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Rights of Performers in IPR

Fifth Year BLS/LLB

Bindi Desai – B13

YadnyaGaikwad – B14

Bahaar Shukla –B51

Intellectual Property Rights


Introduction:

Intellectual property refers to creations of the human mind: inventions; literary and
artistic works; and symbols, names and images used in commerce. Intellectual
property is divided into two categories i.e Industrial Property and Copyright.
Industrial Property includes patents for inventions, trademarks, designs and
geographical indications. Where Copyright covers literary works (such as novels,
poems and plays), films, music, artistic works (e.g., drawings, paintings,
photographs and sculptures) and architectural design. Rights related to copyright
include those of performing artists in their performances, producers of
phonograms in their recordings, and broadcasters in their radio and television
programs.

Intellectual property rights are like any other property right. They allow creators, or
owners, of patents, trademarks or copyrighted works to benefit from their own
work or investment in a creation. These rights are outlined in Article 27 of the
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Universal Declaration of Human Rights , which provides for the right to benefit
from the protection of moral and material interests resulting from authorship of
scientific, literary or artistic productions. Copyright deals with performers rights.

2. Who are Performers under Indian Copyright Act?

As per the generic term, performer is a person who acts, sings or does other forms of
entertainment before the audiences. This word ‘Performance’ has been coined
out of an evolution over the period from Anglo-French performer, altered (by
influence of Old French forme "form") from Old French parfornir "​to do,
carry out, finish, accomplish​," from par-"completely" (see per) + fornir "to

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Article 27 (UNDHR)- 1. Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the
protection of the moral and material interests resulting from any scientific, literary or artistic production
of which he is the author
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provide" (see furnish)​. A performer could be someone who plays a vital role in
between dramatic, musical work and literary and the public. These performers
spent enough of their skills and labour to merit copyright protection. The
category of performers have been given a wide array under Indian Copyright
Act, 1957. The definition of performer under the 1994 Indian Amendment
takes care of many such performers and is quite wider.

It provides as per Copyright Act,1957, Section 2 (qq) states that performer ​“ a


‘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”​. Section 2(q) says that performance’ in relation to
performer’s right, means any visual or acoustic presentation made live by one
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or more performers.

3. What are performers rights?

Performers Rights:

The performances of actors, singers, musicians and dancers are an integral part of the
presentations of such creative work to the public. Thus it is very essential to
protect the rights of performers. Since the very first performance recordings,
in sound and images, it has been accepted that performers should have some
rights over those recordings and a share in the proceeds from their commercial
exploitation.

Prior to the 1994 amendment of the Indian Copyright Act, India failed to give due
recognition to the rights of performers. Performers’ Right is the result of said
amendment. The amendment introduced the recognition to rights of the
Performer under section 38 and “Performers Rights” came into existence. An
attempt has been made to understand the various rights of performers and its
exceptions.

I. Kinds of rights

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https://www.etymonline.com/word/perform
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The Copyright Act, 1957 (Act 14 of 1957), s.2(qq)
The various rights granted to the performers can be broadly classified into two categories
i.e. economic and moral rights. Economic rights, as the name suggests pertains to
the monetary benefit which the performer is entitled to acquire from his work.
Moral rights are the right of attribution and integrity over the work performed.

a) Economic rights
The economic interests of the performers are protected under section 38A of the
Copyright (Amendment) Act, 2012 as follows:
“(I) Without prejudice to the rights conferred on author, the performer's right which
is an exclusive right subject to the provisions of this Act to do or authorise for
doing any of the following acts in respect of the performance or any
substantial part thereof, namely:
(a) to make a sound recording or a visual recording of the performance, including-
(i) reproduction of it in any material form including the storing of it in any medium
by electronic or any other means;
(ii) issuance of copies of it to the public not being copies already in circulation;
(ii) communication of it to the public;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental
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any copy of the recording.”
A performer has a right to create an audio or visual recording of his performance and
license it and authorise persons as per his will. He also has a right to prevent
others from recording the performance and selling the same. The provision
also entitles the performers to royalties in case of making commercial use of
the performance.

b) Moral rights
Moral rights are the right of attribution and integrity over the work performed. Since
such rights are intangible, they become difficult to define and explain.India
has incorporated two kinds of moral rights of under section 38B of the
Copyright (Amendment) Act, 2012:

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The Copyright (Amendment) Act, 2012 (No.27 of 2012), s.38A
​ he performer of a performance shall, independently of his right after assignment,
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either wholly or partially of his right, have the right,
(a) to claim ·to be identified as the performer of his performance except where
omission is dictated by the manner of the use of the performance; and
(b) to restrain or claim damages in respect of any distortion, mutilation or other
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modification of his performance that would be prejudicial to his reputation.​ ​”
Hence, a performer is entitled to due credit for his contribution to the work. Also, he
has a right to sue for damages if any distortion, mutilation or modification of
his work harms his or her reputation.

II. Extent and Duration


There has been a considerable expansion in the period of protection of the rights of
performers. Initially, under the 1994 amendment, as per section 38(2) ​“the
performers rights shall subsist until twenty-five years from the beginning of
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the calendar year next following the year in which performance is made.”

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Thereafter, under the TRIPS Agreement period of protection was fifty years
following which the Copyright (Amendment) Act, 2012 increased the said period
from twenty-five years to fifty years from the beginning of the calendar year
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next following the year in which the performance was made.

III. Exceptions

Section 39 of the Indian Copyright Act, 1957 provides for three exceptions to the rights of
performers:

“a​ ) A person makes any sound recording or visual recording for the private use or
solely for bona fide teaching or research purpose,

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The Copyright (Amendment) Act, 2012 (No.27 of 2012), s.38B
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The Copyright Act, 1957 (Act 14 of 1957), s.38(2)
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Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, ​Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, Article 14.5
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The Copyright (Amendment) Act, 1999 (Act 49 of 1999), s.38(2)
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
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constitute infringement of copyright under section 52 of the Act.”

Thus, audio visual recordings for private use, teaching and research purpose,
reporting of news, adaptation and modification not in violation of section 52 are
excluded from the ambit of protection of performers rights.

4. International Conventions

There are international three main conventions which provide protection to

performers for their artistic work.

They are discussed in brief below.

● Rome Convention (1961):

The Rome Convention secures protection in performances for performers, in


phonograms for producers of phonograms and in broadcasts for broadcasting
organizations.

It is stated in convention that: Performers (actors, singers, musicians, dancers and


those who perform literary or artistic works) are protected against certain acts
to which they have not consented, such as the broadcasting and
communication to the public of a live performance; the fixation of the live
performance; the reproduction of the fixation if the original fixation was
made without the performer's consent or if the reproduction was made for
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purposes different from those for which consent was given​.

● TRIPs Agreement (1995):

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The Copyright Act, 1957 (Act 14 of 1957), s.39
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Rome Convention 1961.
The TRIPs Agreement 1994 also provides that any contracting party may in relation to
performers’ rights provide for conditions, limitations, exceptions and reservations
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to the extent permitted by the Rome convention.

5​.​ World Intellectual Property Organisation (WIPO)

WIPO is a specialised agency of the United Nations, consisting of 191 member states. It
provides for intellectual property services, engage in treaties and conventions and strive
to improve the IP laws globally. India is one of the member nations of WIPO and strives
to stay in consonance with the global changes in IP which is reflected in the amendments
of the Intellectual Property laws of India.

I. Historical Background

The key milestones in the establishment and workings of WIPO can be traced through the
several conventions which took places in the past such as the Paris Convention, Berne
Convention, United International Bureaux for the Protection of Intellectual Property.
These ultimately led to the formation of the organisation as it stands today in 1970.

II. Greater protection and rights afforded by WIPO

The various treaties and conventions of WIPO led to the establishment of certain rights of
the performers which were not necessarily granted by the member nations to its
performers. For example, the WIPO Performers and Phonograms Treaty, 1996 grants
performers economic rights in their performances fixed in phonograms and the Beijing
Treaty on Audio-Visual Performance, 2012. However, it is pertinent to note that India is
not a signatory to the above treaties.

The contribution of WIPO to the field of intellectual property is unparalleled. WIPO has
since its establishment, through several conventions strived to grant rights to performers
and authors in all the mediums made available by modern technology.

Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, ​Marrakesh
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Agreement Establishing the World Trade Organization, Annex 1C, Article 14(6)
6. Performer’s Rights under Indian Legal Framework:

The 1994 amendment introduced the recognition to rights of the Performer under section
38. These sections gave birth to the ‘Performers Rights’.

Section 38 provides –

“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.

Performer’s right.

(1) 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."

(2) 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.

(3) During the continuance of a performer’s right in relation to any performance, any
person who, without the consent of the performer, does any of the following acts in
respect of the performance or any substantial part thereof, namely:

(a) makes a sound recording or visual recording of the performance; or

(b) reproduces a sound recording or visual recording of the performance, which sound
recording or visual recording was

i) made without the performer’s consent; or

ii) made for purposes different from those for which the performer gave his consent; or

iii) made for purposes different from those referred to in section 39 from a sound
recording or visual recording which was made in accordance with section 39; or

(c) broadcasts the performance except where the broadcast is made from a sound
recording or visual recording other than one made in accordance with section 39, or is a
re-broadcast by the same broadcasting organisation of an earlier broadcast which did not
infringe the performer’s right; or

(d) communicates the performance to the public otherwise than by broadcast, except
where such communication to the public is made from a sound recording or a visual
recording or a broadcast, shall, subject to the provisions of section 39, be deemed to have
infringed the performer’s right.

(4) Once a performer has consented to the incorporation of his performance in a


cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further
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application to such performance.”

7. Judicial Approach in India:


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In ​Fortune Films International vs Dev Anand and Anr.​ on 14 March, 1978

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.

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Indian Copyright Act, 1957
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AIR 1979 Bom 17, (1978) 80 BOMLR 263
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In ​Neha Bhasin v. Anand RajAnand addressed the question of what would constitute a
‘live performance’. The Court observed 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 recent case of considering copyrightability issue it remains in long silence between
the blur lines However, the instant case of ‘Gutthi’ involves an issue unanticipated by the
1957 Act – ‘whether the right to ‘copy’ the character in a subsequent different show
where the character is played by the actor who had originally played the character, is a
right of the actor?’

A similar case on the issue was decided by the Kerala High Court in ​MalayalaManorama
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v. V T Thomas where a publishing house was injuncted from claiming ownership over
the characters created by the cartoonist before joining the publishing house and the Court
held that the publishing house could not restrain the cartoonist from continuing to draw
the cartoons after leaving employment. This is because the characters had been created by
V T Thomas before joining MalayalaManorama and the publishing house had no role in
the creation of the characters. The Kerala High Court did not directly address the issue of
copyrightability of characters but it decided the issue of ownership of copyright on
character; one may therefore conclude that copyright on character could be claimed
successfully by the cartoonist.

An important distinction made by the Court was between ownership of the characters per
se and ownership of the cartoon strips made by V T Thomas while he was gainfully
employed by the publishing house; while the former was a right vesting in the cartoonist,
the latter would be considered property of the publishing house. The ‘character
delineation test’ (popularly known as Nichols test), laid down in ​Nichols v Universal
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Picture is a yardstick to determine copyrightability of a character in United States. The
test is to see whether a character is sufficiently evolved in the mind of the reader/viewer

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132 (2006) DLT 196, 2006 (32) PTC 779 Del
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AIR 1989 Ker 49
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​45 F.2d 119​ (​2d Cir.​ 1930)
so as to warrant legal protection, i.e., the character must be distinct and must not be a
“stock character” (typical characters such as ‘girl next door’, ‘angry young man’ etc).

8. Criticism

Critiquing the India Model

The copyright Act, 1957(the Act) fails to grant performers those moral rights that they are
granted under the WPPT The importance of moral rights cannot be ignored, particularly
in a fast-changing environment which allows – notably through digital networks – very
large, fast and easy use of copyright protected works and performances. The ‘Performers
Rights’ were introduced in Amendment of Copyright Act, 1994. This was late.

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.

Apart from the aforementioned ( DevAnand and Neha Bhasin Case), there doesn’t seem
to have any significant decision in India that is related to Performer’s rights. As
mentioned earlier, performer’s rights were recognized in India after a long delay.
Furthermore, there is a lack of judicial decisions relating to the rights of performers.
These are perhaps the primary reasons why the law relating to Performer’s rights is still at
a rudimentary stage, in India.

Even Copyright Act doesn’t provide protection to the performers in supporting cast who
are termed as “extras” any economic rights over their performances. They are only given
moral rights.

9. Conclusion
The following paper has attempted to analyse the rights of performers in IP, both
globally and at the national level. The several amendments in the Copyright Act, 1957
have granted greater rights to the performers. A perusal of the various enactments,
amendments, international treaties and conventions helps us understand the evolution
of performers rights. The Indian legal framework grants certain economic and moral
rights to its performers, thus granting them protection in their intellectual
property.Since the field of Intellectual Property rights is an ever growing one, it
would be unfair to state that India has exhausted the rights which can be granted to its
performers. It would be safe to add that there is still paucity of the protective veil for
the IP rights of performers, a great deal of which can be attributed to the ever
evolving technology and insufficiency of global protection. An effort has been made
to critique the protective mechanism of the Indian legal framework with respect to
performers. Analysing the various case studies above, there has been a significant
delay in granting rights and protection to performers in India. Also, there is a dearth
of cases pertaining to performers rights in India. Despite the amendments and the
rights that have followed, there is still greater scope for protection of performers
rights in IP. Thus to conclude, protection of IP rights of performers has evolved and a
large number of rights and safeguards are in place today but it is reiterated that there
is still a need for greater protection and safeguard mechanisms so that the greatest
form of protection could be granted to the performers and not cause detriment to their
enterprise.

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