Performers’ Right: A critical analysis of law in India and beyond

 
Performers’ Right: A critical analysis of law in India and beyond
Abstract
This paper deals with the critical evaluation of performers’ right under the Copyright Act, 1957. Performers’ rights are new element in the intellectual property law. The performers (dancers, actors, singers etc) interest should be protected as there is application of intellect in diffusion of talent. To prevent the exploitation of the ownership the copyright act gives protection to the performers. In India although the performers are protected but how far these rights turned fruitful for them is a question which the paper will be dealing as these performers contribute to the promotion of creativity and innovation, adequately  the interest of the performer should be protected. It endeavors to analyze the approach of the judiciary to the issue of performers’ right. It tries to examine international instrument and need of protecting performer’s right in the light of these international instruments. The paper will compare the laws regarding the performers’ right with other countries and will also scrutinize all provisions related to performers’ right under Copyright Act, 1957.
Introduction
Copyright is the part of intellectual property which gives exclusive legal right to the original creator of the work. The copyright law protects the intellectual creations in the work that is original.It protects the work as soon as it is created and no registration formalities are required. Earlier the concept of Copyright was limited to the books, painting or films, but now the ambit is widened even to computer software and compilation of data.  The Oxford English Dictionary defines Copyright as “The exclusive right given by the law for certain term of years to an author, composer etc ( or his assignee) to print, publish and sell copies of his original work.”
Before the amendment of the Copyright Act in 1994, no protection was given to the actors, musicians, jugglers, dancers etc. The Copyright Act, 1957 (herein after referred to as the Act) was silent on the performers’ rights after the amendment in 1994 recognised the rights of the performer under section 38 of the Act ‘Performers Rights’ are introduced.
The section 38A of the Act which provides legal provision for performers’ right which gives exclusive right or authorizes for doing any act in respect of the performance without prejudice to the rights conferred on authors. This provision enables the performers’ for royalties which are subjected to committed use.
The recent development in the Act is the recognition to the rights of the performers. The Copyright Act, 1957 gave recognition to the performers after long time. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. Musicians, singers, actors, acrobats etc come in the category of performers. Under Section 2(qq) of the Act “performer” includes an acrobat, musician, singer, actor, juggler, snake charmer, a person delivering lecture, or any other person who makes a performance. The section 38 of the Act confers right to performers’ like actors, dancers, jugglers, acrobats etc.
The Act is needed in order to ensure that the rights are not exploited and to reward the creative efforts of the person who does the work.
Need for the protection of Performers’ Right
Before anatomize the “Performers’ Right” the fundamental question needs to be answered. Why the performers’ Right should be protected? The need for the protection of Performers’ Right arose with the passage of time. The fundamental reason was the technological development that enabled recording & broadcasting of the performers’ right. But earlier these rights were not there and according to Adam Smith, there could be mainly two reasons for not recognizing the performers’ rights.
1) Social and historical:
During the formative period of copyright, the actors, or strolling players were regarded as ‘vagrants’ by law. The players, buffoons, musicians, opera-singers, opera dancers and the like were the classical examples of ‘unproductive labour’.
2) Historical and technological:
The work of all the performers used to perish in the instant of its production.[1]
The points given by the Adam smith cannot sustain the reason is as under
In the late nineteenth century and the early twentieth century technology was developed that enabled performances to be recorded and then enable to both live and recorded performances to be broadcast and communicated to the public locally, regionally, nationally and eventually internationally. Performers’ were therefore separated from the performers who had made them.[2]
Although the reasons stated by Adam Smith cannot be accepted today, as the development in the technology leads  to easy access to the spectators even to those who are not in the immediate vicinity when the performances was made. As the live performances or whether the performance is on the stage or in the broadcasting studio the nature of their performances is no more transitory.
In Fortune Films International v. Dev Anand[3]
The question whether copyright subsisted in the performance of a performer was decided by the Bombay High Court the court said that the copyright protection is available only to film including the soundtrack, the cine artists who act in the film is not protected by copyright law for their acting.
The Copyright Act divides the performers into three categories:
1)      Performers giving live performances.
The performer when he performers in front of the audience (live) or engages in any performance he has right over that performance.
2)      Performers in a cinematograph film with credits in the film.
The performer when he gives his rights to the person with any written  agreement to make it a part of any commercial use, the performer shall be entitle to have royalties or some monetary benefit.
3)      Performers in a cinematograph film without credits in the film.
There are many performers in supporting cast which are commonly termed as “extras” in any play, film etc. The Copyright Act till now doesn’t give any protection to such people except moral rights which might be prejudicial to their reputation.
Performers Right in India under Copyright
Section 2(q)  “performance” includes any mode of visual or acoustic presentation, including any such presentation by the exhibition of a cinematograph film, or by means of radio-diffusion, or by the use of a record, or by any other means and , in relation to a lecture, includes the delivery of such lecture;[4]
Section 2 (qq) “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;[5]
The performers’ Right is the result of amendment of the Copyright Act in 1994, there was no protection of the rights of performances as explained in section 2(qq). The amendment introduced the recognition to rights of the Performer under section 38. These sections gave birth to the ‘Performers Rights’.
Moral Rights in India
The moral rights are the gift of Berne Convention, the Article 6bis gave a system of moral rights that were internationally recognized principles. India took the inspiration of moral rights from 6bis, which gave a proper platform for the implementation of the moral rights. Although the Indian legislation has a broader scope are dynamic and has more flexible interpretation than Article 6bis.
Under section 57 of the Copyright Act 1957, confer moral rights to the author. The section does not apply to the performer’s rights. In the Indian context the provision of s 57 meets minimum requirements of Berne Convention. Under section 57 of the Act the author has the right to protect himself from infringement or claim damages for any infringement of the copyright although it in terms of the software. According to Copyright Act Section 39A the moral rights are the rights to claim the authorship of the work, and the right of the integrity of the work. To be precise the aim of the moral rights is to protect the interest of the performers as the economic rights already exist in India, although the adaptation of the moral rights is easy.
Acts not constituting infringement of a performers’ right under section 39 of the Act:
The rights of the performer and broadcasting organization are not conclusive. Following are the acts which does not constitute infringement of a performers’ right:
a)      A person makes any sound recording or visual recording for the private use or solely for bona fide teaching  or research purpose,
b)      Excerpts of a performance are used, consistent with fair dealing, in the reporting of current events or  for bona fide review, teaching or research,
c)      An act is done after necessary adaptation and modification which does not constitute infringement of copyright under section 52 of the Act.
The WIPO Performances and Phonograms Treaty WPPT,1996 came with  an amendment of 2012 which gave a new dimension to the  moral rights that states that performer shall independently of his right after assignment, either wholly or partially of his right, have the right-
(a)    To claim his performance and
(b)   To protect his performance from any distortion, mutilation other modification this in return might axe his performance.
(c)    Not allowing any person to use the performance without prior permission of the performer.
The Copyright (Amendment) Act of 1999.
Application of broadcasting rights and performer’s rights to foreign broadcasting organisations and performers- Section 40A
S.40A where any foreign country has made provisions to give Indian Broadcasting organisation and performers the same right as available in India, the broadcasting organizations and performers of that country will be granted similar rights in India, for details.[6]
S.42A which was again inserted by Copyright (Amendment) Act 1999.
Restriction of rights of foreign broadcasting organizations and performers- section 42A
If any foreign country does not give adequate protection to broadcasting organizations and performers the broadcasting organizations and performers of that country will not be entitled to corresponding rights available in India.[7]
Prior to the Amendment of 2012 in Copyright Act 1957, parody and mimicry were held to be legally permissible but it is yet to be seen how the courts will treat the parody and mimicry performed by performers post 2012 in view of newly inserted clause (b) to section 38(b).
Finally the phrase ‘performers’ right’ comprises all the right that may accrue to a performer by virtue of his performance. They are hence a bundling three distinct types of legal rights: Economic rights, moral rights and non tangible rights. Economic Rights include right of reproduction, adaptation, distribution, rental, lending remuneration and communication.[8]
The moral rights are the rights of attribution and integrity over the work performed. Non-tangible rights are most difficult to define. They include the right over the persona of performance, the right against the use of likeness or name of the performance, rights over the performer’s creativity in execution of performance over his unique and distinct expression and style. These are the three basic rights which a performer has. The performers’ right subsists for 50 years from the next year in which the performance was made.
The right of the performers under the Copyright Act 1957 is in a narrow scope as per the protection of performer in Indian law, once the performances are broadcasted, recorded or communicated with the consent of the performer, his rights over any kind of performance i.e visual or vocal dies. A performance can’t be broadcasted, reproduced or recorded if the prior permission of the performer is not taken when such reproduction is not allowed.
In Super Cassettes Industries v. Bathla Cassettes[9], the reason for failure of production of performers’ right is because the copyright law protects the creation and not the ideas thus balancing the competing, interest of ensuring incentives and encouraging creativity becomes difficult.
The law in India which governs the Performers’ Right are under developed when compared with the laws in U.K and U.S.A are intricate.
When compared with U.S.A the Indian laws are weak although the protection given by USA is in a similar form as India gives but the principle mechanism is the law of tort. Although there is no specific legislation which gives protection to the Performers’, the rights of performers is protected by the right of publicity which is evolved by American Courts. A tortuous doctrine evolved by American courts in direct response to claims of infringement of performers’ right. This makes the American system distinctly different from Indian and English regimes, and warrants a closer look at American performer protection law policy.[10]
When compared with England, there the Performers Protection Act was passed in 1925.the performers right in England are in equal footing with India. In England the Performers are granted economic rights. The inadequacy in the English legal system is primarily with respect to unprotected moral rights and non tangible rights. As in the Indian system, this is primarily because England uses a system of copyright to protect performers’ interest.[11]
At the end we can say that the legal system of USA is strong when compared with India both the economic rights and some non –tangible rights of performers are protected. There are some limitations also however the right of publicity is a useful judicial innovation; its applicability is limited only in a country like India, where the judicial system has not developed a jurisprudence of publicity rights.
Copyright Societies:
Copyright society is a legal body which protect the interest of owners of the work in which the copyright exist. Prior to the coming into force of the Copyright (Amendment) Act 1994, the ss. 33 to 36 dealt with the Performing Rights Societies which only gave right for issuing or granting licenses for performance in India of any work in which copyright subsisted. These sections limited the scope to granting licenses for the performance in India of any work in which copyright subsisted. But after the implementation of the amendment Act the scope of Copyright society was broadened from issuing or granting licenses and all rights relating to any class of work in which copyright subsist under the Act. The copyright society is a body created under copyright act 1957 that gives license to the work and collect royalties.
The Delhi High Court in Event and Entertainment Management Association v. Union of India and ors. It was held that the law laid down in Federation of Hotels and Restaurant Association of India v. UOI held that the working of the copyright societies to be monitored and guided by the Copyright Act.[12]
When a person generates his own work, there is a possibility that there might be infringement of his work. So in order to avoid such difficulty owners of copyright work together and form societies to licenses their work for performance or communication to the public or issue rights to other. Copyright societies means a society registered under sub section (3) of section 33 of the Act. In UK as well as in India the Performing rights society which is established of copyright society under which IPRS is established.
The Copyright Societies in India like The Indian Performing Rights Society Limited (IPRS), The Phonographic Performance Limited (PPL) and Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT) Indian Reproduction Rights Organization (IRRO) are registered with Central Government.
These societies are active in term of protecting the rights of the performer, Phonographic Performance Limited (PPL) which administers the right of the recording companies like Tips, Universal and Times Music etc. It negotiates the terms of remuneration with the broadcasters, television, other users like hotel, restaurant etc.
In Music Broadcast Pvt. Ltd v. Phonographic performances ltd. The issue before the Copyright Board was reasonable determination of tariff to be payable radio broadcasters for exploiting by way of broadcast the sound recording administered by phonographic Performances Ltd. (PPL)[13]
For performers there is a performing rights society which came into existence on 23^rd August 1969 and named as IPRS.  The Indian performers Right Society is not profit making. It is a company limited by guarantee and registered under the Companies Act, 1956 and authorized under section 33 of the Act. IPRS has more than 1500 members who are local composers, lyric writers and publishers and also represents international music .This body represents the composers, lyricist and the publisher of music. This body deals with the issuing or granting of licenses for any musical work, literary work to any person within the territory of India. It is one of its own kinds in India for issuing and granting of licenses for acquiring rights on the music.
The users who need to perform or broadcast or play any literary work or musical work they have to take prior permission or in other words they have to obtain license for public performance. The users such as radio station, television station etc need to obtain license.
It is the most authenticate source to remit, distribute and collect not only Indian royalties but also international royalties. The IPRS is a very active society for the protection of performers’ right in India. It has helped in improving the economic status of the performers and the users they also find very easy to obtain license for making legal use of the protected work. It is the most authenticate source to remit, distribute and collect not only Indian royalties but also international royalties.
International Convention
The rights given to performers are a result of many conventions and treaty. The need for the treaties arose due to the development and innovation in technology. The concern of the performers has been addressed in four major international instruments: Rome Convention, 1961; TRIPS 1994, WPPT, 1996 and Beijing Treaty, 2012.
Intern national Convention for the protection of Performers, Producers, Phonograms and broad casting Organizations (Rome Convention 1961)
Rome Convention, 1961 granted following rights to the performers under Article 7:
(1)   Right to prevent the broadcasting and communication to the public of their live performances without their consent.
(2)   Right to prevent fixation to their live performances without their consent.
(3)   Right to prevent reproduction of the fixation to their live performances without their consent under the following circumstances:
If the original fixation was made without their consent
If reproduction is made for purposes different from these for which the performers gave their consent if the original fixation is made in accordance with permitted exceptions under Article 15 and the reproduction is made for purposes different from referred to in Article 15.
Article 7 further deals with relations between performers and broadcasting organizations. If the performers and broadcasting then, it shall be a matter for the domestic law of the contracting State where protection is claimed to regulate the protection against re-broadcasting, fixation for broadcasting purposes and the reproduction of such fixation for broadcasting purposes. However, domestic law shall not operate to deprive performers of their ability to control by contract, their relations with broadcasting with broadcasting organizations.[14]
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS, 1994)
India being a signatory of TRIPS it had to bring some amendment in the Indian Copyright law, provisions were made for adopting performers’ right under Article 14 of TRIPS.
Article 14(1) state that in respect of fixation the performers shall have the right to prevent the acts of their unfixed performances, acts undertaken without their authorization such as broadcasting and communicating live performers to the public.
After the TRIPS agreement new issues arose which were due to the evolution in the digital technologies. Due to this in the post TRIPS period, WIPO, Performance & Phonograms Treaty (WPPT) 1996, this treaty replaces the Rome Convention, 1961 in respect of the Performers right.
WIPO Performances and Phonograms Treaty (WPPT, 1996)
The WPPT expanded the horizon of protection for performers, producers of phonograms and broadcasters. The WPPT, 1996 there was an amendment of 2012 which introduced moral rights that states performer shall independently of his right after assignment, either wholly or partially of his right, have the right to prohibit the unauthorized broadcast and public communication of their performances.
Beijing Treaty on Audio-Visual Performance, 2012.
The issue of protection of performing artist in Audio-Visual treaty which includes television film and was not a part of WPPT because there was no consensus between the negotiating countries. Many discussions were held with the Committee of Experts and Standing Committee organized by WIPO. But the negotiating countries could not come to one conclusion in the Diplomatic Conference 2000, with respect to the issues related to performers’ right and that made the adoption of treaty impossible.
The Beijing Treaty on Audio –Visual performance (June 26, 2012) which includes, the traditional media and digital networks, such treaties will help in safeguarding the rights of the performers against the unauthorized use of work.
Conclusion:
The legal structure for the protection of performers’ right in India is found feeble and more substantial laws should be made to protect them. Although due to the rapid growth in the technology and in the entertainment world, proper protection and implementation will always be a challenge. As this article gives a wide explanation on the performers’ right in India, it emphasis on the need of protecting such rights and also explains through case laws the various tools which take care of the implementation of the rights of performers’. After scrutinizing the various legal aspects revolving around the term ‘Performers’ Right’ it can be concluded that protection for the non-tangible rights fails to find any recognition in the Indian statues when compared with statues in U.S.A.
The article highlights the economic rights given to the performers, under the statute which fails to consider the economic issues related to performers. Here I find that this alarming for the protection of our cultural heritage because larger community associated with the art and music in not covered under the umbrella of the rights under the Indian statutes. To combat with this situation legislature need take some urgent steps for effective implementation of the laws. The work done by judiciary is incredible; from time to time they have helped in proper interpretation of the laws which in return helped in proper implementation of the rights. After analyzing all the laws I found that if the performers rights are properly implemented then that will improve the internal economic condition of the country as the effective laws would fetch more remuneration and this will help the country to collect more taxes.
There are many societies under the act which protect the interest of the owners. From the discussion in the article it can be concluded that many international treaties have tried to uplift the position of the performers on the international level. I conclude by saying that there are many positive aspects of the act but performers right should be implemented effectively in India as the other rights are protected under the copyright laws the same they should be protected.
 
 
Written By-
Sneha Ayachit
LL.M (1 year)
Gujarat National Law University.