BY S. Prabhakar & Tanushree.
The controversy arising out of Music Director Ilaiyaraaja issuing legal notice to singer S. P. Balasubrahmanyam, who was on tour to the US to commemorate fifty years of his playback singing career, brought the subject of royalties to be shared with lyricists and music directors etc. into sharp focus.
The Copyright Act (Amendment) Bill 2012 was passed in the Lok Sabha on May 22nd, 2012. The bill declares authors as owners of the copyright, which cannot be assigned to the producer, as was the practice till now. It will now be mandatory for broadcasters — both radio and TV — to pay royalty to the owners of the copyright each time a work of art is broadcast.
The objective was to introduce a level playing field for different stakeholders in the music, film and other creative industries, eliminating unequal treatment to lyricists and music composers of copyrighted works. The amendment also brings into place a ban on cover versions of any literary, dramatic or musical work for five years from the first recording of the original creation.
Javed Akhtar made an impassioned plea to the House to help the creative communities by passing the Bill. Akhtar’s plea appeared to have the required effect, since almost every other speaker fondly referred to Akhtar and his talent in their speeches supporting the Bill.
What are Copyright Societies?
Copyright societies are registered collective administration societies for the management and protection of copyright in works by authors and other owners of such works. The Supreme Court of India in the matter of Entertainment Network (India) Ltd vs. Super Cassette Industries Ltd & Ors held that the main idea behind incorporating the Copyright Society in the Copyright Act was to enable a copyright owner to commercially exploit his/her intellectual property by a widespread dispersal in a regulated manner.
The society grants licenses on behalf of the copyright owner, files litigation on their behalf not only for the purpose of enforcement but also protection of the copyright owner’s right. It not only pays royalty to the copyright owner but is authorized to disperse the amount collected by it among its members.
Background
The Phonographic Performance Ltd. (PPL) owns, as assignee, and exclusively controls public performance rights and radio broadcasting rights in more than 5 lakh songs (sound recordings) in Hindi, Telugu, Tamil, Bengali, Punjabi, Marathi, Malayalam, Bhojpuri and other Indian languages, including both film and non-film songs such as Ghazals, devotional, folk, pop, classical, etc., of its more than 250 members, who own the music labels.
Scenario in India
The Indian Phonographic Industry (hereinafter referred to as “IPI”) is an Association of Phonogram Producers which was established long back in the year 1936, and was instrumental in finalising the Broadcasting Licence arrangement in India. Subsequently, IPI members decided to form a specialised body to administer their Public Performance and Broadcasting Rights, and so PPL came into being in 1941.
When is the Licence required?
A PPL licence is required when recorded music, within PPL’s repertoire, including radio and TV, is played in public. Playing such records at a private family party does not require a PPL licence. There is no statutory definition of ‘playing in public’ (referred to as ‘public performance’) but the UK courts have given guidance on its meaning and ruled that it is any playing of music outside of a domestic setting. No licence is required for listening on headphones. In contrast, any recorded music being played as part of a domestic home life or where there is an audience entirely of friends does not require a PPL licence.
Any business that plays recorded music within the Phonographic Performance Ltd. (hereinafter referred to as “PPL”) in public, such as a shop, bar, office, restaurant, gym, community building, not-for-profit organization, at a workplace, public event or activities such as dance classes will need to have a PPL licence. A PPL licence gives the licence holder the permission to play recorded music from PPL’s repertoire (the vast majority of commercially released music). Playing music that is outside of its copyright term or freely licensed does not require a PPL licence.
All those who play or communicate pre-recorded music for non-private purposes or in public places or commercial establishments or non-commercial establishments must obtain prior licence, whether acoustic or visual, whether by way of Gramophone Records, Music cassettes or CDs or Radio or TV or Cable network or in any other form/technology. Some examples for the sake of illustration (non-exhaustive list): Broadcasting (radio, TV); Mobile telephony (caller ring-back tones, track streaming, audio-cinema, WAP, IVR, etc.) and Public Performance.
Types of Licences
- Music licensing for radio broadcasting: PPL licences radio stations to use recorded music within its repertoire in all forms of radio, from traditional FM/AM broadcasting to satellite and online radio streaming.
- Music licensing for television broadcasting: With the relevant PPL TV licence, broadcasters can use recorded music within PPL’s repertoire and/or music videos in their programming with the permission of the performer and copyright owner.
- Licence for Communication to public, Public Performance of Music recordings: Subject to the Copyright Act of 1957, it is mandatory for all those who play pre-recorded music for non-private purpose or in public places and/or commercial establishments and/or non-commercial establishments, to take prior licence from Phonographic Performance Limited (PPL). Consequently, any communication or performance of Indian or International music from Sound Recordings of PPL without first having obtained a Licence constitutes an Infringement of copyright. Such violation is a Cognizable & Non-bailable offence, attracting heavy penalties.
- Telecom Related Licences: For Ring-back Tones, Music Messaging, IVRS, Mobile audio streaming and ‘audio cinema’, Mobile embedded/pre-loaded and other telecom value added services involving the usage of Sound recordings.
- Radio Licence: All Private FM and Government owned Radio Stations; community radio stations.
- Public Performance (Background music) Licence: Licence is required for playing of sound recordings in public in the background. A licence taken for “Background music” does not entitle the licencee to exploit the licensed sound-recordings in an event or show or concert or stage or dance-floor, etc., for which a separate/additional “Events” licence is required to be taken.
- Public Performance (Events) Licence: Playing of sound-recordings in an event or show or concert or stage or dance-floor, etc., where performers perform on stage of a designated area.
- Public Performance (Storage) Licence: Temporary Storage embodiments, transfer etc. of sound-recordings. e.g. storage of songs by DJs on DJ systems, storage on computer servers by aggregators, for onward transmission etc.
Procedure for making the application for Licence
The licence for Public Performance of Pre-recorded music can be obtained by making an application in the prescribed format, effecting the payment of Licence fee specified in the Published Tariff and executing a licence agreement with appropriate terms, conditions and provisions.
Features of the PPL’s Licence
All licences granted and issued by PPL are non-exclusive, conditional and for limited purpose and period. There is no transfer of effective title, control, possession or custody of “right to use” of copyrights, which vests solely with the owner.
Consequences of not getting a License from PPL
Any Broadcasting or Performance of Copyrighted Music Recording without first having a license from PPL, in respect of its works, constitutes an Infringement of Copyright under The Copyright Act of 1957. It is a Cognizable & Non-bailable offence which attracts heavy penalty which can extend upto a fine of Rs 2 lakhs and imprisonment of 3 years.
Controversies relating to this issue: The Big showdown between Ilaiyaraaja and S. P. Balasubrahmanyam
There is a copyright dispute brewing between music composer, Ilaiyaraaja and singer, SP Balasubrahmanyam (SPB). 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.
As per Section 17 of the Copyright Act, 1957, 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 Ilaiyaraaja has reportedly issued the legal notice in SPB’s name, it is most likely that he has retained the copyright in his own name for the international territories in which SPB was performing.
Once the ownership question is clear, it is necessary to move on to the rights vested in the owner of the copyright. This question can be answered by looking at Section 14(a)(iii) 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. 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.
In Conclusion
Usually, parties attract people promising them a good time through a combination of entertainment, food and beverage. A significant component of the sum charged from the customers is for music — an integral element of entertainment. Therefore, in our view, the music companies whose sound recordings are regularly used have a right towards claiming their due because their product is getting consumed too. Also, the performer’s right to perform a particular song is contingent upon them sharing the revenue with the person owning the copyright in the underlying music and lyrics.