By Kriti Goswami

(Research Associate and student of SLS, Pune)

Introduction

“An Effective Performance is preceded by painstaking preparation” – Brian Tracy

The Indian Copyright Act, 1957[1] confers copyright upon the authors in the case of literary, dramatic and artistic works, the composer in case of a musical work or a producer in case of a cinematograph film. However, in all of these works, the actual intellectual skill and labour are exercised by the performer who by his/her expression and style gives a uniqueness to the performerances. Therefore, a series of rights parallel to the existing copyright emerged in the mid-1990s, also referred to as neighbouring rights. These neighbouring rights empower the performers of performance to prevent any person from reproducing or recording their performances without their due authorisation. This concept of neighbouring rights was originally not recognised under the Indian law until the amendment in 1994. This article briefly elucidates upon the Indian Regime of performers’ rights with reference to the international regime.

International Regime

The performance of an artist forms an essential and central part of the whole creative performance. Therefore, recognition of the rights of a performer forms a parallel to the existing rights of authors in the case of literary, dramatic and artistic works, the composer in case of a musical work or a producer in case of a cinematograph film. These neighbouring rights gained international recognition for the first time in 1961 through the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, also commonly referred to as the Rome Convention, 1961. The Rome Convention, 1961 recognised the rights of actors, singers, musicians, dancer and those who performed literary or artistic works against unauthorised recording, broadcast and reproduction of their performances without their due consent. Here, it is important to take into account that India was not a signatory to the Rome Convention.

Subsequently, in 1994, Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated during the Uruguay Round of Multilateral Trade Negotiations, established the minimum standards of performers’ rights in member states. The Agreement empowered the performers of performance to prevent any recording, reproduction or broadcast of their performance without their authorization for a period of 50 years. Since India was a signatory to the TRIPS Agreement, the rights of performers were ratified in India.

The WIPO Performances and Phonograms Treaty (WPPT) was another breakthrough development in the international regime of performers rights as it gave recognition to the allied rights of performers like the economic rights and rights authorise the reproduction, distribution and rental of their recorded performances. India is also a signatory to this treaty.

Indian Regime

The Indian Copyright Act, 1957[2] in its original format recognized and conferred protection only to the author in the case of literary, dramatic and artistic works, the composer in case of a musical work or a producer in case of a cinematograph film[3]. However, the Copyright law in India did not recognize the rights of performers who exercised the actual intellectual skill and labour until 1994. The main reason why performers were not recognised in India are manifold, which are elucidated as follows:

  • Firstly, the performance of a performer was not covered under the ambit of the term work as defined under section 2(y)[4] of the Act which covered only literary, dramatic, musical or artistic work; cinematograph film and sound recording under its ambit.
  • During the time of the enactment of the Copyright Act, 1957[5], the technology for recording and storing the performances were not well developed and therefore, the performances would perish at the instant of its production.[6]

One of the very landmark cases which highlighted the need for recognition of performers’ rights in India was the case of Fortune Film International v. Dev Anand[7] wherein the Court held that protection under copyright extended to motion pictures, cinematograph films, story and music but not in the performance of the artists of these works. The Court further held that the performance of an artist in a cinematograph could not be equated with the artists of paintings, drawings, sculptures or photographs.

Copyright (Amendment) Act, 1994

With the modernization of technology, the recording and storing of live performances became easier and therefore it affected the work of performers as it led to technological unemployment as the performance was not required to be repeated. Therefore, to fill this lacuna and recognize the rights of performers in India and fulfil India’s obligations under the TRIPS Agreement, the Copyright (Amendment) Act of 1994[8] was passed by the Parliament of India. The Amendment of 1994 inserted sections 2(q)[9] (Performance), 2(qq)[10] (Performer) and section 38. Section 38 (Performer’s Rights) of the Act confers the neighbouring performer’s rights to those performers who either engage in any performance or appear in any performance.

Section 2(qq) defines the term “performer” to be an “actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.” Section 2(q)[11] (Performance) defined the term “performance” as ‘any visual or acoustic presentation made live by one or more performer’s”. After the amendment, even visual recording of a cricket match is covered under the ambit of performances which has various dramatis personae including the players of the match, the umpire and the commentators[12].

Exclusive and Moral Rights Available to Performers in India

Through the amendment of 1994, the performers rights were recognised in India for a period of 50 years from when the performance was made, the allied exclusive and moral rights were only inserted in 2012[13] in the form of Section 38A (Exclusive Rights of Performers)[14] and 38B (Moral Rights of the Performer)[15] through the Copyright (Amendment) Act, 2012 which were in line with the provisions of the WPPT Treaty.

Section 38A (Exclusive Rights of Performers)[16] of the Act confers rights exclusive to the performers of a performance in the two major forms:

  • Making Sound and Visual Recording of the Performance.

Under this right, the performer has the absolute right to either himself or authorise any other person to reproduce the sound or video recording of such performance in any material form, issue copies of such performance to the public (apart from the copies already in circulation) or sell or offer for sale for commercial rental any copy of the recording.[17]

  • Broadcasting or communicating the performance to the public[18]

In addition to this, the provision also provides royalty rights to performers for performances made for commercial use[19]. For example, if a performance has been incorporated into a cinematograph film, then the performer shall be entitled to receive royalties.

In addition to the exclusive rights, the performers are also entitled to moral rights as provided under section 38B (Moral rights of the performer)[20]. According to this section, even after the performer has assigned his work to another person either wholly or partially, he still has the rights: (a) to claim to be identified as a performer for his performance and (b) restrain or claim damage in cases of any modification, distortion or mutilation of their performance in such a manner that it is detrimental to the performer’s reputation.

Way Ahead

While recognising performers rights in India was the need of the hour, there is a lacuna in the law that requires urgent consideration for effectively recognising performers rights in India in letter and spirit. The lacuna in the law with respect to performers rights is the absence of retroactive application of the provisions conferring performer’s rights. The term retroactive application has been defined under the Black’s Law Dictionary as “extending in scope or effect (of a statute, ruling etc.) to matters that have occurred in the past, also termed retrospective.”

The rights of performers are protected only for performances that have taken place after the amendment and therefore, the amendment failed to take into consideration, the rights of those performers whose performances have taken place before the amendment and still fall within the 50-year protection period. Since it is an accepted principle of law that legislation cannot be applied retrospectively unless specifically provided for, therefore there is a need to specifically provide for retroactive application of performers rights under the Copyright Act, 1957.

Conclusion

A performer is one who actually puts in his intellectual efforts and skill to make his performance unique. Therefore, it was imperative to provide the neighbouring rights to the performers under the scope of the Copyright Act, 1957. Although, the amendment of 1994 and 2012 which provides exclusive and moral rights to a performer was the need of the hour, however, there is still a way ahead in addressing the gaps in the law which can only be filled with further amendments to the current law.

Footnotes

[1]   The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 13.

[2]   The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India).

[3]  The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 13.

[4]   The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 2(y).

[5]   The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India).

[6] Adam Smith, THE WEALTH OF NATIONS quoted in Stephen M. Stewart, INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS (London, 1983), p. 181.

[7] AIR 1979 Bom 17.

[8] The Copyright (Amendment) Act,1994, No. 38, Acts of Parliament, 1957 (India).

[9]The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 2(q).

[10]The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 2(qq).

[11] Supra Note No. 6.

[12] Star India Pvt. Ltd. v. Piyush Agarwal & Ors. ,2014 (58) PTC 169 (Del) at p. 173 .

[13] The Copyright (Amendment) Act,2012, No. 27, Acts of Parliament, 1957 (India).

[14] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38A.

[15]   The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38B.

[16] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38A.

[17] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38(1)(a).

[18] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38(1)(b).

[19] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 21.38(2).

[20] The Copyright Act,1957, No. 14, Acts of Parliament, 1957 (India) § 38B.