In recent days, we are witnessing frequent controversies regarding copyrights of popular songs. Usually, we find three or four parties involved in such clashes: Producer, Lyricist, Composer/Music Director and the Singer. Though a song is commonly known and promoted in the name of the singer, the copyright of the song, however, does not necessarily belong to the singer. The existing copyright laws are more focused in protecting the rights of the creative people who acted behind-the-scene for presenting a successful song. Nevertheless, you might think that this is an injustice to the popular singers, as more often, the producers or music directors use the singer’s goodwill to get an easy feedback.
Bollywood’s Nightingale Lata Mangeshkar led Indian Singers’ Rights Association (ISRA) in a fight to secure royalty rights for singers. In a case filed by ISRA, a South Delhi restaurant was declared to have been violating the “inalienable Right to Receive Royalty” of performers by playing their songs “without obtaining Rights Clearance Certificate”. The restaurant was further asked to refund all the monies earned by it from the unauthorised performance. Similar Order was passed by another court on September 30, 2016 against a lounge bar based in North Delhi. Now it is established in India that Singers have the “Right to Receive Royalty” if the song is performed/utilised commercially.
However, it is commonly practised in Bangladesh that singers sign over their rights to a song to the producer. Therefore, the question remains as to whether they are assigning their right to receive royalties as well. Indian courts identified singers’ rights as “inalienable Right to Receive Royalty”. Therefore, right to receive royalty for the song cannot be given over. The easier interpretation would be something along this line: once a Singer has recorded an original song, everyone except the producer or copyright holder needs to get permission and pay royalty to play/perform/utilise the song commercially.
Judicial response in protecting singers’ rights in Bangladesh is still in the process of ossification. Little to no judicial attempt has been taken to identify the grey areas, as both the litigants and the Judges seem to be more comfortable in resolving the issues using traditional legal tools i.e. suit for breach of contract or criminal cases for breach of trust. Whereas, section 35 of our Copyright Act, 2000 clearly gives the singer a Special Right known as the “performers’ right”. According to this section, a singer of an original song will enjoy “inalienable Right to Receive Royalty” for the next 50 years since the song was first sung or performed. In addition, the same right has been asserted by the international conventions and treaties i.e. Rome Convention in 1961 and in 1996 through the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
Despite adequate legal protection has been offered, the singers in Bangladesh seem to be indifferent to their collective rights protection mechanism. Popular singers are frequently fighting with one another, while this is high time to create a common platform for protecting their right to royalties. Deciding copyright charges, fixing a “Tariff Rate and Distribution Scheme” through a common platform (Copyright Society or Singers’ Association), and establishing a sound royalty collection mechanism to collect and distribute royalties should be prioritised by the singers.
With the revolution of the internet and sophisticated digital technologies the music industry has become global. At the same time, the scope for both authorised and unauthorised copying and digital manipulation of performances has vastly increased. Statistics say that half of Hollywood’s revenues, and a fifth of Bollywood’s now come from abroad. Like any other title holder of any tangible property, singers can enforce their performers’ rights under the existing national and international copyright laws.
The writer, an Advocate, Supreme Court of Bangladesh, works to promote Intellectual Property Rights in Bangladesh.