Performer’s Rights The influx of various rights to protect the performer’s work, the plight of the performers has a long way to go as per remuneration and accrediting goes. With rapid advances in technology, piracy has played a huge part in depleting or harming the performer’s resources. The emergence of the new technique of recording, fixation, and reproduction of audio programs combined with the advent of video technology has greatly helped the copy-mongers in stealing huge chunks from the performer’s revenue.

The Copyright Act, 1957 seeks to protect creative works such as literary, artistic, dramatic, and musical works. Copyright protection restricts other people from using such literary, artistic, dramatic, and musical works without permission from the author or the creator. Before delving into performer rights, we need to know about the author and ownership of copyright stated below.

The concepts of ‘author’ and ‘ownership’ are vital when the question of propriety over the copyright arises. The copyright provisions do not recognize any copyright in an idea. The originator of an idea is not the owner of the copyright, it belongs to the person who gives concrete form to the idea. For example, anybody who writes a book composes a song or makes a film borrowing from the idea. It boils down to the fact that the originator of a brilliant idea is not the owner of the copyright unless and until he is also the creator of the work. Thus if a person has a brilliant idea for a story, play or a picture and if he communicates that idea to an author or playwriter or an artist, the production based on that idea is the copyright of the artist who has interpreted the idea by means of a book, play or picture.

According to provisions of section 17 of the Copyright Act, 1957 the author of the work is the first owner of the copyright in the work. For example, in the case of a musical work the composer who composes the music is the author of the musical work. In the case of the cinematography of a film, the producer is the author and in case of sound recording, the producer is the author.

In case of a musical work, if the work is composed in the course of employment under a contract of service, the employer will be the first owner of the copyright. The person who commissions a musical work, for example, a film producer who commissions a music composer to compose the music for his film does not become the owner of the copyright but only gets a license to use the work for the purpose for which it is commissioned. The producer-only gets the right to incorporate the music in his film. All other rights are retained by the music composer.

Nature of Rights

  • Statutory rights

The copyright in a work is provided by the Copyright Act, 1957. A person owns the copyright because the law recognizes the existence of such a right. As per section 14 of the copyright act,1957 states the exclusive right to do or authorize the doing as per the provisions of the act.

  • Negative right

Copyright is a negative right in terms of its restriction against the right in rem that it stops others from exploiting the work of the author for their own benefit without the consent or license of the author.

  • Multiple rights

Copyright is a bundle of rights that can exist and be exploited independently. The nature of these multiple rights depends upon the category of work namely- literary, dramatic and musical works, artistic works, cinematograph films, and sound recording.

  • Economic rights

The rights conferred by section 14 on a copyright owner are economic in nature because the exploitation of the work by the author by exercising these rights may bring economic benefit. The author can either exploit the work himself or license it to others for a consideration which may be in the form of lumpsum payment or royalty.

  • Moral rights

The copyright besides conferring economic benefits also confers moral rights on the author. Section 57 of the copyright act,1957, deals with the author’s special rights. Moral rights can be dissected into 4 types- (1) integrity right which may be regarded as the most important moral right. It gives the author the right to prevent alteration, destruction, and other actions that may damage the author’s reputation. (2) Divulgation right which means the right of the author to publish a work or withhold it from dissemination. The author has the right to decide whether to publish or not to publish the work. (3) Attribution right which confers upon the author the right to claim authorship of a published or exhibited work. (4) Retraction right which gives the author the right to withdraw a published work from distribution if it no longer represents the views of the author.

Judicial approach on Moral rights

Although so many authors have claimed that their works have been distorted or manipulated, but very few have sought judicial protection. In the case of Mannu Bhandari vs Kala Vikas Pictures Pvt Ltd, the court got an occasion to interpret infringement of author’s special rights in this case, the plaintiff brought a suit against Kala Vikas pictures and its director and producer. The defendant had produced the motion picture Samay Ki Dhara under assignment of filming rights of the plaintiff’s novel Aap Ka Bunty. The plaintiff claimed a special reputation for her novel Aap Ka Bunty and submitted that her image would be lowered down before the literary world and people if the distorted version of her novel would be allowed to be presented through the film. She pleaded for a permanent injunction against its screening and exhibition. The court in its judgment stated that it cannot impose its views on sex or its depiction in the works of art. Though some dialogues have to be deleted from the film as they distorted the characters and thus cannot be described as necessary changes for the change in the medium i.e. from literary to audio-visual. Another change had to be made at the end of the film. Thus, the court upheld the moral rights of the author.

Performer Rights

A performer can be defined as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any person making or delivering a visual or acoustic performance under the provisions of the act. Performers’ rights are defined under section 38 of the copyright act,1957. Earlier the rights of the actors, singers, musicians, etc were not duly recognized until and after the Rome convention of 1961. The international treaty called for protection against the unauthorized broadcast of any performances without providing adequate compensation to the people performing. The Copyright Act,1957 was also inefficient in dealing with the performance rights of the performers until after the 1994 amendment, which conferred upon certain rights regarding the creative process and monetary securement when it comes to the act of performing through visual or acoustic forms.

Initially, the term of the performing rights was up to 25 years but later was amended to 50 years as per the copyright amendment act,1999, and as per article 14 of the TRIPS agreement. The rights conferred upon performers or performer rights is a form of neighboring rights which enables protection of the rights of broadcasters and performers. Although broadcasting and performing are not the subject of copyright, they are very much incidental to it, hence they are called neighboring rights. There is no process of registering for acquiring neighboring-rights when the performer starts performing, he/she acquires protection under the copyright act, 1957, the moment itself.      

Neighboring rights

Neighboring rights are the protection which was conceptualized after the Rome Convention,1961. The Rome Convention for protection of performers, producers of phonograms and broadcasting organizations binds on only those countries who are signatories to this convention recognize and pay neighboring rights and only performers.

 Neighboring rights or related rights are the rights of creative work which has no relation with the actual author of the work. Neighboring rights vary widely in scope within different countries. Neighboring rights are covered under chapter VIII of broadcaster’s and performer’s right of the copyright act,1957 in India.

Reasons for negligence towards performers

Actors, musicians, and another form of performers were considered to be vagrants or buffoons by society. The performers in the earlier era were considered to be a form of unproductive labor. The performers were not given their due or credit for the craftsmanship, they brought onto the stage. One of the reasons for the performers not getting credit in the previous era was that their work did not last after the production primarily due to less technology and the absence of mediums like TV, radio or broadcasting networks. So, the performer had to repeat his/her performance again and again as it was the only way to see his/her performance. But after the advent of science and technology, the scenario completely took a turn for the performers. After the invention of TV, the radio, and records, the performance work could be fixed and could be reproduced in large numbers, hence catering to a larger audience which relates to doubling of the reproduction right and the performance right with respect to the performers work. The advent of modern technology has also helped, in multiplying their performance work through various broadcasting mediums hence creating more employment opportunities and in providing more monetary benefits for the performer. But the downturn for performers after the advent of technology was their work could be multiplied or showcased without them even knowing about it, so a robust set of norms and an adjudicating body was the need of the hour to protect the rights of the performer, after which a forum to deal with the protection of performer rights was proposed in the Rome convention, 1961.

2012 Amendment

The 2012 amendment de-alienated the various rights enjoyed by the performers and it provided the payment of royalties in case of making of the performance for commercial use and this right was akin to the equitable remuneration right introduced by the WPPT i.e the WIPO Treaty On Protection Of Phonograms And Performances. If we were to concede that a film actor or a playback singer were performers for this enactment then even if they were to in consent for the incorporation of their performances respectively as part of the cinematography, they would be entitled to any royalties for any use of their cinematography film other than by way of enjoyment by the producer of their film of the performers right in the same field. Therefore, for any subsequent use made by the producer of the film of that particular performance, they would still have to share the royalties with the performer and is a kind of non-waivable right.  So, the position in which it currently stands is such that the performer can make a choice i.e. he/she can choose not to incorporate this performance as part of the film or to go ahead and choose to incorporate his performance. If he chooses to not incorporate his performance, then he continues to enjoy all the rights of his performance with respect to his performance including the right to make a sound or visual recording of the performance and reproduction and broadcast of the performance. On the other hand, if he were to permit the incorporation of his performance then the producer shall enjoy the rights of the performer in respect of that film but in any case, the performer shall be entitled to royalties of performances being used for commercial use and more importantly, the performer does not lose his performance right in respect of other films or in respect of broadcast of the performance or even in a situation where the producer of the film was to modify the performance and use it or can incorporate the same performance in a modified film. So, in all this respect, the performer would continue to exercise his performance rights.

Broadcast reproduction rights

Broadcast reproduction rights after it got conceptualized in the Rome convention of 1961, was to grant a limited right to commercial entities engaged in the business of broadcasting in respect of their signals. The idea was in fact to give them an independent right to sue the bootleggers or pirate, who infringe upon their rights. The duration of the broadcasting rights in India is up to 25 years from the beginning of the calendar year following the year of broadcast. The idea for broadcasting rights was to stop the re-broadcasters from free-riding or prevent unjust competition. In the case of NDTV TV vs ICC, the major issue was as to the scope of the broadcast reproduction right. The program which was used and owned by ICC, clippings from that program that were used to run commercial programs, the court held that when it comes to commercial programs that had their advertising slots then there is a fundamental problem because it infringes on the broadcast reproduction right. The court clearly mentioned that it was a violation of the broadcast reproduction right because the broadcast or parts of the broadcast was used.

The act also makes it clear that no broadcast in which subsists a performer’s right or copyright can be used without the consent of the performer or the copyright owner. Also, the broadcasting rights were not available for a broadcaster if it infringes upon a pre-copyrighted work.

Nilesh Mohapatra is a student from SVKM’S NMIMS, MUMBAI pursuing post-graduation in MBA(LAW). Prior to this he has completed his under graduation in BA.LLB(H) from Amity Law School, Haryana. He has profound interests in the field of intellectual property auditing and looks forward to working in it. Trademark Dukan

Initially, the term of the performing rights was up to 25 years but later was amended to 50 years as per the copyright amendment act,1999, and as per article 14 of the TRIPS agreement. The rights conferred upon performers or performer rights is a form of neighboring rights which enables protection of the rights of broadcasters and performers. Although broadcasting and performing are not the subject of copyright, they are very much incidental to it, hence they are called neighboring rights. There is no process of registering for acquiring neighboring-rights when the performer starts performing, he/she acquires protection under the copyright act, 1957, the moment itself.      

Neighboring rights

Neighboring rights are the protection which was conceptualized after the Rome Convention,1961. The Rome Convention for protection of performers, producers of phonograms and broadcasting organizations binds on only those countries who are signatories to this convention recognize and pay neighboring rights and only performers.

 Neighboring rights or related rights are the rights of creative work which has no relation with the actual author of the work. Neighboring rights vary widely in scope within different countries. Neighboring rights are covered under chapter VIII of broadcaster’s and performer’s right of the copyright act,1957 in India.

Reasons for negligence towards performers

Actors, musicians, and another form of performers were considered to be vagrants or buffoons by society. The performers in the earlier era were considered to be a form of unproductive labor. The performers were not given their due or credit for the craftsmanship, they brought onto the stage. One of the reasons for the performers not getting credit in the previous era was that their work did not last after the production primarily due to less technology and the absence of mediums like TV, radio or broadcasting networks. So, the performer had to repeat his/her performance again and again as it was the only way to see his/her performance. But after the advent of science and technology, the scenario completely took a turn for the performers. After the invention of TV, the radio, and records, the performance work could be fixed and could be reproduced in large numbers, hence catering to a larger audience which relates to doubling of the reproduction right and the performance right with respect to the performers work. The advent of modern technology has also helped, in multiplying their performance work through various broadcasting mediums hence creating more employment opportunities and in providing more monetary benefits for the performer. But the downturn for performers after the advent of technology was their work could be multiplied or showcased without them even knowing about it, so a robust set of norms and an adjudicating body was the need of the hour to protect the rights of the performer, after which a forum to deal with the protection of performer rights was proposed in the Rome convention, 1961.

2012 Amendment

The 2012 amendment de-alienated the various rights enjoyed by the performers and it provided the payment of royalties in case of making of the performance for commercial use and this right was akin to the equitable remuneration right introduced by the WPPT i.e the WIPO Treaty On Protection Of Phonograms And Performances. If we were to concede that a film actor or a playback singer were performers for this enactment then even if they were to in consent for the incorporation of their performances respectively as part of the cinematography, they would be entitled to any royalties for any use of their cinematography film other than by way of enjoyment by the producer of their film of the performers right in the same field. Therefore, for any subsequent use made by the producer of the film of that particular performance, they would still have to share the royalties with the performer and is a kind of non-waivable right.  So, the position in which it currently stands is such that the performer can make a choice i.e. he/she can choose not to incorporate this performance as part of the film or to go ahead and choose to incorporate his performance. If he chooses to not incorporate his performance, then he continues to enjoy all the rights of his performance with respect to his performance including the right to make a sound or visual recording of the performance and reproduction and broadcast of the performance. On the other hand, if he were to permit the incorporation of his performance then the producer shall enjoy the rights of the performer in respect of that film but in any case, the performer shall be entitled to royalties of performances being used for commercial use and more importantly, the performer does not lose his performance right in respect of other films or in respect of broadcast of the performance or even in a situation where the producer of the film was to modify the performance and use it or can incorporate the same performance in a modified film. So, in all this respect, the performer would continue to exercise his performance rights.

Broadcast reproduction rights

Broadcast reproduction rights after it got conceptualized in the Rome convention of 1961, was to grant a limited right to commercial entities engaged in the business of broadcasting in respect of their signals. The idea was in fact to give them an independent right to sue the bootleggers or pirate, who infringe upon their rights. The duration of the broadcasting rights in India is up to 25 years from the beginning of the calendar year following the year of broadcast. The idea for broadcasting rights was to stop the re-broadcasters from free-riding or prevent unjust competition. In the case of NDTV TV vs ICC, the major issue was as to the scope of the broadcast reproduction right. The program which was used and owned by ICC, clippings from that program that were used to run commercial programs, the court held that when it comes to commercial programs that had their advertising slots then there is a fundamental problem because it infringes on the broadcast reproduction right. The court clearly mentioned that it was a violation of the broadcast reproduction right because the broadcast or parts of the broadcast was used.

The act also makes it clear that no broadcast in which subsists a performer’s right or copyright can be used without the consent of the performer or the copyright owner. Also, the broadcasting rights were not available for a broadcaster if it infringes upon a pre-copyrighted work.

Nilesh Mohapatra is a student from SVKM’S NMIMS, MUMBAI pursuing post-graduation in MBA(LAW). Prior to this he has completed his under graduation in BA.LLB(H) from Amity Law School, Haryana. He has profound interests in the field of intellectual property auditing and looks forward to working in it. Trademark Dukan

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