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PUBLIC PERFORMANCE OF COPYRIGHTED MUSIC

June 27, 2023by Alok Raj0

INTRODUCTION

Music and melodies creates a welcoming and delightful atmosphere which instinctually
attract people towards it. It enhances the experience of fine dining and builds an enjoyable
aura. No surprise that all the restaurants, clubs, cafes, stores, bars etc. are trying to add music
to their ambiance in order to bring in more customers. But it’s not so easy to play any music
in your premises, you may be inviting a lawsuit in absence of a proper procedure followed.
An individual needs to obtain a Public Performance License in abidance to the Copyright Act
if he wants to use music for personal purposes else he will be committing Copyright
Infringement.
EXCLUSIVE RIGHT OF THE COPYRIGHT OWNER TO COMMUNICATE HIS
WORK TO PUBLIC
The creator and owner of the copyrighted work is vested with the Exclusive rights to
communicate his work to the public; which includes Public Performance too. The term
Communication to the public has been stated as per Section 2(ff) of the Copyright Act. The
owner has the right to decide how and by whom his work should be made available to the
public.
According to Section 14 of the Copyright Act, only the holder of the Copyright or any person
authorised by the holder may exercise the rights on copyrighted work and these rights include
the Right to perform the work in public or communicate it to the public.
Indian performing right society Ltd. versus Aditya Pandey
2011 SCC OnLine Del 3113 : (2011) 47 PTC 392
Delhi High Court restrained the defendant from communicating any of the plaintiff’s
copyrighted works to the public, or performing them for public enjoyment without legitimate
permission or licensing.
PERFORMER’S RIGHT TO RECEIVE ROYALTY
The 2012 amendment to the Copyright Act added Section 38A. The performer has the right to
receive royalties under Section 38A (2). It’s laid down that even if the performer gave assent
to the use of his performance in a cinematograph film, which cannot be opposed to, his right

to royalties is nevertheless retained if the performance is being exploited for making
unauthorised profit.
The Indian Singers' Rights Association versus Chapter 25 Bar and Restaurant
(2016 SCC OnLine Del 4478 : (2016) 159 DRJ 244)
In this case, the defendant was performing music without getting IPRS's permission, which
was against both, plaintiff’s right to public performance and right to receive royalties (R3).
The High Court of Delhi ruled that the defendant had violated the R3 of the Plaintiff's Society
members by using the performance of the Plaintiff's members in its bar and restaurant
without first obtaining the Performers' Rights Clearance Certificate. As a result, the defendant
was ordered to pay a fine of Rs. 20,000 within four weeks.
PUBLIC PERFORMANCE LICENSE
Public performance license is an agreement between the copyrighted owner of the music and
the person who wants to use that music. As per Section 33 of the Copyright Act, Indian
Performing Right Society Limited (IPRS) is incorporated to grant this type of licenses for
literary and musical works. It is a requirement by law to get a Public Performance License
before playing drums, playing music, or playing recorded audio or video in a public place.
Playing music in a store also requires a license. Owner of the stores, cafes or restaurants may
easily live the delusion that nobody will know whether they have a permit or not, but there
are specially established Performing Rights Organizations (PRO) that keeps an eye on the
infringement of this right and also call for payments for the public performance. Music
played in a store also come under the ambit of Public Performance.
Performing Right Society, Limited versus Hawthorns Hotel (Bournemouth), Limited
[1933] Ch. 855
One evening after supper, an orchestral trio engaged by an illegal residential hotel performed
in the hotel's lounge. The audience included some of the resident guests as well as a
representative of plaintiff’s society, who after conveying his desire to have dinner at the
hotel, had dined there and later on went into the lounge with his friend and listened the music.
It was held that the performance qualified as a performance "in public" under Section 1 of the
Copyright Act of 1911 and the rights of the plaintiff have been infringed.

EXCEPTIONS AND NON-EXCPETIONS TO PUBLIC PERFORMANCE LICENSE
If a business owner wants to add charm to his place with the help of music then Licensing fee
is a small but mandatory price to pay.
Regardless of the establishment’s business or its non-commercial nature, a license must be
secured before pre-recorded music can be played in a public space. There is a common
misconception that this law of copyright does not apply to not for profit organizations as they
are not using the music for generating personal profit. But the situation is not exactly the
same. The owner of copyright has the power to bring up lawsuits against anyone who make
unlicensed use of his work and then it’s up to the court to decide whether or not the
infringement took place.
You & ll most likely be exempted from the Public Performance License Payments only if your
line of work involves the sale of recorded music. If the performances take place nearby the
sale area which are intended to promote and boost the retail sale of copies or records of the
copyrighted work, they are covered by this exception. However, the exception does not apply
if you are performing music that you are not selling.
No matter how little of the song is used, one must have a public performance license. Such
license is not very necessary only when; for example, the person is using the song he has
himself written or music that are considered works of public interest. The only other way a
person can escape the licensing fee is to play the music which is not copyrighted or has
become a part of public domain due to copyright expiration.
LICENSING FEE
There is a very common misbelief in context to Licensing fee among the business owners.
They usually tend to believe that they have escaped the extents of Copyright infringement by
paying the fee in the form of subscription to a streaming service such as YouTube Music, Jio
Saavn, Spotify etc. They consider it to be the appropriate and required fee, but the situation is
altogether different. The owner of the business who desires to play the music must have to
pay the indispensable fee to a Performing Rights Organization or to a Music Service that has
paid the fee on behalf of the owner enabling the music to be played legally in the public. The
person can even take the License directly from the Copyright Holder but then he needs to
take separate license for each song from its respective owner, making this option
inconvenient and impractical.

CONCLUSION
A person playing songs in his café, store, bar or restaurant without obtaining a Public
Performance License is committing Copyright Infringement hence, hampering the Exclusive
Rights of the creator of that music. In order to keep playing music in the premises legally,
owner needs to go through the specified procedures and obtain the license by paying license
fee.

Alok Raj

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