In the
wake of the adoption of the Music Modernization Act in
the US, is the same outcome possible and desirable also in other jurisdictions?
The 1709 Blog is happy to host the following reflections by Akshat Agrawal (Jindal
Global Law School) with regard to the Indian context.
Here's what Akshat writes:
In light of the enactment of the
Music Modernization Act in the United States a few days ago (11 October 2018),
this post focusses upon the intention and the importance of Title 2 of the act
and proposes a similar position for the Indian Copyright jurisprudence and
policy development.
Performers’ rights were introduced
into the Indian Copyright Act under section 38 through an amendment to the act in 1994.
These rights have been accorded to performers under the definition provided by
Section 2(qq) i.e. a person delivering an acoustic or a visual presentation
live. As per the Delhi High Court, ‘live’ under this section needs to be interpreted in
a broader sense as to include every performance made in real time, regardless
of it being before an audience (concert or a stage performance) or in a studio.
This has also been recognised by Explanation 2 of Rule 68 provided in Copyright Rules enacted in 2013. These rights are completely
independent of ownership of ‘works’ and are categorised as related rights,
protecting the interests of legal entities and persons who contribute to making
works available to the public. The creative intervention of such performers is
deemed necessary and catalytic to give life to musical, dramatic and
choreographic works and to facilitate their communication to the public.
Section 39 A of the Indian Copyright
Act, introduced by the 2012 Amendment, provides for the application of Section
18 and 19 to performers as well, along with the authors of works. This
incorporates provision of certain amount of royalties to the performers in case
of assignment, usage and broadcasting of the qualifying performances for
commercial purposes. A retrospective construction of this provision is
imperative to include provision of royalties in performances as well as
broadcasting acts done prior to the 2012 amendment. The intention is
specifically to provide for adequate remuneration to singers who are not
accorded authorial rights in musical works due to ownership being vested with
the composers or lyricists of a song. The skill which is inputted by singers
needs to be recognised in live concerts as well as live studio performances. Anyone
using their performances for commercial communication to the public ought to
principally owe royalties for all this labour invested. This is applicable to both
cover/tribute bands performing songs originally performed by these singers
(apart from transformative use or parody), as well as restaurants or bars
broadcasting their recorded performances.
Intention of the Legislature
The Statement of Objects and Reasons (page 14) of
the Copyright Amendment Act, 2012 as mentioned in the Amendment Bill 2010,
expressly states its purpose to be clarity of interpretation and compliance
and conformity with certain international standards set by the World
Intellectual Property Organisation in the WIPO Performances and Phonograms
Treaty. A beneficial construction of the Amendment Act can sufficiently be
implied on the reading of the Statement of Object and Reasons, that is the
encouragement and acknowledgment of these performers as well as provision of
moral and related rights accrued to them. It has been enacted for the imperative
socio-economic welfare of the “performers” class as a whole, to promote creation
of output through this much needed acknowledgment of the creative labour put
in. It is an established principle of law that the Statement of Objects and Reasons do often
furnish valuable material to ascertain the true intent and inducement of the
legislature and are effective interpretational tools. Further, India recently acceded to the WIPO WPPT as
well, which mandates such an interpretation.
Beneficial Construction
The inhibition against retrospective
construction is not a rigid rule and must vary secundum materiam. It is
applicable with less insistence in case of welfare legislations or a remedial
statute. The objective of any rule is to provide a fair solution. Presumption
against a retrospective construction can be overlooked by necessary implication.
This necessity is implied when a new law is enacted to cure an acknowledged evil and provide for necessary compensation for mischief to a community or class suffering as a whole. It has
been repeatedly held by the Supreme Court of India that an
amended provision which is beneficial in nature, providing for benefits to a
certain class of people, who accrue certain compensation due to a mischief that
has been prevalent, shall be applicable to all such beneficiaries irrespective
of the date and hence with a retrospective effect. In such cases, till it is
expressly mentioned in the statute that there would be no retrospective
construction, it cannot be implied. Hence to provide for such
welfare, it is essential to be applied to cases and subject’s pre-amendment as well.
In a situation where it is provided
that the intention of the legislature enacting the amendment is compliance with
prevalent international standards, and this intent is ascertained by the
experience gathered by the parliament after a previous enactment, realising a
further need to provide for certain imperative benefits, then an application
with retrospective effect is highly recommended. Further, when the amendment provides for an
imperative benefit to a whole community, even in absence of an express
provision, the competence of the legislature to intend it to be retrospective cannot be questioned.
As far as the 2012 amendment to
Section 39 of the Copyright Act is concerned, the intent has already been
established to provide for an imperative right of compensation to the
performers upon exploitation of their performances because of it being a
creative endeavour alongside involvement of specialised skill and labour. Hence
certain provisions of the 2012 Copyright Amendment Act providing for imperative
benefits for the welfare of the whole performer community and for conformity to
the principal policies levied down by the WIPO, should apply retrospectively.
With respect to singers who aren’t
given authorial rights in their work, this compensation is an effective tool
for acknowledgment and integrity because the expression in the musical work is
highly dependent on the creative capability of these singers. It takes an
immense amount of labour and investment of time to hone the skills required to
sing in musical works, and totally being denied of any royalties on the usage
of their performance is highly unfair and disincentivising for singers. A lot
of restaurants and music venues gain commercial benefit and have a huge
customer base because of the kind of music which is played therein. This
results in direct commercial benefit to these venues due to the skill and
labour invested by the singers and performers of the musical work used, who are
accorded no benefit for the usage and broadcast of their performance (no
authorial rights accorded). Hence a beneficial construction of performers
rights is a must to uphold the imperative rights of this community. This would necessarily
imply a retrospective operation i.e. provision of royalties for the use of performances
which took place before the 2012 amendment as well.
International Position
The United States has recently
enacted the Music Modernization Act, 2018 which, under its Title -2, has mandated the provision
of royalties for performances and recordings, which took place before the
enactment of the Copyright Act as well. The rationale of retrospective
protection on such a provision has been implemented in this jurisdiction by
virtue of a legislative enactment. It has appropriately been named “Compensating
Legacy Artists for Their Songs, Service, and Important Contributions to
Society, or CLASSICS Act.’’ This clearly denotes the intention to expand the
scope of benefit which is provided to musicians and performers. The enactment
has taken place post many musicians expressing their concern
regarding this issue, for instance Johnny Cash.
The High Court of England and
Wales has also
recognised the need for retrospective construction of performers rights against
unauthorised exploitation, to be enjoyed by all performers of the work. This
decision has confirmed that performances that took place decades before the
introduction of performers rights are also covered under this provision and any
unauthorised usage would lead to a compulsory provision of royalties. The equitable
need for such an inclusive construction as a matter of principle can also be
recognised by the express inclusion of such performances, as qualifying for
provision of royalties, in the CDPA (Section 180 (3)). Therefore it is a viable
policy consideration to immediately recognise this in India and apply Section
39 provisions to performances before the 2012 Amendment Act as well. Following
the footsteps of UK, even Ireland and New Zealand have recognised this
position.
The performers rights regime needs a
purposive and beneficial construction to realise and implement the intent of
the legislature. It is imperative to provide for an adequate remuneration
mechanism to these performers as it not only acts as an effective incentivising
tool, rather also facilitates acknowledgment of specialised labour and provides
for much required integrity. Hence it is argued that Section 39 of the Indian
Copyright Act should include performances originating prior to the enactment of
the amendment as well.
