Waiver of the payment for a public performance
My friend owns a registered 'not for profit' organisation which organizes events in the 'performing arts' field. For an upcoming theatre production, the artiste would like to use a song sung by a famous singer. Is there any rule where if the entire song or even part of the song is used for a public performance, a part of the royalty needs to be paid? Since the organisation is 'not for profit', can the amount (if any) be waived?
Public performance license is a legal necessity under the Copyright Act, 1957 for playing music in any format-live performance or playing recorded sound tracks in any public place or commercial establishments. Playing music in public without a license from the IPRS is an offence under Section 51 of Copyright Act, 1957 and attracts a heavy penalty.
(IPRS is the authorized body under section 33 of the Copyright Act to issue a public performance licence to any organization or individual playing music in any public place or in any commercial establishment.
The Indian Copyright Act provides for certain uses of copyrighted work from being considered as infringement, under the hearder of 'Fair Use', in section 52. This particular section provides an exhaustive list of what Fair Use consists of.
To further clarify, the doctrine of Fair Use consists of various factors, that include, amount and substantiality of the use, character or purpose of the use, effect on market and competition to the copyright holder.
The logic in case of amount and substantiality of usage is plain: larger the taking, less fair the dealing. The courts have recognised that the permissible quantum of use will depend on the facts of the case. Further, if the purpose of the usage is not for profit, it tilts the balance in favour of fair use. The work also must not use the same substance for rival purposes.
So for eg, if one wishes to use 29.34 secs of a Kishore Kumar song, in a theatrical production meant for non profit purposes, without the intention to carry on any rival business against the copyright holders of the song, there should be no problem. They need not pay any royalty and may use the same.
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