Image from here
In a strikingly similar decision to the one reported by Prashant two months ago (Indian Singers’ Rights Association v Chapter 25 Bar and Restaurant, “ISRA-1”), the Indian Singers’ Rights Association has succeeded in another law suit brought about to enforce performers’ rights. The similarities are not just confined to the kind of reliefs prayed for or the grounds relied on; they even extend to the fact that this suit too was decreed ex-parte. As opposed to ISRA-1, “Dasti service” (service by hand through a process server) was ordered in this case. Nevertheless, substituted service by publication in the newspaper was not considered even in this matter before proceeding ex-parte. As Prashant had pointed out in his post, a number of credible grounds could have been raised by the opposite side had they came on record. Let me add a few more observations to them.
Facts, Arguments and Decision
The Defendant, Night Fever Club and Lounge, was using the Plaintiff society’s repertoire of songs without obtaining a ‘Performers’ Rights Clearance Certificate’ and were in violation of their members’ ‘Right to Receive Royalty (R3)’. Plaintiff not only sought a permanent injunction against this but also claimed damages and a rendition of accounts by the Defendants. In light of the rights available to performers in the form of S.18, 19, 38, 38A and 39A, the Counsel for Plaintiff contended that the actions of the Defendant were in clear violation of the rights of the Plaintiff’s members. The Counsel also placed reliance on past decisions of the Delhi High Court (including the one covered in our earlier post), to further his point. After the enumeration of the arguments by Plaintiff’s counsel, judge confines his decision to a few paragraphs and notes that the Plaintiff has proved infringement of the right to receive royalties. Not only was the Defendant restrained from using the Plaintiff’s members’ songs but they were also asked to render the account of all the monies earned from using the Plaintiff’s songs. Although the prayer for damages was declined in light of absence of evidence, he gave the Plaintiff the liberty to institute a separate proceeding for it once the Defendant rendered its accounts.
Analysis
One striking difference between the facts of ISRA-1 and the instant matter is that the infringing action in this suit was by way of “live performances” (para 2 of the decision) and not playing of recorded versions (or so I assume as there was no reference to live performances in ISRA-1). Thus, one could presume that other artists’ hired by the Defendant were performing the members’ songs and the Defendant was not merely playing the recorded versions of the Plaintiff’s songs.
This to me is relevant for two reasons- 1) there is no violation of the performer’s exclusive rights given under S.38A when other artists are singing the songs as there is no reproduction of the performers’ voice/ performance and 2) the right to royalty for a performer under S.38A is available in case of a “commercial use” and whether or not it was live or recorded does have a bearing on the intention of commercial exploitation by the Defendant. Although the scope of performers’ rights remains to be a bit of a grey area, the gamut of exclusive rights under S.38A read with S.2 (ff) can in no way be read to exclude others from performing live versions. While this in itself should be sufficient to thwart the Plaintiff’s claim for infringement, point no.2 above also requires consideration. In regard to point no.2, the judge observes that the “Plaintiff’s witness has stated that the public performances of the plaintiff’s repertoire at the defendant’s premises greatly enhances its ambience making the general experience of all those who visit the premises more pleasurable and enables the Defendant to enhance its commercial profits.” I strongly feel that the use of music (especially recorded) to enhance the ambience should qualify only as an incidental use and should in no way be deemed to “enhance commercial profits” and thus a commercial use. Either way, this issue was not dealt by at all by the court.
It is also noteworthy that the infringing songs were not listed in the judgment, although a reference to the Plaintiff’s submission of them through its witness affidavit is made. Yet another fundamental issue, which have not been analysed by either ISRA-1 or the present decision, is the performers’ rights over the recorded versions (for a discussion, see here). Thus, both these decisions missed out on a golden opportunity to settle some crucial issues of law.
Conclusion
I find it disconcerting that the Act in its present form potentially leaves open unlimited number of royalty claims. Even in the present factual matrix, a suit by the music director or the lyricist or even the producer for royalty would have stood an equally good chance. Worse still, imagine an instance of a video of a recorded song being played in a restaurant. Starting from the actors to who- not, everyone stands the chance of bringing a suit for payment of royalties. With ISRA having apparently released 250 claim letters post the 2012 amendments, we might just be witnessing the opening of floodgates with these decisions.