School of Law

Subject – Intellectual Property Rights

Topic – Significance of performer’s rights in the copyright regime

Submitted by – Fagun Mathur Submitted to – Mrs. Sangeeta

Jakhar

190239 Assistant professor

Ballb

3rd year
 Significance of performer’s right in the copyright regime

 Introduction-

Protection under copyright law is not only restricted to producers of creative work and
performers but, it also gives protection to creators and performers and through a performer
can claim ownership over their original work and in case of infringement of their right they
can also claim compensation for it.

The rights of performer, record producers and broadcasting organisations are called as
neighbouring rights as, they have developed parallel with copyright, and their exercise is
often linked with exercise of copyright.

Earlier rights of performers in a cinematography film or sound recording were not protected
and were not given recognisation till the first half of the last century. According to Adam
Smith there were two reasons for not recognising performer’s rights, first one was Social and
historical and second was Historical and technological.1

In today’s time both these problems do not sustain but the ‘modern technology’ has resulted
in ‘technological unemployment’2 of the performer as now the performances can be recorded
and performer doesn’t have to come to perform every time. Law did not paid attention to this
technological unemployment until 1994. In 1994, performers right was recognised under
Copyright Act of 1957 in India.

 Background of Performer’s rights-

Even after the second amendment in 1994 in Copyright Act 1957 no rights were confer to
performers even though they performed existing work. Copyright only subsisted in
translation or abridgment but not in the live performances that were given over radio,
television or in front of the public, or a fixed performance in cinematograph film or
performance recorded in a sound record.
When a sound recording was made of a performer’s performance, copyright law was given to
1
Adam Smith THE WEALTH OF NATIONS quoted in Stephen M. Stewart, INTERNATIONAL
COPYRIGHT AND NEIGHBOURING RIGHTS (London, 1983), p. 181.
2
Id. at p. 184.
record producer and in the same manner when a motion picture is been created, copyright law
is given to film producer including sound recording in a cinematograph film.

Reason for not protecting the performance of performer under the act was that it did not fall
within the meaning of s 2(y) of the Copyright Act 1957. Performance of a performer did not
come under any category of work which was given under this section which includes any
literary, dramatic, musical or artistic work, cinematograph film and record. The act also did
not give any neighbouring or related rights to performers.3

 Case law – Fortune Film International v Dev Anand4

 Facts: -

The appellants, Fortune Film International, the film producers entered into a contract with
famous cine artist Dev Anand to engage him in their Hindi film “Darling Darling” and to pay
him the amount of Rs 7 lakh as consideration. The agreement mentioned a provision for
relaxation in favour of the appellants giving them a restricted right to exhibit the film in any
of the listed territories after making the payment as stipulated for that territory. The film was
released in three of the seven listed territories. The actor sought an injunction to restrain the
producers from releasing the film in the other four listed territories along with the territories
not listed on the ground that the said provision vested the copyright in the film in him and
absolutely prohibited the producers from exhibiting the film anywhere until full payment was
made to him. The court partially granted the injunction to refrain the producers from
exhibiting the film in territories which were not listed but the actor’s claim that the agreement
vested in him the copyright in the film as a whole. The court held that the agreement
supposed to vest in him the copyright in his work, i. e, his performance in the film. The
producers preferred an appeal before the Division Bench against the decision of the single
judge.

 Analysis of the judgement:

Appellant's Contentions: It was contended on behalf of the appellants that such a right was
not recognized or protected under the provisions of the Copyright Act. They argued that
according to Sec 2(y) of the Act ‘work’ meant a work which is tangible in nature. There
could be copyright in a motion picture or a cinematograph film as well as in the story,
scenario or music, which were all tangible, but not the performance of the artist. Therefore,

3
Volume one, V.K. AHUJA, INTELLECTUAL PROPERTY RIGHTS IN INDIA p. 180 (First edition, 2009).
4
Fortune Film International v. Dev Anand, AIR 1979 Bom 17 (India).
the agreement could not vest in the actor something which in the first place did not exist
under the Act.

 Respondent's Contentions: The respondent argued that the performance of an actor

was protected by the definition of ‘artistic work’ and ‘dramatic work’ under Section
2(c) and Section 2(h) of the Act respectively. He submitted that the performance of
the cine artist involves acting which is in the fixed form in a cinematograph film and,
therefore, discovered within the definition of "dramatic work".
 Court's observations:

The court held that the performance of an artist in a cinematograph film could not be equated
with painting, sculpture, drawing, engraving or photograph and is clearly not artistic work as
per Section 2(c) of the Act. The court also rejected the contention that it was covered under
Section 2(h) as ‘dramatic work’ and held that it was an inclusive definition which expressly
excludes a cinematograph film. It was further held that the words “or otherwise” in the
definition of dramatic work are there only to provide for the means of recording, such as a
tape recorder, Dictaphone, etc.

The Court also rejected the argument that there could be one copyright owner in a
cinematograph film as a whole and different owner of the copyright in portions thereof. The
court held that the plaintiff was not entitled to any interim injunction regarding the territories
other than the four listed territories. The court set aside the decision of the trial court and also
vacated the interim injunction granted by the trial court.5

 Origin and Development of Performer’s Rights –

 The International Convention for the protection of performers, producers of

phonograms and broadcasting organizations generally known as Rome Convention,
1961, was the first convention recognizing the rights of performers.
 International Labour Organization (ILO), United Nations Educational, Scientific and
Cultural Organization (UNESCO) and World Intellectual Property Organization
(WIPO) are together responsible for the administration of the Rome Convention.
 The intergovernmental committee secretariat consists of members from 12 contracting
states constituted by these three organizations. This committee is concerned with
questions that are considered in Rome convention. In this convention, the duration of
5
Performer’s rights under copyright law before 1994 amendment – Others, lawyersclubindia, (19 th June, 2020),
[Link]
[Link].
 the performer’s rights was protected for at least 20 years from the end of the year in
which the performance took place.
 Article 19 of the Rome Convention states that when the performer has consented for
the incorporation of his performance in any audio-visual or visual mode then these
provisions will not be applicable.
 In India, protection is given to performer’s rights for the term of 50 years. Article 7 of
the Rome Convention gives protection to the rights of performers:

 The provisions of this convention are further strengthened by the TRIPS agreement,
which is administered by WTO. Article 14 of the TRIPS agreement states that:

 They have the right to protect their work from broadcast and communication to the
public by wireless means.

 They have the right to prevent reproduction of their live performances.

 They have the right to prevent the fixation of their live performance on
phonograms. In the Rome Convention, such performances were not restricted to
phonograms but here the narrow approach has been adopted.

 The protection of performer’s rights is 50 years from the end of the year in which the
performance was fixed or it took place.

 In 1996, WIPO Performance and phonogram Treaty (WPPT) came into existence. In
this treaty, moral rights of the performers were recognized for the first time in any
international treaty, and economic rights of the performers were also discussed. It also
came to a conclusion that performers should receive monetary compensation for their
performance and if the work is exploited for any other purpose than for which,
consent is given then performers are eligible to receive the royalties.

 In 2012, Beijing Treaty on Audio-Visual Performance was adopted by WIPO. WPPT

did not discuss the performer working in the tv or films but in the Beijing Treaty, all
these rights were discussed and it also laid down provisions for the transfer of
performer’s rights to producers of films.6
6
EXPLAINED: RIGHTS OF PERFORMERS UNDER INDIAN COPYRIGHT LAW, Lexlife India, (3 rd June,
2021), [Link]
Section 2(qq) of the Copyright Act 1957 defines ‘performer’, which includes actor, dancer,
musician, singer, acrobat, conjurer, snake charmer, juggler, a person delivering a lecture or
any other person who makes a performance.7

A person whose performance in a cinematograph film is casual or is not acknowledged

including the credit scene those people are not treated as performer but, they are treated as
performers for the purpose of moral rights under section 38(B)(b) so that they can restrain or
claim damages in case of any infringement.

 Case – Star India Private Ltd v. Piyush Agarwal and others8

Star India Private Limited had a statutory license of broadcasting the cricket matches
organised by the Board of Control for Cricket in India (BCCI), for 72 hours from the actual
cricket match taking place. BCCI on its own was in the habit of collecting certain information
released by its viewers and fan base, such as ball by ball or a minute-by-minute score updates
and match alerts, which it circulated amongst its viewers through mobile messaging services.
Therefore, Star India filed a suit against BCCI for infringement of its exclusive rights.
However, the court distinguished between the kind of information which is disseminated by
Star India and BCCI. The court held that since match information and updates are essential
facts which the public should know, BCCI cannot be prevented from disseminating such
information. But, due to the agreement between Star India and BCCI, the court allowed BCCI
only to broadcast such information after a time lag of 15 minutes from the actual broadcast.
However, the court also specified the kind of information which BCCI can broadcast, and
limited the same only to mobile messaging alerts, and mentioned that the original audio or
visual recording cannot be used.

 Performer's rights under Indian Copyright Law -

1. Performer has the right to broadcast a performance.

2. The performer has the right to produce a sound recording or a visual recording of the
performance.
3. The performer has the right to make a sound or a visual recording.
4. The performer has the right to communicate the work through different mediums that
may not include broadcasting.

7
INTELLECTUAL PROPERTY LAWS, (Bare act, 2021).
8
20134 (58) PTC 169 (Del).
  Case - Super Cassettes Industries v. Bathla Cassette Industries9
 Facts –
Super Cassettes Industries were indulged in the business of manufacturing, processing
marketing of pre – recorded audio cassettes and other records too under T-series.
They produced a song ‘Chalo dildar chalo’ which itself was version of sound
recording of the original track from the movie ‘Pakeezah’ by giving notice and gave
royalty to the original producer Mahal Pictures as was required under Section 52(1)(j)
of the Copyright Act. The plaintiff filed a suit for injunction alleging that the
defendant had infringed the plaintiff’s copyright in his version recording.

 Issues –
a. Whether the plaintiff's version recording constitutes an infringement of the original
musical work?
b. If yes then, whether such version recordings are entitled to avail the protection under
Section 52 (1) (j)?
c. Whether a product of Section 52(1)(j) be considered as original musical work?

 Court’s observation –
Section 52(1) allows only such alterations or omissions which are reasonably
necessary for making the adaptations of the recording.
Alterations and omissions which were made in version recording were not mentioned
in the notice which was given to the original copyright under Rule 21(2)(b). Main
alterations which were done was change of singer and change of orchestra. Court
opined that the change of singer is an alteration that cannot be said to be reasonably
necessary for the adaptation of the original work as it is a big alteration and affects the
integrity of the owner. When the original song was compared to one that was
recorded, both turn out to be similar and was a duplication of the original.
It was held that anyone who violates version recording of section 13(3)(b) of the act
cannot avail protection under section 52(1)(j) of the act. Therefore, where no licence
has been granted by the original copyright owner and the only claim put forward is
under section 52(1)(j), it cannot grant any right to such a person for independent
protection for its musical works.

9
2003 (27) PTC (280) Del.
Section 52(1)(j) has now been repealed by the addition of Section 31C by the 2012
amendment.

 Exclusive rights of performer’s-

The Copyright Act was amended in 2012 which inserted Section 38A which provides
exclusive rights to performers. Similar to economic rights of author which is provided in
section 14 of the act. Performers have exclusive right to do any of the following acts in
respect of the performance –

(a) to make a sound recording or a visual recording of the performance, including—

(i) reproduction or storing it in any electronic medium;

(ii) issuing copies to public;

(iii) communicating to public;

(iv) selling or giving on rent or offering for sale;

(b) broadcast or communicate the performance to public.

The performer shall be entitled for royalties in case of making performance use for
commercial use. Royalty collected from the commercial use of performer’s performance is to
be equally divided between performer and the other owner of the copyright.10

 Moral Rights-

Section 38B deals with moral rights of the performers this was also inserted by the 2012
amendment in The Copyright Act 1957. Section 38B provide with two moral rights to
performers and these rights are available to them after assignment wholly or partially. Those
two rights are as follows-

1) Performer should be given credit or should be identified for their performance.

2) Performer should be able to restrain or claim damages if his or her performance has
been distorted, mutilated or modified in a way that would harm his or her reputation.11

10
Volume one, V.K. AHUJA, INTELLECTUAL PROPERTY RIGHTS IN INDIA p. 182 (First edition, 2009).
11
Volume one, V.K. AHUJA, INTELLECTUAL PROPERTY RIGHTS IN INDIA p. 183 (First edition, 2009).
  Term of Performer’s rights –

In India, according to second amendment of the copyright act 1957 term for performers right
was 25 years from the beginning of the calendar year following the year in which the
performance was made. But as India follows the TRIPS agreement as per its article 14, term
of protection available to performers is 50 years from the end of the calendar year. Section 38
of was amended by The Copyright Act 1999 to extend term from 25 to 50 years.12

 Exceptions to performer’s rights –

Given under section 39 of the act-
1. Act of recreating any sound or video recording for personal use, or for the purpose of
teaching or research.
2. Where the work is copied for legal purpose,
3. Reproduction of the work for purposes of reporting, reviewing or other fair dealing
processes,
4. If work is reproduced by members of legislation for use purpose,
5. Other uses which do not constitute infringement under section 52 of the copyright act
1957.

 Remedies for infringement of performer’s right –

Section 55 provide remedy for the infringement of performer’s rights.

1. Anton pillar order – Court may issue an ex-parte order to plaintiff and its
attorney for searching defendant’s premises to obtain any relevant document
or evidence for showing that performer’s right was infringed.

2. Civil remedies – Performer’s right owner or his licensee can go to court for
getting a temporary or permanent injunction.

3. Criminal remedies – Infringer can face criminal charges, where you can
imprisonment for 6 months which may extend upto 3 years or a fine ranging
from Rs. 50,000 to Rs. 2,00,000, or both.13
12
Id.
13
EXPLAINED: RIGHTS OF PERFORMERS UNDER INDIAN COPYRIGHT LAW, Lexlife India, (3 rd June,
2021), [Link]
  Conclusion-
Inclusion of performers right in copyright law is a very encouraging step toward the
protection of performers and their work. Their work was never given the kind of appreciation
it deserved for a long time which automatically leads to exploitation of their work and
indirectly of their skills. Before this law performers were often led to unfair practices by
several producers or music directors. This law also made performers financially strong or
gave them a financial stability.