This article is written by Aarti Gosavi, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.
Table of Contents
Introduction
IPRS stands for Indian Performing Rights Society. Copyright societies are administrative organizations formed by copyright owners of any literary, musical or artistic work. These societies are duly registered societies under Companies Act, 1956. Copyright Societies are non-profit organizations. A copyright society must be registered according to Section 33 of the Copyright Act, 1957. Section 33 mentions that no organization, association or any person will be able to grant licenses to any organization for commercial purposes without itself being first registered as a copyright society. IPRS reregistered itself as a copyright society in 2017 after the amendment to the Copyright Act, 2012. Some of the copyright societies in India are PPL, ISRA and Novex Communications.
When and why was it formed?
Copyright societies are formed by copyright owners of any literary, musical or artistic work. The owners of any literary or musical work do not have the resources to keep a check on any unpermitted and unlicensed use of their work once the work gets released. Thus copyright societies are formed to keep a watch on any illegal use of the work throughout the country where if any illegal use is found then accordingly the offender is penalized for the illegal use. The copyright societies are able to take royalties from international organisations due to the corresponding agreements with similar societies in those countries. The author of literary, musical or artistic work as soon as becomes a member of the copyright society finds it very effortless to enjoy the economic benefits of the commercial exploitation of their works.
What is non-recorded music?
Non recorded music is live performance by artists at any event in India. It involves songs sung by the artist which have been written by the artist or any music rendered to the song by the artist. The artist is the owner of the song and has obtained copyright for the same and not used anywhere and recorded before. These days due to pandemic live concerts are being performed live online due to social distancing norms in place where the audience can view the concert from the comfort of their homes without having the need to step out anywhere and risk their lives.
What are the rights that are getting violated of the person who has performed live?
The person who performs live is protected by section 38 of Copyright Act, 1957. Section 38 of the Copyright Act talks about performer’s right. Under Section 2(qq) of the Act performer includes an acrobat, musician, singer, actor, juggler, snake charmer, a person giving a lecture, or any other person who makes a performance. Any act performed live by the performer is protected by copyright of the performer. Those acts were then recorded without the permission from the performer and were broadcasted through various mediums and were commercially being exploited. The revenue earned through commercial exploitation of these live performances were never shared with the performers and hence Section 38 was enacted after the amendment in Copyright Act in 2012. It is now in accordance with Article 14 of TRIPS agreement and Articles 5 to 10 of WIPO Performances and Phonograms Treaty. Section 38 enabled performers to prevent anyone from infringing on their copyright and not to use their works for commercial purposes without the performers getting due share of their royalty except if the work is being used for fair dealing for non-commercial purposes under Section 52 of Copyright Act, 2012.
What are the different types of music categories for which licenses are taken in India?
Music license is taken for the following types of music categories:
- Public performance – This type of category covers music played at arcades, multiplexes and shopping plaza, IT / InfoTech centres / Parks /Industries/Automobile Showrooms, amusement park, hotels and guest houses, rooms lodges, motels, holiday homes or any such lodging premises and clubs, event LP/DJ recorded music performances or live performances at venues / premises, malls pub and disco, publications, restaurants, bars, lunch homes, coffee shops, dining rooms, lounges, cafes office canteens, eating houses and all premises of a similar nature, retail premises, standalone commercial banquets, auditoriums, service oriented premises, sports, travelling passengers, waiting premises, transportation services.
- Television /Radio – Television satellite broadcast, RDB: Radio Broadcast Community Radio Broadcast.
- OTT/ Streaming/Physical Medium – Utilization by Cinematography Films on Physical Medium and Electronic Digital Medium By Sale – Download Renting Streaming, Internet Non Interactive Music Streaming services, Internet Interactive Music Streaming Services, Karaoke Service on Internet, Utilization by Sound Recording On Physical Medium or Electronic Digital Medium by Sale – Digital Download.
- Ringtone or Caller Ring Back Tone.
- Music in Commercials/Advertisements/Promos/Corporate Videos/Audios.
In order to curb Covid – 19 infections from spreading everywhere all live music concerts are happening online and IPRS has yet to come up with the tariffs for live music to be performed online.
What is the procedure to obtain a music license from IPRS in India?
There are various categories of music licenses for which one get license from IPRS. The procedure to obtain music license is as follows:
STEP-1 Selection of the Music License category
There are various music categories for which music license is given to the applicants in India
STEP-2 Create an Account
The Applicant has to first select the applicable music category and then get registered on the website of IPRS. The Applicant has to then create an account on website of IPRS by filling in the following details:
- Name
- Address with State and PIN
- Contact Number
- E-mail ID
- GST
- TIN
- TAN
- PAN
- Password for Login
STEP-3 Verification of contact details
In step 3 the Applicant has to verify the phone number and email id.
To know more about IPR please visit
STEP-4 Payment of Music License Fees
In step 4, the candidate has to acknowledge with all terms and conditions and the pay the applicable fees online for the applied music category of the music license. The Applicant has the option to pay the fees online through HDFC portal. Once the payment is received by the IPRS the Applicant will get the receipt through SMS and email.
STEP-5 Introduction Letter by IPRS
The IPRS then sends an introduction letter to the Applicant after the payment of fees by the Applicant which means that the Applicant has been registered in the IPRS database.
LIVE Performance Group
In the case of Live Performance, the Applicant has to provide more information for the venue of the live performance Event. The Applicant also has the option to add more venues. The venue will be used by the Applicant for any further Event.
The following steps should be adhered to with reference to the venue:
- Venue creation in case if the Event is being held, but the venue is not created on the website.
- Filling the details of venue form and submitting it.
- Venue selection from existing venue list
- New venue for a new Event must be selected.
The following steps should be followed with respect to Event creation:
- Dates of the Events or performance as to when the Event will be performed has to be written.
- Appropriate fee or tariff for the Event will then be displayed.
- Minimum ten songs performed have to be performed at the Event.
- Enter the title of the song to be performed at the Event.
- Then, the applicant has to pay the money as mentioned in the Background Music category.
The information in the above paragraph is available in this link- https://www.iprs.org/licences/
Case Study: ISRA v/s Night Fever Club and Lounge
In the above case ISRA which includes famous personalities as members like Lata Mangeshkar, Usha Mangeshkar, Suresh Wadkar, Gurudas Mann, Pankaj Udhas, Alka Yagnik, Kumar Sanu amongst others appointed an investigation agency after receiving information that their music is being played at the club without the permission from the members of ISRA and also without any payment of royalties to ISRA. The investigation agency after investigating, recorded a sample of the music being played at the club as evidence. The members of ISRA then found out that the songs were being played by the club without the Performers Rights Clearance Certificate by ISRA. This was considered to be public performance of the songs belonging to the members of the ISRA and the playing of these songs at the club greatly increases the footfall at the premises which further increases the commercial profits made by the club. The court held that the performer is entitled to receive royalties from the producer of the cinematographic film even though he/she has given written permission to include his/her performance in the cinematographic film and also restrained the club from further playing the music in their club without taking written permission and paying the royalties to ISRA.
Conclusion
Thus non recorded music is also copyrighted and hence cannot be used by anyone especially for commercial purposes without the original author’s express consent except if the work is being used for Fair dealing as mentioned under Section 52 of Copyright Act, 2012. The live public performance of any song even if it is for free needs No Objection Certificate from ISRA.
References
- https://shodhganga.inflibnet.ac.in/bitstream/10603/199650/6/chapter%20-%204.pdf
- https://www.copyrightuser.org/create/creative-process/going-for-a-song-track-3/
- https://law-arts.org/pdf/Legal_Issues_in_the_Music_Industry.pdf
- https://www.myadvo.in/blog/public-performance-license/
- https://www.mondaq.com/india/hotels-hospitality/688352/supreme-court-orders-bengaluru-restaurants-with-live-bands-to-obtain-licenses-from-police
- http://www.legalservicesindia.com/article/2455/Copyright-License-For-Playing-Music.html
- https://indianexpress.com/article/explained/play-the-music-face-the-music-what-the-copyright-act-says-3074420/
- http://copyright.gov.in/Documents/Copyright%20Societies.pdf
- https://www.mondaq.com/india/copyright/463106/copyright-society-under-the-copyright-act-1957#:~:text=According%20to%20Section%2033%20of,societies%20since%20June%2021%2C%202013.
- https://www.copyrightuser.org/wp-content/uploads/2017/10/CU_CaseFile_26.pdf
- https://selvams.com/blog/delusion-indian-performance-rights-society-part-copyright-society/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
- https://www.mondaq.com/india/copyright/709542/delusion-over-indian-performance-rights-society-being-a-part-of-copyright-society
- https://www.ipwatchdog.com/2017/05/29/musicians-protect-music-intellectual-property/id=83619/
- https://swaritadvisors.com/learning/how-to-get-music-license-in-india-5-steps-to-get-started/
- https://www.mondaq.com/india/copyright/625742/legitimacy-of-iprs-and-ppl#:~:text=Both%20IPRS%20and%20PPL%20have,a%20registered%20society%20in%202013.
- https://vakilsearch.com/advice/copyrights-music-india/
- https://www.khuranaandkhurana.com/2013/12/16/copyrights-enjoyed-by-musicians/
- https://corpbiz.io/music-license
- https://learn.quicko.com/ppl-iprs-music-licence-registration-procedure
- https://www.lexology.com/library/detail.aspx?g=036a8c12-1261-442b-b521-02d036b1075f#:~:text=Although%20the%20IPRS%20was%20first,rights%20to%20a%20copyright%20society.
- https://www.mondaq.com/india/copyright/662682/re-registration-of-iprs-as-copyright-society
- https://indiankanoon.org/doc/159551075/
- https://selvams.com/blog/judicial-recognition-of-performers-rights/
- https://racolblegal.com/performers-rights-under-the-indian-law/
- https://www.iprs.org/licences/
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