The Humma Song, Tamma Tamma Again, Gulabi 2.0 are some of the everyone’s favourites which we all know are the remakes of the legendary Bollywood songs produced in the late 20th century. But have you ever given it a thought, whether remix of old songs is permissible or not, if one needs consent of the original performer before making a remix or just citing the original performer in the remaked work if enough. Same is the case with YouTube flagging a video and sending a notification that copyrighted material has been found and one can choose to acknowledge or contest the same or the popular ‘Music feature’ introduced by the Instagram so as to enable it’s user to make a reference to the owner of the music everytime one adds a music to their stories, reels or post. This article will address the questions related to the rights that have been provided over the time by the legislature to the original makers of the work that forms the part of creative process and agencies or organisation broadcasting the same along with some basic provisions related to the field of Copyright.
International Perspective of The Performers & Broadcasters Right Provisions
The Rome Convention of 1961, was the first international treaty to recognise the rights of the performers. The basic reason as to why performers needed protection was because with the passage of time, technology has also developed and is doing better which has enabled recording and broadcasting of performer’s work to build their way through. Other than the rights granted to the original maker of the work, treaty also recognised rights of the performers against the unauthorized recording and broadcasting of the performer’s work without providing the adequate compensation to the performer.
Indian Perspective of The Performers & Broadcasters Rights Provisions
The first Copyright Act, in India, was passed in the year 1914 which formed the base for the current governing act, The Copyright Act of 1957 which has been amended several times since it’s formation as per the needs of the market. The rights of the performers were not recognised by the legislature for about thirty-seven years. An amendment act was bought in force in the year 1994 to protect the livelihood of the performers which was in danger due to lack of recognition of their work by the laws and another reason being, advancement in technology. This amendment of 1994 brought the rights of the performers in force under Section 38 of The Copyright Act. Later on, in 2012, further another amendment was made to increase the rights provided to the performers, being exclusive and moral rights under the Sections 38-A & 38-B, respectively, which have been discussed in detail in the article later.
Performance & Performer
Before we begin with the performer’s rights, let us first know who all will be considered as a performer under the Act and what will be considered as their performance.
Performers are the artist who display their art before the audience with their own skill set and knowledge.
“The term “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.”1
A proviso was added in the Amendment Act, 2012 to the definition of the performer to include the performers who play casual and incidental performance, known as “extras” so as to protect their moral rights.
The term performance means, the work performed by any performer covered under Section 2(qq) of the Act. The term earlier included literary and artistic work only but later on it’s scope was broadened to include dramatic and musical work, cinematograph films and the sound recordings.
“”Performance” in relation to performer’s right means any visual or acoustic presentation made live by one or more performers.”2
Rights of The Performer’s under the Copyright Act
Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.3
Following are the rights currently available to the performers, in India, under The Copyright Act :
Exclusive Rights of The Performer –
The amendment act has introduced affirmative performers right by amending Section 38 which granted only negative rights by prohibiting acts in sub-section (3) and (4) which have now been omitted and a new section 38-A has been inserted which provides the performer’s rights as the exclusive rights to do or authorize doing any of the acts in respect of the performance, without prejudice to the rights conferred on authors. Exclusive rights of the performers include the following rights :
To Make A Sound Recording or A Visual Recording of The Performance –
The law permits the performer to make a sound recording, visual recording, record his live performance as his exclusive right to his work. The record will be granted the copyright under the law only when it does not includes any part which amounts to infringement of any other work and has been recorded lawfully, as per the provisions of the act.
“The term “sound recording” here means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.”4
“The term “visual recording” above means the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.”5
Reproduction of The Sound Recording or Visual Recording of The Performance –
The Copyright Act not only provides the performer with the right of recording his own performance but also provides him the opportunity to reproduce his own performance. The law states, reproduction of it in any material form including the storing of it in any medium by electronic or any other means.6
Other than reproduction his own work, performer can also issue copies of his work to the general public, keeping in mind that the copies that are being issued are not the ones that are already in circulation in the public.7
Moreover, the performer also owes the right to sell his work or can even give either of his entire work or copy of of his recording on commercial rent or can even offer the same for sale.8
Right to Broadcast the Performance –
Performer has been given the sole right to decide if he wants to communicate his performance to the general public.9
Performer can also choose to stop the broadcasting of his work, if the work been broadcasted is different from the work for which his consent has been taken to broadcast. Moreover, if the broadcast is without the consent of the performer, the broadcast will be considered illegal under the act.
However, the work that is being broadcast or communicated to the public must not include entire or any part of the performance which has already been broadcasted by the performer or the broadcasting organisation.10
Right to Royalty –
Major amendment that has been brought to the rights of the performer through The Amendment Act of 2012 was the idea of introducing the concept of royalties for the performer so as to protect his livelihood and provide him the benefits for his work. As per the act, the performer shall be entitled for royalties, in case he takes the decision of giving his performance or work for commercial use in any form.11
It has also been provided that, if a performer once gives his consent, by the way of a written agreement, to incorporate his performance in a cinematograph film, he cannot afterwards object the enjoyment by the producer of the film of the performer’s right, in the same film, unless there exists a contract to the contrary.12
Moral Rights of The Performer –
Another major amendment made in the performer’s right by The Amendment Act of 2012 was brought by the way of Section 38B, which replaced the earlier provisions under the section 38(3) & 38(4). Section 38B states, even after the assignment of his right, may it be wholly or partially, the performer still has the rights to the following under the Act :
(a) Right to claim to be identified as the performer of his performance unless where the omission has been dictated by the manner of the use of the performance
(b) Right to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.
However, it has also been clarified in the same section that mere removal of any portion of a performance for the purpose of editing, or to fit it within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation.
Right to The Performance–
The act not only provides with the copyright and protection of performer’s right during the life of the performance but also for a long time period after the performance. The performer’s right shall subsist until ‘fifty years’ from the beginning of the calendar year next following the year in which the performance is made.13
Broadcast & Broadcasting Organization
Literal meaning of the term “broadcast” is the transmission or distribution of programme or information or audio or video content to a dispersed audience via radio or television.
As per the section 2(dd) of The Copyright Act, “broadcast” means “communication to the public—
(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast.”
Broadcasting organisation, such as radio or television are also popularly known as electronic media, play a vital role in the society. They are powerful media for entertainment, dissemination of information, knowledge, art and culture. Such broadcasting organisation have also been provided with the rights to protect their interest after the Amendment of 2012 in The Copyrights Act, other than the performers.
Rights of The Broadcasting Organization
Just as performer’s rights have been protected by the legislature undee the Section 38 of the act, similarly, broadcaster’s rights have also been protected by the Act under section 37.
Every broadcasting organisation shall have a special right to be known as “broadcast reproduction right” in respect of its broadcasts.14
Right to The Broadcasting for A Term –
Just like performer’s right has been granted for an entire term, similarly, broadcaster’s rights have also been provided for an entire term. The broadcast reproduction right shall subsist until ‘twenty-five years’ from the beginning of the calendar year next following the year in which the broadcast is made.15
The Amendment Act of 2012 might have introduced the affirmative rights for the performer by omitting the provisions in which negative rights were given but the same is not the case with the rights of the broadcasting organisation. Rights protecting the broadcaster are given in the form of the infringements that would be considered during the continuance of the broadcast reproduction right, with regards to the broadcast.
Any person who has not obtained the licence from the owner of the work and does any of the following acts, in regards to the broadcast or any substantial part of it will deemed to have infringed broadcast reproduction right of the broadcaster : 16
(a) re-broadcast the broadcast
(b) causes the broadcast to be heard or seen by the public on payment of any charges
(c) makes any sound recording or visual recording of the broadcast.
(d) makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual recording referred to in clause (c) or clause (d), subject to the provision of Section 39.
Judicial Pronouncement Related to The Chapter VIII of The Copyright Act, 1957
✓ The very first case, Fortune Films International v. Dev Anand16, where the issue of whether the copyright of the work of the actor has been recognised or protected by the Copyright Act was raised in the Bombay High Court. The Honourable Supreme Court held that an actor in a film has no rights over his performance in the film and thereby denied the existence of the rights of the performers under the Indian copyright laws back then.
✓ In the case of Super Cassettes Industries v. Bathla Cassette Industries17, the Delhi High Court stated that since the incorporation of the Amendment Act of 2012, performer’s right and copyright are two different concept. This case established a step ahead towards the recognition of the performer’s rights by stating that the rerecording of any work or song without the consent of the original maker of the song is an infringement to the performer’s rights.
✓ In the case of Neha Bhasin v. Anand Raj Anand18, issue in matter was related to the live performance. The Delhi High Court held that every performance has to be live in the first instance, whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer, then the performer’s right is infringed.
✓ In the lastest case of Star India Pvt. Ltd. V Piyush Aggarwal19, the issue that was raised was whether a cricket match would constitute a “performance” or not under the copyright act. The Delhi High Court observed that a cricket match will be considered a “performance” and therefore, cricketers, commentators and umpires are performers under the Act.
- The Indian Copyright Act, 1957
- The Indian Copyright (Amendment) Act, 1994
- The Indian Copyright (Amendment) Act, 2012
- Dr. M.K. Bhandari, Law relating to Intellectual Property Rights, Central Law Publication
- Dr. VK Ahuja, Law relating to Intellectual Property Rights, Lexis Nexis
By – Shree Gupta (University of Lucknow)