Performer’s Rights under Copyright Act

22nd February, 2024 - 6:23 am Categories: Copyright 0 Comments

Introduction

According to [1]Section 2(qq) of the Copyrights Act, a “performer” is defined as someone who engages in various artistic activities, including the ones who perform dace, singing, acrobatics, conjuring activities, snake charming, delivering a lecture and others involved in making performances.

Under India’s Copyright Act of 1957, performance rights were established in 1994. However, such rights usually went unacknowledged worldwide until the “Convention of Rome” in 1961. It acknowledged the rights of performers and made it clear that without their permission, works created by them cannot be aired. S. 38, 39 and 39A cover the rights of such performers.

During the British rule, when copyright law was introduced, performer’s rights were not recognized. This was affirmed during the proceedings of  [2]”Fortune Films v. Dev Anand,” where the Bombay HC stated that performers did not have any copyright protection under the existing Copyright Act.

As a result of this judgment, there arose a need to include performer’s rights in the copyright law. The Copyright regulations in India widened the scope of the performer’s creativity being protected in a way much broader that the Rome or TRIPS regulations.

The origin of Performers’ Rights

The Rome Convention, also known as the “International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations” was established during 1961. This was the very first document to give recognition to the rights of the artists. The administration in the Rome Convention is overseen collectively by the (ILO), (UNESCO), and the (WIPO).

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In our country, the protection given for such rights are till 50 years. The Rome Convention’s Article 7[3] grants performers specific rights, including the right to prevent others from broadcasting or publicly communicating their acts without their permission or the reproduction of the same, imitation or the fixation of their live shows without getting a prior consent.

The TRIPS agreement further reinforces the provisions of the Convention signed in Rome. Art.14 recognizes the right to protect their works from broadcast and public communication by means that are wireless or the fixation of their events by means of phonograms or other forms of infringement.

The “WIPO Performances and Phonograms Treaty” (WPPT) was established in 1996, which recognized the moral and economic rights of performers in any international treaty for the first time. It emphasized that performers are in a well deserving position to get remunerated for their acts and creativity and if they give consent to others to use the same, they must receive the royalty.

The “Beijing Treaty on Audio-Visual Performance” was embraced by WIPO, in which the rights of all the artists were attempted to be protected from violation in the telecommunication or television sector by producers of films or digital content. This was another important improvement towards the rights enjoyed by the performers today.

Rights of individuals categorized as performers

• The performer possesses the right to create sound or visual recordings of their performance. The performers can also give the right to the others to use the recording of their acts in their projects. But this should be with proper consent and legal formalities being completed. The agreement must be with proper recognition for the talent of the owner of the creation and remuneration as well. if the consent is given, the producer is well within his rights to use the performance of an actor or singer or any other performer in his individual work.
• Additionally, [4]the performing individual can be producing the sound or the recording in the visual form as well. he can grant all the rights to other production houses to make copies of his production and rent out such copies or multiply them for commercial use. In the digital media, these rights are often violated. Therefore, there must be clear consent obtained for commercially using another person’s creation.
• Furthermore, performers can stop others from utilizing their creativity by broadcasting their performances without their permission. Live telecasting some persons recording without their authorization is an offence. Such replications, even if done with consent should be with proper remuneration or payment of royalty to the original creator.
• Finally, apart from broadcasting, performers are in a position to make communication with their audience in any way they want and it is not merely restricted to digital or wireless methods.

Judicial Precedents in this matter

“Fortune Films International v. Dev Anand” had been one of the earliest issues that raised questions about performer’s rights in cinematographic films, and the court completely denied recognizing these rights. The court ruled that actors had no authority to have any control over their performances once they had received the payment for their services which they consensually gave in the project. it was held that if the producer can prove that the received the rights from the original performer in a due legal manner, there can be no case of infringement arising thereafter. However, the amendments in 1994, gave some recognition to the rights held by the artists later.

In “Super Cassettes Industries v. Bathla Cassette Industries” the Delhi HC made a distinction between copyright and performer’s rights. It established that if there is a repeated recording of a song, original singer’s permission must be obtained.

Another case, “Neha Bhasin v. Anand Raj Anand” addressed the meaning of a live act. The court held that in both cases of being recorded before a camera or an audience, the act will be considered live. Unauthorized use of such performances without the performer’s consent would be considered an infringement of the performer’s rights.

Legal protections that are available in case of infringement

Remedies are there to protect the artists from the infringement of their content and are provided in S. 55 and 63 to 70 of the Act. They include:

Civil Remedies: there are provisions which allow the complainant to file a suit that is civil in nature for getting a permanent or temporary injunction for the protection of their rights. There have been numerous cases of infringement in the patents of individuals. The Civil Procedure gives sufficient jurisdiction to the District Courts to try such matters.

Criminal Remedies: in case the guilt is proven and the infringement is of criminal nature, the convicted person can be asked to pay a fine of 50 thousand rupees or 2 lakh rupees or can also be sentenced to a jail term spanning up to 3 years. Even both can befall upon the accused in certain cases.

Anton Pillar Order: In certain events, the court can pronounce an Anton Pillar Order, thus allowing the complainant to enter in the premise of the defendant with his legal counsel in order to inspect the documents which are suspected to have caused the infringement alleged.  Removing crucial documents before an inspection or search warrant is executed by the court.

Conclusion:

Therefore, it can be concluded that although there is much scope for progress in the area of copyrights, the laws regarding the protection of the rights of the artists is in its place and suffices its purpose in the present scenario. To protect piracy of content and the infringement of the creative properties of the performers is the motive of the current legislations in which they are well-succeeding. With a rise in the acts of artistic performances and new areas of entertainment and content creation, there is bound to be an upsurge in cases of plagiarism as well. Thus, it can be said that the prospects of copyright laws look much wider in near future with rising complexities and need for amendments.

Author: Amber Raaj, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] The Copyright Act 1957

[2] Fortune Films International v Dev Anand and Another on 14th March, 1978

Equivalent citations: AIR 1979 Bom 17, (1978) 80 BOMLR 263

[3] Article 7 ROME CONVENTION, 1961 INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS

[4] “Performer’s Rights

By Richard Arnorld

Published by: Sweet and Maxwel”