SIGNIFICANCE OF PERFORMER’S RIGHT UNDER A COPYRIGHT

REGIME IN INDIA

SUBMITTED BY:
Mouneesh S (170400142015).
Nakul Vishnu D (17040142016).
BATCH 2017-22

SUBMITTED TO:
Prof. Upankar Chutia

Alliance School of Law

Alliance University, Bangalore

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Index

1. Introduction

1.1. Introduction

1.2. Research Question

1.3. Literature Review

1.4. Scope and objective

2. Background of performer rights

3. Protection of performer’s rights in India

4. Exclusive Rights of Performer

5. Moral Rights of Performers

6. Term of performer’s rights

7. Exceptions to performer’s rights

8. Conclusion

9. Bibliography
1.Introduction

Copyright is a form of intellectual property protection granted under the law to the creators of
the original works of authorship. It is an exclusive right given by law for a certain term of years
to an author, composer, etc., (or his assignee) to print, publish and sell copies of his original
work. In India the first Copyright Act was passed in 1914. It was a replica of English Copyright
Act of 1911 suitably modified to make it applicable to the then British India. The Act, presently
in force was legislated in the year 1957 and is known as Copyright Act, 1957 as amended by
Copyright (Amendment) Act, 1999.

The rights of performers, record producers and broadcasting organizations are referred to as
neighboring rights because they have developed in parallel with copyright, and the exercise of
these rights is very often linked with the exercise of copyright. The performers, record producers
and broadcasting organizations work as intermediaries for disseminating and broadcasting the
works of the authors to the public. Although performers spend sufficient skill and labour to merit
copyright protection, their rights were not recognized till the first half of the 20th century.
According to Adam Smith, there could mainly be two reasons for not recognizing the performers
rights. The first was social and historical. During the formative period of copyright, the actors or
strolling players were regarded as 'vagrant' by the law. The players, buffoons, musicians, opera-
singers, opera-dancers and the like were classical examples of ' improductive labour.' The second
reason was historical and technological as the work of all of them used to perish in the instant of
its production. Today, both the aforesaid reasons cannot sustain. Star performers have gone to
the top and it is incorrect to call their performance as 'improductive labour.' Further, the rapid
development of modern technology has made it possible to fix a live performance whether the
performance is on the stage or in the broadcasting studio. The nature of their performances is no
more ephemeral. The modern technology resulted in the "technological unemployment" of the
performers as once recorded, the performance can be repeated in public without the necessity of
engaging the performer anymore. The law had not shown concern to this technological
unemployment in India until 1994. Thus, if someone recorded the performance of a performer
without his consent, reproduced it and sold the records, or performed them in public, the
performer himself had no remedy against such a person. Once a performance was fixed in a

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record or in a cinematograph film, the record producer or a film producer as the owner of
copyright was protected by being given exclusive rights regarding their records or the film. The
performer had not been given a right to share the royalties received by the record producer or
film producer as the case may be for public performance or broadcasting of records or films. In
this way, the performer was put in a pitiable condition without any right in his performance
under the Copyright Act, 1957.

1.1. Research Question

 Whether copyright subsisted in the performance of a performer

1.2. Literature Review

The literature review is based on performer’s right under copyright regime. The review is written
in a narrative manner and it is intended to basic information and review principles related to the
performer’s rights. This review will critically evaluate the information in the journal and will be
discussed with each other.

1.3.Scope and objective

The research paper deals with copyright protection of performers rights. It defines the term
performers rights and discusses the provisions of copyright law which deal with the protection of
performers rights.

1.4. Research Methodology

The research methodology adopted is a doctrinal research. However, with a view to compliment
and substantiate this research paper corroborated the study with other forms of legal research
such as comparative legal research case studies and also critical analysis. It also throughs light on
the list of study materials and data and sources, procured by the researcher as the instrument to
conduct the research comparative legal research enable, critically appreciate and compare the
legal interpretation of various courts.
2. Background of performer rights

Prior to the Copyright (Second Amendment) Act of 1994, the Copyright Act, 1957 did not confer
any rights on the performer even though he quite often performed an existing work and in that
sense his performance was derivative in the same way as a translation or abridgment. Copyright
subsisted in translation or abridgement but it did not subsist in performance of a performer which
might be a live performance over radio or television, or before the public, or a performance fixed
in a cinematograph film, or a performance recorded in a sound record. Thus, when a sound
recording was made of the performance of a performer, the copyright law conferred on the
record-producer an independent copyright in the record. Similarly, when the performer
performed in a motion picture, the copyright law conferred on the film producer alone an
independent copyright in the cinematograph film including the sound track. If the performer
performed over radio or television, then also he had no control over its use. The Copyright Act,
1957 conferred broadcast reproduction right to protect the broadcasting authority. The only
reason why the performance of a performer was not protected under the Act was that it was not a
work within the meaning of section 2(y) of the Copyright Act, 1957.

The performance of a performer did not come under any of the categories of work viz. literary,
dramatic, musical or artistic work; cinematograph film and sound recording. The Act also did not
confer anything like a neighboring or related right on performers, as it did to the broadcasting
authority.

The question whether copyright subsisted in the performance of a performer was decided by the
Bombay High Court in negative in the case of Fortune Film International v. Dev Anand In this
case, the film producers entered into a contract to engage the popular cine actor Dev Anand in
their Hindi movie "Darling Darling" and to pay him an amount of Rs. 7 lakhs as remuneration.
Para 7 of the agreement provided as under:

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 That your work in our above picture on completion will belong to you absolutely and the
copyright therein shall vest in you and we will not be entitled to exhibit the said picture
until full payments are secured to you by way of annuity policies of LIC. It is, however,
agreed that upon the deliveries of the said annuity policies. your copyright will
automatically vest in us. We therefore, agree that until the said policies are delivered to
you, we shall not release the said picture nor exhibit or distribute or exploit or part with
any prints of the said picture to any party directly or indirectly for the purpose of
exhibition, distribution and exploitation in the territories specified above.

There was a provision in the agreement for relaxation in favor of the producers giving them a
limited right to exhibit the picture in any of the named territories after making the payment as
stipulated for that territory. The picture was released in three of the seven named territories. The
actor sought injuncted to restrain the producers from releasing the picture in the other four
named territories, as well as territories not named, until full payment was made to him. He
claimed that the stipulation vested the copyright in the film in him and totally prohibited the
producers from exhibiting the film anywhere until full payment was made to him. The court
granted the injunction sought for by the actor to stop the film producers from releasing the film
in those territories which were not named in the agreement but rejected the claim of the actor that
the agreement vested in him the copyright in the film as a whole and held that it only purported
to vest in him the copyright in his work, that is, his performance in the film.

The producers preferred an appeal to the Division Bench against the order of a single judge. The
main issue before the court was whether copyright subsisted in the work of the cine actor under
the Copyright Act, 1957. It was contended on behalf of the producers that such a copyright was
not recognized or protected by the Copyright Act. It was argued that 'work' meant a work
tangible in nature. There could be a copyright in motion picture or a cinematograph film, as also
in the story, scenario or music (if written on sheets or if put on a sound track and not otherwise),
which were all tangible, but not in the performance of an artist. Therefore, the agreement could
not vest in the actor something which in the first place did not and could not exist under the Act.
Accordingly, the actor could not restrain the producers from releasing the film in territories other
than the seven named territories on the basis of his copyright either in the film or his
performance therein.
On the other hand, it was argued on behalf of the cine artiste that the performance of an actor
was covered by the definition of 'artistic work' or 'dramatic work' to be found in sections 2(c) and
2(h) of the Copyright Act, 1957. Alternatively, the argument which was advanced was that a
cinematograph film would include portions of the film and an artiste's work in the film must be
regarded as a component or a part of the film which would be entitled to protection as falling
within the definition of 'work.'

The court held that the performance given by an artiste in a cinematograph film could not be
equated with a painting, a sculpture, a drawing, an engraving or photograph and is clearly not an
artistic work. The court rejected the contention that it was dramatic work within the definition of
'dramatic work' in s and held that it was an inclusive definition and expressly excludes a
cinematograph film by the closing words of section 2(h). The court further held that the words
"or otherwise" found in the definition of dramatic work are there only to provide for the modern
means of recording, such as a tape-recorder or a Dictaphone and similar instruments. The court
also rejected the argument that there could be one owner of the copyright in a cinematograph
film as a whole and different owner of the copyright in portions thereof consisting of the
performers who have collectively played roles in the motion picture. Thus, the Copyright Act
1957 did not provide any rights to performers until the l994 amendment.

3. Protection of performer’s rights in India

Following the conclusion of Uruguay Round of Multilateral Trade Negotiation, the Parliament
enacted the Copyright (Second Amendment) Act in 1994 to bring the Copyright Act, 1957 in
conformity with the provisions of TRIPs Agreement. The TRIPs Agreement came into force in
1995. One of the objects of the amendment Act was to extend protection to all performers by
means of a special right, to be known as the "performer's right", in respect of the making of
sound recordings or visual recordings of their live performances, and of certain related acts.

The definition of "performance" has been amended by the Amendment Act of 1994 to mean, in
relation to performer's right 'any visual or acoustic presentation made live by one or more
performers'. Further, the definition of "performer" has also been inserted by the 1994
amendment. Section 2(qq) of the Copyright Act, 1957 defines "performer" to include an actor,

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singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture
or any other person who makes a performance.

A person shall not be treated as a performer, whose performance in a cinematograph film is

casual or incidental in nature and in the normal course of the practice of the industry is not
acknowledged anywhere including in the credits of the film. Such a person, however shall be
considered as performer for the purpose of section 38B(b) which provides moral right to
performer to restrain or claim damages in respect of any distortion, mutilation or other
modification of his performance that would be prejudicial to his reputation.

4. Exclusive Rights of Performer

The Copyright (Amendment) Act of 2012 made drastic changes to the exclusive rights of the
performers. Section 38A which was inserted by the amendment of 2012 provides exclusive rights
to performers. These rights are similar to economic rights of the author as are available to them
under section 14 of the Copyright Act.

The exclusive rights of the performers are without prejudice to the rights conferred on author,
and subject to the provisions of the Act. The performers have exclusive rights to do or authorize
the doing of any of the following acts in respect of the performance or any substantial part
thereof, namely -

(a) to make a sound recording or a visual recording of the performance, including-

(i) reproduction of it in any material form including the storing of it in any medium
by electronic or any other means;

(ii) issuance of copies of it to the public not being copies already in circulation;

(iii) communication of it to the public;

(iv) selling or giving it on commercial rental or offer for sale or for commercial rental
any copy of the recording;

(b) to broadcast or communicate the performance to the public except where the performance
is already broadcast.
Once a performer has consented to the incorporation of his performance in a cinematograph film
by written agreement, he shall not in the absence of any contract to the contrary, object to the
enjoyment by the producer of the film of the performer's right in the same film. The performer,
however, shall be entitled for royalties in case of the making of the performances for commercial
use.

5. Moral Rights of Performers

Prior to the amendment of 2012, the Copyright Act did not provide moral rights to the
performers. The Copyright (Amendment) Act, 2012 inserted a new section 38B in the Copyright
Act which is similar to the section 57 which provides moral rights to the author. Section 38B
deals with the moral rights of the performers. The reason to provide moral rights to performers is
to bring Copyright Act, 1957 in conformity with the provisions of WIPO Performances and
Phonograms Treaty, 1996.

Section 38B provides two moral rights to the performer of a performance. These rights are
available to them independently of their rights after assignment either wholly or partially. These
are-

(i) the right to be identified as the performer of his performance except where
omission is dictated by the manner of the use of the performance; and

(ii) the right to restrain or claim damages in respect of any distortion, mutilation or
other modification of his performance that would be prejudicial to his reputation.

It is, however, noteworthy that mere removal of any portion of a performance for the purpose of
editing, or to fit the recording within a limited duration, or any other modification required for
purely technical reasons shall not be deemed to be prejudicial to the performer's reputation.

6. Term of performer’s rights

In India, the term of performer's rights was fixed by the Copyright (Second Amendment) Act,
1994 as twenty-five years from the beginning of the calendar year next following the year in
which the performance was made. Since India a Party to the TRIPs Agreement and as per Article
14 of the Agreement, the term of protection available to performers is fifty years computed from

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the end of the calendar year in which the performance took place, section 38 of' the Copyright
Act, 1957 has been amended by the Copyright (Amendment) Act, 1999 to extend the term of
performers' rights from twenty five years to fifty years.

7. Exceptions to performer’s rights

In India, the Copyright (Second Amendment) Act, 1994 introduced a new provision in the
Copyright Act, 1957 which provides for the permitted acts in relation to the performer's rights.
Section 39 of the Copyright Act provides that no performer's right shall be deemed to be
infringed by:

(a) the making of any sound recording or visual recording for the private use of the
person making such recording. or solely for purposes of bona fide teaching or research;
or

(b) the use consistent with the dealing of excerpts of a performance or of a broadcast
in the reporting of current events or for Bonafide review, teaching or research; or

(c) such other acts, with any necessary adaptations and modifications, which do not
constitute an infringement of copyright under section 52,

Thus, all those acts which have been mentioned in section 52 of the Copyright Act, 1957 may be
done with necessary adaptation and modification in relation to a performance of the performer
without infringing performer's rights.

8. Conclusion

The legal structure for the protection of performers’ right in India is found feeble and more
substantial laws should be made to protect them. Although due to the rapid growth in the
technology and in the entertainment world, proper protection and implementation will always be
a challenge. The 2012 amendment made a first honest attempt to protect the Performers’ rights,
but still the law in India which governs the Performers’ Right are under developed when
compared with the laws in U.K and U.S.A are intricate.
where copyright or performer’s rights subsists in respect of any work or performance that has
been broadcast, no license to reproduce such broadcast shall be given without the consent of the
owner of the right or performer, as the case may be, or both of them.

The performers right shall not subsist in any performance if that performance is an infringement
of the copyright in any work. The performers right shall not affect the separate copyright in any
work in respect of which the performance is made.

9. Bibliography
 Indian Copyright Act, 1957
 Indian Copyright (Amendment) Act, 2012
 Law relating to intellectual property right

By. Dr v k Ahuja, second edition, published by LexisNexis.

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