In the past, performers’ rights were not recognized under copyright law, which meant that actors’ performances in cinematograph films and singers’ performances in sound recordings were not protected by law. Therefore, the use of dramatic works or sound recordings did not require the performer’s consent. However, in India, the Copyright Act of 1957 began recognizing performance rights in 1994, which was later adopted worldwide by the Treaty of Rome in 1961. The recognition of performers’ rights under copyright law ensures that performers have the exclusive right to authorize or prohibit the recording, reproduction, or broadcast of their performances. In India, the laws governing performer rights are contained in various sections of the Copyright Act of 1957, including Sections 38, 39, and 39A. These sections outline the rights of performers and provide for the protection of their performances, including the right to remuneration for the use of their performances.
Introduction to Performer’s Right with reference to the Copyright Act
When the copyright was first implemented under British rule, performer’s rights were not recognized. Even after independence, the Copyright Act of 1957 did not acknowledge performers’ rights. However, in the case of Fortune Films v. Dev Anand in 1979, the Bombay High Court ruled that performers’ rights do not fall under copyright as they were not recognized under the Act. Subsequently, it was realized that performers’ rights needed to be incorporated into copyright law. In 1994, the Copyright Amendment Act was enacted, and Sections 38, 39, and 39A were introduced to recognize performers’ rights. The Indian Copyright Act defines the term “performer” in Section 2(qq), which includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, those giving lectures, and anyone else who performs. However, sports are considered competitive, and the results are unpredictable, and since athletes are required to play by the rules and cannot be creative, they cannot be considered performers within the context of sports. The Indian Copyright Act recognizes the range of performers in addition to the TRIPS and Rome Convention baseline requirements. This provides performers with the exclusive right to reproduce, issue copies, perform, communicate, and make adaptations of their performances.
Performer’s Rights: Their History and Development
In the past, the contributions made by those who assisted intellectual property creators in making their work known to the public were not recognized. The worth of a song created by a lyricist or an author’s play is often dependent on performers to bring the work to life. However, performers were not always acknowledged for their contributions. The recognition of performer rights began in 1961 with the adoption of the Rome Convention, which provided them with certain rights. Performers now have the right to prevent others from recording or fixing their live performances without their permission. They also have the right to stop their performance from being commercially exploited for any other purpose without their prior approval.
It is worth noting that the term “broadcasting organization” has been added to the list of individuals whose rights may need to be recognized under the performer rights laws. This inclusion recognizes the significant contributions made by broadcasting organizations to the dissemination of works by performers. The Indian Copyright Act of 1957, as amended in 1994, recognizes performer rights, which are covered by Sections 38, 39, and 39A. The Act defines a performer as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or anyone who performs. However, the Act does not extend performer rights to athletes, as sports are competitive and require players to follow rules rather than be creative performers.
Performer Rights under the Copyright Protection Act, 1957
According to the act, the performer does have the sole authority to do the following: –
- Right to broadcast any performance by the performer – After doing a live performance, a performer may agree to the live performance being televised by a third party. It can be considered copyright infringement if a third party transmits the live performance even without the performer’s consent. There is one exception to this, though. The developer of the copyrighted work will become the owner of the performance rights if any live performance is included in the movie. The producer, however, is not permitted to use the live performance to achieve commercial success. The performer is perfectly within the rights to demand remuneration for the same if a producer or other party utilizes such live performance for financial gain.
- Right to distribute the work through various channels, excluding broadcasting – A performer has every right to share their work with the audience through a variety of media. This may encompass wireless platforms like social media platforms or OTT services as well as platforms that broadcast performances over cables.
- Right to record audio or visual material belonging to the performer – A performer may allow a foreign entity to record his performance and then produce a sound or visual recording of it. The third party isn’t permitted to use the audio or visual recording for anything else, though. The use of the recording for financial advantage by any other party is specifically prohibited. If the act is included in a cinematograph film, the performer’s prior approval is required. In this scenario, the cinematograph film’s producer will be the owner of the performance rights.
- Right to capture performance on sound or video and distribute it – The performer is the owner of the rights to reproduce audio or just a cinematograph film in the kind of copies, to rent those copies for a fee, or to upload the audio or visual recording to a public platform. Consequently, a performer may also be regarded as the sound or video recording’s producer. However, the performer is required to have the agreement of everyone participating in the audio or visual recording. Among them might be actors, composers, or lyricists.
Remedies for Violation of Performer’s Rights
The Copyright Act’s Sections 63 – 70, as well as Section 55, provide remedies for performers whose rights have been infringed upon. In case of a performer’s rights are violated, the law allows for the defendant’s property to be searched through a court order. This court order is known as an “Anton Pillar order.” An Anton Pillar order is typically granted to enable the claimant and their legal representative to search the defendant’s property for any relevant information that can support the claim that the performer’s rights have been infringed.
Performers have various other options available to them if their rights are violated, including criminal and civil remedies in addition to an Anton Pillar order. Criminal sanctions may include the collection of a fine from the offender and imprisonment of up to three years. Civil sanctions may involve obtaining a temporary or permanent injunction.
It is important to note that the Anton Pillar order is a serious legal tool and should not be sought lightly. Courts take a cautious approach in granting Anton Pillar orders, as they are intrusive and may result in substantial damage to the defendant’s reputation and business. A court may require the claimant to provide a compelling justification for the Anton Pillar order and may impose strict conditions to safeguard the defendant’s interests. Performers who have had their rights infringed upon may seek legal assistance to explore their options and determine the most effective course of action.
It can be inferred that copyright is a form of intellectual property rights protection provided by the law, which grants exclusive rights to the authors of original works. In addition to authors, performers, such as artists, dancers, acrobats, snake charmers, and others, are also granted exclusive rights under copyright law. These exclusive rights are granted to motivate performers to create more original content without the fear of infringement. The inclusion of performers’ rights in copyright law is a positive development, as it recognizes and protects their valuable contributions.
Although performers have long been recognized as an essential part of copyright work, they have not always received the necessary level of acknowledgement or protection. The inclusion of performers’ rights under the copyright act has significantly improved their financial situation and provides them with legal protection for their rights.
It is important to note that performers’ rights may vary depending on the jurisdiction and the type of performance. For example, some jurisdictions may recognize moral rights for performers, such as the right to be credited for their performance or the right to object to modifications of their performance. It is important for performers to understand their legal rights and seek legal assistance if necessary. Overall, performers’ rights are an essential part of copyright law, and their inclusion reflects the importance of their contributions to the creative industry.
- Recognition of Performers’ Rights by the Indian Courts – Selvam & Selvam. (2016). Selvam’s, https://selvams.com/blog/judicial-recognition-of-performers-rights/
- Reporter, B. (2022, June 22). Performer’s Right under Indian Copyright Law- Part I. BananaIP Counsels. https://www.bananaip.com/ip-news-center/ip-blog-a-thon-performers-right-under-indian-copyright-law-part-i/
- (2022, June 24). Delusion Over Indian Performance Rights Society Being A Part Of Copyright Society. Intellectual Property- India. https://www.mondaq.com/india/copyright/709542/delusion-over-indian-performance-rights-society-being-a-part-of-copyright-society
- (2022, June 25). PERFORMERS RIGHTS IN INDIA. FastForward Justice. https://fastforwardjustice.com/performers-rights-in-india/
- Khurana, K. A. (2022, June 25). Analysing The Significance Of Performer’s Rights Under Copyright Law. Khurana And Khurana. https://www.mondaq.com/india/copyright/1111986/analyzing-the-significance-of-performer39s-rights-under-copyright-law
Authored by Dhruv Kaushik, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.