SUBJECT: INTELLECTUAL PROPERTY
RIGHTS
(SEMESTER V)
TOPIC: PERFORMERS RIGHTS &
BROADCAST REPRODUCTION
RIGHTS
PREPARED BY: MS. MANINI SIDHU
ASSISTANT PROFESSOR,
ICFAI LAW SCHOOL, HYDERABAD.
called not mentioned under
neighbour's rights
seal 4
They they
are uncle CR . As are
.
added amendment
They after
.
are
I
neighbouring rights
→
Broadcasting rights
→
Perform as rights PERFORMERS RIGHTS
.
The visual or acoustic performances of actors, musicians, singers or dancers
forms a key part of the creative process and the performers who display their
talents through their artistic performances must be entitled for 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 unauthorized broadcast of any performances without
providing adequate compensation to the performers. These rights are over and
above the rights granted to the original author and/or owners of the work. These
rights recognize that a performer being an artist has the privilege under the law
to restrain others from broadcasting his/her live performance to the public
without his permission.
When the copyright law was introduced during the British rule, there was no
recognition given to the performer’s rights. When post-independence, the
Copyright Act, 1957 was introduced then also there was no mention of
performer’s rights. In the case of Fortune Films v. Dev Anand in 1979, the
Bombay High Court held that “performer’s rights do not have any copyright as
their rights are not recognized under the Copyright Act”.
The Indian Copyright Act, also for a very long time failed to give due
recognition to the rights of the performances and it was only in 1994, that the
Copyright Act was amended to give certain rights to the performers.
WHO IS A PERFOMER?
Section 2 (qq) : “Performer”
It includes 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) : “Performance”
In relation to performer’s right, it means any visual or acoustic presentation
made live by one or more performers.
WHAT ARE THE RIGHTS OF A PERFORMER UNDER THE
COPYRIGHT ACT?
Section 38 : Performers Rights
Section 38 says that if any person, during the continuance of performer’s right
without the consent of the performer, does any of following acts in respect of
the performance or a substantial part thereof, he will be deemed to have
infringed the performer’s rights:
a) Reproduces a sound recording or visual recording of the performance
which was;
i. Made without the consent of the performer;
ii. Made for the purposes different from those for which the performer has
given his consent;
iii. Made for purposes different from those referred to in section 39 from
sound recording or visual recording which was made in accordance with
Section 39 (“Acts not constituting infringement”);
b) Broadcasts the performance except where the broadcast is made from a sound
recording or visual recording other than one made in accordance with S. 39 or
in rebroadcast by the same broadcasting organization of an earlier broadcast
which did not infringe the performer’s right; and
c) Communicates the performance to the public otherwise than by broadcast
except where such communication to the public is made from sound recording
or a visual recording or a broadcast.
SECTION 38A : EXCLUSIVE RIGHTS OF PERFORMERS
Performer has right to make sound or visual recording: A
performer has the right to make the sound or visual recording. He can
also give consent to other people to record the live performance.
Without the consent of the performer, no other person can make use of
that sound recording. But, in case, their performance is for the
cinematograph film and the written agreement is made consenting the
incorporation of his performance in such film then all the rights will,
therefore, be enjoyed by the producer of such film irrespective of
whether the performer is a singer or actor.
Performer has the right to produce the sound or visual
recording: A performer may also become producer of the sound or
visual recording and can enjoy all the rights that a producer enjoys
such as reproducing a number of copies, giving the copies for
commercial rental, communicating the work to the public etc. But for
that purpose, the performer must have the prior permission from the
individual copyright owner like lyricist and music composer and
should have the certificate related to the sound or visual recording by
the competent authority.
Performer has the right to broadcast performance: Performers can
prevent others from broadcasting their live performance. In case the
consent of the performer is not taken and any other individual is
broadcasting his performance then it will amount to copyright
infringement. But, if the performance is for the cinematograph film
and then rights will be enjoyed by the producer of the cinematograph
film but if the performance is commercially exploited for other
purposes than such film then the performer has the right to claim the
royalties.
Performer has the right to communicate the work other than by
broadcast: Performer can use other means to communicate with the
public than by means of broadcast. Broadcast means communication to
the public either by means of wireless diffusion or by wire.
Acts that constitute the infringement of performer’s rights
Surgery
Reproduction of the work of performer without his consent.
Use of performer’s work without his consent.
Use of performer’s work for any other purpose for which the consent
is not obtained from performer.
Broadcast of the work of performer other than the one mentioned in
Section 39 of the Copyright Act.
Communication of the performance without the consent of performer
to the public other than by broadcast.
Acts that do not constitute infringement of performer’s rights
The act of reproducing any sound or visual recording either for the
purpose of private use or for teaching and research work only.
- Pvt use , teaching ,
Member
of legislature Judiciary Purposes
,
.
In case the work is reproduced for the purpose of judicial proceeding.
Reproduction for the purpose of reporting, reviewing or other things
that come under fair dealing.
In case the work is reproduced for the purpose of use by members of
legislature.
Some other uses that are not considered infringement under Section 52
of the Copyright Act.
SECTION 38 B : MORAL RIGHTS OF THE PERFORMER
The performer has the right to be identified for his work even though he has
given all his rights to the producer of the cinematograph film. The performer,
even after giving up their rights over the work, have the right to be recognized
for their work. They also have the right to object, in case any alteration is
made in the work performed by them. In case, the producer of the
cinematograph film shortens the length of the performance or removes some
portion of the work because of some technical issues or time constraints then
the moral right of the performer is not said to be prejudiced.
SECTION 39 : ACTS NOT INFRINGING PERFORMERS RIGHTS
1. Making sound/ visual recording for private use or solely for the
purpose of bonafide teaching/ research purposes.
2. Excerpts of a performance are used, consistent with fair dealing, in
reporting of current events, or bonafide review, teaching or
research.
JUDICIAL APPROACH TO PERFORMERS RIGHTS
One of the earliest cases where the performers rights came into question and
where it was completely denied by the court to recognize the performer’s right
in the cinematograph film was in Fortune Films International v. Dev Anand,
here the court held that an actor has no right to control the use of their
performance in the film. The actors were given a fee for their performance and
after that the producer was free to use their performance in whatever they wish
to use it. But with the amendment in the Copyright Act in 1994, performer’s
rights were given recognition.
In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High
Court held that copyright and performers rights are two different things and in
case the song is re-recorded then the prior permission of the original singer is
required.
In Neha Bhasin v. Anand Raj Anand, the court addressed the issue that what
will constitute the live performance, here it held that whether the performance is
recorded in the studio or in front of the audience, for the first instance, both will
be called live performance and if anyone use such performance without the
consent of the performer then performer’s rights is said to be infringed.
Other than the abovementioned decisions, there has not been much development
in the field of performer’s rights in India. But with the evolution of technology,
one may expect in the future that new issues will arise testing the provisions of
the performer’s rights.
REMEDIES AGAINST PERFORMER’S RIGHTS INFRINGEMENT
Section 55 & 63 – 70 of the Copyright Act
Civil Remedies: The owner of the performer’s right or his exclusive
licensee may go to the court and obtain the injunction either temporary
or permanent or they may also claim damages.
Criminal Remedies: Not only civil remedy but criminal remedy is
also available against the infringer. The infringer may be sentenced for
six months which may extend up to three years or may be liable to pay
a fine of Rs. 50,000 to Rs. 2,00,000 or both.
Anton Pillar Order: Sometimes the court gives permission to the
plaintiff, on an application by him, to enter into the defendant’s place
along with the attorney and inspect the relevant documents. This is
necessary because the defendant may remove the documents from his
premises if he knows beforehand that the inspection is going to happen
or any search warrant is released by the court.
BROADCAST REPRODUCTION
RIGHTS
Every boradcasting organisation has a special right under the Act, known as the
‘broadcast reproduction rights’. These rights subsist for 25 years from the
beginning of the calendar year next, following the year in which the broadcast is
made.
Section 2 (dd) : “Broadcast” means communication to the public—"
(i) by any means of wireless diffusion, whether in any one or more of the forms
of signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast
RIGHTS AVAILABLE:
1. Re-broadcasting of the broadcast.
2. Causing the broadcast to be heard or seen by the public on payment of
any charges.
3. Making sound/ visual recording of the broadcast.
4. Making reproduction of such sound/ visual recording.
5. Selling or hiring to the public, or offering to do it, any sound/ visual
recording.
If any person exercises any of these rights without the consent of the owner of
the broadcast, such person will be INFRINGING the owner’s copyright.
EXCEPTIONS TO INFRINGEMENT
a) Private Use, like teaching or research.
b) Fair dealing, like for constructive criticism, reviewing, news reporting.
c) Acts authorised by Section 52 of the Act.