This article is written by Ajay Birbal who is pursuing a Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.
Before the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations in 1961, the rights of the performers were not recognised. This convention gave the rights to performers against certain acts to which they have not consented such as broadcasting and communication to the public of the live performance. The definition of performers includes musicians, dancers, singer, actors, and those others who perform artistic or literary work. This treaty calls for providing adequate compensation to the performers for their performance. However, these rights exist over the rights given to the original author.
In 1994, the Indian Copyright Act was amended to give statutory rights to the performers for the first time. This article explores the changes brought by the amendment act with respect to performers right.
Who is a performer?
Before we delve into the rights of the performers, let us first understand who is considered as a performer and what is a performance.
Through the amendment act of 1994, the definition of “performer” and “performance” was added to Section 2 of the Act. As per the act, the performer “includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.” Performance has been defined as “means any visual or acoustic presentation made live by one or more performers”. Performers right are part of the neighbouring or related rights. In 2012, the Indian Copyright Act was further amended which expanded the scope of their rights.
In Neha Bhasin vs Anand Raj Anand, it was held by the Hon’ble Delhi High Court the definition of live performance and explained what forms a live performance. It was held that “Section 2(q) defines “performance”, in relation to performer’s right, to mean any visual or acoustic presentation made live by one or more performers. Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed.”
Through the 1994 amendment, Section 38 was also inserted which provides that whenever a performer engages or appears in a performance, he will have a special right in relation to the said performance. The right will be available to the performer for the period of 50 years starting from the next calendar year.
For example, if a performance was made in the year 3rd September, 2017, then the right will be available for the next 50 years starting from the date 1st January, 2018 and will end on 1st January, 2068.
Certain acts done without the consent of the performer during the continuance of performer’s right would be considered as an infringement of said rights:
(a) makes a sound or visual recording of the performance
(b) reproduces or replicates a sound or visual recording of the performance, that was—
(i) made without the consent of the performer’s consent;
(ii) made for purposes other than those for which the performer gave his approval; or
(iii) made for purposes different from those given to in section 39; or
(iv) visual recording which was made as per section 39.
(c) broadcasts the performance except where the broadcast is made from a sound recording or visual recording other than one made in accordance with section 39, or is a re-broadcast by the same broadcasting organisation of an earlier broadcast which did not infringe the performer’s right; or
(d) communicates the performance to the public otherwise than by broadcast, except where such communication to the public is made from a sound or a visual recording or a broadcast, shall be considered to have infringed the performer’s right. However, this exception will be subject to the provisions of Section 39.
The word broadcast has been defined under section 2(dd) of the Act. It says that communication to the public by the means of a wire (for example cable tv) or a wireless diffusion (for example satellite-based dish tv) in the form of visual images, signs or sounds. The definition also includes the rebroadcast of the performances.
In Super Cassettes Industries v. Bathla Cassette Industries, it was held by the Hon’ble Delhi High Court that re-recording of a song without the approval of the original performer constitutes an infringement of the performer’s rights.
Infringement of Performer’s right
Section 39 of the Copyright Act, which was also inserted via the amendment of 1994, deals with the acts which are not considered as an infringement to the Performer’s right. These includes:
(a) the making of any sound recording or visual recording for the private use
(b) making such recording, or solely for purposes of honest teaching or research.
(c) the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for an honest review, research or teaching purposes.
(d) such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under Section 52.
Through the amendment of the Act in 2012, exclusive and moral rights were also granted to the performers in addition to special rights.
Statutory rights to royalties
Section 38A was inserted into the Copyright Act vide amendment of 2012. The proviso to Section 38A(2) provides for the Right to Royalty to the performer. It provided that even if the performer by a written agreement, consented to the use of his performance in a cinematograph film which cannot be objected to, the entitlement to royalty is still not waived if the performance is used for commercial use.
It is important to remember that the rights of the performer run parallel to the rights of the author or owner of the literary work or artistic work as the case maybe.
Furthermore, Section 38 indirectly recognises the right to royalty since the recording cannot be communicated to the public without the Performer’s consent. The consent can be given by a performer in exchange of consideration. This consideration may be in the form of royalties that must be paid to the performer of the music.
Assignability of statutory rights vis-a-vis performers rights as per the law
Assignability of the royalty rights have been dealt in Section 18 and 19 of the copyright act. Section 39A of the act provides for the application of Section 18 and 19 with the necessary modifications and adaptions to the Performers.
Section 18(1) of the act provides that the owner of the copyright may assign his or her right wholly or partially for any duration of term of the copyright. The assignment may be with or without condition. Assignment of future work is also allowed provided the assignment will come into force once the work comes into reality. The second proviso, which was inserted via amendment clarifies that the assignment will not be applicable to the mode of exploitation which was not in existence or was not commercially in use when the assignment was initially made. For example, exploitation by way of 3D holographic technology where 3D projections are created on the surface.
Third proviso provides that the author of musical or literary work, which is included in the cinematograph film, cannot waive, or assign the right to receive a royalty on an equal basis other than as a part of a film or sound recording. However, the proviso further clarifies the assignment can be made in favour of legal heirs or to the copyright society for collection and distribution of the royalty on behalf of the author. Even though this proviso only mentions the author of musical or literary work, due to adaption and substitution as provided under Section 39A, same rights are also available to the performer. Therefore, a performer can assign the right to receive royalty when the performance is a part of the film or sound recording.
Section 19 provides that the assignment shall be made in writing and shall specify the rights assigned, term and territory. Delhi High Court has said if the term is not specified than the assignment shall be for 5 years from the date of the assignment. As per 19(6) if the territory is not specified, it will be presumed that the assignment extends to whole of India. The assignment deed shall specify royalty and any other consideration payable to the assignor during the existence of assignment and shall be subject to revision, extension or termination on the terms as mutually agreed. No assignment shall me made contrary to the terms of the copyright society and any assignment will be void.
Original Copyright Act did not provide or granted extremely limited rights to the performer. After Rome Convention 1961, the Performers right were globally recognised for the first time. India through the 1994 amendment act provided the rights to the Performers for the first time. These rights were further strengthened via Copyright Amendment Act of 2012. Now the performers have been given special rights, moral and exclusive rights along with the right to royalty.
Section 18, 19, 38 and 39 deals with the performers right. With the advent of OTT and online video streaming platform where making a film and communicating is easier than ever, these rights have become vital. These rights prevent the performer from being commercially abused.
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