Performing Rights in India: Statutory Architecture, Judicial Trajectory, and Emerging Contours

Performing Rights in India: Statutory Architecture, Judicial Trajectory, and Emerging Contours

1. Introduction

Performing rights – the exclusive entitlement to perform a work in public or to communicate it to the public – occupy a pivotal position in Indian copyright jurisprudence. The interface between authors of musical and literary works, producers of sound recordings and cinematograph films, and the collective management organisations (CMOs) that administer these rights, has spawned extensive litigation and statutory reform. This article critically examines the evolution of Indian performing rights through the lens of landmark judgments, statutory amendments, and regulatory practice.

2. Statutory Framework

  • Section 14 of the Copyright Act, 1957 (hereinafter “the Act”) demarcates independent copyright bundles for literary, dramatic and musical works [s. 14(a)] and for sound recordings [s. 14(e)]. The right “to perform the work in public or communicate it to the public” appears in both clauses.
  • Section 13(4) safeguards the “separate copyright” in underlying works notwithstanding the making of a sound recording or cinematograph film.
  • Section 17 declares the author as the first owner but subject to the producer’s primacy when works are created under a contract of service or apprenticeship for films (provisos (b) & (c)).
  • Section 33 mandates registration of a “performing right society” for transacting licensing business – the statutory foundation for Indian Performing Right Society Ltd. (IPRS) and Phonographic Performance Ltd. (PPL).
  • Section 31D (inserted 2012) introduces statutory licensing for broadcasting organisations, profoundly impacting royalty markets.

3. Historical Jurisprudence: From EIMPA to the 2012 Amendments

3.1 The 1977 Supreme Court Watershed

In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association (1977) 2 SCC 820, the Supreme Court held that, absent a contrary contract, the producer of a cinematograph film becomes the first owner of musical works embodied in the sound-track, thereby eclipsing the public-performance claims of composers and lyricists.[1] The ruling, grounded on the then text of Sections 14, 17 and 18, effectively subordinated authorial performing rights to producer control and shaped licensing practice for decades.

3.2 Critical Appraisal

While EIMPA aligned with “works made for hire” logic, it attracted doctrinal critique for undermining author autonomy and for overlooking Section 13(4)’s preservation of underlying copyrights. Judicial dicta such as V.R. Krishna Iyer J.’s lament that musicians receive “no copyright” protection for their sublime singing underscored the perceived inequity.[2]

3.3 2012 Amendments – A Normative Re-set

Parliament addressed the imbalance through the Copyright (Amendment) Act, 2012. Amongst other measures it:

  • Inserted Section 19(10) guaranteeing authors of literary and musical works an inalienable right to share royalties for utilisation of their works as part of sound recordings not forming part of films.
  • Added Section 18(1) proviso to prevent full assignment of author royalties in perpetuity.
  • Strengthened CMO regulation by substituting Section 33 and adding Section 33A.

Although the amendments do not legislatively overrule EIMPA, they carve out non-assignable royalty streams and reaffirm duality of rights – reviving the salience of performing rights societies.

4. Dichotomy of Rights: Underlying Works v. Sound Recordings

4.1 Delhi & Bombay High Courts in Dialogue

Post-amendment jurisprudence illustrates the delicate balance between Section 14(a) and 14(e). In Music Broadcast (Radio City) v. IPRS (2011 Bom), the court held that a broadcaster paying PPL for sound recording licences owes no separate royalty to IPRS for the embedded lyrics and music.[3] Driven by Section 13(4) and the autonomy of sound-recording copyright, the decision echoed EIMPA.

Conversely, IPRS v. Aditya Pandey (2012 Del) accepted that the author’s right to communicate underlying works to the public survives incorporation into a sound recording, but the Delhi High Court failed to give simultaneous effect to Section 14(e) rights of record producers and thereby drew Supreme Court criticism.[4]

4.2 Supreme Court Clarification – ICSAC v. Pandey (2016)

The apex court reconciled the rights-conflict, emphasising that sub-clauses of Section 14(a) are independent, yet they cannot extinguish the producer’s distinct rights under Section 14(e)(iii). Unless contractually limited, a producer retains the right to communicate the sound recording to the public, and author consent for such exploitation is presumed in the absence of contrary terms.[5]

4.3 Practical Implications

  • Licensees must secure clearances from both IPRS and PPL unless they rely on statutory licences (e.g., s. 31D).
  • CMOs must delineate their repertoires transparently to avoid double-licensing controversies and antitrust scrutiny.

5. Collective Management and Regulatory Oversight

5.1 Registration & Tariff Control

The Calcutta High Court’s pre-amendment decisions in Eastern India Motion Pictures Assn. v. IPRS (1974 & 1978) scrutinised proposed tariffs under Section 34. The judiciary emphasised that a CMO’s tariff cannot exceed the scope of the rights validly assigned to it.[6]

5.2 Service-Tax and Competition Law Intersections

In Commissioner of Service Tax v. IPRS & PPL (2017 CESTAT) the issue arose whether CMOs are “club or association” service-providers for levy purposes; the tribunal’s nuanced reasoning illustrates fiscal overlays on performing-rights administration.[7]

5.3 Enforcement Assistance

The Punjab & Haryana High Court protected PPL’s enforcement efforts against police interference, holding that law-enforcement agencies must act on copyright complaints without awaiting fresh Government notifications (PPL v. State of Punjab, 2011 P&H).[8]

6. Jurisdictional Mosaic: Forum Shopping and Section 62

6.1 Pre-2015 Landscape

Section 62(2) grants plaintiffs an additional forum where they reside or carry on business. High Court jurisprudence (e.g., IPRS v. Sanjay Dalia, 2008 Del) permitted CMOs to sue in Delhi despite infringing acts occurring elsewhere.[9]

6.2 Supreme Court’s Corrective – IPRS v. Sanjay Dalia (2015)

Adopting the mischief rule, the Court curtailed indiscriminate forum selection: where the plaintiff possesses a branch office in the place where the cause of action arises, it cannot invoke Section 62 to sue at a distant location.[10] Subsequent High Court decisions (Ultra Home Construction v. Purushottam, 2016 Del; Manipal University v. Manipal Holdings, 2018 Kar) have internalised the ruling, fostering predictability.

7. Broadcasting & Statutory Licensing

Digital convergence has heightened demand for blanket licences. Under Section 31D, radio broadcasters obtain statutory licences by paying copyright board–determined rates. After the Intellectual Property Appellate Board’s (IPAB) abolition, the Delhi High Court now adjudicates rate-setting petitions (Entertainment Network India Ltd. v. PPL, 2021 Del).[11]

The dual-licensing regime remains, but Section 31D arguably reduces transaction costs and curbs market power of CMOs, although it raises constitutional debates on compulsory taking of property.

8. Persistent Challenges & Policy Options

  • Royalty Distribution: Implementation of Section 19(10) has been uneven; authors complain of opaque accounting. SEPs for transparency, akin to EU Collective Rights Management Directive, merit consideration.
  • Overlap & Double-Dipping: Clear statutory delineation or regulatory guidelines could mitigate disputes between CMOs representing overlapping rights.
  • Live Performance Exemption: The jurisprudence (e.g., Aditya Pandey line of cases) suggests that record-producers lack live-performance rights; explicit statutory affirmation would reduce litigation.
  • Digital Platforms: Extension of statutory licences to interactive streaming requires careful calibration to balance innovation with author remuneration.

9. Conclusion

Indian performing rights law has witnessed an incremental yet discernible shift from producer-centric orthodoxy towards a more equilibrated ecosystem recognising distinct and co-existent rights of authors, performers and producers. Judicial doctrine – especially the Supreme Court’s 2015 and 2016 clarifications – coupled with the 2012 legislative overhaul, has charted a nuanced course that endorses dual rights, disciplines forum shopping, and embraces statutory licensing as a public-interest tool. The emerging challenge lies in harmonising these principles with digital-age realities through transparent collective management, robust regulatory oversight, and continued doctrinal refinement.

Footnotes

  1. Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association, (1977) 2 SCC 820.
  2. Ibid, Krishna Iyer J., para 24 (criticising exclusion of musicians from copyright).
  3. Music Broadcast Pvt. Ltd. v. IPRS, 2011 SCC OnLine Bom 953.
  4. IPRS v. Aditya Pandey & Ors., 2012 SCC OnLine Del 2645.
  5. International Confederation of Societies of Authors & Composers v. Aditya Pandey, (2016) 2 SCC 39.
  6. Eastern India Motion Pictures Assn. v. IPRS, AIR 1974 Cal 257; Eastern India Motion Pictures v. PRS, AIR 1978 Cal 477.
  7. Commissioner of Service Tax, Mumbai-II v. IPRS, 2017 SCC OnLine CESTAT 175.
  8. Phonographic Performance Ltd. v. State of Punjab, 2011 RCR (Criminal) 776.
  9. IPRS v. Sanjay Dalia & Anr., 2008 SCC OnLine Del 1238.
  10. Indian Performing Rights Society Ltd. v. Sanjay Dalia & Another, (2015) 10 SCC 161.
  11. Entertainment Network India Ltd. v. Phonographic Performance Ltd., 2021 Del HC (COMM IPD-CR 8 of 2021 and connected matters).