, it takes long hours (sometimes days) of recording with several cuts, re-takes, and editing, which means that it is not a continuous and instantaneous performance in front of an audience and is merely recorded at the instance of the music composer and/or director. In studio performances, there is a scope of improvement/changes, and the process of recording continues for many days/sittings.
Literal Rule of Interpretation
In the case of Jugal Kishore Vs Raw Cotton Co. Limited, 1955 AIR 376, the Supreme Court held that:
The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning.
Section 2(q) uses the word “means,” making the definition of “performance” exhaustive and confined to performances “made live.” As per the Oxford Dictionary, “live” denotes a performance played before an audience, simultaneous with its occurrence, and not recorded. In essence, a live performance is instantaneous, direct, and unmediated, with an immediate connection between performer and audience and no scope for post-production. In the present case, the literal construction leads to no apparent absurdity, and therefore, there can be no compelling reason for departing from that literal rule of construction.
In a significant ruling in Harbhajan Singh Vs Press Council of India 2002 (3) SCC 722, the Supreme Court held that
Legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material – intrinsic or external – available to permit a departure from the rule.
Therefore, singers are not making “performance” till such time they fulfil the criteria of the definition “performance” under Sec. 2(q) of the Copyright Act, which essentially means “a performance made ‘live’ without a break” and not a recorded performance in a studio, and the literal rule of construction disastrously failed.
Viewed alongside legislative intent, the question is whether the 1994 amendment to Section 2(q) is now being tested, or whether it is being selectively misconstrued to suit a particular class within the music industry.
Let’s first comprehend and analyse 2(q) pre-1994 and post 1994 amendment:
| Prior to the Amendment in 1994 | After the Amendment in 1994 |
| Section 2(q) – Performance “includes any mode of visual or acoustic presentation including by any such presentation by the exhibition of a cinematograph film, or by means of radio-diffusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture” | Section 2(q) – Performance “In relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.” |
Prior to the amendment of 1994, the definition used “includes”, whereas after the amendment, the term used was “means”, meaning thereby, the intention of the legislature was always to change the extensive definition to an exhaustive definition by using the words “means” and support the same with “made live”.
Interestingly, the 2012 amendment to the Copyright Act remained silent on 2(q). In 2013, Copyright Rules were enacted, and under the guise of these rules, they wanted to propel a theory that 2(q) is not restrictive in nature but includes singers singing in a studio as well under its ambit. Such rules have failed to fill any void and are completely misfounded and misrelied upon as held in St. Johns Teachers Training Institute v. Regional Director for Teacher Education & Anr. -. 2003) (3) SCC 321).
Rule 68 of Copyright Rules: A Statutory Incoherence?
Amazingly, we have noted the provisions under Rule 68 of the Copyright Rules along with the appended explanation under it, which states that:
Sec. 68: Registration and management of Performers’ society-
…
Explanation 3: For the purpose of this chapter performance includes recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise.
The real question now arises, which one is to prevail? Can a subordinate legislation like these rules, which are inconsistent with the parent Copyright Act, go beyond what the parent Act encapsulates? Or can a subordinate legislation entail a statutory right, when the premise of a subordinate legislation is to provide an implementation scheme/mechanism to buttress the parent Act?
The restrictive and exhaustive definition of Sec. 2(q) is complete in itself. Adding/ modifying this definition would be digressing from the real legislative intent, which was never to expand the definition of Sec. 2(q). Had there been any such intention, it would have materialised in the form of an amendment. Rules state that studio performance constitutes performance as per the Copyright Act, whereas Sec. 2(q) states that only live performance is to be considered as a “performance” under the Act, which is patently inconsistent. Any other construction is manifestly against the true legislative intent.
Insofar as the issue of subordinate legislation is concerned, it has been clearly handed down by the Supreme Court in State of Tamil Nadu v. P. Krishnamoorthy(2006) 4 SCC 517), that failure to conform to the parent Act is one of the primary grounds to attack the validity of a particular rule.
In St. Johns Teachers Training Institute vs. Regional Director (supra), an interesting observation was made stating, “Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details.” This approach has been consistently held across several other Supreme Court decisions, as observed in: Kerala SEB v. Thomas Joseph(2023) 11 SCC 700 “delegated legislation should not travel beyond the purview of the parent act. If it does, it is ultra vires and cannot be given any effect; there may be a simple excess of power over what is conferred by the parent Act.”
Therefore, subordinate legislation cannot override the parent Act, and Rule 68 cannot supersede or dilute Section 2(q), which confines “performance” to one that is “made live.” Further, the Explanation to Rule 68 begins with “for the purposes of this Chapter” and, applying the literal rule of construction, is limited to matters concerning the registration and management of performers’ societies. It cannot be extended beyond the scope of Section 78, which merely confers rule-making power on the Central Government, nor can it be read to alter or contradict Section 2(q)’s express requirement of a performance being “made live.” In an interesting case of Neha Bhasin, the Court held that even studio performances are performances made live, however, we are of the view that Section 2(q) entails a restrictive definition of performance as explained above and the court has tried to rewrite and insert words into the statute, which could result in judicial overreach as held in Union of India vs Deoki Nandan Aggarwal (Supreme Court, 1991).
The Hon’ble Patiala House Court, New Delhi, in the case of Sushila v M/s Hungama Digital Entertainment Pvt. Ltd., interestingly held that the definition of “performance” under s.2(q) must be read narrowly, i.e., it applies only to presentations “made live”, i.e., an instantaneous, direct visual or acoustic presentation before an audience without editorial interruption. The judge explained that studio-recorded renditions, created in bits, subject to retakes, mixing, and post-production, lack the required immediacy and direct connection with viewers/listeners and therefore do not qualify as a “performance” under s.2(q). The Court reiterated that unless there is a live performance, the question of invoking the performer’s rights under Section 2(q) and Section 38 does not arise at all.
The judgement was in line with the principles of statutory interpretation as the definition of “performance” is restrictive and no other performance other than made “live” can be read into the said definition.
Since studio singers are not making a performance under 2(q), can they enjoy the benefit of performer’s rights under Sec. 38A?
Section 38A (1) confines performer’s rights to acts done in respect of a “performance” as defined under Section 2(q). Accordingly, singers recording in studios, not making live performances, cannot claim the benefit of Sections 38A or 38B. Since royalties under Section 38A arise only from a performance made for commercial use within the meaning of Section 2(q), and no live performance is made, no royalty accrues.
Therefore, in our considered view, Sec. 2(q), 38A, 38B, which relates to performers’ rights making a performance in its true legislative sense, is only applicable to singers who make a live performance and not a studio performance.
