Copyright License For Playing Music
One of the common questions asked is whether you require a copyright license for playing any musical work, video or sound recording in any wedding function, birthday parties, etc. The answer to this question mainly depends upon (i) whether a copyright exists in such work; and (ii) whether any act would amount to reproduction or performance of such work to the public.
Since violation of the Copyright Act, 1957 (“Copyright Act”) attracts penalties, it is very important to identify whether an act, performance or reproduction of work requires a copyright license and if so, then from whom shall such copyright licenses have to be obtained and the standing of copyright society for that particular work, if any.
To understand whether copyright exists in any musical work work it is important to understand the meaning of “copyright”, “musical work” and “sound recording”.
Section 14 of the Copyright Act sets out the meaning of “copyright” to mean the exclusive right subject to the provisions of the Copyright Act, to do or authorise the doing of any of the acts specified therein in respect of a work or any substantial part thereof. For a “musical work” (defined below) the definition of copyright, inter alia, includes the exclusive right to perform the work in public, or communicate it to the public and for “sound recordings” (defined below) it inter alia includes the right to communicate the sound recording to the public.
Copyright in any musical work or sound recording originally lies with the owner/ author of the work.
As per Section 2 (p) of the Act “musical work” means “a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music”
As per Section 2(xx) of the Act “sound recording” means “a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced”
Communication to the public
The Copyright Act defines “communication to the public” as:
(a) making any work or performance available for being seen or heard or otherwise enjoyed by the public:
(i) directly; or
(ii) by any means of display or diffusion other than by issuing physical copies of it;
(iii) whether simultaneously or at places and times chosen individually,
(b) regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
This definition also clarifies that communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. [i]
In the case of Garware Plastics v Telelink[ii], the court sets out certain criteria for determining the issue as follows:
· the character of the audience and whether it can be described as a private or domestic audience consisting of family members of a household;
· the relationship between the owner of the copyright and the audience. If the audience considered in relation to the owner of the copyright may properly be described as the owner's public or part of his public, then in performing the work before that audience, he would be exercising the statutory right conferred upon him. Anyone who, without his consent, performs the work before that audience would be infringing his copyright.
· whether permitting such performance would in any way whittle down the protection given to the author of a copyright work under the Act resulting in the owner being deprived of monetary gains out of his intellectual property.
Based on the above definition of “communication to public”, if any work or performance is, directly or through any other means of display or distribution other than physical copies, made available to the public or enjoyed by public whether seen or heard, shall amount to communication to public. It is not necessary that any member of the public actually sees, hears or otherwise enjoys the work as long as it is made available. Further, such display of distribution of work can be done simultaneously or at a place and time individually. It is also pertinent to note that broadcasting in certain scenarios is also construed to be communication work to public.
Further, from the above case law, it appears that if the music is performed or played at any event in any banquet hall, lobby, restaurant or a discotheque or such similar venue without the consent of the owner and if the audience is deemed to be public in relation to the owner of the work, whether for a fee/charge or otherwise, then it may constitute as work being performed in public. It is pertinent to note that the venue may be a public venue i.e. venue open to public or which the general public has access to and in certain cases may even extend to private venue where any other person may have access to. Further, where the performance is not a domestic performance such as in cases of a birthday party or a wedding function and includes people other than immediate family members then such performance may also amount to communication to the public and accordingly copyright licenses may be required. Having said that, whether any act would be construed as communication to the public is subjective and would need to be determined on a case to case basis.
Granting of licenses by the owner under section 30
The owner or his authorized agent may grant any license to any person under Section 30 of the Copyright Act. The prospective owner of the copyright in any future work may also grant such a license which can take effect only once the work comes into existence.
Assignment of license under section 18
The owner/ prospective owner may assign the copyright to any person wholly or partially, for the whole term of the copyright or for a shorter period, subject to certain provisions as stated under Section 18 of the Copyright Act. In the case of musical works, these rights are usually assigned to music producers, sound recording companies, and/or producers of cinematograph films, in some combination.
Copyright Societies were formed in order to make licensing of songs and sound recordings easier and to protect the rights of various persons involved in a song production such as singers, artists, lyricists, sound recording companies, etc. Copyright Societies are required to be registered under Section 33 of the Copyright Act pursuant to which they are authorized to grant licenses on behalf of the owners to persons requiring the same.
The following Copyright Societies are currently in existence:
(i) Indian Performing Rights Society (IPRS)
IPRS issues licenses to users of music and collects royalties from them, on behalf of its members, being authors, composers and publishers of music and to distribute this royalty amongst them after deducting its administrative costs. The IPRS license governs live performances and performance through any electronic means.
(ii) Phonographic Performance Limited (PPL)
PPL claims that it owns, as an 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 are music labels.
(iii) Indian Singers Rights Association (ISRA)
ISRA is a separate copyright society constituting of performers. It claims to have the right to collect royalties on behalf of singers.
Novex Communications Limited
Novex Communications Limited (“Novex”), a satellite channel distribution company in India has also been granting licenses for (1) Yash Raj films Private Limited (2) UTV Software Communications Limited and (3) Shemaroo Entertainment Limited and (4) Zee. Novex claims that they have the right to grant licenses as they are an authorised agent to the above-mentioned entities under Section 30 of the Copyright Act.
Re-registration of Copyright Societies
The Copyright (Amendment) Act, 2012, required every copyright society already registered before coming into force of the Amendment Copyright Act to re-register itself under section 33 within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012 which came into effect on 8 June 2012.
Status of Re-registration of IPRS and PPL
IPRS and PPL have filed an application for re-registration under the Copyright Act. However their application for such re-registration is still pending due to inquiry and therefore both these societies are currently granting licenses under section 30 of the Copyright Act as owners of musical and literary works and not as “copyright societies”.
In a recent decision of Delhi High Court in the case of M/s Event & Entertainment Management Association (EEMA) vs Union of India & Ors[iii] wherein EEMA was seeking a relief directing the Union of India to hold an enquiry against IPRS, PPL and Novex owing to the fact that they had violated the provisions of Section 33 of the Copyright Act. It was contended that the three organizations were in direct violation of Section 33 of the Copyright Act due to the fact that they were carrying out the activities of a copyright society without the mandatory registration to carry out such activities as specified in Section 33. It is through the course of this petition that Union of India clarified that they have already launched an inquiry into the activities of these organizations through the Department of Industrial Policy and Promotion. The court order subsequently barred the three organizations from carrying out the activities of a copyright society until the next hearing date i.e. 24 April 2017. However, on 28 December 2016, the court passed an interim order stating that the societies could continue to collect royalty subject to certain conditions stated therein.
The licenses would need to be separately obtained for rights that have not been assigned to IPRS or PPL either from other assignees, societies registered under the Copyright Act that administer such licenses, the owners themselves, or their duly authorized agents.
Status of registration of ISRA
ISRA has been registered under the Copyright (Amendment) Act, 2012 and since it came into existence only after the Copyright (Amendment) Act, 2012, there was no requirement of re-registration. However it is unclear whether ISRA has the authorization to grant licenses for the performers or merely collect royalty fees on their behalf.
In the case of Indian Singers’ Rights Association v. Night Fever Club and Lounge [iv], Delhi High Court held that since the Defendant was using the Plaintiff society’s repertoire of songs without obtaining a ‘Performers’ Rights Clearance Certificate’ when playing songs or during live performance, they were infringing the copyright of the singers and their right to receive royalties, which is protected under the Act.
From the above case, it appears that a “Performers’ Rights Clearance Certificate” is required to be procured from ISRA. The case, however, does not clarify whether or not this would tantamount to a license.
The lack of clarity in registration of copyright societies and the uncertainty of the legality of organizations such as Novex to grant licenses has lead to various litigations before the courts of India.
For playing or performing music in public one may consider obtaining the following licenses/ certificates:
(i) License from IPRS and PPL for playing musical work or sound recordings in which IPRS and PPL have obtained rights by way of assignment
(ii) Performers’ Rights Clearance Certificate from ISRA for playing musical work or sound recordings in which ISRA have obtained rights by way of assignment or as a copyright societies for singers; and
(iii) License from Novex for playing any music belonging to (1) Yash Raj films Private Limited; (2) UTV Software Communications Limited; (3) Shemaroo Entertainment Limited; or (4) Zee
(iv) Licenses from other owners/ authors (including, in some cases, performers) or their duly authorized agents where they have not assigned their rights to a copyright society.
This news flash has been written for the general interest of our clients and professional colleagues and is subject to change. This news flash is not to be construed as any form of solicitation. It is not intended to be exhaustive or a substitute for legal advice. We cannot assume legal liability for any errors or omissions. Specific advice must be sought before taking any action pursuant to this news flash.
[i] Section 2(ff) of the Act substituted by the Copyright (Amendment) Act, 2012 (Act No. 27 of 2012) w.e.f. 21.06.2012
[ii] AIR 1989 Bom 331
[iii] W.P. (C) No. 12076/2016
[iv] CS(OS) 3958 of 2014
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