Over the last couple of months, Delhi High Court has passed two orders which, if enforced in letter and spirit, could change the way bars and restaurants use music — live or recorded — to entertain patrons.
On August 12, Justice S Muralidhar ruled that a South Delhi restaurant had violated the “inalienable Right to Receive Royalty (R3)” of performers by playing their songs “without obtaining Rights Clearance Certificate”, and asked the “defendant to render to the plaintiff the accounts of all the monies earned by it from the performance of the repertoire… of the performers”. On September 30, Justice V Kameswar Rao passed similar orders against a lounge bar in North Delhi. Both cases were filed by Indian Singers’ Rights Association (ISRA), a body of 290 singers, which has Lata Mangeshkar, Sonu Nigam, Alka Yagnik, Kumar Sanu and Pankaj Udhas on its Board of Directors.
What rights does a singer have over his or her music? What do the orders of the High Court mean for the playing of such music in commercial establishments?
What are “Singers’ Rights”?
Section 38 of the Copyright Act, 1957, as amended in 2012, recognises “Performer’s Rights” of the Singer of a commercially recorded song for 50 years from the “beginning of the calendar year next following the year in which the performance is made”. During this period, the performance, or “a substantial part thereof”, cannot be recorded, reproduced, broadcast or communicated without the Perfomer’s consent. Performers (which includes Singers) have the Right to Receive Royalty (R3) in case their performances are commercially utilised. While a Singer can sign over the rights to a song to a producer/third party, R3 for the song cannot be given over. This means that once a Singer has recorded an original song, everyone except the producer/copyright holder needs to get permission and pay royalty to play/perform it in public.
Performers (Singers) can, under the Copyright Act, license their R3 to Copyright Societies to administer their right, i.e., issue licenses and collect royalty on their behalf. ISRA, a registered Copyright Society under the Copyright Act, was formed to create tariff rules, and to collect and distribute royalties to Performers. Most commercial performers in the Indian film and music industry are its members, and ISRA can take legal action on their behalf for violation of copyright. Any person making commercial use of a performance must obtain a “Performer’s Rights Clearance Certificate” from ISRA and pay royalties.
And what exactly is “commercial utilisation” of a performance?
It includes both live performance of a song, as well as the playing of recordings (using CDs etc.). In effect, all commercial performances — playing music in a restaurant, or over the radio/TV/Internet, in shops, hospitals, airports or restaurants, or by DJs at commercial events, or on any other commercial platform — are included. Organisers of sports events such as the IPL, where music is played for general entertainment, must pay royalty or licence fees at the rate of Re 1 per seat calculated on total capacity basis. Under Section 39 of the amended Copyright Act, the Performer’s Right is not infringed only in cases of private use, teaching and research.
Who decided these copyright charges?
ISRA did, soon after it was created. The tariff rates and distribution scheme were communicated to the Copyright Office under the Union Ministry of Human Resource Development. According to ISRA Managing Director Sanjay Tandon, the Copyright Act gives the Performer, as the owner of the copyright, the power to decide tariff rates. Anyone who objects can challenge the rates before the Copyright Board or High Court. The rates, available on the ISRA web site, cover all types of public performances — at public events, restaurants, clubs, malls, shops, dance schools, and even on board commercial vehicles such as buses and taxis.
So, strictly speaking, a restaurant can’t be playing copyrighted music?
A restaurant is a public space using music for commercial purposes, and needs to pay royalty to the Performer. It needs to get a No-Objection Certificate from ISRA, and pay the price of “the least priced drink on the menu card” per day to each singer whose song it plays. Thus, if a restaurant at which the cheapest beer costs, say, Rs 200, plays Sonu Nigam’s Deewana tera every evening of the year, it has to pay the singer an annual royalty of Rs 73,000.
The HC’s August order came in response to ISRA’s suit against Delhi’s Chapter 25 bar and restaurant. The petition cited, as a sample, songs being played in the restaurant for two hours without obtaining the Clearance Certificate or paying royalty, which, the court noted, “constitutes an infringement of the R3 of the members of the Plaintiff Society”. The court directed the restaurant to stop playing music until it had obtained clearance, and to produce accounts of the money earned from the performance of the songs, so that the dues of the ISRA members could be calculated.
Any public performance of a song, even at a public event which does not charge a price of admission, needs an NOC from ISRA, and payment of royalties. In fact, under copyright law, the copyright rests with the Producer, the Composer, as well as the Performer. And, according to rules created by the Copyright Societies, royalties are due to all three, and NOCs may be required for a performance from the owner Societies.
What other actions has ISRA initiated?
According to Advocate Pravin Anand, whose law firm Anand & Anand represents ISRA, the Society has issued nearly 750 claim letters since its creation in 2012 to restaurants, hotels, production houses, radio stations, TV channels, mobile operators, web sites, DJ events, and sporting events. The aim so far has been to “educate and then collect royalties for singers, as it is a new right that has come into effect only from July 21, 2012”, Anand says. Apart from the two cases decided by the Delhi High Court in August and September, ISRA had, in April, initiated a suit against the use of copyrighted music at IPL matches. The High court had issued an injunction against the use of songs belonging to ISRA members, following which IPL organisers and team owners agreed to pay tariffs. However, Kings XI Punjab contested ISRA’s claim to royalties, and the suit is now scheduled to be heard by a commercial bench of the High Court in December.