April 16, 2021

Performers Rights and Broadcasters Rights under Copyright Act

Copyright

Performers rights and the broadcasters rights are a special kind of right that are categorized under the concept of neighboring rights, a third sector of right. The term ‘neighboring rights’ means the related rights under the sphere of the copyrights. These are special kinds of rights that are not available either to the owner of a copyrighted work or an author.  They are exclusively conferred to the performers of the work under a producer and the broadcasters who broadcasts it to the public. Further these rights adds up a kind of new flavor by even considering the private moral rights of the individuals. The performers rights and the broadcasters rights are provided by the Principal Act, under chapter – VIII, from section 37 to 39A.

Performers Rights (Section 38, 38A 38B and 39) :

The principal Act, by way of adopting the principles laid down by the WIPO, has conferred certain rights to the performers under the copyright legislation. The term ‘Performers’ includes the person who employs as a singer, musician, actor, dancer, and whoever does an act performance. The actual phenomenon is that, the performers themselves are not well aware of the rights that are available to them statutorily and are prone to exploitation of their performances which has lead to the increase in number of piracy and related activities.

The following are the rights that are available to the performers –

  1. Right to make a sound or visual recording of their performance;
  2. Right of reproduction of such sound or visual recording;
  3. Broadcasting and communication of their performances.

Any person who does such act without appropriate licensing of the performer would amount to the act of infringement of the performers rights.

Furthermore the scope of the rights of the performers has been extended by the Copyright Amendment Act, 2012 but inserting a new section, section 38A, which has provided the existence of an agreement between the performer and the producer in writing about the extent of enjoyment of his performance by the producer. The insertion of the section is more stringent and proscriptive in nature in protecting ones rights.

Performers’ Moral rights :

In addition to the general rights of the performers, the statute also provided certain moral rights to the performers. If any form of damage, disrespect or mutilation has occurred to his performance the performer has a right to claim damages or restrain from the same.

Related case laws

  1. IPRS V Hello FM[1] – Injunction was granted by the Delhi High Court, restraining Hello FM from playing music since they did without obtaining a license from IRPS ( Indian Performing Rights Society).
  2. Indian SingersRights Association V Night Fever Club and Lounge[2], the courtheld the act of the defendant as infringement of performers rights since they used the Plaintiffs songs in their performance without obtaining a “Performers’ Rights Clearance Certificate” which they should have obtained before doing so.

Broadcasters Rights

Broadcasters rights are the rights that are been conferred to the organization that broadcasts a performance and are called “Broadcasters Reproduction Rights” which subsists for a period of twenty five years from the year of broadcast. The following are the broadcasters rights under section 37 of the principal Act –

  1. Right to broadcast or rebroadcast the broadcast;
  2. Causing the broadcast to be seen or heard by the public and to obtain a payment for the same;
  3. To make sound or visual recording of their broadcast
  4. To make reproduction of such sound or visual recording of the same;
  5. To propound to sell the recording.

In Aasia Industrial Technologies v. Ambience Space Sellers[3], the plaintiff alleged the defendant for the action of passing off, for infringement of copyright and broadcast reproduction right and inducing a breach of contract. The court held that “It is clearly seen that the action of the defendants in blanking out the plaintiffs advertisements during the telecast of plaintiffs programmes is calculated to deceive the public into believing that it emanated from the plaintiffs. Besides the fact that the plaintiffs might suffer damage to goodwill, there is also likelihood of the plaintiffs loosing their advertisers due to wrongful action of the defendants”.

In Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal[4], broadcasting freedom was examined by the court, as the freedom was regarded as same as the freedom of speech and expression which is a constitutional right.


[1] 2012 (50) PTC 460 (Del)

[2] 2016 (234) DLT 22

[3] (1997) 99 Bom LR 613: 1998 (18) PTC 316

[4] 1995 AIR 1236, 1995 SCC (2) 161


Author Details: Rizwana Yasmeen N [Student, School of Law – VISTAS, Vels Institute Of Science Technology and Advanced Studies]

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