Journal of Intellectual Property Rights

Vol 26, January 2021, pp 5-13

Interpreting “Performers Rights” in The Indian Copyright Act to Appropriately

Provide For Singers Rights
Akshat Agrawal†
Jindal Global Law School, OP Jindal Global University, Sonipat, Haryana 131 001, India

Received: 20th April 2020; accepted: 12th November 2020

Performers act as a catalyst to communicate the relevant original content in a work. This article seeks to discuss two
contentious questions with regard to the interpretation of Performers Rights provided under Section 38 and 39 of the Indian
Copyright Act, specifically with respect to Singers’ Rights, and offers contrary opinions to the prevailing interpretations in
the industry as well as one’s argued and accepted by the Delhi High Court. After analysing various doctrinal principles
surrounding interpretation of statutes in India, this article firstly concludes that Section 39A of the Indian Copyright Act, and
the royalty scheme therein, is applicable with a “Retroactive” effect in India; and secondly that every performance rendered
in real time, irrespective of it being in front of an audience, on a stage, or in the studio, ought to be covered under the
definition of a Performance under Section 2(q) read with Section 38 of the Indian Copyright Act, to effectively provide for
Performers Rights, encapsulated within the Indian legislative schema. This article also attempts to harmonize these
interpretations with a comparative as well as an international IP perspective.

Keywords: Performers Rights, Statutory Interpretation, Legislative Intent, WIPO Performances and Phonograms Treaty, 1996

Performers rights were introduced in the Indian the existence of performers rights due to the
Copyright Act under Section 38, by an amendment to involvement of skill, creativity and merit, in such
the Act in 1994.1 These rights are explicitly provided transmission.6 Apart from the same, the consequentialist
to Performers, (qualifying under Section 2(qq)), utilitarian bend of Anglo-Saxon Copyright Principles, as
including singers2 delivering a performance i.e., an followed by India, recognises the theory of copyrights as
acoustic or visual presentation made live.3 Performers incentives for more production of expressions and
rights are completely independent of ownership of original works. The end goal of having such a policy
‘works’ and are categorized as related rights, protecting present, statutorily, is to ensure more works come into
interests of those who contribute to making works existence. The reason for recognising such neighbouring
available to the public. rights is to ensure that transmitters, who allow for
In order to understand what the law really is, it is creative works to be communicated to the public, are
essential to know the “why” and “how” of the law. Why also incentivised to exist. The purpose of copyright
the law is what it is and how it came to its present form.4 and related rights is to foster a creative expressive
The main reason for bringing in this amendment, was environment where the public is exposed to more
to harmonize the Indian Act with the provision of expressions and perspectives. In lieu of the same,
the Rome Convention for Performers, Producers of incentives, if considered to be essential, for the same
Phonograms and Broadcasting Organisations.5 While policy to be fulfilled, for authors, also hold extreme
bringing this amendment, a further important intentional relevance in the context of performers as well, for the
feature was that “this right will benefit performers…”.5 end goal of such a policy to be fulfilled.
The creative intervention of such performers is deemed
to be necessary to give life to musical, dramatic Theoretical Interpretation of Performers Rights
Internationally, scholars have adopted a wide
and choreographic works and to facilitate their
definition of a Performance connoting it to be a
communication to the public. Performers act as a
transitory activity of a human individual that can be
catalyst to communicate the relevant original content in
perceived and is intended as a form of communication
a work and it has been considered justified to recognise
to others for the purpose of entertainment, education
—————— or ritual.7 The core of this definition revolves around
† the concept of a performance being a mode of
Email: 97akshatag@[Link]
6 J INTELLEC PROP RIGHTS, JANUARY 2021

communication to the public, by itself or with the aid marginal opportunities to earn better existing, the
of technology.8 Hence the performance in itself is not existence of performers, without due compensation is
a subject of copyright, but rather is a mode of questionable, at least theoretically. It is imperative to
communication to the public and involves skills to realise that it is the performer, and specifically the
transit and provide reception to expressions. This skill singer, whose transitive form of expression creates a
is what is sought to be incentivised under the act, as lofty expression and leaves a permanent and enriching
a related right. Performances by singers enable imprint of the work on the listener’s mind, and
conversion of written melodic scripts or an expression without which, the copyrighted work is bereft of
conceived by the composers into audible and existence and circulation. Performances have
receptive musical elements, to communicate the historically been culturally devalued in Copyright
expression to the public. It involves substantial Law wherein the body-work and physical labour of
investment in learning this art of communication and creating a performance is discounted against the
varies from performer to performer with respect to the creative labour of conceptualising a work, even
effectiveness of communication. Therefore, in order though it may be a product of as much preparation
to incentivise them to exist, by according protection and calculation, as a musical script.12 Further, the fact
against unpaid reproductions, as is done in the case of that a singer, who is a subset of a performer, faces a
author-creators, such performers rights are provided range of creative choices when deciding how to
in the statutory framework. These rights did not exist perform a piece of music, which can substantially be
in any jurisdiction around the world until the advent fixed in a tangible medium, by virtue of a phonogram,
of the Musical Performers Protection Act, 1925 in the needs to be accounted for economically in law by
United Kingdom. The reasoning for the sudden debate providing a beneficial construction of a statutory
on the existence of performers rights in the last three provision providing for performers rights. It is a
decades or so seems to be influenced by the advent of relationship based on co-dependence that a musician
phonogram technology which enables commercial and a performer share, which is accounted for by
exploitation of these performances through the providing for such performer’s rights. Hence these
“Record-Upload-Download” mechanism. Unauthorized rights are to be interpreted in the most beneficial
exploitation denies the performer of the economic manner in favour of the performers, along with a
benefit that would have arisen by virtue of the rightful balance with the question of access.
performance on the event of it being an authorized use Internationally, although musical works and
and the reward for such an act of performance. It may performances have been argued to be mutually
not seem that performers require such economic exclusive,13 this argument only applies towards the
incentives to continue performing, however the factum of performance being a mode of communication
intention behind the same is to ensure that if there are to the public and the musical work being the subject
performers who actually require such monetary matter of copyright. Every musical performance
incentives, in terms of needs of survival and embodies music within itself and hence a singer who
sustenance in a capitalist society, which is the status performs music must be accorded performers rights,
quo, they are provided for the same, to ensure that irrespective of their contribution to the music in itself, to
they do not seize to practice and continue to exist, economically provide for the labour involved in a
irrespective of privilege.9 Of course this incentive “performance” or the act of communicating the musical
needs to be balanced with access problems ,and such content, in a primarily capitalistic jurisdiction like India.
incentives cannot exist at the cost of access of works
to the public, however a rightful balance needs Contentious Issues in the Scheme of Performers
to be drawn, which does not take away reasonable Rights in India
prospects of performers from existing in the society. This article seeks to discuss the following two
This theory and reasoning is further supported by the contentious questions with regard to the interpretation
Lockean Concept of “Just Desserts” and the labour of Performers Rights provided under Section 38 of the
theory which seems more relevant in the case of Indian Copyright Act, specifically with respect to
performers rights rather than copyrights10 and has also Singer’s Rights:
been acknowledged in the fundamental precedent of (1) Whether Section 39A of the Indian Copyright
Sayre v Moore.11 This precedent seems especially Act, providing for the application of Section 18 and
relevant in a capitalist society, wherein by virtue of 19 to performers as well (inalienable right to receive
 AGRAWAL: INTERPRETING “PERFORMERS RIGHTS” IN THE INDIAN COPYRIGHT ACT 7

royalty) in case of assignment, use and broadcasting bill is passed.21 The Statement of Objects and Reasons
of the qualifying performances for commercial uses, of the 2010 Copyright Amendment Bill (which went
is applicable with a prospective or a retroactive/ on to be passed as the Copyright (Amendment) Act,
retrospective effect? 2012), primarily states one of the purposes of this
(2) Whether Performers Rights are available for amendment to be conformity and concurrence (to the
performances taking place in the studio as well, or extent necessary) with the international standards of
only those conducted before an audience and in a Performer’s protection as specified by the World
concert- like setting? What is the meaning of “live” Intellectual Property Organisation in the WIPO
under Section 2(q) of the Copyright Act? Performers and Phonograms Treaty (WPPT).22 Further,
There is pending litigation14 as well as contrary recent formal accession to this treaty by the
judgments15 on these questions in India, reflecting a Government of India signifies the intention of this
“humpty-dumpty” jurisprudence. provision.23
The WIPO Performances and Phonograms Treaty,
Retroactive or Limited Retrospective Application of
Performers Rights 1996,24 in its Preamble, states the intention of this
The legislature, through the 2012 amendments to international agreement to be to develop and maintain
the Copyright Act, furthered a pro-active change the protection of the rights of performers and
towards beneficial protection of performers, wherein producers of phonograms in an effective and uniform
Section 39A was introduced. This Section extends the manner. Article 3 of this treaty, under sub-section 1,
application of Sections 18 and 1916 to performances states that the contracting parties shall accord
and performers rights, with necessary adaptations and protection provided under this Treaty to performers
modifications.17 Section 18 and 19 of the Copyright and phonograms establishing an obligation upon
Act provide for “Assignment of Copyright” and the accession.25 Further, Article 15 of this treaty provides
inalienable equitable right to royalty of the authors for the Right to Remuneration for Broadcasting and
with the assignee upon exploitation of the work.18 The Communication to the Public which states under
extension of the same to performances and performers sub section (1) that Performers and producers of
implies an inalienable right to royalty for the Phonograms shall enjoy the right to a single equitable
performers on the event of exploitation, assignment remuneration for direct or indirect use of phonograms
and broadcasting of their performances. The question for commercial broadcasting or communication of
for litigation before the Delhi High Court,16 concerns such performances to the public.26 This is in
as to whether this inalienable provision of royalties correspondence to Section 39 A read with Section 18
extends to performances which have taken place (proviso 3 and 4) of the Indian Copyright Act, 1957.
prior to 2012 as well. It is clear that no complete Importantly, Article 17 of the WPPT states in its
retrospective application can be suggested due to the sub-section (1) that the term of protection to be
unimaginable number of claims from prior to 2012 granted to performers shall last at least until the end
which would come up for litigation, including the of 50 years from the end of the year in which
royalty claims thereto,19 however this question the performance was fixed in a phonogram.27 This
concerns with acts of unauthorized reproduction of clearly denotes that there is an intention to include
performances recorded prior to 2012 (performances performances taking place even prior to the treaty as
that took place prior to the amendment), although long as the cause of action (broadcasting) is within 50
reproduced or broadcasted post the amendment. years from the origin of the performance and after the
enaction of this treaty. An analogous provision can be
This issue was also debated and argued by Javed
found even in the Indian Copyright Act, 1957 under
Akhtar, in the Parliamentary debates concerning the
Section 38 (2) which also seems to include all
2012 amendment act, and was acknowledged by the
performances i.e., before or after the amendment
Parliamentary Committee.20
came into force.28
Intention of the Legislature Further, the Statement of Objects and reasons also
To ascertain the true historic intent and inducement states the clarification and beneficial intention of the
of the legislature while bringing in a statutory Amending Act with regard to the provision of
provision, the Statement of Objects and Reasons are royalties to authors of literary and musical works and
considered to be a valuable and effective tool, performers (by virtue of Section 39 A and the
although not conclusive due to the debates before the applicability of similar provisions pertaining to
8 J INTELLEC PROP RIGHTS, JANUARY 2021

royalties in the case of performers as well) through the (incidence of liability) has taken place post 2012.
copyright societies.29 The Amending Act states its object There seems no reason to not provide for royalties to
to be the acknowledgment and adequate economic as singers whose labour was recorded and fixed prior to
well as moral incentives through compensation for the amendment and continues to be played and
performers and their socio-economic welfare as a class, exploited for commercial uses. Making a distinction
to promote creation of output.30 and providing for a prospective enaction of the statute
will be violative of Article 14 of the Constitution of
What is Retroactive or Limited-Retrospective Construction?
India i.e. Right to equal and fair treatment of equals
The word retroactive has been defined as
and similarly placed members of the society in law,36
“extending in scope or effect (of a statute, ruling etc.)
as these performances are being excluded from
to matters that have occurred in the past, also termed
the purview of royalty payments upon no basis
retrospective.”31 The Indian Supreme Court has,
whatsoever and continue to be exploited, rendering
however, gone on to slightly differentiate between the
stipulated incentives to be arbitrary.
concept of retroactive and retrospective by construing
retroactive to be a subset of the retrospective The Why Retroactive? The Case for Beneficial Construction
Court has stated32 that retrospective means looking While interpreting a statute, the inhibition against
backward and contemplating what is part or having Retrospective or Retroactive construction is not an
reference to acts or facts occurring before the act unalterable rule and varies secundum materium.37
came into place.33 Retroactive, on the other hand, Courts in India have repeatedly established that this
refers to creation of new obligations and duties upon universal assumption of prospective construction of a
transactions or considerations already having taken statute is applicable with low insistence in cases
place in the past, upon performance of a particular involving welfare legislations or a remedial statute.38
new cause of action.33 The presumption against retrospective enaction can be
In the case of a beneficial legislation like the one in done away with due to necessary implication. This
our case, the purpose of the new rule would be necessity is implied when the object of the statute is
defeated if it accounted for only those agreements that to cure an acknowledged evil and provide for a
were entered post the enactment of the rule.34 In an remedy in lieu of mischief or denial of a certain right
instance concerning the SARFAESI Act, the Supreme to a community or a class of individuals as a whole,
Court had held that “In case of retroactivity, or the lack of an equitable treatment thereto.39 The
Parliament takes note of the existing conditions and courts in India have held that if an amending act has a
promulgates the remedial measures to rectify those beneficial provision providing for compensation
conditions.”35 which accrues by virtue of a prevalent mischief or
The basic point is that in a statute involving a exploitation or uncompensated labour, it shall be
retroactive construction, the cause of action or interpreted with a retrospective or retroactive effect as
incidence of liability arises post the enactment/ is practically feasible, providing compensation to all
amendment of the statute (as opposed to a completely beneficiaries.40 Further, a statute which provides for
retrospective construction), however it takes into imperative benefits to a class or certain similarly
account and includes the extended class of people placed people must be read in consonance to expand
affected or transactions entered into even prior to the the effect of such benefit to all intended beneficiaries,
enactment/amendment. Hence it insinuates the irrespective of the date of them attaining the status of
principle of limited retrospectively benefitting and a beneficiary. In such situations, unless the statute
not discriminating against two people- one who specifically provides for no retrospective/retroactive
completed the transaction prior to the act as well as construction, it cannot be implied.41
one who has completed the transaction post the act, as Further, in case of a statute being brought into
long as the cause of action takes place post the effect in order to comply with international standards
statutory stipulation. or due to experience gathered by the parliament
This construction is relevant in the context realising a need to further provide certain imperative
performers in order to provide for the payment of rights and incentives, an application with retroactive
royalties for performances that have taken place prior effect, covering beneficiaries who entered into
to the amendment as well as post the amendment, transactions pre-amendment, which continue to be
provided that the reproduction or broadcasting exploited as well, is highly recommended.42
 AGRAWAL: INTERPRETING “PERFORMERS RIGHTS” IN THE INDIAN COPYRIGHT ACT 9

While interpreting Section 39A of the Copyright providing for the same has appropriately been named
Act or Clause 28 of the Copyright (Amendment) Act, as the “Compensating Legacy Artists for their Songs,
2012, the intent of the legislation is to provide for a Service and Important Contributions to the Society or
right to compensation to the performers on the event CLASSICS Act, upon extensive lobbying by pre-1972
of broadcasting or communication to public, in the artists and performers.48 In light of this, it is essential
form of royalties, to incentivise the specialised skill for the Indian Judiciary to take into account this
and labour involved in the performance. Before policy consideration while interpreting the 2012
this amendment, there has been no such provision Amendment Act.
of royalties or any form of compensation for the
labour induced by the performers.12 This beneficial Broad Construction of a “Live Performance” in the Copyright
Act
amendment to the Copyright Act was introduced in
The definition of a “Performance” under Section
order to avoid a deprivation of the merit, labour and
2(q) of the Copyright Act,3 specifically includes the
creative choice employed by these performers in a
requirement for the act to be “live”. Further,
performance. Therefore, in light of the beneficial
statutorily, explanation 3 of Rule 68 in the Copyright
construction of this statute providing for the welfare
Rules, which is a delegated legislation enacted by the
and economic benefit of performers and to conform
Central Government, provides that the definition of
with the principal policies laid down by the WPPT,
“Live” includes a performance given in a studio.49
Section 39A of the statute must apply retroactively
and cover performances which came into existence The Debate Around the Interpretation of “Live”
prior to the amendment (2012) as well. Even the 1994 There has been a debate around the meaning of
amendment to the Copyright Act, which within its Section 2(q) of the Indian Copyright Act and the term
purview, introduced this concept of Performers Rights “live” in the Indian Courts, yielding contrary
in India, provides in its statement of object and judgments and per-incuriam usage of a High Court
reasons that this amendment to the act is for the precedent by a Lower Court.17 The argument against
benefit of the performers.4 Rule 68 is that the explanation was brought in post the
2012 amendment through an executive clarification,
Analysing the International Position and seeks to bring unplugged performances, plays and
The UK High Court has acknowledged the interviews which are generally conducted in the
retrospective application of Performers Rights to the studio under the purview of “live”. Extending the
extent of including performances, which took place same to all studio performances including those of
before its enaction, within its purview, in a decision songs which are recorded and then produced and
that states that performances that took place decades presented in a sound recording or a visual format has
before the enaction of the legislation are also covered been vehemently opposed by record labels.50 In the
and an act of broadcast or reproduction post enactment case of Sushila v Hungama Digital Media Private
would result in accrual of royalties to the performers.43 Ltd., the Delhi District Court at Patiala House,
Further, importantly, as a policy benchmark, the UK has restricted the meaning of live to only those
CDPA within itself expressly states the inclusion of performances made before an audience or in a
all performances within the purview of performers concerted atmosphere, be it in a studio or otherwise.51
rights, irrespective of them coming into place before It has followed the strict literal rule of construction
or after the act bringing in those rights.44 relying on tools like the Oxford Dictionary.
Following UK, Ireland45 as well recognises this Such a narrow construction is without any
position and such a construction has also been application of mind has been rightly rejected by the
advocated by the Ministry of Economic Development Delhi High Court in the case of Neha Bhasin v Anand
of New Zealand46 with respect to its national statute Raj Anand52, as it goes against the purposive nature of
concerning performers rights. Performers Rights and the rights exist in the first
As far as the United States is concerned, the Music place.10 It also is extremely arbitrarily when viewed
Modernization Act, 2018, has under its Title-2 from the point of such rights to be incentive. The
mandated the provision of royalties for performances author often wonders – why would the legislature
and recordings which took place before the enactment want these performers to be incentivised to perform
of the Copyright Act as well. The legislation on stage and not in a studio? What can be the reason
stipulated this beneficial intention.47 The Title for such a difference in thought? The author can’t
10 J INTELLEC PROP RIGHTS, JANUARY 2021

think of any, and it is a completely arbitrary court has delved or pronounced upon. Secondly, even
interpretation when looked at from the perspective of if there is a difference in communicating live to the
why these rights exist as a tool to incentivise more public and by the act of diffusion, the act of
performances. Performers, including singers, through communication by diffusion does not preclude
a performance, irrespective of directly before an protection for a performance which is firstly recorded
audience or through a recorded medium, act as a and then diffused. There has been a performance,
catalyst to transmit the musical/dramatic/literary which is perceived by the audience due to the act of
content from the composer or the author to the diffusion and must be accounted for when according
perceiver or the audience.6 This transmission involves incentives. The performance of the musical content
an element of ingenuity, labour, judgment and skill, took place in the instance and thereafter was
and there is a need to economically incentivise the communicated by the medium of diffusion. The
same for the society to experience more expressions difference in the “communication to the public” by
in a consequentialist sense especially in a capitalist diffusion or display as mentioned in Section 2(ff), in
society.11 Even in a song performed in a studio, there no way is to affect the definition of a performance and
is this element of labour involved on the part of the the ambit of a “live” performance under Section 2(q).
performer, although the performance may be edited Such a distinction in a performance shall be baseless,
prior to being communicated to the audience. This in as both an input of skill and labour which is either
no way implies for a differential treatment denying communicated to the public by diffusion or direct
these artists any incentives. display. It is to be noted herein that the creative
The Delhi High Court in the case of Neha Bhasin, intervention of performers is deemed necessary to
has rightly stated that every performance has to be give life to musical, dramatic and choreographic
live in the first instance, irrespective of it being before works and to facilitate communication to the public
an audience or in a studio.52 The Court further stated and this catalytic role and investment must be
that irrespective of the forum involved, once the incentivised for the existence of more and diverse
instance of the performance takes place, certain expressions.
amount of skill and labour is inputted which requires
ingenuity and judgment, and hence must be protected, Purposive Interpretation of the Provision
for incentives to be ensured.52 The intention of The strict literal interpretation of “live” by the
bringing in the word “live” in the definition of the Court in the case of Sushila goes against the principle
“Performance” through the 1994 amendment to the of purposive construction of a statute. It has been
Copyright Act seems to be avoid inclusion of acts recognised by the Supreme Court of India that “The
solely developed by the use of technology and words of a statute, when there is a doubt about the
computer without any body-work or labour. Even a meaning, are to be understood in the sense in which
performance in a studio by a singer, is first performed they best harmonise with the subject and object of the
and sang (inducing labour and creative acumen), enactment. Their meaning is found not so much in a
which is recorded and worked upon. strict grammatical or etymological propriety of
The Court in the case of Sushila has denied the language, nor even in its popular use, as in the object
application of the reasoning in Neha Bhasin and has to be attained or the subject on the occasion of which
passed a per-incuriam decision relying upon the they are used.”54 When two interpretations are
Division Bench judgment in the case of IPRS v Aditya possible, one which advances the remedy and the
Pandey wherein it was stated that, “Performers Rights object envisioned by the legislature in the most
introduced by the 1994 amendment, required a efficient way must be preferred, to avoid the
division of the subject pertaining to live performances legislative futility and vagueness.55
while communicating the work to the public and when In the statute at hand, the purpose behind enaction as
communication was by way of diffusion53, hence has been established in the initial part of the article is to
interpreting the intention of the legislature to provide for an imperative socio-economic benefit to all
segregate such performances as “live”. There are two performers who expend skill and labour in transmitting
problems with the reliance on this judgment and this content to be perceived by the audience.56 Therefore, this
particular interpretation. statute must be construed purposively to give effect to
Firstly, this was an assertive argument by IPRS in the rights of all performers who contribute the requisite
this case and was not a question of dispute which the skill and labour in a performance.
 AGRAWAL: INTERPRETING “PERFORMERS RIGHTS” IN THE INDIAN COPYRIGHT ACT 11

Various restaurants and music venues gain Additionally, a limited interpretation of “Live”
immense commercial benefit and have a huge would reverse the Queen’s bench decision in the case
customer base because of the kind of music which of Rickless v United Artist Corps.62 where essentially
they play. This results in direct commercial benefit to the performances in question were that on a film and
these venues due to the skill and labour invested by not on a stage before an audience. Yet the Court went
the singers and performers of the musical work used, ahead and provided for performers rights to all the
who are accorded no benefit for the usage and performers. Even specific to the case of a performance
broadcast of their performance. This is an absurd in a studio, such a limited interpretation of a live
construction and goes against the primary object of performance has not been indulged in by the courts.63
performers rights, as there is no justifiable reason to Hence every performance rendered in real time,
discriminate between those performances in the studio irrespective of it being in front of an audience, on a
and on a stage setting, while according incentives. stage, or in the studio, ought to be covered under the
The Supreme Court of India has further held in definition of a Performance under Section 2(q) to
principle that the court while interpreting a statute effectively provide for Performers Rights and the
must hold the construction which is just, reasonable right to royalty to singers upon exploitation of their
and sensible57and least offensive to the sense of performances by virtue of electronic diffusion as well
justice.58 Justice Venkatrama Aiyar has further as direct display.
established the sound legal principle of statutory
interpretation stating, “Where the language, meaning Conclusion
and grammatical construction, leads to a manifest In the backdrop of this theoretical discussion
contradiction of the apparent purpose of the surrounding the interpretation of Section 39A and
enactment, or to some absurdity, presumably not Section 2(q) of the Copyright Act, and their intended
intended and unjustifiable, a construction maybe put meaning with light to the international practice,
upon it which modifies the meaning of the words or the utilitarian cum-personhood bent of the Indian
expands or limits it, as suitable…”59 position on copyright, the author, through this article,
Ergo, to avoid the absurdity and the unjustifiable conclusively argues that it is the most prudent that:
anomaly which the narrow definition of the word “live” (1) Section 39A of the Indian Copyright Act, be
purports, it is imperative that this provision should be given a retroactive effect, to accommodate the
purposively interpreted to include all performances performances that took before the amendment to the
taking place in the instance, irrespective of it being provisions of this act and,
in a studio or before an audience, providing for a (2) The definition of a live performance be
broad meaning of “live”. Further, such a purposive construed to be broad enough to include all
construction of a statutory provision has often been performances which were rendered in real time,
employed by courts internationally, while interpreting inspite of them being before an audience or not. This
provisions passed to implement international agreements is a departure from the literal interpretation of the
or conventions as has specifically been done in this case provisions, but rather towards the progressive contextual
of Performers Rights.32,60 and harmonious construction of the provisions of the
Indian Copyright Act.
The International Position
Justice Richard Arnold has argued that providing a References
1 Clause 14, Copyright (Amendment) Act, 1994, Act No. 38 of
narrow and limited definition of live, restricted to 1994.
performances before an audience, will result in 2 Indian Copyright Act 1957, Section 2(qq).
denying performers rights to a lot of performers 3 Indian Copyright Act 1957, Section 2(q).
including film actors who essentially perform before 4 Novartis v Union of India (2013) 6 SCC 1 [29].
5 Statements of Objects and Reasons, Clause 14, Bill No. 105,
the camera itself, and would result in a chilling effect 1992, Copyright (Amendment) Act 1994.
on these rights.61 The definition of live can only 6 Understanding Copyright and Related Rights (2016) WIPO,
be restricted to not include such performances 27-28.
which have parts of a pre-recorded song in a new 7 Morgan, International Protection of Performers Rights (Hart,
2002), Chapter 2, drawing on Schechner, Performance
performance (mashups or remixes) or if the Theory, (Routledge, New York, 1988).
performance is totally and effectively computer 8 Arnold R, Performers Rights, (2008 Sweet and Maxwell ed. 4),
generated (Electronic music).61 1.03.
12 J INTELLEC PROP RIGHTS, JANUARY 2021

9 Morgan, International Protection of Performers Rights (Hart, 32 Shanti Conductors v Assam State Electricity Board, (2019)
2002), Ch. 3 and Towse, “Copyright and Economics” in Frith SCC Online SC 68, 57.
and Marshall, Music and Copyright, (2nd ed. Edinburgh 33 Shanti Conductors v Assam State Electricity Board, (2019)
University Press, 2004). SCC Online SC 68, 58 citing Jay Mahakali Rolling Mills v
10 Locke J, “Labour” (published 1693), in M Goldie (ed.) John Union of India (2007) 12 SCC 198.
Locke: Political Essays (Cambridge University Press, 1997) 34 Shanti Conductors v Assam State Electricity Board, (2019)
326-328: referring to the importance of Labour in “useful SCC Online SC 68, 54.
and mechanical art”. 35 MD Frozen Foods Exports (P) Ltd. v Hero Fincorp Ltd.
11 (1785) 1 East 361. (2017) 16 SCC 741, 755 [39].
12 Rebecca Tushnet, 'Performance Anxiety: Copyright 36 The Constitution of India 1950, Article 14; Western UP
Embodied and Disembodied' (2013) 60 J Copyright Soc'y Electricity Power and Supply Co. Ltd, v State of UP, AIR
USA 209, 214. 1970 SC 21, 24.
13 Hadley v Kemp (1999) EMLR 589 (5-11). 37 Barber v Pigden (1937) 1 All ER 126: (1973) 1 KB 664
14 CS (Comm) 1546/2016, CS (Comm) 1547/2016, CS (Comm) (CA) (Scott, LJ).
1623/2016, CS (Comm) 1624/2016, CS (Comm) 487/2016, 38 Guru Prasanna Singh, Principle of Statutory Interpretation
CS (Comm) 896/2017, Delhi High Court. (10thedn Wadhwa and Co., 2006) 804.
15 Neha Bhasin v Anand Raj Anand (2006) 132 DLT 196 in 39 Mithilesh Kumari v Prem Bihari Khare (1989) AIR 1989 SC
comparison to Sushila v Hungama Digital Media 1247, 1254; Zile Singh v. State of Haryana (2004) 8 SCC 1,
Entertainment Pvt. Ltd. & Super Cassettes Industries Private 9; Guru Prasanna Singh, Principle of Statutory Interpretation
Limited (2018) C.S 426/18 (ADJ-01, Patiala House Court, (10thedn Wadhwa and Co., 2006) 476.
New Delhi). 40 Oriental Fire & General Insurance v Shantabai S. Dhume
16 Only Section 18 and 19 are relevant within the scope of this (1986) 1987 ACJ 198 [5]; A. Vilasini and Ors. v K.S.R.T.C
article. This Section applies to other sections including and anr. (1988) AIR 1989 Ker 95 [15].
Section 30, 30A, 33, 33A, 34,35,36,53,55, etc. as well. 41 Bharat Singh v Management of New Delhi Tuberculosis
17 Indian Copyright Act 1957, Section 39 A (inserted by Center., (1986) AIR 1986 SC 842 [11] [16- 17].
Copyright (Amendment) Act 2012, Clause 28. 42 Pratap Singh v State of Jharkhand and Ors., (2005) AIR
2005 SC 2731 [100], [109].
18 Indian Copyright Act 1957, Section 18 (1) proviso 3 and 4;
43 Experience Hendrix LLC v Purple Haze Records Ltd and
Section 19 (9), (10).
anr. [2005] EWHC 249 (Ch), 5.
19 Parliamentary Debates on the Copyright Amendment Bill
44 Copyright Designs and Patent Act 1988, Section 180 (3):
2010, LP/6:30/4d, 29-30, <[Link]
“The rights conferred by this Part apply in relation to
content/uploads/2018/03/Sibal-Speech-1-
performances taking place before the commencement of this
[Link]>.
Part; but no act done before commencement, or in pursuance
20 Parliamentary Debates on the Copyright Amendment
of arrangements made before commencement, shall be
Bill 2010, LP/6:30/4d, 22, <[Link]
regarded as infringing those rights”.
content/uploads/2018/03/Sibal-Speech-1-
45 Robert Clark, MáireNíShúilleabháin, Intellectual Property
[Link]>.
Law in Ireland (Kluwer Law, 2010) [194].
21 The Gujrat University v Shri Krishna RanganathMudholkar 46 ManatuOhanga, Performers Rights- A discussion paper
(1963) AIR 1963 SC 703 [20]; Oriental Fire General (Crown Copyright 2011) [48].
Insurance v Shantabai S. Dhume (1986) 1987 ACJ 198 [5]. 47 115th Congress Report, 2nd Session House of Representatives
22 Statement of Objects and Reasons, Copyright (Amendment) 115-651, Music Modernization Act (April T 25, 2018) [To
Bill, 2010, 14,15 [3(i)(ii)]. accompany H.R. 5447] 88.
23 Govt. of India, ‘Cabinet approves accession to WIPO Copyright 48 115th Congress Report, 2nd Session House of Representatives
Treaty,1996 and WIPO Performers and Phonograms 115-651, Music Modernization Act (April T 25, 2018) [To
Treaty, 1996’ (Press Information Bureau, 4 July 2018) accompany H.R. 5447] 15-16.
[Link] 49 Copyright Rules 2013, Rule 68: Explanation 3 - For the
(accessed on 10 July 2018). purpose of this article, performance includes recording of
24 Adopted by the Diplomatic Conference on December 20, visual or acoustic presentation of a performer in the sound
1996. and visual records in the studio or otherwise.
25 WIPO Performers’ and Phonograms Treaty (1996), Article 50 Rauta A, Guest Interview: Ankit Relan- IT, Media and
3(1). Entertainment Attorney, Partner- Mason and Associates,
26 WIPO Performers’ and Phonograms Treaty (1996), Article IPRMENT Law, 11 March 2008, <[Link]
15(1). 2018/03/11/guest-interview-ankit-relan-it-media-
27 WIPO Performers’ and Phonograms Treaty (1996), Article entertainment-attorney-mason-associates/>
17(1). 51 C.S 426/18 (ADJ-01, Patiala House Court, New Delhi) (2018).
28 Indian Copyright Act 1957, Section 38(2). 52 132 DLT 196 (2006).
29 Statement of Objects and Reasons, Copyright (Amendment) 53 SCC Online Del 2645 (2012) [19].
Bill, 2010, 14,15 [3(ix)]. 54 Workmen of Dimakuchi Tea Estate v Management of
30 Statement of Objects and Reasons, Copyright (Amendment) Dimakuchi Tea Estate, AIR 1958 SC 353, 356; Santasingh v
Bill, 2010, 14. State of Punjab, AIR 1976 SC 2386, 2389; Ashok Singh v
31 Black’s Law Dictionary (9thedn. 2009). Assistant Controller of Estate Duty, AIR 1992 SC
 AGRAWAL: INTERPRETING “PERFORMERS RIGHTS” IN THE INDIAN COPYRIGHT ACT 13

1756,1761; Maxwell on Statutes (12thEdn.), 76; Guru 58 Madhav Rao Jivajirao v Union of India, AIR 1971 SC 530,
Prasanna Singh, Principle of Statutory Interpretation 576; Union of India v B. S. Agarwal, AIR 1998 SC 1537,
(10thedn Wadhwa and Co., 2006) 113. 1546.
55 Carew and Company v Union of India, AIR 1975 SC 2260, 59 Tirath Singh v Bachitar Singh, AIR 1955 SC 830,
2270; Bipinchandra Parshottamdas Patel v State of Gujarat 833 cited in Maxwell, Interpretation of Statutes (11thedn),
(2003) 4 SCC 642, 657-658; Busching Schmitz Private Ltd. v 221.
[Link], AIR 1977 SC 1569, 1575-1576; SP Jain v 60 James Buchanon and Co. Ltd. v Babco Forwarding and
Krishan Mohan Gupta (1987) 1 SCC 191,201. Shipping UK Ltd. (1977) 3 All ER 1048; Horvath v
56 Statements of Objects and Reasons, Clause 14, Bill No. 105, Secretary of State for the Home Department, (2000) 3 All ER
1992, Copyright (Amendment) Act 1994; Shanti Conductors 577, 580 (HL).
v Assam State Electricity Board, (2019) SCC Online SC 68, 61 Richard Arnold, Performers Rights, (2015 Sweet and
57; Raghbir Singh, Iyengar’s Commentary on the Copyright Maxwell ed. 6), 2.26.
Act (8thedn, Universal 2013). 62 1988 QB 40.
57 Nasiruddin v State Transport Appellate Tribunal, AIR 1976 63 Mad Hat Music v Pulse 8 Record (1993) EMLR 172; Bassey
SC 331, 338. v Icon Entertainment plc (1995) EMLR 59.