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Performing rights are the right to perform music in public. It is part of copyright law and demands payment to the music’s composer/lyricist and publisher (with the royalties generally split 50/50 between the two). Section 106 (4) of the copyright statute also provides copyright owners with the exclusive right to publicly perform their literary, dramatic, musical, choreographic, pantomime, or audio-visual work.^[1]It is important to note that the copyright statute provides a limited right of public performance in sound recordings which is limited to public performances only “by means of a digital audio transmission”^[2].

Public performance means that a musician or group who is not the copyright holder is performing a piece of music live, as opposed to the playback of a pre-recorded song. Performances are considered "public" if they take place in a public place and the audience is outside of a normal circle of friends and family, including concerts, nightclubs, restaurants etc. Public performance also includes broadcast and cable television, radio, and any other transmitted performance of a live song.

Permission to publicly perform a song must be obtained from the copyright holder or a collective rights organization.^{[citation needed]}

In the United States, broadcasters can pay for their use of music in one of two ways: they can obtain permission/license directly from the music’s copyright owner (usually the publisher), or they can obtain a license from ASCAP, BMI and SESAC to use all of the music in their repertoires. ASCAP, BMI and SESAC are the three performing rights societies in the U.S. and once they receive payment from the broadcasters they are responsible for compensating the music authors and publisher.

On February 4, 2009, Congressman John Conyers, Jr. introduced H.R. 848, the Performance Rights Act in the U.S. House of Representatives, 111th Congress. The Bill was referred to the House Judiciary Committee and on December 14, 2010, it was placed on the Union Calendar, Calendar No. 405. Under this Bill's version, performance rights was broadly designed to protect the civil rights of minority, religious, rural, and small communities with components to public access and education.

Musician and civil rights activist, George Clinton has spearheaded the H.R. 848 initiative to preserve, promote and protect a legacy of peace for children through his foundation, Mothers Hip Connection, with public awareness educational campaigns on copyright recapturing and reclaiming royalties for children of civil rights era musical performers.^{[citation needed]}

Meaning of "public" and "performance"

For the purpose of understanding the contents of the right of public performance, it is important to understand the meaning of the words “public” and “performance”, which have been defined under Section 101 of the Copyright Statute. As per the statute, perform means “to recite, render, play, dance, act, either directly or by means of any device or process, or in the case of a motion picture, to show its images in any sequence, or to make the sounds accompanying it audible." Presentations by live musicians^[3], playing tapes or records^[4], playing jukeboxes^[5], providing music-on-hold systems^[6], broadcast of radio or television^[7], retransmissions of broadcasts of radio or television stations^[8], are all found to be ‘performances’.

It is important to note that a person will be held liable for performing copyrighted works without the permission of the copyright owner, only if the works are performed ‘publicly’. The term “public” has been defined under Section 101 of the Copyright Statute, in two ways: the first subsection being called the ‘public place’ clause, and the second sub-section being called the ‘transmit clause’. Under the ‘public place’ clause, a performance is classified as public when it is carried out at a place open to the public or where a substantial number of people, outside of a normal circle of a family or social acquaintances, have gathered. For example, performance in a restaurant is a “public performance”, even if no customer is sitting, as it is a place open to the public.

Under the transmit clause, one can perform the work publicly by transmitting or communicating the performance to a public place, as defined in clause one, or to the public by means of any device or process, irrespective of the fact that the members of the public are capable of receiving the performance in the same place or in separate places in the same time, or at different times. For example, when a radio station broadcast a signal containing the song, it is publicly performing both the composition and sound recording as it is transmitting the performance to the public even though the members of the public are able to receive the radio signals at different places or at different times. We can see that this clause is very expansive and covers many ways in which copyrighted works are distributed today.

Interpretation of "transmit" clause

The interpretation of the transmit clause is complicated and has economic implications. The interpretation of this clause can be best understood by the following three cases: Columbia Pictures Industries, Inc. v. Redd Horne, Inc.^[9]; Cartoon Network, LP v. CSC Holdings, Inc.^[10]; and American Broadcasting Companies, Inc. v. Aereo, Inc.^[11]

Columbia Pictures Industries, Inc. v. Redd Horne, Inc.

This case dealt with the application of the transmit clause to the Video Cassette Recorder (VCR) technology. In this case, the defendant rented Video Home System (VHS) tapes, and provided the facility to play these VHS tapes with the help of VCR in a small-carpeted room at the back of the store. The customer would watch the rented VHS tape either alone or with a companion or two. The Court of Appeal held that playing of VHS tapes constituted public performance of audio/visual works as the facility was open to public and the VCR technology also involved transmission. Even though a few members of the public utilised the facility at a given time, as the facility was open to the public, it constituted a public place. Secondly, as there was small transmission from the front desk to the room in the back and members of the public watched the transmissions at the same place at different times, it constituted ‘public performance’ under the transmission clause.

Cartoon Network, LP v. CSC Holdings, Inc.

Cablevision Systems Corporation ("Cablevision", was a small cable TV system based in New York City, and paid, for obtaining either voluntary license or compulsory license, to broadcast audio visual programs. These licenses gave Cablevision the right to publicly perform TV shows or movies, but did not give Cablevision the right to make copies of the TV shows or movies. In 2006, Cablevision offered to make copies of TV shows and movies using a cloud-based technology, which was called a remote storage DVR or RS-DVR system.

Under the RS-DVR system, the customer could record a program by pressing the record button either in advance or at the time the program was playing. Here, the viewer sent the signal from the remote, through the cable, to the Arroyo server at Cablevision's central facility, which then delivered the program to the subscriber's home. Cartoon Network and copyright owners in other shows filed a suit against Cablevision contending that RS-DVR system violated their copyright as the transmission from Arroyo to the customer constituted a public performance of the work. In this case, the Court of Appeal held that the transmission did not violate section 106(4) as the transmission was delivered to a single subscriber using a single unique copy produced by that subscriber. Thus, the transmission did not constitute public performance. However, had Cablevision transmitted the work to multiple subscribers from the same copy, the decision would have been different.

The Cablevision case catalysed innovation with respect to technologies and business models in the entertainment industry, as systems that stored individual copies for individual subscribers was very inefficient. However, when these innovations were challenged under copyright law, some were held to be valid, while some were held to violate the copyright law^[12].

American Broadcasting Companies, Inc. v. Aereo, Inc.

The background of this case was that while metropolitan consumers viewed television programs broadcasted by television stations for free, rural consumers had to subscribe to cable television services due to poor television reception. Cable companies used to pick by air broadcasts in major cities and redistribute it through their cables. In 1976, the Congress adopted an expansive definition of public performance, which obliged the cable companies to pay copyright owners as retransmission of programs constituted ‘public performance’.

Aereo was a system that picked up television broadcasts of any TV program, converted it into packets and streamed those packets to the consumers over the internet, who subscribed for it’s services, enabling consumers to watch the TV programs over their laptop or tablet. It is important to note that Aereo obtained thousands of tiny TV antennas, each the size of a dime, which it arranged in arrays, and would rent one of those tiny, individual antennas to its subscribers and tune it to the free air broadcast. Another striking feature of Aereo's system was that the program would not be shown live, but with a resultant time lag of few seconds. Aereo captured and recorded the live program and sent a packet to the subscriber from that personal recording. Thus, Aereo had created a system that resembled Cablevision so that it did not have to pay license fee.

Copyright owners challenged the Aereo system. While Trial Court and the Court of Appeal ruled in favour of Aereo, the Supreme Court reversed the ruling. The Supreme Court held that "in regard to the purpose and text of the transmit clause, when an entity communicates the same sounds and images to multiple people, such transmission will constitute a public performance irrespective of the number of discrete communications it makes". Thus, the Court held that the fact that the subscriber received an individual transmission from an individual copy of the program at issue, was irrelevant.

The Aereo decision did not render the RS DVR systems unlawful, as Justice Breyer emphasised that in the present case neither Aereo nor its subscribers had paid for access to the programs that Aereo streamed, and suggested that the case would have been decided differently had the subscribers paid. The Court provided a safe harbour for cloud locker services and for services like Cablevision that allowed consumers, who had already paid for programming, to watch those programs at later times or in different places. Justice Breyer also emphasised that the inappropriate or inequitable application of the Transmit clause could be prevented by the doctrine of 'fair use' .

After the Aereo and Cablevision decision there is uncertainty as to what kind of transmission constitutes a public performance.

Divergence between US and Europe

United States is a party to the WIPO Copyright Treaty of 1996^[13], which requires member countries to provide copyright owners a generous version of the right of distribution and a right of communication to the public, under Articles 6 and 8 of that treaty. Both the provisions use the phrase “make available to the public” which covers more activities than are covered by the US law. Professor Jane Ginsburg of Columbia Law School has shown that the phrase “make available to the public” is broader than the right provided under US law and covers cloud-based services.

The EU implements the Information Society Directive of 2001, in compliance of the WIPO Copyright Treaties, which provides that authors an "exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means, including systems that allow members of the public to access works from a place and at a time individually chosen by them". Thus, the EU adopts a wider definition of right of public performance, as compared to the US. Furthermore, the European Court of Justice (2013) held that a service that resembled the Aereo system, provided by a British company called TVCatchup, violated the right of public performance^[14]. Furthermore, the European Commission also rescinded an Italian law that had granted partial immunity to an RS DVR service analogous to that offered by Cablevision^[15].

Thus, we can see that there is a gap in the US and EU law with respect to right of public performance and this becomes problematic when enterprises what to provide cloud-bases services, over the internet, not just to the US but to consumers in other countries too.

Limitations and Exceptions

The US Copyright statute, provides a long list of exceptions and limitations to the right of public performance provided to copyright owners. This long list of exceptions is in contrast to the fair use doctrine, which confers a great deal of discretion upon the courts when deciding if an unauthorised act of the defendant is fair.

Section 110(1) permits public performance of copyrighted work in a classroom, provided the work is performed live and the copy of the work is prepared lawfully. The next exemption provided under section 110(2), also known as the TEACH ACT, deals with distance learning. This exemption is limited to enrolled students and to streaming of materials. Thus, one cannot be exempted from violating section 106(4) if one makes the recorded lectures available to the public or makes the copyrighted materials available for downloading or stream the copyrighted materials in such a way that enables students to copy them. Section 110(2) also provides for additional restrictions, such as, it is limited to materials that are designed for some other purpose and then adapted to distance education, and requires the teacher to provide instructions about copyright law along with the material. The provision also requires the teacher to adopt technologies that would prevent the recipients from saving the materials provided during distance learning. These restrictions, accompanying section 110(2), are burdensome and thus, fail to facilitate distance learning.

Furthermore, section 110(3) exempts public performances of religious works in the course of services. This provision aims at facilitating the operation of churches and other religious establishments. It also implies that creators of religious materials, specifically non-dramatic literary musical works, don't get monetary benefits for the performance of their works.

Section 110(4) provides for nonprofit exception, which privileges live performances of a non-dramatic literary or musical work without any purpose of direct or indirect commercial advantage. For example, Restaurant waiters singing "Happy Birthday" to their customers, free of charge, shall be shielded under this provision. However, in 1996, ASCAP sought license fees from the Girl Scouts in return for permitting the scouts to sing songs around their campfires^[16]. ASCAP’s claim affected its public relations and the Wall Street Journal wrote a scorching article about it. Thus, ASCAP was forced to grant public performance rights to Girl Scouts for a nominal fee. Section 110(4) did not apply to this case, as the Girls Scouts were charging for allowing people to access them sing songs around the campfires.

The last two exceptions are called “homestyle exception” and the Fairness in Music Licensing Act. Under “homestyle exception”, provided under section 110(5)(A), a privilege is provided for publicly performing copyrighted works using the kind of apparatus that you would ordinarily find in a home. However, this provision is vague and does not safeguard stores and restaurants who deploy apparatuses bigger than home style devices for the purpose of playing background music.

Section 110(5)(B), commonly known as the Fairness in Music Licensing Act, provides safeguards to stores and restaurants for publicly performing musical works upon satisfying certain conditions. For example, a performance by audio means is exempted only if it is carried out by a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space. It is important to note that the European Union challenged the exceptions under FMLA to be in violation of TRIPS and won.^[17] However, the US Congress did not amend the statute, they submitted the dispute brought by EU to binding arbitration, which resulted in a monetary judgment, where United States has to pay EU a fee of over $1 million a year to compensate for the injuries that EU copyright owners incurred because of this exemption.

Apart from the listed exceptions, the copyright statute also provides for fair use doctrine under Section 107. In determining whether the public performance of a copyrighted work is fair use, four factors need to be considered: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work. The fair use doctrine is a case-specific doctrine and is applied by the judges on an ad-hoc basis.

Compulsory Licensing

Apart from exceptions, there are also certain kinds of public performances for which permission need not be sought from the copyright owners; however, copyright owner’s need to pay a compulsory license fee determined by the government. The five main compulsory licenses are as follows: public-broadcasting organisations; some types of webcasts engaged in digital audio transmissions; re-transmissions by cable systems; and satellites; and jukeboxes^[18]. The way in which the compulsory license fee is determined is complicated and varies across each of these five areas.

While compulsory licenses deprive the copyright owners from controlling uses of their work, and may sought them lower license fees; they are better than exceptions as copyright owners are paid for the public performance of their works. It is also argued that compulsory licenses facilitate socially-beneficial uses of copyrighted materials that otherwise would be frustrated by high transaction costs^[19]. For example, it would not be feasible for a jukebox owner to negotiate licenses with copyright owners of all songs and sound recordings, as that would result in high transaction costs. It is also argued that compulsory licenses balances the unequal bargaining power between the copyright owners and the users and prevent the owners from levying an excessive license fees from the users. Furthermore, it is arguable that even though copyright owners are obliged to accept lower license fee, than they would demand, their loss is offset by increase in the output. All these arguments are rebutted by the fact that advent of information technology is declining transaction costs; the beneficiaries of compulsory licenses are not powerless; and administrative costs associated with the system of compulsory license exceeds the cost savings it enables^[20].

Infringement and Remedies

Copyright infringement is a strict liability tort, where anyone who violates the exclusive right of public performance is an infringer of the copyright^[21]irrespective of the intent of the infringer. For example, Proprietors have been held liable, even though they did not pay or employ the performers or profit from the performance and the performers were playing for their own enjoyment^[22]. Proprietors have also been held liable when they lack specific knowledge of the songs that are to be played by the disc jockey in the nightclub owned by them^[23].

Courts also impose vicarious liability upon those who have the ability to supervise and control the infringing activity and get direct financial interest in the infringing activity^[24].Contributory liability is also imposed upon those, who have actual or constructive knowledge of the infringement and materially contribute to the infringement^[25]. In case of copyright infringement, the following remedies can be sought for: injunction^[26]; statutory damages^[27], which may be increased in case it is found that the infringer acted willfully^[28]; and costs and attorney’s fees^[29].

Position under Indian Law

Under the Indian Copyright Act, 1957, copyright owners in literary, dramatic or musical work have been given an exclusive right to “perform the work in public, or communicate it to the public”^[30]. The statute also provides copyright owners of cinematograph films and sound recordings a right to communicate the works to the public^[31]. Unlike the US statute, the Act does not define the terms “perform” and ‘public”. However, the phrase "communication to the public"^[32] has been defined as “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 times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available”. The statute also provides that 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. The statute also defines “performance” in relation to performer's right, but that definition is not applicable to Section 14. Also the right provided under section 14 is different from performer's right provided under Section 38, 38A and 38B of the Indian statute.

Rights conferred under section 14, mandate the taking of phonographic performance license for playing pre-recorded music in a public place, irrespective of commercial or non-commercial nature of the establishment or event. It is also important for establishments to take Public Performance licenses where music is communicated through live performance by musicians and singers, for example bars, pubs, events like concerts, shows, etc, and communication of the live performance through broadcasting medium and mechanical means like TV, internet and radio.

In a recent case of Music Broadcast Private Ltd. v. Indian Performing Right Society Ltd.^[33], the Court discussed whether radio stations had to pay license fees to the copyright owners of underlying musical works when broadcasting the sound recordings comprising of these musical works on their stations. The Court answered this question in the negative. The Court held that sound recording was owned by its producer, who had the exclusive right to communicate it to the public. It also held that once the musical and literary works were embodied in a sound recording, they did not have a separate existence in respect to the sound recording. However, in all other respects, the underlying works continued to exist separately and its copyright owners could exercise their rights over it. The owners of the musical and literary work embodied in such sound recording could not interfere with the rights of the owner of the sound recording qua that sound recording. In this case the plaintiff was not bound to pay any royalty or license fees to the Defendants, that administered the rights of the copyright owners of the underlying works, while communicating the sound recording to the public.

A recent copyright dispute between Ilayaraja and SP Balasubramanyam (SPB), raised interesting questions relating to right of public performance of musical compositions. In this case, Illayaraja, the music composer, demanded royalties from SPB, the singer, for performing his musical compositions around the world on an international tour^[34]. It is important to note that copyright in the musical composition is owned by the composer, or by the music label or production house if they have hired the composer, as per Section 17. It is the copyright owner who has the exclusive right to communicate or perform the musical composition in public and thus permission needs to be sought from the copyright owner. In this case even though SPB was the singer of the songs he ought to take necessary permissions from Ilayaraja for performing those songs. Thus, performer’s right under Section 38 is contingent upon the person taking permission from the copyright owner of the musical composition.

This broadly summarises the law relating to performing rights in India.

@@ Line 14: / Line 14: @@
 == Meaning of "public" and "performance" ==
-For the purpose of understanding the contents of the right of public performance, it is important to understand the meaning of the words “public” and “performance”, which have been defined under Section 101 of the Copyright Statute. As per the statute, perform means “to recite, render, play, dance, act, either directly or by means of any device or process, or in the case of a motion picture, to show its images in any sequence, or to make the sounds accompanying it audible." Presentations by live musicians<ref>Herbert v. Shanley Co., 242 U.S. 591 (1917) </ref>
+For the purpose of understanding the contents of the right of public performance, it is important to understand the meaning of the words “public” and “performance”, which have been defined under Section 101 of the Copyright Statute. As per the statute, perform means “to recite, render, play, dance, act, either directly or by means of any device or process, or in the case of a motion picture, to show its images in any sequence, or to make the sounds accompanying it audible." Presentations by live musicians<ref>Herbert v. Shanley Co., 242 U.S. 591 (1917) </ref>, playing tapes or records<ref>Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635 (8th Cir. 1996).    </ref>, playing jukeboxes<ref>Broadcast Music, Inc. v. Blueberry Hill Family Restaurants, Inc., 899 F. Supp. 474 (D. Nev. 1995).    </ref>, providing music-on-hold systems<ref>Prophet Music, Inc. v. Shamla Oil Co., 1993 U.S. Dist. LEXIS 7839 (D. Minn. 1993).    </ref>, broadcast of radio or television<ref>Buttnugget Publ’g v. Radio Lake Placid, Inc., 807 F. Supp. 2d 100 (N.D.N.Y. 2011); Coleman v. ESPN, Inc., 764 F. Supp. 290 (S.D.N.Y. 1991).    </ref>, retransmissions of broadcasts of radio or television stations<ref>Cass County Music Co. v. Muedini, 55 F.3d 263 (7th Cir. 1995) (radio); National Cable Television Ass’n, Inc. v. Broadcast Music, Inc., 772 F. Supp. 614 (D. D.C. 1991) (television); Home Box Office, Inc. v. Cornith Motel, Inc., 647 F. Supp. 1186 (N.D. Miss. 1986) (cable network programs).    </ref>, are all found to be ‘performances’.
+It is important to note that a person will be held liable for performing copyrighted works without the permission of the copyright owner, only if the works are performed ‘publicly’. The term “public” has been defined under Section 101 of the Copyright Statute, in two ways: the first subsection being called the ‘public place’ clause, and the second sub-section being called the ‘transmit clause’. Under the ‘public place’ clause, a performance is classified as public when it is carried out at a place open to the public or where a substantial number of people, outside of a normal circle of a family or social acquaintances, have gathered. For example, performance in a restaurant is a “public performance”, even if no customer is sitting, as it is a place open to the public.
+Under the transmit clause, one can perform the work publicly by transmitting or communicating the performance to a public place, as defined in clause one, or to the public by means of any device or process, irrespective of the fact that the members of the public are capable of receiving the performance in the same place or in separate places in the same time, or at different times. For example, when a radio station broadcast a signal containing the song, it is publicly performing both the composition and sound recording as it is transmitting the performance to the public even though the members of the public are able to receive the radio signals at different places or at different times. We can see that this clause is very expansive and covers many ways in which copyrighted works are distributed today.
+=== Interpretation of "transmit" clause ===
+The interpretation of the transmit clause is complicated and has economic implications. The interpretation of this clause can be best understood by the following three cases: ''Columbia Pictures Industries, Inc. v. Redd Horne, Inc.''<ref>749 F.2d 154 (3rd Cir. 1984).</ref>; ''Cartoon Network, LP v. CSC Holdings, Inc.''<ref>536 F.3d 121 (2d Cir. 2008).</ref>; and ''American Broadcasting Companies, Inc. v. Aereo, Inc.''<ref>134 S.Ct. 2498 (2014).</ref>
+==== '''Columbia Pictures Industries, Inc. v. Redd Horne, Inc.''' ====
+This case dealt with the application of the transmit clause to the Video Cassette Recorder (VCR) technology. In this case, the defendant rented Video Home System (VHS) tapes, and provided the facility to play these VHS tapes with the help of VCR in a small-carpeted room at the back of the store. The customer would watch the rented VHS tape either alone or with a companion or two. The Court of Appeal held that playing of VHS tapes constituted public performance of audio/visual works as the facility was open to public and the VCR technology also involved transmission. Even though a few members of the public utilised the facility at a given time, as the facility was open to the public, it constituted a public place. Secondly, as there was small transmission from the front desk to the room in the back and members of the public watched the transmissions at the same place at different times, it constituted ‘public performance’ under the transmission clause.
+==== Cartoon Network, LP v. CSC Holdings, Inc. ====
+Cablevision Systems Corporation ("Cablevision", was a small cable TV system based in New York City, and paid, for obtaining either voluntary license or compulsory license, to broadcast audio visual programs. These licenses gave Cablevision the right to publicly perform TV shows or movies, but did not give Cablevision the right to make copies of the TV shows or movies.  In 2006, Cablevision offered to make copies of TV shows and movies using a cloud-based technology, which was called a remote storage DVR or RS-DVR system.
+Under the RS-DVR system, the customer could record a program by pressing the record button either  in advance or at the time the program was playing. Here, the viewer sent the signal from the remote, through the cable, to the Arroyo server at Cablevision's central facility, which then delivered the program to the subscriber's home. Cartoon Network and copyright owners in other shows filed a suit against Cablevision contending that RS-DVR system violated their copyright as the transmission from Arroyo to the customer constituted a public performance of the work. In this case, the Court of Appeal held that the transmission did not violate section 106(4) as the transmission was delivered to a single subscriber using a single unique copy produced by that subscriber. Thus, the transmission did not constitute public performance. However, had Cablevision transmitted the work to multiple subscribers from the same copy, the decision would have been different.
+The Cablevision case catalysed innovation with respect to technologies and business models in the entertainment industry, as systems that stored individual copies for individual subscribers was very inefficient. However, when these innovations were challenged under copyright law, some were held to be valid, while some were held to violate the copyright law<ref>William Fisher, CopyrightX: Lecture 8.2, The Right to Distribute, Perform, & Display: Performances. (2015). Retrieved from <nowiki>https://www.youtube.com/watch?v=zvNof9OqH7I&feature=youtube_gdata_player</nowiki></ref>.
+==== American Broadcasting Companies, Inc. v. Aereo, Inc. ====
+The background of this case was that while metropolitan consumers viewed television programs broadcasted by television stations for free, rural consumers had to subscribe to cable television services due to poor television reception. Cable companies used to pick by air broadcasts in major cities and redistribute it through their cables. In 1976, the Congress adopted an expansive definition of public performance, which obliged the cable companies to pay copyright owners as retransmission of programs constituted ‘public performance’.
+Aereo was a system that picked up television broadcasts of any TV program,  converted it into packets and streamed those packets to the consumers over the internet, who subscribed for it’s services, enabling consumers to watch the TV programs over their laptop or tablet. It is important to note that Aereo obtained thousands of tiny TV antennas, each the size of a dime, which it arranged in arrays, and would rent one of those tiny, individual antennas to its subscribers and tune it to the free air broadcast. Another striking feature of Aereo's system was that the program would not be shown live, but with a resultant time lag of few seconds. Aereo captured and recorded the live program and sent a packet to the subscriber from that personal recording. Thus, Aereo had created a system that resembled Cablevision so that it did not have to pay license fee.
+Copyright owners challenged the Aereo system. While Trial Court and the Court of Appeal ruled in favour of Aereo, the Supreme Court reversed the ruling. The Supreme Court held that "in regard to the purpose and text of the transmit clause, when an entity communicates the same sounds and images to multiple people, such transmission will constitute a public performance irrespective of the number of discrete communications it makes". Thus, the Court held that the fact that the subscriber received an individual transmission from an individual copy of the program at issue, was irrelevant.
+The Aereo decision did not render the RS DVR systems unlawful, as Justice Breyer emphasised that in the present case neither Aereo nor its subscribers had paid for access to the programs that Aereo streamed, and suggested that the case would have been decided differently had the subscribers paid.  The Court provided a safe harbour for cloud locker services and for services like Cablevision that allowed consumers, who had already paid for programming, to watch those programs at later times or in different places. Justice Breyer also emphasised that the inappropriate or inequitable application of the Transmit clause could be prevented by the doctrine of 'fair use' .
+After the ''Aereo'' and ''Cablevision'' decision there is uncertainty as to what kind of  transmission constitutes a public performance.
+=== Divergence between US and Europe ===
+United States is a party to the WIPO Copyright Treaty of 1996<ref>http://www.wipo.int/treaties/en/ip/wct/</ref>, which requires member countries to provide copyright owners a generous version of the right of distribution and a right of communication to the public, under Articles 6 and 8 of that treaty. Both the provisions use the phrase “make available to the public” which covers more activities than are covered by the US law. Professor Jane Ginsburg of Columbia Law School has shown that the phrase “make available to the public” is broader than the right provided under US law and covers cloud-based services.
+The EU implements the Information Society Directive of 2001, in compliance of the WIPO Copyright Treaties, which provides that authors an "exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means, including systems that allow members of the public to access works from a place and at a time individually chosen by them". Thus, the EU adopts a wider definition of right of public performance, as compared to the US. Furthermore, the European Court of Justice (2013) held that a service that resembled the ''Aereo'' system, provided by a British company called TVCatchup, violated the right of public performance<ref>ITV Broadcasting Ltd, ITV 2 Ltd, ITV Digital Channels Ltd, Channel 4 Television Corporation, 4 Ventures Ltd, Channel 5 Broadcasting Ltd, ITV Studios Ltd v. TVCatchup Ltd, Case C‑607/11, European Court of Justice, 7 March 2013.
+</ref>. Furthermore, the European Commission also rescinded an Italian law that had granted partial immunity to an RS DVR service analogous to that offered by Cablevision<ref>William Fisher, CopyrightX: Lecture 8.2, The Right to Distribute, Perform, & Display: Performances. (2015). Retrieved from <nowiki>https://www.youtube.com/watch?v=zvNof9OqH7I&feature=youtube_gdata_player</nowiki></ref>.
+Thus, we can see that there is a gap in the US and EU law with respect to right of public performance and this becomes problematic when enterprises what to provide cloud-bases services, over the internet, not just to the US but to consumers in other countries too.
+== Limitations and Exceptions ==
+The US Copyright statute, provides a long list of exceptions and limitations to the right of public performance provided to copyright owners. This long list of exceptions is in contrast to the fair use doctrine, which confers a great deal of discretion upon the courts when deciding if an unauthorised act of the defendant is fair.
+'''Section 110(1)''' permits public performance of copyrighted work in a '''classroom''', provided the work is performed live and the copy of the work is prepared lawfully. The next exemption provided under '''section 110(2)''', also known as the '''TEACH ACT''', deals with distance learning. This exemption is limited to enrolled students and to streaming of materials. Thus, one cannot be exempted from violating section 106(4) if one makes the recorded lectures available to the public or makes the copyrighted materials available for downloading or stream the copyrighted materials in such a way that enables students to copy them. Section 110(2) also provides for additional restrictions, such as, it is limited to materials that are designed for some other purpose and then adapted to distance education, and requires the teacher to provide instructions about copyright law along with the material. The provision also requires the teacher to adopt technologies that would prevent the recipients from saving the materials provided during distance learning. These restrictions, accompanying section 110(2), are burdensome and thus, fail to facilitate distance learning.
+Furthermore, '''section 110(3)''' exempts '''public performances of religious works''' in the course of services. This provision aims at facilitating the operation of churches and other religious establishments. It also implies that creators of religious materials, specifically non-dramatic literary musical works, don't get monetary benefits for the performance of their works.
+'''Section 110(4)''' provides for '''nonprofit exception''', which privileges live performances of a non-dramatic literary or musical work without any purpose of direct or indirect commercial advantage. For example, Restaurant waiters singing "Happy Birthday" to their customers, free of charge, shall be shielded under this provision. However, in 1996, ASCAP sought license fees from the Girl Scouts in return for permitting the scouts to sing songs around their campfires<ref>http://www.nytimes.com/1996/12/17/nyregion/ascap-asks-royalties-from-girl-scouts-and-regrets-it.html</ref>. ASCAP’s claim affected its public relations and the Wall Street Journal wrote a scorching article about it. Thus, ASCAP was forced to grant public performance rights to Girl Scouts for a nominal fee. Section 110(4) did not apply to this case, as the Girls Scouts were charging for allowing people to access them sing songs around the campfires.
+The last two exceptions are called '''“homestyle exception”''' and the '''Fairness in Music Licensing Act.''' Under “homestyle exception”, provided under '''section 110(5)(A)''', a privilege is provided for publicly performing copyrighted works using the kind of apparatus that you would ordinarily find in a home. However, this provision is vague and does not safeguard stores and restaurants who deploy apparatuses bigger than home style devices for the purpose of playing background music.
+'''Section 110(5)(B)''', commonly known as the Fairness in Music Licensing Act, provides safeguards to stores and restaurants for publicly performing musical works upon satisfying certain conditions. For example, a performance by audio means is exempted only if it is carried out by a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space. It is important to note that the European Union challenged the exceptions under FMLA to be in violation of TRIPS and won.<ref>[[World Trade Organization Dispute 160]]</ref> However, the US Congress did not amend the statute, they submitted the dispute brought by EU to binding arbitration, which resulted in a monetary judgment, where United States has to pay EU a fee of over $1 million a year to compensate for the injuries that EU copyright owners incurred because of this exemption.
+Apart from the listed exceptions, the copyright statute also provides for '''fair use doctrine''' under '''Section 107'''. In determining whether the public performance of a copyrighted work is fair use, four factors need to be considered: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work. The fair use doctrine is a case-specific doctrine and is applied by the judges on an ad-hoc basis.
+== Compulsory Licensing ==
+Apart from exceptions, there are also certain kinds of public performances for which permission need not be sought from the copyright owners; however, copyright owner’s need to pay a compulsory license fee determined by the government. The five main compulsory licenses are as follows: public-broadcasting organisations; some types of webcasts engaged in digital audio transmissions; re-transmissions by cable systems; and satellites; and jukeboxes<ref>William Fisher, CopyrightX: Lecture 8.2, The Right to Distribute, Perform, & Display: Performances. (2015). Retrieved from <nowiki>https://www.youtube.com/watch?v=zvNof9OqH7I&feature=youtube_gdata_player</nowiki></ref>. The way in which the compulsory license fee is determined is complicated and varies across each of these five areas.
+While compulsory licenses deprive the copyright owners from controlling uses of their work, and may sought them lower license fees; they are better than exceptions as copyright owners are paid for the public performance of their works. It is also argued that compulsory licenses facilitate socially-beneficial uses of copyrighted materials that otherwise would be frustrated by high transaction costs<ref>William Fisher, CopyrightX: Lecture 8.2, The Right to Distribute, Perform, & Display: Performances. (2015). Retrieved from <nowiki>https://www.youtube.com/watch?v=zvNof9OqH7I&feature=youtube_gdata_player</nowiki></ref>. For example, it would not be feasible for a jukebox owner to negotiate licenses with copyright owners of all songs and sound recordings, as that would result in high transaction costs. It is also argued that compulsory licenses balances the unequal bargaining power between the copyright owners and the users and prevent the owners from levying an excessive license fees from the users. Furthermore, it is arguable that even though copyright owners are obliged to accept lower license fee, than they would demand, their loss is offset by increase in the output. All these arguments are rebutted by the fact that advent of information technology is declining transaction costs; the beneficiaries of compulsory licenses are not powerless; and administrative costs associated with the system of compulsory license exceeds the cost savings it enables<ref>William Fisher, CopyrightX: Lecture 8.2, The Right to Distribute, Perform, & Display: Performances. (2015). Retrieved from <nowiki>https://www.youtube.com/watch?v=zvNof9OqH7I&feature=youtube_gdata_player</nowiki></ref>.
+== Infringement and Remedies ==
+Copyright infringement is a strict liability tort, where anyone who violates the exclusive right of public performance is an infringer of the copyright<ref>17 U.S.C. § 501(a). </ref>irrespective of the intent of the infringer. For example, Proprietors have been held liable, even though they did not pay or employ the performers or profit from the performance and the performers were playing for their own enjoyment<ref>Major Bob Music v. Stubbs, 851 F. Supp. 475 (S.D. Ga. 1994); Cass County Music Co. v. Vineyard Country Golf Corp., 605 F. Supp. 1536 (D. Mass. 1985).    </ref>. Proprietors have also been held liable when they lack specific knowledge of the songs that are to be played by the disc jockey in the nightclub owned by them<ref>Cass County Music Co. v. Vineyard Country Golf Corp., 605 F. Supp. 1536 (D. Mass. 1985).    </ref>.
+Courts also impose vicarious liability upon those who have the ability to supervise and control the infringing activity and get direct financial interest in the infringing activity<ref>Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).</ref>.Contributory liability is also imposed upon those, who have actual or constructive knowledge of the infringement and materially contribute to the infringement<ref>Blendingwell Music Inc. v. Moor-Law, Inc., 612 F. Supp. 474 (D. Del. 1985)    </ref>.
+In case of copyright infringement, the following remedies can be sought for: injunction<ref>17 U.S.C. § 502.</ref>; statutory damages<ref>17 U.S.C. § 504(c)    </ref>, which may be increased in case it is found that the infringer acted willfully<ref>17 U.S.C. § 504(c)(2).</ref>; and costs and attorney’s fees<ref>17 U.S.C. § 505.
+</ref>.
+== Position under Indian Law ==
+Under the Indian Copyright Act, 1957, copyright owners in literary, dramatic or musical work have been given an exclusive right to “perform the work in public, or communicate it to the public”<ref>Section 14 (a) (iii), Indian Copyright Act 1957. </ref>. The statute also provides copyright owners of cinematograph films and sound recordings a right to communicate the works to the public<ref>Section 14, Indian Copyright Act 1957.
+</ref>. Unlike the US statute, the Act does not define the terms “perform” and ‘public”. However, the phrase "communication to the public"<ref>Section 2(ff), Indian Copyright Act 1957.
+</ref> has been defined as “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 times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available”. The statute also provides that 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. The statute also defines “performance” in relation to performer's right, but that definition is not applicable to Section 14. Also the right provided under section 14 is different from performer's right provided under Section 38, 38A and 38B of the Indian statute.
+Rights conferred under section 14, mandate the taking of phonographic performance license for playing pre-recorded music in a public place, irrespective of commercial or non-commercial nature of the establishment or event. It is also important for establishments to take Public Performance licenses where music is communicated through live performance by musicians and singers, for example bars, pubs, events like concerts, shows, etc, and communication of the live performance through broadcasting medium and mechanical means like TV, internet and radio.
+In a recent case of ''Music Broadcast Private Ltd. v. Indian Performing Right Society Ltd.''<ref>2011(5)ALLMR738, 2011(113)BOMLR3153, MIPR2011(3)84, 2011(47)PTC592(Bom).    </ref>, the Court discussed whether radio stations had to pay license fees to the copyright owners of underlying musical works when broadcasting the sound recordings comprising of these musical works on their stations. The Court answered this question in the negative. The Court held that sound recording was owned by its producer, who had the exclusive right to communicate it to the public. It also held that once the musical and literary works were embodied in a sound recording, they did not have a separate existence in respect to the sound recording. However, in all other respects, the underlying works continued to exist separately and its copyright owners could exercise their rights over it. The owners of the musical and literary work embodied in such sound recording could not interfere with the rights of the owner of the sound recording qua that sound recording. In this case the plaintiff was not bound to pay any royalty or license fees to the Defendants, that administered the rights of the copyright owners of the underlying works, while communicating the sound recording to the public.
+A recent copyright dispute between Ilayaraja and SP Balasubramanyam (SPB), raised interesting questions relating to right of public performance of musical compositions. In this case, Illayaraja, the music composer, demanded royalties from SPB, the singer, for performing his musical compositions around the world on an international tour<ref>http://www.hindustantimes.com/music/illayaraja-s-legal-notice-to-spb-sp-balasubrahmanyam-says-he-will-obey-the-law/story-hulhkHFbDsrOBOu3kiu1EN.html
+</ref>. It is important to note that copyright in the musical composition is owned by the composer, or by the music label or production house if they have hired the composer, as per Section 17. It is the copyright owner who has the exclusive right to communicate or perform the musical composition in public and thus permission needs to be sought from the copyright owner. In this case even though SPB was the singer of the songs he ought to take necessary permissions from Ilayaraja for performing those songs. Thus, performer’s right under Section 38 is contingent upon the person taking permission from the copyright owner of the musical composition.
+This broadly summarises the law relating to performing rights in India.
 ==External links==