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How Are Online Streaming Giants Eating Into Performers’ Rights in India?

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The rise of OTT platforms has created a need to reinvent performers’ rights in India. At the same time, they also chipped away the effectiveness of the existing law. Tanveer Malnas points to the requirement for extensive performers’ rights as OTT streaming platforms take over. Tanveer also explains the concept of performers’ rights in India and elsewhere while emphasising their inefficiency.

performers' rights in India

By Tanveer Malnas, a final year student from ILS Law College.

Introduction

Performer rights fall under Copyright law. It confers performers, producers, and broadcasters the rights of creative work, including their contributions as skill, capital, technical inputs and infrastructural facilities.[1]

Related rights were first recognised by the Rome Convention and further protected by WIPO Performances and Phonograms Treaty[2]. In the case of performers, rights granted to them emanate from their art and skill, which they use in performances and often lead to original works.

Necessary rights granted to performers by international treaties include the right to prevent fixation, broadcasting and communication of their performance without their consent and the right to prevent reproduction of fixations of their performance.[3]

Although penned as ‘right to prevent’, these rights generally exist as the right to equitable remuneration rather than prevent.

Status under Indian Law

In Fortune Films International v. Dev Anand[4], the Supreme Court of India denied the rights of an actor over his performance in a film. Further, the performer’s rights were not recognised by Indian Courts till the late 20th century.

The Amendment of 1994[5] to the Copyright Act brought recognition to performers’ rights in India and afforded protection for a period of 25 years, which further increased to 50 years by the Amendment of 1999.[6]

The Copyright Act 1957 of India now recognises performer’s rights and grants protection for these rights under Sections 38, 38A, 38B, 39 and 39A.[7] Section 38A of the Act confers upon the performers: rights concerning fixation, reproduction, distribution, communication, sale, rental and broadcast of their performance.[8]

Apart from these rights, an essential and relevant provision is attached to Section 38, which entitles the performers to obtain royalties to make the performance for commercial use, despite a valid agreement to incorporate performance[9].

Analysing Performers’ Rights in India Amidst the Rise of OTT

While it is clear that the Copyright Act 1957 has set out definite provisions for the protection of performers’ interest in works which incorporates their performances,[10] the questions arise: whether these provisions have actualised the aim behind their inclusion? And do they sufficiently protect the interests of performers?

Inclusion of Performer’s Right in the Copyright Act by the Amendment of 1994 has recognised that performers have interests (economic and moral) in acts involving their performances and the creative works that incorporate these performances. However, much is still left to be desired as benefits arising out of the legislation are quite rudimentary and significantly fewer than those envisaged by international treaties and the community.

The above-stated postulation finds substance when we look at the ground realities of commercial use of performances. Performers’ rights usually exist in the form of equitable remuneration.[11]

A simple look at the figures tells us that the portion of total revenue generated from work received by performers as royalties is much smaller than one would imagine. For example, on Spotify, the revenue generated by the platform is split between the platform and the right holders, i.e. record labels and publishers.[12]

Spotify pays the latter entities, and artists are left to their own devices to procure royalties from these parties.[13] This approach is widely prevalent in the streaming industry and gives rise to two main issues:

  1. Firstly, the dominance of publishing houses and record labels leads to a situation where most of the revenue (50-90%) stays with the company and performers merely receive a small part (around 10%) of it.[14]
  2. Secondly, it begs the question as to whether streaming platforms should be allowed to escape the liability to pay royalties to the performers by directly paying the copyright holders.

The first issue has been the main reason for a large scale protest by artists worldwide who criticise the payment mechanisms and policy of the streaming services, which has allowed for this dominance of major record-label and publishers.[15]

It can be seen that the percentage of revenue received by performers from online streaming in the form of royalties against their performer’s rights are significantly lower when compared to what they receive from the sale of hard copies of their albums.[16] The only solution to this issue is to bring changes to the payment mechanisms of streaming services.

However, these changes have been resisted due to pressure from major players. 17] Thus, a need for legal intervention is felt, providing better protection to performers’ rights and equitable remuneration.

As for the second issue, the law on this point is clear: royalties must be paid to the performers for commercial use of their performances regardless of any existing contract.[18] In the case of online streaming, both the streaming services and the copyright holder are commercially exploiting the recordings of performances. As such, both are liable for royalty payments, and the burden cannot be shifted solely on the right holders by the streaming services.

This offers a substantial question:

Why is there no enforceable right to obtain royalties from streaming platforms?

The answer is simple. The performer’s rights societies, such as the Indian Singer’s Rights Association (ISRA), are the record labels and publishers, and the current system benefits them.[19] Plus, the performers are neither well-versed with the law nor equipped to wage a legal battle against corporate giants.

A solution to this would be stricter regulation on the membership and functioning of performer’s rights societies to ensure that they function for the benefit of performers. Moreover, the Commercial Courts could be given investigative powers (previously the Appellate Board) to keep tabs rights and copyrights related practices.

Conclusion

Ever since the advent of publishing houses and the bifurcation of copyrights from related rights (which used to reside in a single entity earlier), the performers have always received the short end of the stick.

The current laws have been successful in paying recognition and royalties to the performers till now. However, with the recent developments in the entertainment industry and the expansion of online streaming platforms, we need significant changes in the existing laws to protect performers’ rights in India and ensuring equitable remuneration.

The rise of online streaming platforms has uncovered the lacuna present in the current copyright legislation, allowing the streaming platforms and the copyright owners to swallow a significant chunk of earnings generated by an artistic work, leaving the artists to fend on leftover scraps.

This development is nothing less than an onslaught on performers, who had been exploited even before the Amendments to Copyright Act came into force.

Better protection of performers’ rights is the need of the hour. However, it can only be done if appropriate changes are introduced to the copyright legislation to ensure that provisions exist both on the paper and in practice.

Endnotes

[1] Understanding Copyright and Related Rights, World Intellectual Property Organization, https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf

[2] Id.

[3] Id.

[4] Fortune Films International v Dev Anand & Anr AIR 1979 Bom 17.

[5] The Copyright (Amendment) Act, 1994, No. 38, Acts of Parliament, 1994.

[6] The Copyright (Amendment) Act, 1999, No. 49, Acts of Parliament, 1999.

[7] The Copyright Act, 1957, No. 14, Acts of Parliament.

[8] The Copyright Act, 1957, No. 14, Acts of Parliament, § 38A.

[9] Id.

[10] The Copyright Act, 1957, No. 14, Acts of Parliament.

[11] Performers’ Rights in International and European Legislation: Situation and Elements for Improvement, Aepo Artis, (Dec. 2014), https://www.aepo-artis.org/usr/files/di/fi/2/AEPO-ARTIS-study-on-performers-rights-1-December-2014-FINAL_201611291138.pdf

[12] Agence France-Presse, Spotify Launches Site to Explain How It Pays Artists Amid Demands for Per-Stream Payments, Gadgets360, (March 19, 2021, 11:02 IST), https://gadgets.ndtv.com/entertainment/news/spotify-artists-royalties-site-per-stream-payment-demand-revenue-protests-2394200#:~:text=It%20said%2013%2C400%20artists%20had,72.5%20lakhs).&text=But%20it%20added%3A%20%22Spotify%20does,pay%20artists%20or%20songwriters%20directly.

[13] Id.

[14] Ava Roche and Samuel Smith, How Does Money Flow From Music Streaming To Artists, Music Industry?, Hypebot, (Oct. 15, 2019), https://www.hypebot.com/hypebot/2019/10/a-breakdown-of-music-streaming-monetization-flow.html 

[15] Id.

[16] Id.

[17] supra note 12.

[18] The Indian Singer’s Rights Association v. Night Fever Club & Lounge (2016).

[19] Akshat Agrawal, Who Gets Paid For the Music You Listen To? Revamping Music And Copyright In India (Part-1), SpicyIP, (Dec. 9, 2020), https://spicyip.com/2020/12/who-gets-paid-for-music-revamp-music-copyright-india-part1.html 

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