Module 6

MODULE 6
LIVE PERFORMANCES

6.1.INTRODUCTION

Freddy Mercury at the Live Aid concert in 1968, The Beatles in 1965 serenading the
audience at the Shea Stadium or the Coldplay concert on a not so cool winter evening in
November at Mumbai are just some of the performances that come to mind when you think
about amazing live performances. Live performances leave a direct impact in the minds of an
artist. An artist can often judge their impact and outreach by assessing how well or badly a
live performance goes. That’s also possibly why some of the schools that churn out music
diplomas insist that artists perform in front of a live audience as a part of their course. For an
artist, their music becomes their business. However, many artists recoil at the thought of their
craft being reduced to mere business. The similarities between a traditional business and that
of say, a band, isn’t too are off, especially in one sphere which is that of intellectual property.
Just like how a prudent business person would go to the lengths of the earth to protect the
intellectual property of the business, an artist’s craft too requires protection from imitation.
However, this becomes more difficult when the performance is live and is under the eyes of
people from all around the world. In fact, in India itself, the ‘live industry’ is booming. In a
report published in 2018 by the Indian Music Industry (IMI), In terms of rankings, India is
ranked 19th in terms of the total market, in physical terms it’s ranking is 31st and it is 14th in
terms of digital, which is not too bad. Performance rights are not so good since India is
ranked 32nd.1 The same report goes on to express serious concerns regarding the issue of
piracy. The increase in technology, P2P sharing, websites etc. has not only brought about
easier access but has also increased the chances of duplication and instances wherein piracy is
the norm and not the exception. This has caused in losses worth Rs.1200-1500 Cr., or around
US$250 million because of piracy each year. The numbers, unfortunately, only seem to be on
a rise throughout the world as time goes by. The increase in the losses due to piracy and the
inability to establish fair value, has led to the formation of several organisations throughout
the world. One such organisation is that of SOCAN (The Society of Composers, Authors and

1 Report of The Indian Music Association, available at
http://indianmi.org/be/wpcontent/uploads/2018/10/VISION-2022.pdf?curator=MusicREDEF

Music Publishers of Canada), the world’s 7th biggest collective management organisation to
which India is a part through the Indian Performing Rights Society (IPRS).

Just like SOCAN, India too has taken several active measures to ensure that they protect the
rights of artists spanning the territory. Regular amendments to the Copyright Act, formation
of organisations which drive and strive to protect the music industry and the signing of some
important agreements will be what this module will focus on. Intellectual property law aims
to protect, in the best manner possible, the rights of an artist in relation to their performances.
The performer therefore, should be able to not only control the performance whilst on stage
but also should be able to contain the disbursement of the performance once off stage. The
advent of technology therefore, brought to light several challenges for performances to
control their ability to track and contain the unlawful infringement of their performances.
Law makers across the world, embraced this changed. Performance rights were protected in a
manner which was sui generis extending to even the non-commercial community interests of
performances.

6.2.GENERAL PRINCIPLES OF INTELLECTUAL PROPERTY LAW THAT ARE
APPLICABLE TO LIVE PERFORMANCES

6.2.1. Live Performances and Intellectual Property Issues

It is not uncommon to have instant uploads from people attending performances of an artist.
What may come to as a shock to a person uploading a post, is that he/she just may have
infringed upon the Intellectual property of the artist. The infringement only increases if a
monetary gain or an attempt to gain financially is made by the person doing so. The issue
here however is how exactly a live performance can be clubbed into the intellectual property
of an artist and also if an artist can infringe upon another’s intellectual property during a live
performance. It is surprising that not much has done to prevent a third party to freely post an
unauthorized recording of an artist’s live performance. An upload could be interpreted as an
“Infringing Copy” under Section 2(m)(iv) of the Copyright Act2 (hereinafter referred to as the
“Act”). A performance is defined under Section 2(p) of the Act to mean “in relation to

2 Collen Creamer Fielkow, Clashing rights under United States Copyright Law, DePaul LCA Journal of Art and
Entertainment Law (Spring 1997) https://cyber.harvard.edu/metaschool/fisher/integrity/links/Articles

performer’s right, means any visual or acoustic presentation made live by one or more
performers”.

Therefore, a live performance is seen to be included in this definition and thus naturally, a
performer under Section 2(qq) as under:

“performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake
charmer, a person delivering a lecture or any other person who makes a performance”

In the advent of safeguarding a performer’s right, these rights have been extended from mere
monetary safeguards (in terms of repayment of royalties etc.) to a more comprehensive
approach, ensuring that the exclusive economic and moral rights of a performer are also
conferred upon him. The basis of these rights is the recognition that a performance is a
performers creative expression and embodiment of his/her spirit within the work which
constitutes a moral right.3 A moral right, taken from the French term “droid moral” which
means non-economic or personal right dilutes the pure economic approach and aim to protect
the more personal nature of the rights associated.4In the advent of this the Act prescribes
under Section 38 and Section 38(A) of the Act certain exclusive rights are transferred to a
performer. Section 38 transpires to provide a performer, a special right Section 38 known as a
“performance right”. This right shall subsist until fifty years from the beginning of the
calendar year next following the year in which the performance is made. The exclusive right
of a performer under Section 38A and the moral rights under Section 39B ensure that the
performers right to be associated with the work remains long after the piece is brought into
public sight. The privileges of performers in movies therefore can have seen to be extended
by the application of Section 38(A)The performer also has the right to restrain and/or claim
damage in respect of any distortion, mutilation or any other modification of the performance.
Modification, mutilation and distortion been said to be for any act other than those which
have been expressly permitted under Section 52 of the Act. Critiques of the Act would say
that the exceptions under Section 52 are broad and engulf more than they restrict thereby
resulting in a few rights that are then retained by a performer.5

3 Micheal Seadle, Copyright in the Networked World: Moral Rights, Library Hi Tech, Volume 20, Number 1,
pp.124-127
4 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).
5 Sabrina Porter, Protection of Live Performaces: The Battle of
“Ownership”,https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1818&context=student_scholarship

In general, a performer’s right is very similar to that of what an artist receives with a few
notable differences.6 A performers right does not cover his performance method, demeanour,
mannerisms etc. but the outcome that it produces. A performance right therefore, can be seen
as a subset to the general copyright. World over, performance rights have come about shortly
after recording technologies aided the ability of individuals to record and sell copies of live
performances. The illegal monetization of these copies along with the profits involved, lead
to widespread distress amongst the artist community. Ticket prices gradually dropped to an
all-time low because people realised that what they would pay a few hundreds to see, they
could access in a negligible sum. The United Kingdom’s Copyright, Designs and Patents Act,
under Section 182 confers upon the artist, the right to consent to the recording of their work
and the use after authorization. This further ensures that the artist receives royalties from any
monetization that may be made out of this recording. Further, the moral rights of a performer
are extended to protection against ‘derogatory treatment’ under Section 205F and the right to
be identified as the performer in the recording under Section 205C. Further, performers under
Section 182D and Section 182CA (2) can benefit from ‘remuneration rights’ to ensure that
they receive equitable revenues from the recordings. One of the landmark judgements of
Rickless v. United Artists Corp(1998)7 isn’t a novelty for fans of the original ‘Pink Panther’
film. The markers of the movie wanted to create a sixth addition to the series using existing
footage of the deceased lead actor of the first five parts, Peter Seller. The heirs and family of
the actor contested the making of the movie without their consent. In essence, they were
contesting the performance rights of the lead actor. The Court allowed the petition and noted
the varied and different right that was seeking to be enforced. Therefore, it is safe to infer that
the rights of a performer have not been completely overlooked by the law makers across the
world. With the onset of the WPPT (World Intellectual Property Organisations’ Performers
and Phonograms Treaty), performers have individual and exclusive rights for digital
performances.

The next question that comes to mind is the situation in India of a performer. The Best way to
answer this is via a few cases that have come up which showcase the proactive nature of the
judiciary in determining and safeguarding the rights of a performer. The Hon’ble High Court
of Judicature at Madras in Phonographic Performance Ltd. v. the Accord Metropolitan and
Ors8. and Indian Performing Right Society Ltd v. K Murali and Ors.9 Wherein the plaintiffs

6 https://www.copyrightuser.org/educate/the-game-is-on/episode-3-case-file-26/
7 W.P 15012 (W) of 2016
8 18 U.S.C. § 2319 (2012).

successfully obtained injunctions against hotels/pubs/public arenas including live bands
against playing music which was awarded copyright protection by the relevant authority. The
basis of this can be inferred to be an infringement under the had ”communication to the
public”10 In the case of Indians Singers’ Rights Association v. Chapter 25 Bar and
Restaurant11 the Hon’ble Delhi High Court held that playing songs in an restaurant without
getting a clearance certificate or without any such due payment leads to an encroachment of
the Copyright Law. Consequently in ISRA v. Night Fever Club and Parlour12 open execution
of a song or a tune requires a no objection certificate from the holder of such rights. In Star
India Pvt Ltd v/s Piyush Agarwal and Ors13 whereby an agreement entered between Star
India and Board of Control for Cricket in India (BCCI) specified that Star India shall
broadcast all the matches organized by BCCI and shall have rights over all the information
relating to the matches including right to create and broadcast text messages. By the said
agreement, the media rights, including mobile activation rights and mobile rights were
entrusted to Star India exclusively for a 72-hour period. Star India contested that the
Respondents were violating these rights by sending live score updates through text messages
and thereby a suit was filed by the plaintiff for infringement of its exclusive rights. By the
said agreement, the media rights, including mobile activation rights and mobile rights were
entrusted to Star India exclusively for a 72-hour period. Star India contested that the
Respondents were violating these rights by sending live score updates through text messages
and thereby a suit was filed by the plaintiff for infringement of its exclusive rights. It was
held by the court that a cricket match falls within the purview of the term “performance” and
thereby cricketers, commentators and umpires are performers under the Act. Further, the
news or events available in the public domain cannot be monopolized by any one person. The
principle of fair dealing and public policy will be defeated if the monopoly of 72 hours is
exercised by the plaintiff for the event which is available in the public domain. Hence, the
courts dismissed the suit without any costs.

9 OA.No.1146 and 1147 of 2019.
10 Adarsh Ramanujan,Injunctions against Playing Copyright Protected Music/Songs During Celebrations/Parties
(March 5,2020)
11 CS (OS) 2068/215 & IA No. 14261/2015
12 CS (OS) No. 3958 of 2014
13 Uzair Ahme Khan, The Laws Relating to the Broadcasting of Live Events,(October 10,2019),
https://blog.ipleaders.in/laws-relating-broadcasting-live-events/

6.3.DOCTRINES OF LAW AND PERFORMERS’ RIGHTS

The privileges of the performers were thrust forward by the Rome Convention of 1961. The
worldwide arrangement called for the incorporation of principles that now are deep rooted
into our intellectual property laws. The Indian Copyright Act, 1957 amended in 1994 and
then in 2012 aimed to bring about a revolution to embody copyright law in consonance with
the World Intellectual Property Organizations’ mandates and guidelines. New and more
inclusive definitions were added to ensure that these performance rights were not just limited
to monetary rights that a performer may have. In India, a copyright society under Section 33
of the Copyrights Act, 1957 gave birth to the Indian Performing Right Society Ltd. (IPRS),
however, with the amendment in 2012, IPRS lost its status. IPRS again has registered itself as
a copyright society and has been functioning smoothly since then. Apart from these societies
formed, artists themselves make an earnest effort to protect their work. Many artists over time
have requested audience members not to use their phones or recording devices. This request
has now become a mandate in certain cases wherein audience members are required to forfeit
their phones before the performance is about the start. Does this mean that the artist’s act to
maintain confidentiality is against the “communication to the public” principle? A popular
counter to the above argument of the principle of “communication to the public” is the use of
“transformative use”. Transformative use as defined by the Australian Government Law
Reform Commission, is set to mean the use of pre-existing works to create something new
that is not merely a substitute for the pre-existing work.14 The essence therefore is
transformation.15 Transformative use is seen to be one of the prime factors across
international laws. It finds its place in the doctrine of fair use under the US law. Popular
landmark cases have adopted the doctrine of fair use to form an integral part of Copyright
Law. One such case wherein the Canadian Supreme Court interpreted the research and
transformative factor to be integral to Copyright Law is that of CHH v. Law Society of Upper
Canada16 wherein it was enumerated that fair dealing is an integral part of the Copyright Act
and a user’s right must balance against the rights of copyright owners rather than merely
using it as a defence. In fact, many a times, transformative use is seen as the ‘heart and soul
of a fair use case’ under which the use of a piece of work must be ultimately to benefit the

14 Kathy Bowery, Australian Copyright Reform Struck In An Infinite Loop, THE CONVERSATION (January
18, 2016), http://theconversation.com/Australia-copyright-reform-stuck-in-an-infinite-loop-52974.
15 Pierre N. Leval, Towards a Fair Use Standard, 103 HARV. L. REV. 130, (1990).
16 CCH Canadian Ltd v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 (Can.).

public at large and the advancement of public interest.17 The malleability and consistency of
this principle ultimately lead it to be a core standard in ‘Copyright governance’ and a model
for exceptions to copyright law under Article 13 of the Agreement on Trade-Related Aspects
of Intellectual Property Rights18.

6.4.PERMISSIBLE LIMITS

In every performance, there are several distinct elements that can be subject to copyright.
These include 1) the copyright to the lyrics; 2) the band’s/performers right to publicity 3) the
copyright to the music composition 4) trademarks that are owned by the band/performer 5)
contractual rights (by a ticket, terms and conditions assented to etc.). The rights of
performing artists are generally seen to be “related rights” broadly classified as 1) rights of
performing artists in their performances, 2) rights of producers of phonograms over such
phonograms 3) rights of broadcasting organizations in their radio and television programs.
Therefore, a performance by an artist is a bundle of varied rights involving a number of
intermediaries, each requiring protection from infringement against. The holder of these
rights are permitted to act or omit another from acting upon or using these rights. In fact,
many of these rights are complexly owned by a number of intermediaries concerned such as
the band, the label, the website or the publisher even. Most venues used are venues that have
signed a contract with the performer or the label/brand may ensure that the performer own
certain aspects. A certain aspect of the copyright may expire and enter the public domain
whereas the rest can stay under its protection. Many artists therefore have restricted use or
permitted use in the best way possible. Maroon 5 for example, expressly allowed fans to
record their shows for personal use and to trade but not to post the recordings on a social
media platform. At the same time, Linkin Park offers a “digital souvenir package” for an
extra amount wherein they include links to the original MP3s and photos from each stop of
their tour.19 Recognising the trends, laws too have adapted to permit certain copyrights to be

17 Mukul, Seeking A Proper Approach to Transformative use of Copyrighted Works, JOURNAL OF

INTELLECTUAL PROPERTY STUDIES (August,2019),

https://journalofipstudies.files.wordpress.com/2019/09/final-compilation-jips-duplicate-converted.pdf
18 Apr. 15, 1994 Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 3

(1994)
19 Randy Friedberg, Music Law 101: Legal Issues Surrounding the Recording and Posting of

Concerts,ENTRTNMNT(December 1, 2018) https://entrtnmnt.com/2018/12/music-law-101-legal-issues-

surrounding-the-recording-and-posting-of-concerts/

used. Under the Digital Millennium Copyright Act20 (DMCA) in the USA, the law makers
have provided for the opportunity of legitimate websites to delete content which may infringe
upon another’s copyright. The DMCA attempted to move embrace the digital age21. The
DMCA aimed to encourage American copyright law to deal with transmissions of
copyrighted works online, while limiting the liability of the providers of online services for
copyright infringement by their users. The situational trends in India can be best assessed
with the emergence of case laws in the succeeding paragraphs.

The Phonographic Performance Ltd. v. the Accord Metropolitan and Ors22 did not permit the
use and playing of songs that are from another artist without a prior license in place.
However, this is not the case for religious or marriage functions as the case maybe under
Section 52(1) (za) of the Indian Copyright Act which permits the use of sound recording
which has been interpreted to engulf live performances, for the occasions as detailed in the
act. The section has been reproduced as under:

“the performance of a literary, dramatic or musical work or the communication to the public
of such work or of a sound recording in the course of any bona fide religious ceremony or an
official ceremony held by the Central Government or the State Government or any local
authority.

Explanation-For the purpose of this clause, religious ceremony including a marriage
procession and other social festivities associated with a marriage.”

A notification issued in 201923 by the Indian Copyright Office has clarified that use of sound
recordings in the course of a religious ceremonies including a marriage procession and other
social festivities associated with a marriage does not amount to copyright infringement does
not require a copyright licence. The social situations are quite different however. Many
intermediaries would charge a separate amount for the playing of sound recordings or the use
of a band during a function. A natural inference to this is seen to be an attempt to avert
Section 51 of the Copyright Act which states that

20 The Digital Milennium Copyright Act, US Gov, http://www.copyright.gov/timeline/ [https://perma.cc/J2XT-
CSLN
21 U.S. Copyright Office, Executive Summary of the Digital Millennium Copyright Act, Section 104 Report
https://www.copyright.gov/reports/studies/dmca/dmca_executive.html [https://perma.cc/
ZFA4-3KNK

22 Id. 4
23 Public Notice No. 10-26/2019-CO

“Even a person who permits for profit the use of any place for communication of a
copyrighted work to the public such that the communication amounts to copyright
infringement, is liable for copyright infringement”

Several clarifications have been provided by the government bodies to avoid dubious claims.
However, one such case that took a different view was that of Phonographic Performance
Ltd. v. State of Punjab24, wherein a claim was brought forward for the payment of royalties
for a DJ Performance in a marriage hall. Using the protection of Section 52(1) (za) the
defendant pleaded before the Hon’ble Court for non-payment. However, the plea of the
defendant was dismissed and the following was observed:

“[…] It would make no difference, even if it were to take place in a religious ceremony. A
sound reproduction by a DJ performing at such an event is surely a function that is connected
to marriage. It is not as if a DJ’s performance amounts to conducting the marriage.
Marriage is definitely different from the functions connected to the marriage and the tariff
regime applies to performances at such functions even if it has a religious overtone.”

This seems to be a narrow interpretation of the exemption25. However, the issue of the
payment of royalties by artists and performers is not a battle which is of recent times. The
best way to throw light upon this is to start by taking note of some of the bodies associated
with the safeguarding of Copyrights of live performers which is in the next section. It
however remains unclear if a recording of a live action in a public setting such as a concert or
a performance is subject to complete copyright protection. Further, the Hon’ble High Court
of Delhi in the matter of IPRS v. Hello FM Radio26 granted an injunction by restricting Hello
FM Radio from playing music without obtaining a license from IPRS. In Fortune Films vs.
Dev Anand27 the court granted copyright protection only to the film including any soundtrack,
however the cine artist was not protected by copyright for their acting. Thus, aping the acting
methods used or the performance as such, would not be an infringement of copyright. The
fact that a copyright exists as a bundle of rights that are automatically granted (in most cases)
does not make it any easier to establish infringement or not. In several countries,
organisations came up to govern the protection of performers from a grassroots level. This
will be examined in the next section.

24 Civil Writ Petition No.7772 of 2011 (O&M)
25 Devika Agarwal, Band Baaja Baaraat & Copyright (September 08, 2019) https://spicyip.com/2019/09/band-
baaja-baaraat-copyright.html
26 50 PTC460 2012
27 Fortune Films vs Dev Anand; AIR Bom 17 1979

6.5.ORGANISATIONS UNDER THE COPYRIGHT ACT

The Copyright Act, 1957 permitted the formation of registered societies. As per Section 33 of
the Copyright Act, 1957 one of the fundamental requirements, while registering a Copyright
Society, is to ensure that the Copyright Society does not require its members to assign their
copyrights to the Society in order to obtain membership of the Society. In pertinent part the
proviso to Section 33 states the following:

“Provided that an owner of copyright shall, in his individual capacity, continue to have the
right to grant licences in respect of his own works consistent with his obligations as a
member of the registered copyright society.”

Section 34, however does allow the Copyright Society to accept an exclusive licence to
administer the rights. The difference between as ‘assignment’ & an ‘exclusive licence’ is that
while an ‘exclusive licence’ is usually revocable, an ‘assignment’ is irrevocable and is
usually the equivalent of a ‘sale’.

Indian Performing Rights Society (IPRS) is a registered copyright society and handles the
rights for lyricists and composers and also publishers. It is responsible for collection of
royalties on behalf of its members for the performance of underlying parts of a composition.

The Indian Singer’s Rights Association (“ISRA”), a registered Copyright Society under the
Copyright Act, was formed to create tariff rules, and to collect and distribute royalties to
Performers (only singers) and they have on their panel esteemed singers like Lata
Mangeshkar, Pankaj Udhas, Sonu Nigam, Shaan, and Sunidhi Chauhan amongst others who
have fought to bring about the Performers’ Right shortly after the 2012 amendment to collect
and distribute royalties. They brought about economic and moral rights for the performers to
have stronger ownership control over their creation.

In India, the Phonographic Performance Limited (PPL) handles the copyright of sound
recordings for few of the music labels partnered with it. PPL, however is not a registered
copyright society.

To play the recording of any song in a public space of any of the songs that belong to the
music labels on whose behalf PPL collects royalties, one needs a permit from PPL. If
someone else is performing the piece, a license from IPRS needs to be obtained. In case the
proper license is not acquired, a penalty shall be charged for copyright infringement which

may merit a fine or even imprisonment.28 As recently as 2019, Indian Performing Right
Society Limited (IPRS) has granted a license to Google, allowing the company to utilise its
members’ collection across YouTube and related services in the country, the tech giant said
in a statement.29

6.6.CONCLUSION
Ultimately, the entertainment industry, legislators, and concertgoers must re-examine
copyright law and its commitment to outmoded notions of fixation in order to determine
whether they are willing to rebalance the economic interests and the value in artistic content.
Just as we would not expect an accountant to prepare our tax return for free, we as a culture
cannot expect artists and performers to display their talent without fair compensation. Many
concertgoers clearly concede their valuation of the arts by recording, but there is an
increasing reluctance to pay for the entertainment that they record and share. The skill and
labor of performers are important to the public enjoyment of art works and performers should
be protected against unauthorized exploitation of their performances in the same way as
authors of tangible fixations enjoy copyright.30 Copyright law is now challenged to find
balance in a world characterized by the ubiquity of entertainment in everyday life. With the
pressure from international sources hanging in the balance and concertgoers showing no sign
of stopping their practices, the entertainment industry must rectify the imbalance by itself.31
The law as we see it today has definitely evolved to be more inclusive and to bring into it
spectrum the rights of many. However, the need of the hour is to confer more to the mandates
of the international regime and to ensure that ture and fair protection is conferred to artists.

28 Aditi Sarawagi, Music Laws in India, THE SCORE (October 3,2018), https://highonscore.com/music-laws-
in-india/
29 IPRS, Google conclude music licensing deal for India, BUSINESS LINE, March 19, 2019 edn,
https://www.thehindubusinessline.com/info-tech/iprs-google-conclude-music-licensing-deal-for-
india/article26580334.ece#
30 Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804 (6th Cir. 2005).
31 Sabrina Porter, Protection of Live Performance: The Battle of “Ownership,” Seton Hall eRepository, 20
(2015).