EXPLAINED: RIGHTS OF PERFORMERS UNDER INDIAN COPYRIGHT LAW

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INTRODUCTION:

The performer’s rights were not recognised when the copyright law was enacted during British rule. When the Copyright Act of 1957 was enacted after independence, there was no mention of performer’s rights. The Bombay High Court declared in Fortune Films v. Dev Anand in 1979 that performer’s rights do not have any copyright since their rights are not recognised under the Copyright Act. Following this decision, it was felt that the performer’s right should be included in the copyright laws. The copyright amendment was passed in 1994, and Sections 38, 39, and 39A were added to acknowledge the rights of performers. The Indian Copyright Act acknowledges a wider range of performers than what is required by the Rome Convention and TRIPS. The term “performer” is defined in Section 2(qq), and includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, lecturers, and anybody else who puts on a show. Sportsmen, on the other hand, cannot be considered performers because sports are competitive and the outcome is unpredictable, and they are also required to play within the rules, with no room for creativity. As a result, athletes do not fall within the category of entertainers.

ORIGIN AND DEVELOPMENT OF PERFORMER’S RIGHTS:

Individuals that assisted intellectual property creators in communicating their work to the public were previously unappreciated. When a lyricist writes a song, it is worthless unless it is sung by a vocalist, just as a play script created by an author is useless until it is performed by an actor. As a result, if the author or lyricist wishes to increase the worth of their work, they will require the assistance of the performers. The Rome Treaty, also known as the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, was the first convention to recognise the rights of performers. It was signed in 1961, International Labor Organization (ILO).

The secretariat of the intergovernmental committee is made up of representatives from the 12 contracting states represented by these three organisations. This committee is concerned with issues raised by the Rome Convention. The performer’s rights were secured for at least 20 years from the end of the year in which the performance took place under this convention. These requirements will not apply if the performer has accepted to the inclusion of his performance in any audio-visual or visual modality, according to Article 19 of the Rome Convention. In India, performer’s rights are protected for a period of 50 years. The rights of performers are protected by Article 7 of the Rome Convention:

  • Performers have the right to prohibit others from broadcasting or engaging with the public through means other than broadcasting without their permission.
  • They have the right to prevent anyone from re-enacting their unrehearsed live performance without their permission.
  • They have the right to prevent their live performance from being reproduced without their permission.
  • They have the right to prohibit their performance from being commercially exploited for any other purpose without their approval.

The TRIPS agreement, which is overseen by the WTO, strengthens the requirements of this convention. The TRIPS agreement specifies in Article 14 that:

  • They have the right to have their work protected from broadcast and public communication via wireless methods.
  • They have the right to prevent their live performances from being reproduced.
  • They have the right to prohibit their live performance from being recorded on phonograms. Such performances were not limited to phonograms under the Rome Convention, but the limiting approach has been taken here.

Performer’s rights are protected for 50 years from the end of the year in which the performance was scheduled or performed.

The WIPO Performance and Phonogram Treaty (WPPT) was established in 1996. For the first time in any international convention, the moral rights of artists were recognised. It also concerns the performers’ economic rights. Performers should be paid for their work, and if the work is used for purposes other than those for which agreement has been provided, performers are entitled to royalties.

WIPO adopted the Beijing Treaty on Audio-Visual Performance in 2012, in which the performers in the audio-visual realm were extensively considered. Contracting governments debated ways to preserve the rights of actors in films, television shows, and short films, among other things. The WPPT did not address the rights of performers working in television or film, but the Beijing Treaty did, and it included procedures for the transfer of actor rights to film producers.

WHAT ARE THE RIGHTS OF PERFORMER UNDER THE COPYRIGHT ACT:

  • A performer has the right to record sound or vision: A performer has the right to record sound or vision. He can also offer others permission to film the live performance. No one else can use that sound recording without the permission of the performer. However, if their performance is for a cinematograph film and a written agreement is signed consenting to the inclusion of his performance in such film, the producer of the picture will own all rights, regardless of whether the performer is a vocalist or an actor.
  • A performer has the right to produce the sound or visual recording: A performer can also become the producer of the sound or visual recording and have all of the rights that a producer has, such as reproducing a large number of copies, renting copies for commercial purposes, and conveying the work to the public, among other things. However, the performer must first obtain authorization from the specific copyright owner, such as a lyricist or a music composer, as well as a certificate from the relevant authorities relating to the sound or visual recording.
  • Performers have the right to broadcast their live performances: and they can ban others from doing so. If the performer’s consent is not obtained and his performance is aired by someone else, it is considered copyright infringement. However, if the performance is for a cinematograph film, the rights will go to the cinematograph film’s producer; however, if the performance is commercially exploited for reasons other than the film, the performer has the right to demand royalties.
  • The performer has the right to communicate the work in ways other than broadcast: The performer can communicate with the public in ways other than broadcast. Broadcasting is the act of communicating with the general audience, either through wireless diffusion or through wire.

ACTS THAT CONSTITUTE THE INFRINGEMENT OF PERFORMER’S RIGHTS

  • Reproduction of a performer’s work without his permission.
  • Unauthorized use of a performer’s work.
  • Use of the performer’s work for any other use without the performer’s permission.
  • Broadcast of a performer’s work that is not listed in Section 39 of the Copyright Act.
  • Other than transmission, communication of the performance to the public without the approval of the performer.

In the event that a performer’s rights are infringed upon, there are a number of options for redress.

Section 55 of the Copyright Act, as well as Sections 63 to 70 of the Act, provide remedies for infringers of performer’s rights. The following options are available to you:

Civil Remedies: The performer’s right owner or his exclusive licensee can move to court to get a temporary or permanent injunction, or they can sue for damages.

Criminal Remedies: In addition to civil remedies, the infringer can face criminal charges. The infringer might face a six-month imprisonment that might be extended to three years, or a fine ranging from Rs. 50,000 to Rs. 2,00,000, or both.

Anton Pillar Order: On the plaintiff’s request, the court will sometimes allow him and his counsel to access the defendant’s premises and review the required documents. This is necessary because if the defendant is aware of the documents, he may remove them from his premises.

ACTS THAT DO NOT INFRINGE ON THE RIGHTS OF THE PERFORMER

  • The act of recreating any sound or video recording for personal use or for the sole purpose of teaching and research.
  • In the event that the work is copied for the purpose of a legal process.
  • Reproduction for the purpose of reporting, reviewing, or other fair dealing purposes.
  • In the event that the work is reproduced for use by members of the legislature.
  • Other uses not considered infringing under Section 52 of the Copyright Act.

MORAL RIGHTS OF THE PERFORMER

Even though he has given over all rights to the cinematograph film’s producer, the performer has the right to be recognised for his performance. Even after relinquishing ownership of the work, the performer has the right to be acknowledged for it. They also have the right to object if any changes are made to the work they have done. The moral right of the performer is not affected if the producer of the cinematograph film shortens the length of the performance or removes some portion of the work due to technical challenges or time limits. The moral rights of performer’s legal representatives and copyright owners’ legal representatives are distinct and cannot be exercised in the same way.

SOME IMPORTANT CASE LAWS

Fortune Films International v. Dev Anand was one of the first cases in which the performer’s rights were questioned and the court refused to recognise the performer’s right in the cinematograph film. In this case, the court decided that an actor has no right to regulate the use of their performance in the picture. The actors were paid for their work, and the producer was free to utilise it in whichever way they wanted. However, performer’s rights were recognised after the Copyright Act was amended in 1994.

The Delhi High Court found in Super Cassettes Industries v. Bathla Cassette Industries that copyright and performers rights are two different things, and that if a song is re-recorded, the original singer’s permission is required.

TThe court in Neha Bhasin v. Anand Raj Anand addressed the question of what constitutes a live performance, holding that whether the performance is recorded in a studio or in front of an audience, both are considered live performances in the first instance, and if anybody uses such a performance without the performer’s agreement, the performer’s rights are said to be infringed.

Apart from the judgements stated above, there hasn’t been much progress in the issue of performer’s rights in India. However, as technology advances, new concerns may arise in the future, putting the provisions of the performer’s rights to the test.

REMEDIES AGAINST PERFORMER’S RIGHTS INFRINGEMENT

Section 55 of the Copyright Act, as well as Sections 63 to 70 of the Act, provide remedies for infringers of performer’s rights. The following options are available to you:

  • Civil Remedies: The performer’s right owner or his exclusive licensee can move to court to get a temporary or permanent injunction, or they can sue for damages.
  • Criminal Remedies: In addition to civil remedies, the infringer can face criminal charges. The infringer might face a six-month imprisonment that might be extended to three years, or a fine ranging from Rs. 50,000 to Rs. 2,00,000, or both.
  • Anton Pillar Order: On the plaintiff’s request, the court will sometimes allow him and his counsel to access the defendant’s premises and review the required documents. This is important because if the defendant is aware that the inspection will take place or that a search order will be issued by the court, he may remove the documents from his premises.

CONCLUSION

The rights granted to artists are a significant step forward in the sphere of copyright law. They’ve always held a special place in copyright work, but they’ve never received the recognition they deserved. Now that their rights are protected under Copyright law, they are in a better financial situation.

Author: Gourav Trivedi.

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