A “performer”, according to the Copyright Act, 1957 means a person who by acting, singing, playing an instrument, dancing or in some other way performs a literary, artistic, dramatic or musical work.1 However, in a cinematograph film a person whose performance 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 shall not be treated as a performer except for certain purposes. And a “broadcaster”, refers to a person who makes, with consents as required by law, a radio or television broadcast. A “broadcast” means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast.2
The visual or acoustic performances of actors, musicians, singers or dancers form a key part of the creative process and the performers who display their talents through their artistic performances must be entitled to certain rights over such performances as well as a share in the proceeds from its commercial exploitation. However, the rights of the performers were not recognized internationally until the adoption of the Rome Convention of 1961. This international treaty called for protection against the unauthorized broadcast of any performances without providing adequate compensation to the performers.3 One can say that the rights of performers are in a way more than that of an owner of a copyright, since, by such rights, a performer has the power under the law to restrain others from broadcasting his/her live performance to the public without his permission.
The rights of performers and broadcasting organisations are often termed as neighbouring rights or related rights since the performers and broadcasting organisations act as intermediaries or link to transmit the works of authors to the public at large. These have been developed in parallel to the Copyright Act. It was only in 1994, that the Copyright Act was amended to give certain rights to the performers. The 1994 Amendment has defined the concept of performers right in India.
Rights of Performers in India
As aforesaid stated, the Copyright Act, 1957 (After the Amendment of 1994) governs the subject of the rights of the performers in India.
Prior to the Copyright (Second Amendment) Act, 1994, the Copyright Act, 1957 did not confer any rights to the performers. The only reason for such exclusion was that the performance of a performer was not covered under Section 2 (y) of the Copyright Act, 19574, that is, the performance of a performer did not fall under the definition of work.
Fortune Film International V. Dev Anand5.
It is indeed a matter of great shock that an attempt before the Bombay High Court to claim copyright in his performance by an actor failed in Fortune Film International V. Dev Anand5. In this case, the film producers entered into a contract to engage the popular cine-actor to play the leading male-role in their Hindi production “Darling Darling” and to pay him a hefty amount as remuneration. The producers contended that: ‘Your work in our 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’. Further, It was, however, agreed that upon the deliveries of the said amount, the copyright will automatically vest in the producer company. They, therefore, agreed that until the said policies are delivered to the actor, the producers shall not release the said picture nor exhibit or distribute or exploit or part with any prints of the said picture to any party for the purpose of exhibition, distribution or exploitation in the territories. The picture was duly released in three of the seven named territories.
The actor sought an injunction to restrain the producers from releasing the picture in the other four named territories as well as territories not named (Bombay and overseas) 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 as agreed with a provision for relaxation in favour 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 court rejected the claim of the actor that the covenant 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. Therefore, the matter in issue was whether such a copyright was recognised or protected by the Copyright Act?
The division bench which heard the appeal preferred by the producers from the order of a single judge granting the injunctions sought by the actor upheld the contentions of the producers. Examining the provisions of the Act, the bench proceeded to consider whether the performance of an actor in a film is covered by the definition of “artistic work” or “dramatic work” or “cinematograph film” and thus protected as a “work” under the Act. The Court held that the performance of a cinema actor, being neither a painting, nor a sculpture, nor a drawing, nor an engraving, nor a photograph, is clearly not an “artistic work” as comprehensively defined in the Act. Examining the definition of “dramatic work”, the court rejected the contention that the performance of an actor which is fixed in the film is a dramatic work within that definition.
In sum, the Copyright Act, 1957 did not recognise the performance of an actor as a “work” protected by the Act.
Second Amendment to the Copyright Act, 1957
Following conclusion of the Uruguay Round of Multilateral Trade Negotiation on 15 December 1993, the Parliament of India came up with the Second Amendment to the Copyright Act, 1957 in 1994 as by then it was quite clear that it would be obligatory for India to protect the rights of a performer in order to become a member of the upcoming treaty.6 The TRIPs agreement7 came into force in 1995. One of the objects of the Amendment Act was to be in conformity with the said agreement and thereby extend protection to all the performers by means of a special right, to be known as the “performer’s rights”.
The definition of a “performer”, got amended as a person who by acting, singing, playing an instrument, dancing or in some other way performs a literary, artistic, dramatic or musical work.8 However, in a cinematograph film a person whose performance 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 shall not be treated as a performer except for certain purposes. The Act also defines “performance” in relation to the performer’s right, which means any visual or acoustic presentation made live by one or more performers.‘9
The Act has substituted new sections for Section 38 and Section 39 which deal with the “performer’s rights”.
Star India Pvt. Ltd. V Piyush Aggarwal10,
The Hon’ble Delhi High Court stated that when a cricket match is played there are various dramatis personae in the performance. So far as the visual recording was concerned, the cricket players were performers who played out the match. Even the umpires were upheld to be performers since they formed an integral part of the live performance.
Section 38 of the Copyright Act, 1957
It lays down that Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance. The performer’s right subsists until fifty years from the beginning of the calendar year next following the year in which the performance is made.
By the definition, it may be inferred that if any person during the continuance of the performer’s right (that is, within fifty years from the beginning of the calendar year next following the year in which the performance is made) without the consent of the performer does any of the following acts in respect of the performance or a substantial part thereof he will be deemed to have infringed the performer’s rights.
List of Rights as amended by Second Amendment to the Copyright Act, 1957 in 1994
1. Right to make Sound Recording or visual recording
Reproduces a sound recording or visual recording of the performance which was;
- Made without the consent of the performer;
- Made for the purposes different from those for which the performer has given his consent;
- Made for purposes different from those referred to in section 39 of the Act from a sound recording or visual recording which was made in accordance with Section 39 (acts not constituting infringement);
2. Right to Produce a Sound Recording or Visual Recording of the Performance
3. Right to Broadcast the performance
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 in rebroadcast by the same broadcasting organization of an earlier broadcast which did not infringe the performer’s right; and
4. Right to communicate the Work to the Public otherwise than by Broadcast
Communicates the performance to the public otherwise than by broadcast except where such communication to the public is made from a sound recording or visual recording or broadcast.
Copyright (Amendment) Act, 2012
Further, the Parliament by the Amendment of 2012 enlarged the scope of performers’ rights. They added Sections 38A and 38B. Chapter VIII of the Copyright (Amendment) Act, 2012 is now in conformity with Article 14 of the TRIPS agreement11 as well as with Articles 5 to 10 of WIPO Performances and Phonograms Treaty.12
Section 38A Copyright (Amendment) Act, 2012
It deals with the Exclusive right of performers. It states that without any prejudice to the rights conferred on authors, the performer’s right which is an exclusive right. The performer may do or authorise for doing 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
- reproduction of it in any material form including the storing of it in any medium by electronic or any other means;
- issuance of copies of it to the public not being copies already in circulation;
- communication of it to the public;
- 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, by a written agreement, consented to the incorporation of his performance in a cinematograph film 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.13 However, the performer shall be entitled to royalties in case of making of the performances for commercial use.14
The definition of a ‘performer’ in Section 2 (qq) of the existing Act was amended by the 2012 Act. The 2012 Act amended this definition by appending a Proviso to the Section which would disable those performers not mentioned in a film’s credits (including film ‘extras’) from being able to claim all but one of the rights granted to performers by the Act.
Section 38B Copyright (Amendment) Act, 2012
It further grants moral rights to performers in line with Article 5 of the WPPT. Moral rights have been extended to performers, considering the possibility of digital alteration of performances in a digital environment. The section states that the performer of a performance shall, independently of his right after assignment, either wholly or partially of his right, have the right to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance; and the right to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation. The ‘explanation’ to the section clarifies that editors are free to perform their tasks without the fear of legal consequences. It is noteworthy that, mere removal of any portion of performance for the purpose of editing, or to fit recording within a limited duration, or any other modification required for technical reasons may not be deemed to be prejudicial to the performer. This section is similar to Section 57 of the Copyright Act, 1957 which provides moral rights to an author.
Rights of a Broadcasting Organisation
A “broadcast” means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast.15 A “broadcaster”, refers to a person who makes, with consents as required by law, a radio or television broadcast. The rights of a broadcasting organisation to broadcast are similar to the rights of a performer. These rights are also termed as neighbouring or related rights. Section 37 of the Copyright Act, 1957 exclusively deals with the rights of a broadcasting organisation. It states that every broadcasting organisation shall have a special right to be known as “broadcast reproduction right” in respect of its broadcasts. The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.16 During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof, would be deemed to have infringed such rights. These acts include:
a. rebroadcast the broadcast; or
b. causes the broadcast to be heard or seen by the public on payment of any charges; or
c. makes any sound recording or visual recording of the broadcast; or
d. makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence; or
e. sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual recording referred to in clause (c) or clause (d) shall, subject to the provision of section 39.
Exceptions to performer’s right and broadcasting organisation’s right
Section 39 of the Copyright Act, 1957
Section 39 of the Copyright Act, 1957 enumerates certain exceptional cases wherein the performer may not be able to avail the protection and rights under the act. Such acts not infringing broadcast reproduction right or performer’s right are listed as:
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 fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide 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. These acts are reproduction for the use of judicial proceeding —Section 52(1) (c), reproduction for the use of members of a legislature—Section 52(1) (d), and the use in a certified copy in accordance with any law in force—Section 52(1) (e).
d. Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students, and parents and guardians of the students and persons directly connected with the activities of the institution—Section 52 (1) (i).
The aforesaid can be done only with the sound recording or visual recording of the performance. Accordingly, the making of a sound recording or visual recording for the aforesaid purposes cannot also be an infringement. Where copyright or performer’s right subsists in respect of any work or performance that has been broadcast, a license to reproduce such broadcast will require the consent of the owner of rights or performer, as the case may be, or both of them.
Conclusion
The visual or acoustic performances of actors, musicians, singers or dancers form a key part of the creative process and the performers who display their talents through their artistic performances must be entitled to certain rights over such performances as well as a share in the proceeds from its commercial exploitation. However, the rights of the performers were not recognized internationally until the adoption of the Rome Convention of 1961. One can say that the rights of performers are in a way more than that of an owner of a copyright, since, by such rights a performer has the power under the law to restrain others from broadcasting his/her live performance to the public without his permission. The rights of the performers and broadcasting organisation are often termed as neighbouring rights or related rights since the performers and broadcasting organisations act as intermediaries or links to transmit the works of authors to the public at large. These have been developed in parallel to the Copyright Act. It was only in 1994, that the Copyright Act was amended to give certain rights to the performers. The 1994 Amendment has defined the concept of performers right in India. Section 37 and 38 of the act deals with the performer’s rights. Section 38A and Section 38B added by the Amendment of 2012 has enlarged the scope of performer’s rights by granting them moral rights like that to the authors of a work. At the same time, the Act lays down certain exceptional cases under Section 39 which thereby limits the scope of such rights.
Endnotes
1. Section 2 (qq) of the Copyright Act, 1957
2. Section 2 (dd) of the Copyright Act, 1957
3. https://www.bananaip.com/ip-news-center/ip-blog-a-thon-performers-right-under-indian-copyright-law-part-i/
4. “work” means any of the following works, namely: — a literary, dramatic, musical or artistic work; a cinematograph film; a sound recording.
5. AIR 1979 Bom 17
6. Chapter 9, Law of Copyright and Neighbouring Rights by
7. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
8. Section 2 (qq) of the Copyright Act, 1957
9. Section 2 (q) of the Copyright Act, 1957
10. 2014 (58) PTC 169 (Del)
11. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
12. https://www.wipo.int/treaties/en/text.jsp?file_id=295578
13. Section 38A (2) of the Copyright (Amendment) Act, 2012
14. Proviso of Clause (2) of Section 38A of the Copyright (Amendment) Act, 2012
15. Section 2 (dd) of the Copyright Act, 1957
16. Clause (2) of Section 37 of the Copyright Act, 1957
Tanvi Sapra
AuthorsTanvi hails from Vivekananda Institute of Professional Studies and spends most of her time reading and researching. Her Interest areas are Property Law, Human Rights Law and Constitutional Law. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com
