Performer rights
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This article is written by Shreyansh Gupta.

Abstract

Earlier performers’ rights were not recognised under copyright law. Performance of an actor in a cinematograph film or performance of a singer in a sound recording were not legally protected. Hence permission of a performer was not required to use the sound recording or dramatic work. But in the year 1994, performer rights were recognised under the Copyright Act 1957 in India. However, until the Rome Convention, 1961, the performers rights were not recognized internationally. But the Rome Convention gave protection against broadcast of any performance without the consent of the performer. It gave recognition to performers rights and stated that the performer is an artist and without his consent work cannot be broadcasted. Section 38, 39 and 39A of Copyright Act deals with the provisions related to the performer rights. 

Introduction

When the copyright law was introduced during the British rule then at that time there was no recognition given to the performer’s rights. When post-independence, the Copyright Act, 1957 was introduced then also there was no mention of performer’s rights. In the case of Fortune Films v. Dev Anand in 1979, the Bombay High Court held that performer’s rights do not have any copyright as their rights are not recognized under the Copyright Act. After this judgement, the need was felt to insert the performer’s right in copyright act. In 1994, the copyright amendment was made and Section 38, 39 and 39A were introduced to recognize the performer’s rights. Indian Copyright Act recognizes the ambit of performers beyond what is actually the minimum requirement, as specified in Rome convention and TRIPS. Section 2(qq) defines the term ‘performer’, which includes actor, dancer, musician, singer, acrobat, conjurer, snake charmer, juggler, a person delivering a lecture or any other person who makes a performance. However, in case of sports, the players cannot be termed as performers as sports is competitive and its outcome is not certain and also sportsmen are bound to play within the rules and creativity is not allowed. Hence sports persons cannot come under the ambit of performers. 

Origin and Development of Performer’s Rights

Earlier the work of the individual, who helped the creators of intellectual property in communicating their work to the public, was not recognized. When any song is written by a lyricist then unless it is sung by the singer, it has no value or the play script written by the author is of no use unless it is performed by the actor. So, in case, the author or lyricist wants to enhance the value of their work then they need the help of the performers. The International Convention for the protection of performers, producers of phonograms and broadcasting organizations generally known as Rome Convention, 1961, was the first convention recognizing the rights of performers. International Labour Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO) and World Intellectual Property Organization (WIPO) are together responsible for the administration of the Rome Convention. 

The intergovernmental committee secretariat consists of members from 12 contracting states constituted by these three organizations. This committee is concerned with questions that are considered in Rome convention. In this convention, the duration of the performer’s rights was protected for at least 20 years from the end of the year in which the performance took place. Article 19 of the Rome Convention states that when the performer has consented for the incorporation of his performance in any audio-visual or visual mode then these provisions will not be applicable. In India, protection is given to performer’s rights for the term of 50 years. Article 7 of the Rome Convention gives protection to the rights of performers:

  • Performers have the right to prevent others from broadcasting or communicating to the public by means other than broadcasting without their consent.
  • They have the right to prevent others from fixation of their unfixed live performance without taking their consent.
  • They have the right to prevent others from reproduction of their live performance without their consent.
  • They have the right to prevent the commercial exploitation of their performance for any other purpose, for which the consent is not obtained.          

The provisions of this convention are further strengthened by the TRIPS agreement, which is administered by WTO. Article 14 of the TRIPS agreement states that:

  • They have the right to protect their work from broadcast and communication to the public by wireless means. 
  • They have the right to prevent reproduction of their live performances. 
  • They have the right to prevent the fixation of their live performance on phonograms. In the Rome Convention, such performances were not restricted to phonograms but here the narrow approach has been adopted. 

The protection of performer’s rights is 50 years from the end of the year in which the performance was fixed or it took place. 

In 1996, WIPO Performance and phonogram Treaty (WPPT) came into existence. In this treaty, moral rights of the performers were recognized for the first time in any international treaty. It also discusses the economic rights of the performers. Performers should receive monetary compensation for their performance and if the work is exploited for any other purpose than for which, consent is given then performers are eligible to receive the royalties. 

In 2012, Beijing Treaty on Audio-Visual Performance was adopted by WIPO in which the performers in the audio-visual domain were discussed elaborately. Contracting states discussed protecting the rights of the performers working in films, tv shows or short videos etc. WPPT did not discuss the performer working in the tv or films but in the Beijing Treaty, all these rights were discussed and it also laid down provisions for the transfer of performer’s rights to producers of films.

What are the rights of Performer under the Copyright Act?

  • Performer has right to make sound or visual recording: A performer has the right to make the sound or visual recording. He can also give consent to other people to record the live performance. Without the consent of the performer, no other person can make use of that sound recording. But, in case, their performance is for the cinematograph film and the written agreement is made consenting the incorporation of his performance in such film then all the rights will, therefore, be enjoyed by the producer of such film irrespective of whether the performer is a singer or actor.
  • Performer has the right to produce the sound or visual recording: A performer may also become producer of the sound or visual recording and can enjoy all the rights that a producer enjoys such as reproducing a number of copies, giving the copies for commercial rental, communicating the work to the public etc. But for that purpose, the performer must have the prior permission from the individual copyright owner like lyricist and music composer and should have the certificate related to the sound or visual recording by the competent authority.     
  • Performer has the right to broadcast performance: Performers can prevent others from broadcasting their live performance. In case the consent of the performer is not taken and any other individual is broadcasting his performance then it will amount to copyright infringement. But, if the performance is for the cinematograph film and then rights will be enjoyed by the producer of the cinematograph film but if the performance is commercially exploited for other purposes than such film then the performer has the right to claim the royalties. 
  • Performer has the right to communicate the work other than by broadcast: Performer can use other means to communicate with the public than by means of broadcast. Broadcast means communication to the public either by means of wireless diffusion or by wire.          

Acts that constitute the infringement of performer’s rights

  • Reproduction of the work of performer without his consent.
  • Use of performer’s work without his consent. 
  • Use of performer’s work for any other purpose for which the consent is not obtained from performer.
  • Broadcast of the work of performer other than the one mentioned in Section 39 of the Copyright Act.
  • Communication of the performance without the consent of performer to the public other than by broadcast.

Acts that do not constitute infringement of performer’s rights

  • The act of reproducing any sound or visual recording either for the purpose of private use or for teaching and research work only.
  • In case the work is reproduced for the purpose of judicial proceeding. 
  • Reproduction for the purpose of reporting, reviewing or other things that come under fair dealing.
  • In case the work is reproduced for the purpose of use by members of legislature.
  • Some other uses that are not considered infringement under Section 52 of the Copyright Act.

Moral Rights of the Performer

The performer has the right to be identified for his work even though he has given all his rights to the producer of the cinematograph film. The performer, even after giving up their rights over the work, have the right to be recognized for their work. They also have the right to object, in case any alteration is made in the work performed by them. In case, the producer of the cinematograph film shortens the length of the performance or removes some portion of the work because of some technical issues or time constraints then the moral right of the performer is not said to be prejudiced. Moral rights of the legal representatives of the performer and legal representatives of copyright owners are different and cannot be exercised in the same manner. 

Some Important Case Laws      

One of the earliest cases where the performers rights came into question and where it was completely denied by the court to recognize the performer’s right in the cinematograph film was in Fortune Films International v. Dev Anand, here the court held that an actor has no right to control the use of their performance in the film. The actors were given a fee for their performance and after that the producer was free to use their performance in whatever they wish to use it. But with the amendment in the Copyright Act in 1994, performer’s rights were given recognition. 

In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High Court held that copyright and performers rights are two different things and in case the song is re-recorded then the prior permission of the original singer is required. 

In Neha Bhasin v. Anand Raj Anand, the court addressed the issue that what will constitute the live performance, here it held that whether the performance is recorded in the studio or in front of the audience, for the first instance, both will be called live performance and if anyone use such performance without the consent of the performer then performer’s rights is said to be infringed. 

Other than the abovementioned decisions, there has not been much development in the field of performer’s rights in India. But with the evolution of technology, one may expect in the future that new issues will arise testing the provisions of the performer’s rights.         

Remedies against Performer’s Rights Infringement

The remedies are available against the infringer of performer’s right in Section 55 and also from Section 63 to 70 of the Copyright Act. The following remedies may be availed:

  • Civil Remedies: The owner of the performer’s right or his exclusive licensee may go to the court and obtain the injunction either temporary or permanent or they may also claim damages.
  • Criminal Remedies: Not only civil remedy but criminal remedy is also available against the infringer. The infringer may be sentenced for six months which may extend up to three years or may be liable to pay a fine of Rs. 50,000 to Rs. 2,00,000 or both.
  • Anton Pillar Order: Sometimes the court gives permission to the plaintiff, on an application by him, to enter into the defendant’s place along with the attorney and inspect the relevant documents. This is necessary because the defendant may remove the documents from his premises if he knows beforehand that the inspection is going to happen or any search warrant is released by the court.     

Conclusion

The rights that conferred to the performers are a very encouraging step in the field of Copyright law. They always had a special place in the copyright work but their work was never given the kind of appreciation that was required. Now their rights are protected under Copyright law and also this strengthens their financial position as well.

References

  • Recognition of Performers’ Rights by the Indian Courts – Selvam & Selvam. (2016). Selvams. https://selvams.com/blog/judicial-recognition-of-performers-rights/
  • Reporter, B. (2019, September 14). Performer’s Right under Indian Copyright Law- Part I. BananaIP Counsels. https://www.bananaip.com/ip-news-center/ip-blog-a-thon-performers-right-under-indian-copyright-law-part-i/
  • S. (2018, June 22). Delusion Over Indian Performance Rights Society Being A Part Of Copyright Society. Intellectual Property- India. https://www.mondaq.com/india/copyright/709542/delusion-over-indian-performance-rights-society-being-a-part-of-copyright-society
  • A. (2019b, December 1). PERFORMERS RIGHTS IN INDIA. FastForward Justice. https://fastforwardjustice.com/performers-rights-in-india/

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