Law in the times of Online Concerts: Understanding the Legal Implications in IPR.
Written by Indiradevi Kollipara
Associate Editor at Law & Order
Third Year, BA. LLB. School of Law, Christ (Deemed to be University) Bengaluru
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
2020 has been the year of many ‘firsts’. With the ongoing pandemic, our society has experienced new changes. From having talks for mainstreaming online education to conducting internships online, we have seen things change. In this article, the emphasis is given on understanding the basic implications in intellectual property rights after Internet based events have taken the storm. In light of such events, it is fascinating to see that the entertainment industry has taken strides in engaging its audience through various streaming platforms. Some have even built their own platforms to optimise their position in the market.
Modern problems require modern solutions and this calls for a thorough understanding of the stakeholders involved in live events, especially concerts and fundraisers.
The major stakeholders in performing a concert include the artists, the event organiser and the broadcaster (sometimes it is the broadcaster who also happens to be the event organiser). To further understand the implications of each stakeholder better, it is imperative to understand the distinctions of rights between each of them. Firstly, in the case of a performer doing a cover of a song, the original producer of the song must authorise it. Secondly, the event organiser has rights over the photography, or rights over the proceeds of the events and other rights determined by the agreement between the event organiser and other stakeholders (like the artists and the broadcaster). Thirdly, the broadcaster has rights due to the potential outreach and economic output it facilitates (such as viewership and audience traction for sponsorships and endorsements) through monetization.
The dynamics of concert organisers has drastically changed, considering the issues in organising an event. Now, an event organiser must make sure that exclusive content bought through access fee/tickets is not jeopardised by getting the content free on public platforms.
The entertainment business has risen in the new normal. Nowadays, we see movies premiering on streaming platforms and stalled concerts finding its way to a larger audience through online live events.
Recently, Tomorrowland, the coveted EDM festival organiser, hosted its first ever digital concert known as ‘Tomorrowland Around the World’ as fans who awaited for the 2020 edition of Tomorrowland in Belgium requested the organisers to fill the void. The cost of the tickets ranged from a starting price of € 20 (1772 INR) with the option of switching the booking option to a package based access fee that ranged till a price of € 200 (17,720 INR). They created paths for online hideouts, webinars and workshops for EDM enthusiasts across the world.
Tomorrowland’s venture was successful as it garnered leading artists and connected fans across the world. The reason behind this success was the goodwill that Tomorrowland has garnered over the years. It has entrenched itself as a leading organiser for EDM festivals in the minds of many people. Sponsors are greatly benefitted from the brand value that the venture has built. The concepts and themes of Tomorrowland concerts can be protected through copyright as a matter of unique expression.
These nuances lead us to think that the differing dynamics of online concerts could change the legal landscape of IPR enforceability.
This article will address the changing dynamics of organising online concerts with legal implications within the ambit of trademark, copyright and contracts.
Online Concerts and Trademark Rights:
Trademarks are being granted for shows that are headlining through Instagram’s IGTV and through YouTube. It is important to register a trademark for these events as statutory protection can be granted against infringement. Sponsorships are supporting entertainment houses to produce content online.
This means that performers, producers, broadcasters are at stake. This is because production houses and enterprises must be discreet and register rights as early as they could. If this does not happen then the companies are most likely to be affected by other production houses that could take up the brand name and garner audiences. In addition to this, these events are backed by sponsorships and ticket proceeds and that calls for the need to protect exclusivity. The fact that a broadcaster has the sole right to broadcast that particular event is itself a license that is exclusive unless the terms of the agreement provides otherwise.
Another aspect that we can look at is trading the goodwill of the brand of artists and bands and how that could raise questions in the court of law. Trading the goodwill could also include unauthorised selling off official merchandise online and the illegal manufacturing of merchandise without authorisation from the brand. This amounts to trademark infringement.
In the case of online concerts, trademark infringement can be enforced against those entities that copy the mark of a well-known event and sell merchandise that shows the mark similar to the original mark that is infringed.
In 2019, the popular rock band Guns N’ Roses filed a lawsuit against Oskar Blues (a brewery based in Colorado) for selling Guns N’ Roses ale and merchandise without their authorisation. The parties agreed to settle and the group dismissed the case by stating that Oskar Blue cannot be entitled to sell products without their consent or license to do the same.
Guns N’ Roses, however, is a registered trademark and hence infringement can be ascertained. In cases of unregistered trademarks though, proving infringement can be more difficult. In India, Section 27 of the Trademarks Act, 1999 will apply. The tests for ascertaining infringement through passing off was stated in the case of Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd. In this case, the court held if two similar goods cause confusion to the consumer, leading him to believe that the goods are the same, then economic losses will be majorly inflicted upon the trademark holder who built the brand. Applying this to the present context, due credit must be given to original brand holders in the form of upholding their right in rem.
Copyright in Online Concerts:
Next, is the challenges pertaining to copyright. The challenges come with respect to entailing tariffs for live streaming songs and other creative works that are protected by Copyright Societies. Recently, the Indian Performing Right Society (IPRS) announced that organisers who signed licensing agreements with them need not pay tariffs for free events and concessions are being given for granting licenses in case of charity events. This happened only after people disagreed to the tariff rates sent by IPRS via a notification which stated that it will charge Rs. 20,000 from artists who wish to host their concerts live. This notification was however withdrawn through another notification that announced the reduction in the tariff fees from Rs. 20,000 for every concert to zero tariffs for free concerts (and devotional, classical and folk music) and subsidised tariffs for paid concerts.The last statement given by IPRS is that the subsidised tariffs will be determined at a later course of time. This goes on to show uncertainty and ambiguity in licensing agreements for concert organisers with IPRS.
Ambiguity in issuing a copyright license exists because of a gap in the existing law (ie. in Copyright Act, 1957). Section 33 of the Copyright Act, 1957 explicitly states that only the copyright society registered under this provision can issue license whereas section 30 of the Copyright Act grants the right to the original creator or author to license his/her work.
This shows that there are various challenges that need to be addressed in the IPR regime considering how the Online concerts storm could potentially change the way the entertainment business runs.
Indigenous communities have an added advantage as tariffs are not imposed on them. But how can their expressions be protected when there are ambiguities in law. This needs to be addressed.
Online concerts can be percolated across communities and indigenous forms of music can take over the internet at ease without worrying about the legal implications in the pandemic situation. This will enable cohesion of potential talent and can even harbour potential changes in the talent industry. The expansion of internet penetration in the entertainment industry also calls for the inclusion of underprivileged people in terms of access and performance. The pandemic has enabled that to happen with the relaxation of performance tariffs in live events. Furthermore, this could potentially lead to mainstreaming of affordable internet services through an increase in demand from corporates in reaching wider audiences through endorsements, sponsorships and from the people themselves.
Internet penetration in maximum households is possible through entertainment and the production houses will be funded by sponsors. This goes on to show that the power of audiences could exponentially rev up the economy especially in uncertain times. Who knew that clicking on a like button or subscribing to a channel could potentially change businesses? Well, we know now.
https://www.tomorrowland.com/en/around-the-world/tickets/ticket-package-prices/tickets/weekend-amp-day-tickets  Guns N’ Roses v Canarchy Craft Brewery Collective LLC d/b/a Oskar Blues Brewery, U.S. District Court, Central District of California, No. 19-04052  The Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India)  Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd. (2001) PTC 541 S.C (India)  Amit Gurbaxani, Indian Performing Rights Society responds to row over tariff plan, says working towards fixing revised licence fee rates, Firstpost (15th August 2020, 7:15PM) https://www.firstpost.com/entertainment/indian-performing-rights-society-responds-to-row-over-tariff-plan-says-working-towards-fixing-revised-licence-fee-rates-8639021.html  Aroon Deep,IPRS CEO Rakesh Nigam: livestream tariff to be rationalised, free performances won't be charged, Medianama (27th August 2020, 11:00 PM) https://www.medianama.com/2020/07/223-iprs-rakesh-nigam-live-streaming-tariff-order/  The Copyright (Amendment) Act, 1994, No. 38, Acts of Parliament, 1994 (India)  The Copyright Act, 1957, No. 15, Acts of Parliament, 1957 (India) BIBLIOGRAPHY
1. The Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India)
2. The Copyright (Amendment) Act, 1994, No. 38, Acts of Parliament, 1994 (India)
3. The Copyright Act, 1957, No. 15, Acts of Parliament, 1957 (India)
Guns N’ Roses v Canarchy Craft Brewery Collective LLC d/b/a Oskar Blues Brewery, U.S. District Court, Central District of California, No. 19-04052
Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd. (2001) PTC 541 S.C (India)
1. Amit Gurbaxani, Indian Performing Rights Society responds to row over tariff plan, says working towards fixing revised licence fee rates, Firstpost https://www.firstpost.com/entertainment/indian-performing-rights-society-responds-to-row-over-tariff-plan-says-working-towards-fixing-revised-licence-fee-rates-8639021.html
2. Jonathan Stempel, Guns N' Roses settles lawsuit over Guns 'N' Rosé beer, Reuters https://www.reuters.com/article/us-music-guns-n-roses-beer-lawsuit-idUSKCN1V31XL
3. Aroon Deep,IPRS CEO Rakesh Nigam: livestream tariff to be rationalised, free performances won't be charged, Medianama