The Rome Convention of 1961, was the first international treaty to recognise the rights of

the performers. The basic reason as to why performers needed protection was because with
the passage of time, technology has also developed and is doing better which has enabled
recording and broadcasting of performer’s work to build their way through. Other than the
rights granted to the original maker of the work, treaty also recognised rights of the
performers against the unauthorized recording and broadcasting of the performer’s work
without providing the adequate compensation to the performer.

Indian Perspective of The Performers & Broadcasters Rights Provisions

The first Copyright Act, in India, was passed in the year 1914 which formed the base for the
current governing act, The Copyright Act of 1957 which has been amended several times
since it’s formation as per the needs of the market. The rights of the performers were not
recognised by the legislature for about thirty-seven years. An amendment act was bought in
force in the year 1994 to protect the livelihood of the performers which was in danger due
to lack of recognition of their work by the laws and another reason being, advancement in
technology. This amendment of 1994 brought the rights of the performers in force under
Section 38 of The Copyright Act. Later on, in 2012, further another amendment was made to
increase the rights provided to the performers, being exclusive and moral rights under the
Sections 38-A & 38-B, respectively, which have been discussed in detail in the article later.

Performance & Performer

Before we begin with the performer’s rights, let us first know who all will be considered as a
performer under the Act and what will be considered as their performance.
Performers are the artist who display their art before the audience with their own skill set
and knowledge.
“The term “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer,
snake charmer, a person delivering a lecture or any other person who makes a
performance.”1
A proviso was added in the Amendment Act, 2012 to the definition of the performer to
include the performers who play casual and incidental performance, known as “extras” so as
to protect their moral rights.

The term performance means, the work performed by any performer covered under Section
2(qq) of the Act. The term earlier included literary and artistic work only but later on it’s
scope was broadened to include dramatic and musical work, cinematograph films and the
sound recordings.
“”Performance” in relation to performer’s right means any visual or acoustic presentation
made live by one or more performers.”2

Rights of The Performer’s under the Copyright Act

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. 3
Following are the rights currently available to the performers, in India, under The Copyright
Act :
Exclusive Rights of The Performer –
The amendment act has introduced affirmative performers right by amending Section 38
which granted only negative rights by prohibiting acts in sub-section (3) and (4) which have
now been omitted and a new section 38-A has been inserted which provides the performer’s
rights as the exclusive rights to do or authorize doing any of the acts in respect of the
performance, without prejudice to the rights conferred on authors. Exclusive rights of the
performers include the following rights :
To Make A Sound Recording or A Visual Recording of The Performance –
The law permits the performer to make a sound recording, visual recording, record his live
performance as his exclusive right to his work. The record will be granted the copyright
under the law only when it does not includes any part which amounts to infringement of any
other work and has been recorded lawfully, as per the provisions of the act.
“The term “sound recording” here means a recording of sounds from which such sounds
may be produced regardless of the medium on which such recording is made or the method
by which the sounds are produced.”4
“The term “visual recording” above means the recording in any medium, by any method
including the storing of it by any electronic means, of moving images or of the
representations thereof, from which they can be perceived, reproduced or communicated by
any method.”5
Reproduction of The Sound Recording or Visual Recording of The Performance –
The Copyright Act not only provides the performer with the right of recording his own
performance but also provides him the opportunity to reproduce his own performance. The
law states, reproduction of it in any material form including the storing of it in any medium
by electronic or any other means.6

Other than reproduction his own work, performer can also issue copies of his work to the
general public, keeping in mind that the copies that are being issued are not the ones that
are already in circulation in the public.7
Moreover, the performer also owes the right to sell his work or can even give either of his
entire work or copy of of his recording on commercial rent or can even offer the same for
sale.8
Right to Broadcast the Performance –
Performer has been given the sole right to decide if he wants to communicate his
performance to the general public.9
Performer can also choose to stop the broadcasting of his work, if the work been
broadcasted is different from the work for which his consent has been taken to broadcast.
Moreover, if the broadcast is without the consent of the performer, the broadcast will be
considered illegal under the act.
However, the work that is being broadcast or communicated to the public must not include
entire or any part of the performance which has already been broadcasted by the performer
or the broadcasting organisation.10
Right to Royalty –
Major amendment that has been brought to the rights of the performer through The
Amendment Act of 2012 was the idea of introducing the concept of royalties for the
performer so as to protect his livelihood and provide him the benefits for his work. As per
the act, the performer shall be entitled for royalties, in case he takes the decision of giving
his performance or work for commercial use in any form.11
It has also been provided that, if a performer once gives his consent, by the way of a written
agreement, to incorporate his performance in a cinematograph film, he cannot afterwards
object the enjoyment by the producer of the film of the performer’s right, in the same film,
unless there exists a contract to the contrary.12
Moral Rights of The Performer –
Another major amendment made in the performer’s right by The Amendment Act of 2012
was brought by the way of Section 38B, which replaced the earlier provisions under the
section 38(3) & 38(4). Section 38B states, even after the assignment of his right, may it be
wholly or partially, the performer still has the rights to the following under the Act :
(a) Right to claim to be identified as the performer of his performance unless where the
omission has been dictated by the manner of the use of the performance
(b) 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.
However, it has also been clarified in the same section that mere removal of any portion of a
performance for the purpose of editing, or to fit it 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.
Right to The Performance–
The act not only provides with the copyright and protection of performer’s right during the
life of the performance but also for a long time period after the performance. The
performer’s right shall subsist until ‘fifty years’ from the beginning of the calendar year next
following the year in which the performance is made.13
Broadcast & Broadcasting Organization
Literal meaning of the term “broadcast” is the transmission or distribution of programme or
information or audio or video content to a dispersed audience via radio or television.
As per the section 2(dd) of The Copyright Act, “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.”
Broadcasting organisation, such as radio or television are also popularly known as electronic
media, play a vital role in the society. They are powerful media for entertainment,
dissemination of information, knowledge, art and culture. Such broadcasting organisation
have also been provided with the rights to protect their interest after the Amendment of
2012 in The Copyrights Act, other than the performers.
Rights of The Broadcasting Organization
Just as performer’s rights have been protected by the legislature undee the Section 38 of the
act, similarly, broadcaster’s rights have also been protected by the Act under section 37.
Every broadcasting organisation shall have a special right to be known as “broadcast
reproduction right” in respect of its broadcasts.14
Right to The Broadcasting for A Term –
Just like performer’s right has been granted for an entire term, similarly, broadcaster’s rights
have also been provided for an entire term. 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.15
The Amendment Act of 2012 might have introduced the affirmative rights for the performer
by omitting the provisions in which negative rights were given but the same is not the case
with the rights of the broadcasting organisation. Rights protecting the broadcaster are given
in the form of the infringements that would be considered during the continuance of the
broadcast reproduction right, with regards to the broadcast.
Any person who has not obtained the licence from the owner of the work and does any of
the following acts, in regards to the broadcast or any substantial part of it will deemed to
have infringed broadcast reproduction right of the broadcaster : 16
(a) re-broadcast the broadcast
(b) causes the broadcast to be heard or seen by the public on payment of any charges
(c) makes any sound recording or visual recording of the broadcast.
(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
(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), subject to the provision of
Section 39.

Judicial Pronouncement Related to The Chapter VIII of The Copyright Act, 1957

✓ The very first case, Fortune Films International v. Dev Anand16, where the issue of whether
the copyright of the work of the actor has been recognised or protected by the Copyright
Act was raised in the Bombay High Court. The Honourable Supreme Court held that an actor
in a film has no rights over his performance in the film and thereby denied the existence of
the rights of the performers under the Indian copyright laws back then.
✓ In the case of Super Cassettes Industries v. Bathla Cassette Industries17, the Delhi High
Court stated that since the incorporation of the Amendment Act of 2012, performer’s right
and copyright are two different concept. This case established a step ahead towards the
recognition of the performer’s rights by stating that the rerecording of any work or song
without the consent of the original maker of the song is an infringement to the performer’s
rights.
✓ In the case of Neha Bhasin v. Anand Raj Anand18, issue in matter was related to the live
performance. The Delhi High Court held that every performance has to be live in the first
instance, whether it is before an audience or in a studio. If this performance is recorded and
thereafter exploited without the permission of the performer, then the performer’s right is
infringed.
✓ In the lastest case of Star India Pvt. Ltd. V Piyush Aggarwal19, the issue that was raised was
whether a cricket match would constitute a “performance” or not under the copyright act.
The Delhi High Court observed that a cricket match will be considered a “performance” and
therefore, cricketers, commentators and umpires are performers under the Act.