RadioandMusic
| 12 Dec 2019
Singer associations are playing more on human emotions than on law and are misleading everyone: Neeraj Kalyan

MUMBAI: The long-standing concern raised by singers on the entitlement or ownership of the songs they record, has had mixed reviews and opinions within the fraternity. The Copyright Act was amended four years ago, giving a possible ray of hope for singers. As with IPRS rights for music composers, lyricists were already safeguarded. The playback singers, however, were in a battle for a while.  Neeraj Kalyan, President at T-Series shares his firm thoughts from the perspective of a leading music label.

“The entire concept of Performer’s Rights under the Copyright Act relates to live performances only. If you see the definition of performance under section 2(q), it says – ‘performance in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers’ The claim of singer associations that a performer’s right subsists in even non-live studio performances is contrary to, both, the provisions of the Copyright Act, 1957 as well as settled precedents of the Hon'ble courts. Under Section 2(q) read with 2(qq) of the Act, a performer’s right vets in an ‘acoustic or visual presentation made live’. A performer’s right under Section 38A of the Copyright Act vests only in a live performance given for example on a stage, in live shows, award functions, concerts, live interviews etc. that too when that performance itself in the first instance was authorized or licensed by the owner of rights in the musical and literary works of a song. It is such a performance that is contemplated under Section 38A and is eligible for royalty, if any,” explains Kalyan.

To safeguard the rights and interest of playback singers, an organization Indian Singers' Rights Association ( ISRA) was formed couple of years ago. Recently, the organization had a victory of collecting and distributing royalties among registered members. Neeraj Kalyan opines his insights and speaks of law, “ISRA needs to realize that when a singer gives a vocal performance on behalf of a music composer inside a studio, it is in the nature of a “service” given under a contract-of-service and not a “live presentation” or “performance” of the nature envisaged under Section 2(q) and Section 38A or 38B. While the music industry pays utmost respect to the contributions of singers to the songs, their claim needs to be directed properly and must be legally tenable. Unless the claim is tenable, no one would agree to pay them."

According to the law for what it simply says, a singer has no such right to perform a song or communicate the song unless he first takes a written permission from the owner of rights in lyrics, melody and the sound recording, the music label. Therefore, a singer cannot license a right which he himself does not have, nor can ISRA do so. He continues, "What is more intriguing is how ISRA/singer associations are playing more on human emotions than on law and are misleading everyone. By saying they have a right to receive royalties on top of their voice at every forum, they won’t achieve much. This is what parties like IPRS had done in the past and see how several gaps in their dealings have been unearthed."  

Further sharing his thoughts on ISRA Kalyan states, "Had associations like ISRA approached the music industry with a fair demand with clear demarcations on who should get what and for what kind of performance, the industry would have definitely considered it. But, till the time, ISRA keeps making these demands with needless aggression and without much substance; no one in the industry will take them seriously. Being the owner of all rights in the song, the music labels and not ISRA have the exclusive rights of an owner under Section 14(a), 14(e), 38A and 55 of the Copyright Act."

A few years ago, during the making of Heartless, a movie by Shekhar Suman, erupted a war between the label and singers Sonu Nigam and Sunidhi Chahuan and their body ISRA. The singers were being asked to sign a contract giving rights to the music director, who would then pass it on to producers to reproduce the performance in any material form. While Neeraj refuses to comment on any pending cases, he elaborates on the legal loopholes ISRA currently has, "Well, since a case is pending between T-Series and ISRA, I don’t want to comment much. However, I do want to mention that the very registration of ISRA as a collecting society is illegal and needs a serious re-look. Under Sections 35(1) read with Section 39A of the Copyright Act, it was mandatory for ISRA to be subject to the collective control of “performers and owners” where the owners were to get an equal say in everything including “collection and distribution of fees”; “full and detailed accounts” of the society. Similarly, under Section 35(3) the governing council of ISRA was mandated to have an “equal number of performers and owners” in its governing council. Under Sections 34(3) and 35(2), 35(4), ISRA was further mandated to distribute royalty between performers and owners without discrimination. ISRA’s Articles of Association precludes owners of rights (music labels in this case) from becoming its members. The very registration of ISRA as a body is contrary to the provisions of the Act especially Section 33 and 35." 

According to Kalyan the body is misleading public, "The body or so called singer’s society which is operating illegally and making wrong representations to the public, media and government agencies etc should not be allowed to continue." 

However, this dispute has to stop for the benefit of the parties and golden mean is to be sought. T-Series President explains, "If the singer’s claim is first limited to “live performances” and not to playback songs, the industry might be more receptive. The royalties emanating from a song usage belong to the music label for sound recording and underlying works publishing royalties belong to the owner of underlying works (music publisher), lyricist and music composer. The singers should consider being sensible about their claims and not try to take away money from the kitty of authors and composers or that of the music labels.”

Throwing some more light on Copyright Act, he says, "What the singers are currently claiming is that once they sing a song for a music label, no one else should sing their song unless royalty is paid for it. This claim misses the point that under the scheme of the Indian Copyright Act, a singer can only assert rights in what he creates i.e a live continuous presentation of a song involving his skill. Every live performance when permitted by the copyright owner is a fresh performance in law that is separately protectable. Therefore, a singer who has been permitted to sing a song, say Baby Doll at three different live events, can claim an independent performer’s right in the performances given at each such live event. However, if another singer has been permitted to sing the same song at another venue, the first mentioned singer cannot assert rights in or prevent the second singer from singing the same song." 

He also reasons out from his point of view, "A singer’s vocal performance in a studio often requires several re-takes and re-recordings of the vocal tracks which are finally put together after mixing, tuning and synchronizing the same with the background music and beats of the song in order to produce a sound recording. There are no live musicians or chorus singers or other performers acting simultaneously with the singer and most of the music portions are pre-recorded before the singer even arrives at the studio. A singer’s vocal performance in a closed recording studio is neither in the form of a live presentation, nor is it before any live audience, or communicated simultaneously and therefore cannot qualify to be a ‘performance’ under the Act for the purposes of performer’s rights. It has no elements of an ‘acoustic or visual presentation made live’ which is the very essence of a performance under the Act." 

Neeraj still appreciates IPRS for straightening the processes, "We are happy that IPRS has finally been re-registered as a society and the performing rights in the underlying literary and musical works will be monetized and owners of copyright along with authors and composers will get their due share of performing rights royalties. We as owners of underlying literary and musical works are inclined to become members of IPRS and are discussing the modalities with the IPRS but some of the terms being imposed by IPRS (yes, I meant imposed not proposed!) are unfair and need to be re-looked at. No one wants to see a society that has not learnt from its mistakes.”

T-Series is one of the leading labels in India and yet is not registered with IPRS. Kalyan explains why, "To be a part of IPRS is certainly in our favour and we are keen to join IPRS so that our share of performing royalties can also be collected and paid to us. However, IPRS is acting beyond the scope and mandate granted to it by the law and the same is holding back our membership of IPRS. We are in fact happy to exclusively license them the performing rights of the underlying works owned by us to administer such rights by way of issuance of licenses and collection of license fee thereof. We are hopeful to resolve this issue soon with IPRS. Second issue is of excessive scope of administration of rights which is raised not only by us but many other major music publishers as well have raised serious objections to it." 

As per Kalyan, T-Series houses ‘well-oiled machinery’ that acts as a pre-cautionary step taken to prevent copyright infringement. “As the infringement of music and films is largely on online medium, we have a well-oiled machinery to scan; match and issue take down notices under the applicable law. T-Series along with other music labels has made several representations to the DIPP, Ministry of Commerce for a larger regulation framework to curb this menace." 

Working towards it, recently, T-Series got into an exclusive contract with SAM Event Management in GCC Territory to prevent any copyright infringement. Kalyan shares details of the same, "We have authorized SAM Event Management, Dubai as our exclusive sub-licensee for exploitation and control infringements of master sound recordings and audio visual songs of our entire music catalogue for the territory of GCC. SAM Event shall have the exclusive rights to collect royalties for usage of the master sound recordings and audio-visuals of each song forming the part of T-Series music catalogue and shall have the exclusive right to license the master sound recordings and to collect the royalties and fees that become payable from the licensing of such rights thereof for radio and television broadcast, cable networks, public performance, synchronization etc in the territory of GCC only, but shall not include in any manner whatsoever, the mobile and digital platforms.