By Dr Kalyan C. Kankanala
Ilayaraja’s notice to S.P. Balasubramanyam asking the singer to pay royalties for the performance of his musical compositions has provoked debates. Does SPB need a license to perform the songs he sang for films? The answer is a simple yes. SPB has to take licenses for lyrics and for musical composition for each song he wishes to perform. In the past, music composers and record labels turned a blind eye to live performances of singers, but they can take action, or insist on payment according to the copyright law.
Owing to the multiplicity of works, authors, and owners, it is difficult to acquire a license for using their recordings. Collective management organisations and copyright societies administer and license works on behalf of authors and owners, and share royalties with authors or owners after deducting a small administration fee. A person seeking to perform a song may acquire a single license for all the works from the organisation.
Politics of Licensing Authorities
For his shows, SPB could have acquired a license from these institutions, but it is not easy for non-members of these organisations. Also, normally, each country has a different collective management organisation, and whether a work can be licensed in a country or not depends on author or owner membership in an organisation, and/or reciprocal arrangements between organisations administering works.
Indian Performing Rights Society (IPRS) is one of the collective management organisations that administers works on behalf of authors and publishers. It was recently in the news for misappropriation and legal standing as a society. Though IPRS has more than three thousand five hundred members, many authors and publishers have not joined the society, and its relationships with management organisations in other countries are not comprehensive. Therefore, SPB or any other performer must approach several licensors to acquire licenses for his shows, which is impractical.
Law of Licensing
While some works are managed by societies, others are managed by copyright owners, and many others continue to be held by authors. One must independently approach these persons, and/or their authorised agents or licensees to obtain performance licenses. The factum of ownership of lyrics and musical compositions experienced a change in law with respect to royalty sharing in 2012. Traditionally, lyrics and musical compositions were commissioned by producers or record labels. Hence as per 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. Hence, 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.
Royalties vs Copyright
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 the right to receive a royalty for utilisation of their works outside cinema halls. This royalty continues to vest with the author even if he had transferred ownership to the producer, or record label, 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.
To sum up, Ilayaraja’s notice to SPB 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 to determine if he owns the works. If he does not own the works, he cannot send a copyright notice to SPB.
On the other hand, should SPB continue infringing copyrights of others? Now that copyright issues with respect to performances have come to his attention, it is 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.
Dr. Kalyan C. Kankanala is Chief IP Attorney, BananaIP Counsels (BIP Counsels) and holds the position of CEO, Invenomics. He is part of the visiting faculty at NLSIU and IIMB. He is also an author and novelist.