In
the span of the last 50 years, the music industry has become largely
commercialized, with entertainment companies spearheading the transition. With
the expansion of the industry to the internet and the so called ‘on demand online platforms’, new
questions have arisen regarding licensing rights and payment of royalties,
mainly with regard to rights of the artist.
Rights
conferred over audio works under the Copyright Act
The
rights that an artist enjoys over his/her musical work are two-fold. One is
with regards to the ‘musical work’ defined under Section 2 (p) of the Copyright
Act as a work consisting of music and
includes and graphical notation of such work. The royalties for assignment
of the work can be claimed under Section 18(1) of the Copyright Act which
provides for assignment of a work.
The
other right which the artist enjoys is the performance right, which is provided
for under Section 38A of the Copyright Act, inserted vide the 2012 Copyright
Amendment Act. This section provides a performer, in addition to the rights
given by the author of a work to reproduce, issue copies, sell or rent, and broadcast
any right over a live performance. This section further provides the right of a
performer to claim royalties over the commercial use of the performance.
The
distinction between the two was a matter of contention in the matter of Sushila vs Hungama Digital Media
Entertainment Pvt Ltd & Super Cassettes Industries Pvt. Ltd[1]
Sushila
vs Hungama Digital Media Entertainment Pvt Ltd & Super Cassettes Industries
Pvt. Ltd.
This
matter pertained whether an artist can claim a violation of performance rights
over an audio recording, when the license over the musical work have already
been licensed via agreements. The Plaintiff, a singer brought an action against
Hungama Entertainment, which was a subsidiary of T-Series, and ran an online
platform which streamed music on demand. The Plaintiff alleged that the Defendant
had streamed a studio recorded song of the Plaintiff on their online platform
without her permission, thereby violating the performance rights of the Plaintiff.
The Defendant here contended that they had the legal authority to stream the
recording, as the right over the same had already been licensed vide agreements
dated 2015 to T Series, Hungama’s parent company.
The
Court here decided to distinguish between the right over a musical work and a
performance right and held that performance right exists only over ‘live
performances’. Interpreting the literal wording of Section 2(q) and 2(qq) which
defined ‘performance’ and ‘performer’ respectively, the Court stated that the
word ‘performance’ is qualified by the term ‘live’, and the same studio
recordings cannot be equated to the same. The Court further held that the right
over the musical work is a primary right, and the right over a live performance
is only a secondary right.
The judgment is
significant in the sense that it laid down the scope of each of the rights
conferred to an artist. Therefore, right over studio recording cannot be
equated to a live performance, and royalties under Section 38A cannot be
claimed if the right over musical work has already been conferred by a license.
No comments:
Post a Comment