Introduction
The notion of performer’s rights was initially absent from the realm of copyright law upon its inception in India. It wasn’t until 1979, in the case of Fortune Films v. Dev Anand, that the Bombay High Court pronounced that performers’ rights were not encompassed by the Copyright Act due to their lack of recognition. This verdict spurred the acknowledgment of performers’ rights and ultimately led to an amendment of the copyright law in 1994. Consequently, Sections 38, 39, and 39A were introduced to formally recognize and ensure the protection of performers’ rights. Furthermore, Section 2(qq) of the Copyright Act defines the term “performer” to encompass individuals such as actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, persons giving lectures, and anyone else engaged in a performance.
International Legislations and the performer’s rights
The origin of the rights of performers can also be traced to various international treaties and coventions. Most notably, the 1961 Rome Convention stands out as the key global accord responsible for safeguarding performers, phonogram producers, and broadcasting organizations. This convention was established through collaborative efforts by the International Labor Organization, United Nations Educational, Scientific and Cultural Organization, and World Intellectual Property Organization. As per the Rome Convention, the rights of performers were shielded for a span of 20 years from the conclusion of the year in which the performance occurred. Additionally, the TRIPS agreement confers specific rights upon performers, including the authority to prevent the replication of live performances, the entitlement to secure their work from being broadcast or transmitted to the public through wireless means, and the prerogative to prohibit the recording of their live performances on phonograms. These agreements and treaties laid the foundation for establishing the rights of performers within the framework of Indian copyright law.
Rights of performers under the Copyrights Act, 1957
The performers in India are given the following rights under the Copyrights Act:
1. Right to broadcast performances
Performers have the authority to prohibit the broadcasting of their live performances. If someone broadcasts a performer’s live performance without obtaining consent, it would constitute a violation of copyright. However, if the performance is recorded for a cinematographic film, the producer of the film holds the rights. Nevertheless, if the performance is utilized for purposes other than the film’s commercial exploitation, the performer retains the right to demand royalties.
2. Right to make sound or visual recording
A performer has the authority to record their act, either audio or visual. They can also give others permission to record their live performance. No one else may use the recorded sound without the performer’s consent. If, on the other hand, the performance is meant for a cinematographic picture and a written agreement is created allowing authorization for the inclusion of the performer’s act in the film, then the film’s producer owns all rights, regardless of whether the performer is a singer or actor.
3. Right to produce the sound or recording
A performer can also become the producer of a sound or video recording and have all of the rights that a producer has, such as reproducing a large number of copies, renting the copies for commercial purposes, communicating the work to the public, and so on. However, the performer must obtain previous permission from the particular copyright owner, such as a lyricist or a music composer, and must have a certificate connected to the sound or visual recording issued by the competent authority.
4. Right of communicate the work other than by broadcasting
A performer has every right to communicate their work to the general public through multiple mediums. This may include wireless methods such as social media or Over-The-Top (OTT) platforms, as well as mediums that broadcast performances over cable networks.
Moral rights of performers
There are certain rights that the performer is still entitled to enjoy even if he/she assigns the performance to a third party. These rights are termed as the moral rights of the performer. Even after relinquishing the rights over the work, the performer has the right to be recognized for their efforts. They also have the right to object if any changes are made to the work they perform. 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 the performer’s legal representatives and the legal representatives of copyright owners are distinct and cannot be exercised in the same way. The Delhi High Court ruled in Super Cassettes Industries v. Bathla Cassette Industries[1] that copyright and performers rights are distinct, and that if a song is re-recorded, the original singer’s permission is required.
Remedies on breach of performers’ rights
The remedies to performers on breach of their rights have been provided under Section 55 and Sections 63-70 of the Indian Copyrights Act, 1957. The remedies are:
- Civil remedies in the form of temporary or permanent injunction and/or damages.
- Criminal remedies in which the infringer may be sentenced to imprisonment of six months which may extend up to three years, or be fined with an amount of Rs. 50,000-2,00,000, or both.
- The court can also grant an Anton Pillar Order which grants the plaintiff, on application, the right to enter the defendant’s place with his attorney and look for relevant documents. This is important because the defendant may remove the documents from his premises if he is priorly informed that the inspection will take place or if the court issues a search warrant.
Conclusion
The introduction of performers’ rights under the Copyrights Act was indeed a welcomed and much necessary step. Performers play an extremely crucial role in today’s world. The literary and entertainment industries have grown immensely in the past decade and hence it is important that the rights of performers are safeguarded so that they are able to reap benefits of their hard work without infringement upon their rights.
Author – Shyamli Shukla, Associate
Co – Author – Anindita Deb, Intern
