The Delhi High Court has asked Dharma Productions to file a response to the Indian Singers Rights Association’s plea seeking royalty for the commercial exploitation of their performance in Gunjan Saxena- The Kargil Girl.

A single-judge bench of Justice Mukta Gupta issued summons to Karan Johar-owned production house Dharma Productions on the plea filed by Indian Singers Rights Association’s suit. 

However, the court deferred passing any order/directions to the defendant to deposit the amount till the next date of hearing. “Considering the fact that the rival contentions and the underlying agreements are yet to be considered by this Court, this Court, at this stage, is deferring passing any order/directions to the defendant to deposit the amount till the next date of hearing before which date parties will complete their pleadings,” the court said. 

The suit has been filed by the Indian Singers Rights Association seeking enforcement of its performers’ rights which were introduced in the Copyright (Amendment) Act, 2012 by amending Section 38 and introducing Section 38A and 38B to the Copyright Act

It was alleged that the cinematograph film ‘Gunjan Saxena- The Kargil Girl’ commercially utilising three performances of the members of the plaintiff society which were originally part of earlier cinematograph films.

The plaintiff on becoming aware of the infringement of its rights issued a legal notice to the defendant claiming that the plaintiff’s members had the copyright in respect of the performers’ rights in ‘Ae Ji O Ji’ from the cinematograph film “Ram Lakhan”, ‘Choli Ke Peeche Kya Hai’ from the cinematograph film “Khalnayak” and ‘Saajan ji Gher Aaye’ from the film “Kuch Kuch Hota Hai”.

According to the counsel for the plaintiff, since as per the scheme arrived at, the tariff for the performers’ rights is fixed, the defendant is bound to deposit the amount before this Court pending a final decision. Plaintiff claims its rights on the basis of Section 2q and Section 2qq of the Copyright Act, 1957, which defines the ‘performance’ and ‘performer’ as also sections 38A and 38B of the Copyright Act,1957.

The plaintiff also placed Reliance on the Copyright Rules, 2013, wherein, the Explanation 3 to Rule 68 Sub-Rule 4 provides that for the purposes of this Chapter, ‘performance’ includes recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise

Counsel for the defendant, Dharma Productions claimed that the studio performances which do not go live, are not considered to be live performances and in the present case, since the performance is in studios that do not go live, the plaintiff’s members cannot claim performers’ rights.

The Court referred to the definition of ‘performer’ in Section 2(qq) of the Copyright Act, 1957 and noted that the Section includes a Singer within its sweep and the performers’ right means any visual or acoustic presentation made live by one or more performers. Every performance has to be live in the first instance whether it is before an audience or in a studio. Therefore, the Court held that the plaintiff’s performers’ right is a serious triable issue.

The court listed the matter for further hearing on March 12, 2021. 

 

[READ ORDER]