COPYRIGHT MADE EASY – [ Student Series ]
CME [Student Series] LW 1 – 07
TO “PERFORM THE WORK IN PUBLIC“ OR “COMMUNICATE IT TO THE PUBLIC“.
Under Section 14(a)(iii) of the Copyright Act 1957 in case of literary , dramatic and musical work (not being a computer program) two exclusive rights are given.
– One is to “perform the work in public” and ;
– other is “communicate it to the public”.
Both the exclusive rights are “PUBLIC PERFORMANCE” for the Copyright owner and it’s an act restricted by the Copyright for Literary , Dramatical and Musical work, not being computer programme.
As per the definition of “Performance” under section 2(q) of Copyright Act 1957 is concerned, it’s to be read as inclusive definition and the definition given in the Act is in relation to performer’s right , means any visual or acoustic presentation made live by one or more performers. However , in general the definition will include delivery of lectures, addresses , speeches, sermons etc.
Similarly “communication to the public” is well defined under Section 2(ff) of Copyright Act 1956 which included for the presentation by means of a sound recording , film or broadcast of the work and that’s why the word used in the definition is ( by any means of display or diffusion). Under this , the public PERFORMANCE takes place when a work is transmitted and authorises the copyright owner to control transmission of work such as radio or television even though the recipients are not gathered in a single place or so not receive it at the same time. The same principle applies for transmissions to the segments of the public through satellite or cable or other means of simultaneous communication to the occupants of hotel or hostel or more than one household or place of residence.
Definition of “Communication to public”
2(ff) “communication to the public” means making any work or PERFORMANCE available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it , whether simultaneously or at places and time chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or PERFORMANCE so made available”.
Explanation.—For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;
Please note carefully, “perform to work” in public is given to literary, dramatic and musical work only and not to artistic or sound recording or cinematographic work. For artistic work and for two derivative right(s) the exclusive rights given are “communicate it to the public” only.
Showing the film or playing a record is an act of “performing it” but performance (noun) can be private or public. The intention of the legislation is not to stop the people from playing or singing their favourite records or songs in bathtubs or while having dinner at home with friends. These are essentially private performances that cannot be controlled by copyright owners. What distinguishes a “public” from a “private” performance is a question of law but in every case it will be a matter of fact whether the facts of the case do or do not fall within that meaning . Importantly , it depends more of common sense which will be the chief guide to decide. For more details refer to Ernest Turner Ltd & Others v. Performing Right Society 1943 (England).
Therefore, the exclusive right to Perform is limited to “public performance” only.
On lines of above definitions , an infinite number of situations exist as of date where public performances takes place in new technological environment. In relation to a sound recording , film or broadcast the playing or showing of the work in public by means of record player or sound system would amount to public performance not only of literary or musical work embodied in it , but also of the sound recording work itself.
In the definition of communication to public the word PERFORMANCE added in Copyright Amendment 2012 ( marked in capital letters in the definitions) have great significance for the interpretation because post 2012 amendment the confusion of overlapping or subsume theory of different works have been diluted. Now the underlying work are distinct and each authors of each work in which the copyright subsist are entitled for the royalty accordingly on the commercial utilisation of every public performance in all forms.
In this article LW 1-07 ,we are addressing only the “literary work” of book authors, film story writers and lyric writers with the assumption that authors are contemplating what all exclusive rights they have with them and they have not assigned to anyone.
Therefore by all means these two exclusive rights “to perform the work in public” and “Communicate it to the public ” are the rights that the literary author will transfer for a consideration which will be utilised by the producers / owners and other owners accordingly subject to the fair usage exemptions that have been given under section 52 ( which has to be shared equally among authors / owners and/ or other owners).