Ilayaraja’s copyright notice to S.P. Balasubramanyam asking the singer to pay royalties for performance of his musical compositions in USA has provoked debates, arguments and discussions on various fronts. To the question, does S.P Balasubramanyam need a license to perform his own works (songs he sang and recorded for films)? ; The answer is a simple and straight forward – Yes! S.P Balasubramanyam has to take two licenses for each song he wishes to perform – one for the lyrics, and one for the musical composition. For several years, music composers and record labels in India turned a blind eye to live performances of singers, but that does not mean that they cannot take action, or insist on payment now. Arguing that a singer must be allowed to perform his works without royalty liability may be emotionally well founded, but has no basis in copyright law.
Owing to multiplicity of works (lyrics and musical compositions), multiplicity of authors and multiplicity of owners, it is not easy for a singer, or any one in the business of performances like radio stations, television channels, streaming websites, etc., to acquire a license or permission for using the works and their recordings without difficulty. To address the problem, collective management organizations and copyright societies came into being and flourished when sound recording technology emerged. These organizations administer and license works on behalf of authors and owners, and share royalties with authors/owners after deducting a small administration fee. A person seeking to perform the lyrics and compositions of songs administered by an organization may acquire a single license for all the works from the organization. While some of these one-stop licensing agencies have statutory backing and may be mandatory collection agencies, others are voluntary associations/societies.
For his shows, S.P. Balasubramanyam could have acquired a license from one of these collective management organizations, but as it stands today, that is not easy because all authors, and owners are not members of these organizations. Also, normally, each country has a different collective management organization, and whether a work can be licensed in a country or not depends on author/owner membership in an organization, and/or reciprocal arrangements between organizations administering works. Indian Performing Rights Society (IPRS), which was in the news for misappropriation and legal standing as a society, is one of the collective management organizations that administers works on behalf of authors and publishers. Though IPRS has more than three thousand five hundred members, many authors and publishers have not joined the society, and its relationships with management organizations in other countries is not comprehensive. Therefore, as it stands today, S.P. Balasubramanyam or any other performer must approach several licensors to acquire licenses for his shows. This is not just impractical, but close to impossible.
While some works are managed by societies, others are managed by copyright owners, and many others continue to be held by authors (lyricists and music composers), and one must independently approach these persons, and/or their authorized agents or licensees to obtain performance licenses. One addition to this complication is the factum of ownership of lyrics and musical compositions, and the change in law with respect to royalty sharing in 2012. Traditionally, lyrics and musical compositions were commissioned by producers or record labels for valuable consideration, and by the ‘Work for Hire’ doctrine, ownership of those works vested with producers. The Supreme Court of India confirmed the producer’s ownership in works commissioned for a film in the Eastern India Motion Pictures case. Simply put, if a composer or lyricist creates works for a film for compensation, the works belong to the producer. Owing to the said principle, many lyrics and musical compositions copyrights are today held by producers, or record labels, who might have acquired them from the producers.
In 2012, the Copyright Act was amended, and authors were given what is commonly referred to as ‘the right of royalty.’ The right of royalty gives authors (lyricists and music composers) the right to receive royalty with respect to utilization of their works (lyrics and musical compositions) outside cinema halls. This royalty continues to vest with the author even if he /she had transferred ownership in the works to the producer, record label, or another person by way of ‘work for hire’ or ‘assignment.’ In the said circumstance, the copyright ownership is with one person and the right to receive royalties with another person. The multiplicity of payments mandated by the law adds another element to the equation.
As of today, a law abiding singer seeking to perform his songs must make a list of works he wishes to perform, identify who owns them and who is authorized to license them for public performance, check how many of them are governed by a collective management organization in the country of his performance, verify how many of the songs, lyricists and music composers have the right of royalty, etc., and approach appropriate persons for licenses. Despite all diligence, a performer cannot be certain that he will be free from copyright infringement risks. Where does this leave an Indian singer seeking to make some money out of live shows? It leaves him with no option but to take the risk and infringe copyrights, and deal with it when it arises. Ideally, the singer must place the responsibility of acquiring copyright permissions on the event organizer/manager, and focus on his singing, but we do not live in an ideal world. We live in a world where everyone is looking to push the burden on someone else.
To sum up, Ilayaraja’s notice to S.P. Balasubramanyam has a copyright basis, but may not be completely well founded. Copyright ownership of many of Ilayaraja’s compositions might today be vesting with producers or record labels, and Ilayaraja may have no rights over them. For his compositions after 2012, Ilayaraja must look into his contracts and/or work for hire relationship to determine if he owns the works. If he does not own the works, can he send a copyright notice to S.P. Balasubramanyam and demand royalty or license fee? Of course not. But, the notice has been sent, and as this is unlikely to go to Court, we will not have an opportunity to find out if he has the rights.
On the other hand, should S.P. Balasubramanyam continue infringing copyrights of others? Now that copyright issues with respect to performances have come to his attention, is it not prudent to establish a licensing process for his shows. The unsaid understanding between copyright owners, composers and performers may continue to subsist, and so will copyright risks.
Image Source / attribution here, governing license CC BY 3.0
Also published in The Indian Economist
