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Neighbouring Rights

Performers’ rights are generally described as neighbouring rights or

related rights. These rights are called neighbouring rights because they
exist alongside copyright but are not the same as copyright in the
original work. While authors, composers, and lyricists obtain copyright in
the literary, musical, or dramatic work created by them, performers obtain
protection for the act of performing those works before the public.

Neighbouring rights also extend beyond performers to producers of

phonograms (sound recordings) and broadcasting organisations.
Their purpose is to recognise the labour, skill, and investment of those
who help communicate creative works to the public. However,
neighbouring rights do not usually place performers on the same footing
as authors. They remain comparatively limited and often operate subject
to the superior proprietary control of producers and copyright owners.

In the international sphere, neighbouring rights gained formal recognition

through the Rome Convention, later strengthened by the TRIPS
Agreement and the WIPO Performances and Phonograms Treaty.
These instruments influenced both the Copyright Act, 1957 and the
Copyright Act 1968.

Meaning and Nature of Performers’ Rights

Performers’ rights are granted to persons who perform copyrightable

subject matter but are not necessarily the original creators of the
underlying work. These rights usually belong to three categories:

 performers,

 producers of phonograms or sound recordings,

 broadcasting organisations.

The object of neighbouring rights is to recognise the contribution of those

who make creative works available to the public. However, these rights
generally remain subordinate to copyright in the original work and often
do not give performers the same legal or economic status as authors.

Performers’ Rights in India

Development of the Law

India signed the Rome Convention in 1961, but performers’ rights were
not recognised in the original Copyright Act, 1957.
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A major amendment came in 1994, when India incorporated performers’

rights into copyright law. Later, minor changes were made in 1999 to
comply with TRIPS. The most important reform came through the
Copyright (Amendment) Act, 2012, influenced by the WPPT.

Before 2012, performers mainly had negative rights, meaning they

could only restrain unauthorised use. After 2012, the law shifted toward
granting positive rights.

Economic Rights of Performers – Section 38A

Section 38A gives performers exclusive rights over their performances.

These include the right to authorise:

 making sound or visual recordings,

 reproduction and storage in any medium,

 issuing copies to the public,

 communication to the public,

 commercial sale or rental,

 broadcasting.

This provision was intended to strengthen performers’ economic control

over exploitation of their performances.

However, Section 38A(2) creates an important limitation. Once a

performer consents in writing to the incorporation of the performance in a
cinematograph film, the performer loses further control over that recorded
performance. In practice, this strongly benefits producers.

Moral Rights – Section 38B

Section 38B grants performers moral rights similar to authors under

Section 57.

A performer has:

 the right to be identified as the performer, and

 the right to object to distortion, mutilation, or modification of the

performance if it harms reputation.

These rights remain with the performer even if other rights are assigned.
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Royalty Rights and Section 39A

One of the most debated issues after the 2012 amendment concerns
royalties.

The Third and Fourth Provisos to Section 18 grant authors and

composers an inalienable right to receive royalties. Through Section
39A(1), these provisions may apply to performers with necessary
adaptations.

This has led to the argument that performers may also be entitled to
royalties when their performances are commercially exploited. However,
Indian courts have not given a final authoritative interpretation.

Case Law: Fortune Films International v Dev Anand (1978)

This is the leading Indian case on performers’ rights.

Dev Anand claimed copyright in his acting performance in the film Darling
Darling. He argued that his performance should qualify as a copyrightable
work.

The Bombay High Court rejected this argument. It held that an actor’s
performance does not fall within the definition of “work” under the
Copyright Act.

The court made two important observations:

First, copyright exists only in recognised categories of work. A

performance by itself was not one of them.

Second, even if the parties had contractual arrangements, the performer’s

rights depended on the contract and not on an independent copyright.

Importance of the case

This case established that performance itself is not copyrightable as

a separate work. Even today, this remains highly influential.

Royalty Litigation – ISRA Cases

The Indian Singers’ Rights Association (ISRA) initiated several cases

claiming that singers should receive royalties when songs are
commercially played in restaurants, bars, and public places.

Indian Singers Rights Association v Chapter 25 Bar & Restaurant

(2016)
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The Delhi High Court accepted ISRA’s argument at the interim stage and
held that playing songs without payment of royalties could infringe
performers’ rights.

Opposition from Music Labels

Music labels such as Saregama challenged this interpretation. They

argued that singers’ rights apply only to live performances, not to studio
recordings.

A major legal question emerged:

Does “performance” include studio-recorded songs, or only live
performances?

Neha Bhasin v Anand Raj Anand (2006)

The Delhi High Court observed that every performance is live in the first
instance, even when recorded in a studio.

This case supported the broader interpretation of performers’ rights.

Present Position in India

In 2023, ISRA and the Indian music industry reached an industry-level

agreement on royalty sharing.

However, important legal questions remain unresolved:

 whether performers have a clear statutory right to royalties,

 whether recorded performances are fully protected,

 whether actors and other performers stand on the same footing as

singers.

Thus, despite statutory reform, producers and labels continue to

enjoy greater bargaining power than performers.

Performers’ Rights in Australia

Development of the Law

Australia introduced performers’ rights through the Copyright

Amendment Act, 1989, which inserted Part XIA into the Copyright
Act, 1968.
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A more important change came after the Australia–United States Free

Trade Agreement (AUSFTA) in 2004.

Today, performers’ rights in Australia mainly operate through Part IV of

the Copyright Act, 1968, dealing with subject matter other than
works.

Ownership of Sound Recordings

Under Australian law, performers may become joint owners of

copyright in live sound recordings.

Earlier, ownership usually belonged only to record companies. After

reform, performers also gained recognition as copyright holders in certain
circumstances.

However, there are exceptions:

 if the performance is under an employment contract,

 if the recording is commissioned.

In such cases, ownership may vest in employers or commissioners.

Limitation: Protection Mainly for Live Performances

Australian law mainly protects live performances.

This creates difficulties for:

 remixes,

 composite recordings,

 edited or layered performances.

Therefore, the protection remains narrow.

Important Australian and Comparative Case Law

CBS Records Australia v Gross

Guy Gross claimed copyright in an arrangement of the song Ring My Bell.

The court held that an arrangement gets copyright protection only if it is

sufficiently original and distinct.

Principle
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A performer’s adaptation must be substantially original to receive

copyright protection.

Hadley v Kemp (UK)

Members of the band Spandau Ballet claimed joint authorship in songs

written by Gary Kemp.

The court held that a saxophone solo, although important to the

performance, did not amount to authorship of the musical work.

Principle

A performance may shape how a song sounds, but that does not
automatically make the performer an author.

Aalmuhammed v Lee (US)

The issue was whether contributions to the film Malcolm X created joint
authorship.

The court held that not every creative contribution becomes a

copyrightable work. Otherwise, every contributor to a film could claim
authorship.

Garcia v Google (US)

An actress claimed copyright over her five-second recorded performance.

The court largely rejected the claim, holding that a performance inside a
film is generally not treated as an independent copyrightable work.

Comparative Position: India and Australia

Both India and Australia recognise performers’ rights, but both systems
contain major limitations.

In India, the biggest problem is uncertainty over:

 royalties,

 the scope of recorded performances,

 dominance of producers through contractual assignments.

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In Australia, the problem lies in the narrow protection given mainly to

live performances.

Thus, while performers contribute significantly to the commercial value of

songs and films, the law still gives stronger proprietary protection to
authors, producers, and recording companies.

Conclusion

Performers are indispensable to the entertainment industry, yet copyright

law has historically treated them as secondary contributors.

Indian law has attempted to strengthen performers’ rights through

Sections 38A and 38B, but practical uncertainty remains, especially
regarding royalties and control over recorded performances.

Australian law grants performers some ownership in live sound recordings,

but the scope of protection remains limited.

The major lesson from both jurisdictions is that performers’ rights

remain weaker than authors’ rights. Courts continue to follow
traditional copyright concepts of authorship, originality, and fixation, often
leaving performers economically vulnerable.

For meaningful protection, copyright law must move beyond merely

recognising neighbouring rights and must provide performers stronger
economic participation, especially through royalties and broader
recognition of their creative contribution.