This article has been written by Poonam Joshi, pursuing a Certificate Course in Intellectual Property Law and Prosecution from LawSikho.

Introduction

The Copyright Act protects creative work and its authors. Copyright arises when a piece is created. The moment the work has created the copyright of that work is automatically created. In accordance with the Act, protection begins without formalities of applying for copyright once the work is created. One of the main concerns of content creators or authors is that they seek to make sure that their work is protected, giving them assurance that their original work cannot be used by anyone without their permission/consent. Before the amendment of the Copyright Act in 1994, the Act was silent with reference to the rights of the performers. 

The issue got noticed and addressed

The changes within the social and economic position of performers are reflected in changes to their legal rights and therefore, the legal protection afforded to the performers against unauthorized exploitation of their performances. The demand for performer’s rights became tremendously perceptible when the technical means to repair the performances emerged. Once it became possible to take advantage of performances by means of phonogram and cinematographic film, the economic arguments in favour of the author’s rights became equally applicable to the performer’s rights.

The concept of ‘Performer’s Rights’ was introduced in the year 2012 by amendment within the Copyright Act vide section 38. This section provided exclusive right or authority to the Performer for doing any act in respect of the performance without prejudice to the rights conferred on its authors. This resolved the difficulty of payment of royalties to the performers.

Statutory provision under Copyright Act

 Section 38 of the Copyright Act confers right to performers like actors, dancers, jugglers, acrobats etc. and this resulted in the creation of the Performing Rights Society (PRS) which provides assurance that by getting registered with or under-recognized and legal copyright registration societies, their right is going to be protected and be adequately remunerated.  

With the insertion of Clause (b) of section 38B, the performances of causal and incidental in nature were not to be acknowledged. 

Section 38B reads as under: 

The performer of performance shall, independently of his right after assignment, either wholly or partially, have the proper: 

(a) to claim to be identified because the performer of his performance except where omission is dictated by the way of the utilization of the performance; and

 (b) to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that might be prejudicial to his reputation.

Sections 39 and 39A provides for fair dealing and applicability of certain other provisions within the Copyright Act, 1957 respectively are commonly applicable to performers and broadcasting organizations. As per section 38B performers in cinematograph films, whether or not credited and granted the rights, the moral rights of performers are protected. 

Further, the amended section 2(f) covers both works and performances within its ambit, which reads: Communication to the general public means making any work or performance available for being seen or heard or otherwise enjoyed by the general public directly or by any means of display or diffusion aside from by issuing physical copies of it, whether simultaneously or at places and times chosen individually, no matter whether any member of the general public actually sees, hears or otherwise enjoys the work or performance so made available. 

The definition now explicitly states that it doesn’t matter whether the communication is simultaneous or at places and times chosen individually. As such, it appears to incorporate multicasting, narrowcasting and unicasting.  Chapter VIII of the Copyright Act, 1957 deals with the rights of broadcasting organisations and of performers. 

Duration of performer’s right

The performer’s right subsists until fifty years from the beginning of the calendar year next following the year during which the performance is made. The 2012 amendment has restructured the performers’ rights. A new section, 38A has been inserted to confer affirmative and exclusive rights to performers. Under the new Act the performers have the right to do or authorize the doing of the following acts, namely:

• To make  an audio or video recording of the performance or to certain acts in respect of such recording;
• To reproduce it in any material form including the storing of it in any medium in electronic or the other means;
• To issue copies of it to the general public not being copies already in circulation; 
• To sell or give on commercial rental or offer purchasable or for commercial rental, any copy of the recording and;
• To broadcast or communicate the performance to the general public except where the performance is already a broadcast performance. 

Amendments how compatible with WPPT and other world treaties

These amendments thus make the Indian copyright law compatible with the WPPT. Section 38A(2) states that when a performer has, by an agreement, consented to the incorporation of his performance during a cinematograph film he shall not, within the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right within the same film. However, the new Act enables the performers to earn continued royalties just in case of creating the performances for commercial use. One of the foremost important changes introduced by, the 2012 amendment is that the conferment of ethical rights to performers by inserting section 38B.

An overview of the international legal framework on neighbouring rights reveals that originally neighbouring rights did not fall into the scope of Beme Convention. In international law, the primary move towards neighbouring rights was made in 1928 by the Rome Revision Conference of the Beme Convention when the Conference, although refusing to grant copyright to the performers, as had been suggested, expressed a wish at the top of the Conference that the members of the Beme Convention should consider the likelihood of measures intended to safeguard the rights of performers. It had been envisaged that one convention for performers and producers of phonograms and other conventions for the broadcasting organizations should be annexed to the revised Beme Convention. Meanwhile, in 1936 Austria and in 1941 Italy granted neighbouring rights. 

Rights granted by WPPT 

WIPO Performances and Phonograms Treaty within the WIPO Performances and Phonograms Treaty (WPPT) 1996, it’s specifically recognized that there shall be exclusive rights of aural performers including moral rights with reference to: 

• Right of fixation of unfixed performances 
• Broadcasting & communication of unfixed performances 
• Reproduction 
• Distribution
• Rental
• Making available to the general public.

WPPT deals with the copyright rights of two types of beneficiaries:

1. That of performers  which cover musicians, singers, actors and other; secondly
2. That of producers of phonograms.

Both types of beneficiaries are dealt with in an equivalent instrument because of most of the rights granted by the Treaty. With regard to  performers, the treaty grants performers  four different types of  economic rights:

(i) The right of reproduction, 

(ii) The right of distribution,

(iii) The right of rental, and

(iv) The right of creating available. 

Even though the above are exclusive rights, they are subject to certain limitations and exceptions. It includes; the right of reproduction, the right of distribution the right of the rental as determined within the local laws of the contracting parties, the right of creating/making available to the general public by wire or wireless means, of any performance fixed during a phonogram, in such manner that members of the general public may access the fixed performance from an area and at a time as per the individual’s choice of time. individually chosen by them. The Treaty grants three types of economic rights to performers in respect of their unfixed (life) performances:

(i) The right of broadcasting (except within the case of rebroadcasting),

(ii) The right of communication to the general public (except where the performance may be a broadcast performance), and

(iii) The right of fixation. 

The Treaty allows each contracting party to, according to nationals of the opposite contracting parties with reference to the rights specifically granted within the Treaty the treatment it accords to its own nationals (“national treatment”) subject to varied exceptions and limitations. The Treaty provides that performers enjoy the right to one equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, for broadcasting or for communication to the general public. However, any contracting party may restrict or provide a reservation to the Treaty and deny this right. In a contracting party of any Treaty restricts the opposite Contracting Parties, then in such a case the opposition contracting parties too can deny such contracting party, national treatment (“reciprocity”).

Conclusion

A lot has been done and still, a lot is required to be done to curb the challenges of the theatre and the performing Art Industry.  However, the amended law in 2012 has majorly addressed the problems and concerns of this industry which is in line with the worldwide Treaties. The wide publicity of the prevailing laws and rights of the performers is the need of the day.

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