The ‘4th FIM International Conference on streaming’ organized by Musicians Federation of India in Mumbai saw some intrinsic discussions on the session “The rights of performers in India and neighboring countries”. Moderated by Beat Santschi( Vice President FIM, President SMV Switzerland the panel included eminent panelists Shri G.R Raghavender Joint secretary department of Justice-India, Saveena Bedi Sachar (lawyer, Lawhire Associates-India, Dr. Wimonrekha Sirichairawan University of Phayao Thailand.
G.R Raghavender began by giving a historical sketch of how performance rights were first introduced in India saying, “In late 1980 the Indian film industry legend late actor Dev Anand filed the case in the Mumbai high court saying that he is a performer and thus need his rights on royalties. Unfortunately, the court said that the copyright law does not recognize the performers then. But, later recognizing his efforts the Indian government went ahead to introduce the already existing performer rights introduced in the Rome Convention of 1960.”
Initially the Copyright Act, 1957 was only concerned with providing protection to work limited to books, painting, and films but later, on account of the amendment brought forth in Copyright Act, 1994, the right of the performers was recognized under Section 38 of the said Act and the concept ‘Performers Right’ was introduced.
Raghavender continues, “The right also defines a performer as an actor, singer, musician, which is very important for the musicians federation of India. So for musicians whose individual performances are being exploited, do they have the right to receive royalties? In 1977 we amended the collective management provisions under which ‘Performing rights society’ and ‘Indian singer rights society’ to guide the performers on what they need to do.”
Talking about the scenario of streaming Ragavender said, “Eventually, new rights were amended in India to help performers in the internet era too. Streaming has introduced disruptions in the context of music and content and also has introduced new business models for collecting royalty but has also worked to the interest of all stakeholders especially the performers who are being neglected a lot. So we are here to discuss how musician’s rights can be protected either by registering as a separate collective rights society or being a part of the existing IPRS or to follow and explore the different business models that Europian countries have. Streaming has brought down physical piracy as per IFBI and CICAC reports, and also streaming has brought a collection of royalties, but still new kind of piracy has begun internet piracy is effecting collection of royalties for each of the stakeholders are it authors, composers, musicians, and music labels.”
Pointing to the reason of internet piracy Raghavender concludes by addressing a Historical mistake which happened in the Bejing Treaty which did not define the role of internet service providers, and said, ” Do we need a treaty for ISP liability to protect piracy around the world”…indeed a food for thought!
Saveena Bedi Sachar addressed certain practical issues in the Indian music IP industry saying, “When section 38 was written or performers rights were incorporated in the Copyright Act, there was no line which clearly said that the performers cannot wave their rights as was specified for writers, which indicated that, writers rights to royalty cannot be waived, which the final owners of the rights or broadcasters or producers have taken to their benefit.
“Further, the definition of performance contains the word Live in it, however, Live performances not only in India but worldwide are recorded, thereby allowing the definition to be used by the owners for their benefit, by misconstruing the same by stating that performance once recorded cannot be considered as live. There is a copyright society for singers, however, there is no copyright society for actors and musicians per se and although several years have passed there is no copyright society for scriptwriters as yet. Moreover, something needs to be done for the live performers, wherein performances are recorded, rearranged and exploited in sorts by composers, and then those are not regarded as live. However live performances today are primarily limited to weddings and birthday parties which is not healthy for the music industry, and if the rights of performers are kept in priority, it will help the music industry as a whole. All the laws for the benefits of the musicians have been twisted and turned, which is very unfortunate, ” added Sachar.
Adding further Sachar said, “The definition of performance under the copyright act says it’s a live performance so if you go to a broadcaster or a producer who are very powerful in the industry, use it for their benefit by saying that the law is about live performance, so why do we pay a royalty for a recorded performance. But what is a recording, it’s recording a live performance?”
Sachar points out, “We have few established people in the music industry like I have heard of singer Mr. Sonu Nigam who has fought for royalties, but as a result, some performers faced the brunt that the industry kind of boycotted them from giving them work. So we need some kind of international support which are put uniformly, as it will really help India because ultimately the holding companies are mainly international and if they are willing to pay the royalties in other international countries they should follow the same in India too, however looking at the environment here they work differently. Even film producers are dependent on the studios which these holding companies own and thus international support is imperative.”
Dr. Wimonrekha Sirichairawan, “For Thailand, we are the members of the treaty already and follow the copyright act of 1994. In Thailand the government has amended the second time the copyright act in 2015 to prevalent the violation of performance and copyrights. The court shall have the right to authorize the offender who has to pay for infringement of the copyrights of the performers and the court has the power to confiscate and destroy the material which has been created.”
The Copyright Act B.E. 2537 (1994) Act introduces amendments to on Rights Management Information (RMI), Technological Protection Measures (TPMs) and exemptions from copyright liability for Internet Service Providers (ISPs).”
Present on the occasion were John Smith President FIM UK, Ray Hair VP FIM UK, Geidy Lung Senior Counsellor Copyright law division WIPO, Ratish Tagde President MFI India, Kishore Jawade General Secretary MFI and eminent personalities from the Indian music industry.