SNEHA PALEKAR | The framework of Indian Copyright Act, 1957 (“ICA”) took a benevolent turn when The Copyright (Amendment) Act, 1994 (“AA of 1994”) birthed a new set of rights from Section 38 to 39A of the Act, over acoustic or visual presentation of creative works. Such rights were designed to vest in persons defined as ‘Performers’ under Section 2(qq) of the ICA, who presented such works to the public. These presentations are termed as ‘Performances’ and these rights are recognised as Performer’s Rights (“PR”). Such rights are also called as ‘neighbouring rights’ or ‘related rights’ because they are granted for categories of other works having owners, other than authors.
The ICA as originally enforced in 1957 did not recognise ‘Performance’ as a category of work copyrightable under the act. The Supreme Court (“SC”) in Fortune Films International v. Dev Anand, had upheld that an actor in a film has no rights over his performance in the film. However this position changed in 1994. The case of Super Cassettes Industries v. Bathla Cassette Industries was one of the first ones to shed some light on the aspects of PR by expounding that PR are different from Copyright, and re-recording of a song without the authorization of original performer constituted an infringement of the PR. Today PR is recognised as an important facet of ICA.
The need for granting statutory protection to Performances arose due to the advent of technology which made it easier for broadcasting organisations to record and communicate Performances to the public without the permission of their owners. To prevent the unlawful use of such Performances and to grant Performers a right over a share of proceeds from commercial exploitation of their Performance, it was deemed necessary by the law makers to grant them with PR. However due to lack of adequate statutory interpretation, the definition over the years has attracted ambiguity in respect of the criteria which is to be fulfilled for construing a presentation as a ‘Performance’, making it even more indispensable for the Judiciary to clarify the ambit of its definition under Section 2(q) of the Act.
Classes of ‘Performances’ which fall within the sweep of Section 2(q)
Section 2(q) defines Performance in relation to PR as “any visual or acoustic presentation made live by one or more performers”. However obscurity over the parameter of this definition arose years ago when contentions were raised by several copyright societies and performing artists of cinematographic films, as to whether they were entitled to Royalties under the Act for their Performances which are not made live, but recorded in studios. When this issue was specifically addressed by the Delhi High Court (“HC”) in the case of Neha Bhasin v. Anand Raj Anand, the Court, considering that the object of Copyright law is to protect and reward the creativity and efforts of Author and delimiting the scope of the definition would leave numerous Performers uncredited for their creations, elucidated that every performance in the first instance necessarily has to be live and whether it is in a studios or before an audience is immaterial, thereby including studio recordings under the ambit of Section 2(q). At the perusal of this notion evolved by the Judiciary, The Copyright Rules, 2013 elucidated the term ‘Performance’ under Rule 68, Explanation 3 as to include recording of visual or acoustic presentation of a performer in the sound and visual records in the studio. Hence, the expression ‘made live’ was interpreted to encompass visual and acoustic performances, both live and recorded in studios.
However another such attempt of unravelling this definition has been made recently by the District Court (“DC”) of New Delhi in the case of Sushila v Hungama Digital Media Entertainment Pvt Ltd & Super Cassettes Industries Pvt Ltd. Though the Court dismissed the suit for being devoid of any cause of action, it took into account the legislative history of incorporation of the PR in the Act and from it, observed that the legislative intent attributable to the expression ‘made live’ in Section 2(q) is to include only live performances and not studio recordings of Performances. This order of the DC is important because if ratified by a higher Court, it would cause a catastrophic havoc in the functioning of Copyright regime regarding the right of Copyright Societies to claim Royalties for use of their Performances recorded in studios.
Legislative Intendment attributable to the expression “made live”
The unammended definition of ‘Performance’ Section 2(q) in the original ICA brought in force in the year 1957, was “any mode of visual or acoustic presentation, including any such presentation by the exhibition of a cinematographic 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”. Moreover the expression ‘Communication to the Public’ was not defined in the original Act. When the Act was amended by the AA of 1994, the drafters bifurcated the original definition in Section 2(q) into two independent Sections, one being ‘Performance’ retained in 2(q), and the other being ‘Communication to the Public’, a novel addition to ICA as Section 2(ff). While the former was shortened with suffixation of expression “made live by one or two Performers” to “visual or acoustic presentation”, the latter was defined as making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion. The Court drew a parallel from thecase of Indian Performing Right Society Ltd v. Aditya Pandey, and reiterated the Delhi HC’s observations that, if all the above mentioned expressions are read in combination and in light of difference in the definition of ‘Performance’ under the unamended and amended Acts, it conclusively conveys that the drafters intended to draw a distinction between circumstances when communication to the public by way of live performance in section 2(q) and by way of display or diffusion in Section 2(ff), by adding the expression ‘made live’ to only Section 2(q) and not 2(ff), when prior to this both were integrated in a single definition under Section 2(q). Further, when the Act was later amended by The Copyright (Amendment) Act, 2012 (“AA of 2012”), the expression ‘Communication to the Public’ was again altered to include the term ‘Performance’ as an alternative to ‘Work’ in the expression “making any work or performance” in Section 2(ff). It is evident that the object of this amendment was also to create a separate category of ‘Work’ other than those already recognised, as a species of the same genus ‘copyrightable work’ under the Act, being equally entitled to protection by way of rights, not copyright per se, but as related rights, that would be available to owners of Performances, as opposed to Authors.
Hence the DC deduced that the suffixation of expression ‘made live’ in section 2(q) was pre-determined by the law makers so as to associate ‘Performances’ solely to live presentations. In other words, the expression has a definitive meaning which was premeditated by drafters at the time of its inclusion and therefore the legislative intent attributable to the expression, is to designate it as a prerequisite for qualifying presentations as Performances. Therefore from this legislative history of Section 2(q) it is apparent that the scope of ‘Performances’ is intended to be restricted by the word ‘live’. Had the intention been otherwise, then the AA of 2012 would not have complimented the AA of 1994.
Constricted literal meaning of “made live”
The pith and substance of this expression is the word ‘live’. The court observed that the word signifies a direct causal nexus between the Performer’s skills and the actual presentation to the audience. It means that the presentation must directly emanating from the Performers skills and be directly seen or heard by the audience. Hence a Performance presented in a studio or a recording of a Performance done in a studio cannot be equated with ‘Performance made live’ as there is no direct connect between the audience and the Performer. The court also observed that Performances in studios or recorded in studios are generally not recorded continuously per se, but over number of sittings to match perfection. In arguendo, the matter of fact that remains is that the same is not a ‘live performance’ as it is performed in a closed controlled environment.
Thus it is evident that the walls of Section 2(q) are yet open to interpretation, still attracting ambiguity after all these years.
Conclusion
Though the aforementioned case raises serious questions regarding the ambit of definition under Section 2(q), restricting the scope ‘Performance’ would not only abridge the right of several Performers to receive royalty, but also defy the entire objective of Copyright law. Perhaps a binding precedent of the SC or a future amendment of the Section to remove the expression ‘made live’ would eliminate all probabilities of vagueness and clearly establish the scope of applicability of PR in India.
Sneha Palekar is a fifth year student of ILS Law College, Pune. She can be reached at snehapalekar98.sp@gmail.com.
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