Performer’s Rights: Unravelling the bundle

April 7^th 2020 marked the 100^th birthday of internationally celebrated composer and sitar player Pandit Ravi Shankar, who is known for ‘introducing’ Indian classical music styles (Hindustani and Carnatic) to the world. Apart from the numerous accolades and awards he picked up around the world (the Bharat Ratna, KBE, making it to the line-up for Woodstock ’69!), he’s also known to those partial to the Beatles for fraternizing with George Harrison (Norwegian Wood, anyone?). His daughter, Anoushka Shankar, a renowned sitar player and composer in her own right, reportedly intended to mark his birth centenary with a live stage concert along in collaboration with other reputed students of Ravi Shankar, many of whom are revered musicians.

However, Anoushka Shankar’s exploits in light of the COVID-19 pandemic (and its ramifications on mass gathering such as live concerts) are what take center-stage in this article. In line with the trend of hyper-digitization that COVID-19 has implicitly mandated, the live concert was replaced by a digital collaboration with the other performers. A video of this rendition of ‘Raag Sandhya’ is what came into being as a result (“Tribute Video”). This article purports to analyze the same under the lens of the Copyright Act, 1957, (“the Act”) specifically focusing on the framework for performer’s rights that is provided therein. I’m looking to explore how far claims invoking performer’s rights can go in light of the network of rights and works/performances involved.

THE RUDIMENTS

But before we delve into the legalese, I’d like to establish certain facts/assumptions that this article is premised on, based on the publicly available material.

1. For the sake of brevity, I’m excluding the visual performance element in/of the Tribute Video from the scope of this article and this discussion.

2. Further, all performances/presentations referred to in context of the Tribute Video and its sound recording component are deemed to be duly authorized by the author(s) of the underlying musical works.

MOSAICS AND PERFORMANCES

3. Each of the performers seen ‘performing’ in the video (i.e. Anoushka Shankar, Bickram Ghosh, Vishwa Mohan Bhatt etc.) ‘performed’ from their respective homes in compliance with the various lockdown orders in effect across the world.

4. In light of what is stated in the article here, I’m treating the underlying sound recording that is audible in the Tribute Video (“Master Sound Recording”) as a sound recording created by Anoushka Shankar. As such, she’s deemed to be the producer i.e. author of this Master Sound Recording.

5. Further, the Master Sound Recording appears to be a sound recording created by editing and aggregating/combining the sound recordings sent to her by the other artists performing the raag. To put it differently, Bickram Ghosh, sent her the cinematograph film containing a sound recording of himself as he played the tabla part of the raag alone from start to finish (“Tabla Track”). Similarly, Vishwa Mohan Bhatt sent in a cinematograph film containing a sound recording of him playing the mohan veena part of the raag alone from start to finish (“Veena Track”). All the other artists who can be heard playing on the Master Sound Recording, did the same. These cinematograph films (and consequently the underlying sound recordings) were not recorded at the same time or even on the same day. These underlying sound recordings/Tracks were collated[1]e. synchronized and edited by Anoushka Shankar to make them all sound ‘in time’, ‘in sync’ and ‘on the beat’, to create the Master Sound Recording that we hear as part of the Tribute Video.

6. This is fairly similar to the process by which most sound recordings of songs you’d find on the average music album (Bollywood or otherwise) are created.[2] However, there is one interesting factual difference that the underlying sound recordings such as the Tabla Track present – they appear to contain a full run-through of the entire song, meaning that the performer is presenting the entirety of his/her respective musical work or part in one go, from start to finish. In contrast, the industry norm is that the final sound recording of the average song is usually created by combining/synchronizing audio clips or ‘sessions recordings’ together. Roughly speaking, a session recording is basically a unitary sound recording capturing the presentation of a small segment of a song by a performer. In the typical song creation process, several such sessions/segment recordings are combined and synchronized to create the Tabla Track. In other words, in this scenario Bickram Ghosh would be sending multiple segment recordings of him playing different portions of the tabla part of Raag Sandhya, which are combined and synchronized to create the consistent Tabla Track heard on the Master Sound Recording. The same process is followed to create the Veena Track, Sitar Track etc., each of which comprise of the consistent Track in respect of the instruments being played by the various other performers. These Tracks are then finally combined to create the Master Sound Recording.

7. At times, the sessions/segment recording is directly embodied into the Master Sound Recording, skipping the Track step – it’s depends on how the producer (and team) prefer to go about it. Ultimately (and regardless of the steps followed), it is the confluence of these underlying sound recordings, arrived at by combining and synchronizing these various Tracks and/or session recordings, that we enjoy when listening to the Master Sound Recording. It is basically several sound recordings within a sound recording, on a level only matched by the movie Inception and the dream-within-a-dream-within-a-dream that Christopher Nolan tried depicting therein. To wax eloquent a bit further, the Master Sound Recording can be deemed a layered mosaic of sound recordings.

8. Both the processes described above, though factually distinct, boil down to the ‘same difference’ in terms of the law as it stands today, particularly in light of the judgment of the Hon’ble Delhi High Court in Neha Bhasin vs. Anand Raj Anand[3] [2006 SCC OnLine Del 440]. Without getting into the merits of the judgment or even analyzing it in context of the 2012 amendments to the Act, this article proceeds by accepting the observation therein that “every performance is live in the first instance, whether it is before an audience or is in a studio” and proceeds on that basis. Thus, regardless of the factual divergence presented by the song creation processes described above (i.e. whether the Tabla Track is created in the manner stated within paragraph 5 hereinabove or by combining segment recordings as stated in paragraph 6), the presentations by Bickram Ghosh as can be heard on the Tabla Track or the unitary segment recordings used to create the Tabla Track are all being treated as ‘performances’ within the meaning of Sec. 2(q) of the Act for the purpose of this article. Further, for the purpose of my analysis in this article, let’s assume that performers retain their rights under Sec. 38A of the Act in relation to their respective ‘performances’ – it is the reach of these rights that I’m mainly looking to analyze in this article.

9. Lastly, I’m assuming that each of the performers has granted Anoushka Shankar the rights under Sec. 14(e) of the Act in relation to their respective Tracks.

THE BLANK NOTES, THE SPACE BETWEEN AND THE REST(S)

10. To be clear, the scenarios above are in contradistinction to a scenario where the musicians performed ‘live’ i.e. they all came online and performed the song you hear on the Master Sound Recording at the same time, playing their respective parts i.e. musical notes or in unison or ‘in concert’ for their audience to view/hear it (digitally) as and when they play each note. This would be similar to a performance or even an interview on Instagram Live, Facebook Live and Youtube Live that you are enjoying as and when it happens, as opposed to a recording of such interview/performance that you may enjoy on these very platforms minutes, months or years after they have actually taken place – the latter relates to recordings of the performance as opposed to the performance itself. To take another example, assume 3-4 of your colleagues decided to burst into song during those dreaded Zoom calls that COVID-19 and the related lockdowns have forced upon us all. If you’re lucky (or unlucky) enough to be on that call, you view/hear their performance live. Anyone you can convince to join the call while the acapella assault continues, also gets to view/hear the said performance live. However, once your colleagues are done performing, the only way you get to share their brilliance with others is by way of that video/audio clip you sneakily managed to record of them while they were singing. These would most definitely fall within the scope of Sec. 2(q) of the Act. To reiterate, this article assumes that the Master Sound Recording is not a sound recording capturing the aural element of such a performance (i.e. of the nature described in this paragraph) and is created through either of the processes mentioned in paragraphs 5, 6 and 7 above. This distinction is necessary to point out, as the question of whether ‘performances’ such as those captured within the Master Sound Recording and even the Tabla Track, Veena Track etc. mentioned in paragraphs 5, 6 and 7 fall within the scope of “performance” as defined in Sec. 2(q) of the Act is currently sub-judice before the Hon’ble High Court of Delhi and in my personal view, those ‘performances’ fall outside the scope of Sec. 2(q) of the Act. However, this is again a moot distinction in context of this article as mentioned in paragraph 8 hereinabove, wherein I’ve stated that I’m assuming and proceeding on the basis that the Master Sound Recording, Tabla Track, Veena Track etc. contain performances that fall within the scope of Sec. 2(q) of the Act.

THE VERSE

11. Getting back to the Master Sound Recording, let’s analyze its creation process in context of the Act. Keeping the scenario painted in paragraph 5 in mind, Bickram Ghosh performed the musical notes (the tabla part) and recorded the Tabla Track. At this stage he is wearing two hats in respect of the Tabla Track – having rendered the acoustic ‘performance’, he enjoys the exclusive rights of a performer under Sec. 38A(1)(a) in respect of the acoustic ‘performance’ captured on the Tabla Track. He is also the author i.e. producer of this Tabla Track, having ostensibly recorded it himself on a device at his home. Thus, he also enjoys the exclusive rights under Sec. 14(e) in respect of the Tabla Track.

12. Now, Anoushka Shankar apparently edited and mixed this Master Sound Recording and then published it as part of the Tribute Video. Thus, the rights under Sec. 14(e) in respect of the Tabla Track, Veena Track etc. become crucial for this exercise. After all, the Master Sound Recording is an amalgamation of the aforementioned Tracks, created by exercising the rights under Sec. 14(e)(i), which go beyond mere reproduction rights. Having received the Tabla Track and all the rights under Sec. 14(e) in respect of the same, Anoushka Shankar now has the ‘producer’ hat in respect of the Tabla Track and can be deemed as the owner of the Tabla Track, enjoying the rights under Sec. 14(e). Bickram Ghosh can now make no claims in respect of the rights under Sec. 14(e) in relation to the Tabla Track. However, he still has the rights under Sec. 38A(1)(a) in respect of the Tabla Track.

THE 5 MINUTE DRUM SOLO 😉

13. I believe the that the rights under Sec. 38A(1) would not entitle Bickram Ghosh (assuming he were so inclined) to preclude Anoushka Shankar from (a) creating another sound recording (such as the Master Sound Recording) embodying the Tabla Track; and (b) subsequently communicating the Tabla Track to the public (as part of the Master Sound Recording or otherwise), which only she is entitled to do on account of the being the owner of rights under Sec. 14(e), which she now owns in respect of both the Tabla Track, as well as the Master Sound Recording. The rationale supporting this view exists on two levels. Sec. 38A(1), which relates to the sound recordings or visual recordings capturing a ‘performance’, does not contain or provide the performer with a right to “make a sound recording embodying” such sound recording. In other words, Sec. 38A never gave Bickram Ghosh the right to make another sound recording in respect of the Tabla Track containing his ‘performance’ – he only ever had this right, which is found exclusively in Sec. 14(e)(i), by virtue of being the author i.e. producer of the Tabla Track. But by granting these rights under Sec. 14 to Anoushka Shankar, he is precluded from preventing her from using the Tabla Track in such manner. Thus, she is free to use the Tabla Track to make the Master Sound Recording and thereafter enjoys the exclusive right to communicate the latter to the public.

14. We now look at the right to communicate the Master Recording (which embodies the Tabla Recording, Veena Recording etc.) to the public. Sec. 14(e)(iii) grants the author i.e. producer of a sound recording to communicate the sound recording to the public. On the other hand, Sec. 38A(1)(a)(iii) grants performers the right to make sound recordings in respect of their performances and then to communicate such sound recordings to the public. Thus, in contrast to the incongruence between Sec. 14(e) and 38A(1) analyzed in the preceding paragraph, we now have an overlap between the rights under Sec. 14(e)(iii) and Sec. 38A(1)(a)(iii).

15. Let’s look at this overlap in terms of the case at hand. First off, for the sake of clarity, let’s remind ourselves that the Tabla Track was ‘made’ by Bickram Ghosh himself, who then granted Anoushka Shankar the ownership of the Tabla Track and the rights under Sec. 14(e) in respect of the Tabla Track. Thus, the question of an infringement of the right to make a sound recording (being the Tabla Track) i.e. the right under Sec. 38A(1)(a) in relation to his ‘performance’ cannot arise. Moving on to the issue of communication to the public of the Tabla Track, I believe that Anoushka Shankar’s rights under Sec. 14(e)(iii) must prevail, to the extent that they overlap with Bickram Ghosh’s performer’s rights under Sec. 38A(1)(a)(iii). I say this on account of the neat little ‘without prejudice’ phrase tucked away in Sec. 38A(1), which in my view implies that the rights of an author cannot be prejudiced by the rights of a performer under Sec. 38A. To reiterate, to the extent of the overlap between the rights under Sec. 14(e)(iii) and Sec. 38A(1)(a)(iii), the rights under Sec. 14(e)(iii) that vest with the author (and the subsequent owner, as the case may be) of the sound recording made in respect of the performance, must prevail.

16. This ‘without prejudice’ phrase was inserted into Sec. 38A by the way of the 2012 amendment and was not present in Sec. 38 of the Act as it stood prior to said amendment. Thus, this phrase must be interpreted to bring out its full meaning, lest its insertion be rendered nugatory. In my view, this phrase clearly indicates that the legislator intended that in respect of a sound recording of a performance, the author/producer of the sound recording’s rights would trump those of the performer. As it stands, the law in India, has been interpreted (for better or worse) to say that the rights under Sec. 14(e) are absolute and are in no way inferior to the rights under Sec. 14(a)[4]. It has also been held that Sec. 14 does not indicate any order of priority between different classes of works and that it does not place any class of work above others. When adjudicating upon the question of an alleged overlap between the rights under Sec. 14(a) and Sec. 14(e) and how it may be resolved, the Hon’ble Courts have held that copyright in respect of the underlying works under Sec. 14(a) is not needed to exercise the rights under Sec. 14(e).[5] As there is no such ‘without prejudice’ clause in effect between Sec. 14(e) and Sec. 14(a), such an interpretation was inevitable (again, I am not dealing with the merits/demerits of these judgments and simply proceeding on the basis that they are valid law – please see the article here for a more detailed analysis or the merits of precedents relevant to these issues). In contrast, I am of the view that the ‘without prejudice’ clause in Sec. 38A clearly provides a means to resolve any alleged overlap between the rights under Sec. 14(e) and Sec. 38A(1)(a). If Bickram Ghosh was the owner the rights under Sec. 14, his case to preclude the use of the Tabla Track would arguably have been much stronger. Having only the rights under Sec. 38A, his only option would be to seek monetary compensation if he meets the parameters set out in Sec. 38A(2).

17. The analysis and arguments put forth in this article are admittedly centered around a bit of a ‘short story’ that’s based on reality. However, only time will tell if they are firmly founded in applicable law, as the issue of this overlap between Sec. 14(e) and Sec. 38A has not been argued or adjudicated upon in any of the judgments (regardless of whether they are valid precedents) on performer’s rights in India.

[1] This article relies on news reports/articles only to ascertain facts (to the extent possible) and does not read into the use of terms/phrases such as ‘live performance’ therein.

[2] This is in contrast to ‘live albums’, including recordings of stage concerts by performers before a live audience or which is even transmitted to an audience digitally, as and when the performance is made. For example, ‘Pulse’ by Pink Floyd.

[3] First and foremost, this judgment disposes of applications under Order 39 Rules 1 & 2 and Order 39 Rule 4 of the Code of Civil Procedure, 1908 filed by the plaintiff and defendants in the matter respectively. As such, the judgment is at best an interim finding. It’s noteworthy that the Hon’ble Court itself had categorically stated that “as regards performer’s rights, the Plaintiff definitely has a serious triable case”. This matter was thereafter settled, leaving no occasion for there to be a final judgment in the suit itself. Hence, I am not inclined to read into the judgment too much – doing so is not only unnecessary (since I’m writing this article after accepting this ‘finding’ on performer’s rights as stated above) but also possibly futile, since the perils of reading into interim findings have been set out in numerous judgments (For example, please see the Hon’ble Justice Gogoi’s concurring opinion in International Confederation of Socieities vs. Aditya Pandey, available here).

[4] IPRS vs. Aditya Pandey [after analysing Entertainment Network (India) Limited vs. Super Cassettes Industries Private Limited; (2008) 13 SCC 30].

[5] IPRS vs. Aditya Pandey. This judgment is admittedly an interim order, though it relates more to questions of law. This judgment contained what was deemed as an interim arrangement, that was ultimately approved by Hon’ble Supreme Court (as an interim measure). These issues were not adjuciated upon in the judgment for the suit due to procedural and unrelated issues.