The rights of performers, record producers and broadcasting organisations are referred to as neighboring rights because they have developed in parallel with copyright, and the exercise of these rights is very often linked with the exercise of copyright. The performers, record producers and broadcasting organisations work as intermediaries for disseminating and broadcasting the works of the authors to the public.
Provisions regarding Performers Right:
The Copyright Act governs the provisions relating to a performer in India and the rights granted to him thereunder. An actor, a singer, a dancer, a juggler, a conjurer, a snake charmer, amongst others, are all examples of performers under the Copyright Act.
Until 1994, the Copyright Act of 1957 did not recognize a performer’s rights in India. The Act does not protect any performance done by an actor in a cinematographic film or any song sung by a singer for a show. . However, in 1994, pursuant to a case decided by the Bombay High Court, performers’ rights were recognized by way of introducing Section 38, 39, and 39A in the Copyright Act. Performers’ rights are completely independent of the rights available in ownership of work. They are categorized as related rights, protecting the interests of those who contribute to doing work.
Performers under the Copyright Act
As per Section 2(qq) of the Copyright Act, a performer is defined to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person making a visual or acoustic live presentation.
Star India Pvt. Ltd. V Piyush Aggarwal2014
The Hon’ble Delhi High Court stated that when a cricket match is played there are various dramatis personae in the performance. So far as the visual recording was concerned, the cricket players were performers who played out the match. Even the umpires were upheld to be performers since they formed an integral part of the live performance.
Section 38 of the Copyright Act, 1957
It lays down that 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. The performer’s right subsists until fifty years from the beginning of the calendar year next following the year in which the performance is made.
By the definition, it may be inferred that if any person during the continuance of the performer’s right (that is, within fifty years from the beginning of the calendar year next following the year in which the performance is made) without the consent of the performer does any of the following acts in respect of the performance or a substantial part thereof he will be deemed to have infringed the performer’s rights
- Right to make Sound Recording or visual recording:
The performer has the right to make sound or visual recordings of his live performance to exclude others. It means one cannot Reproduces a sound recording or visual recording of the performance which was;
- Made without the consent of the performer;
- Made for the purposes different from those for which the performer has given his consent;
- Made for purposes different from those referred to in section 39 of the Act from a sound recording or visual recording which was made in accordance with Section 39 (acts not constituting infringement);
Although Suppose the performer has consented to the inclusion of his performance in a cinematographic film through a written agreement. In that case, he shall have no right to obstruct the producer of such film from using such performance.
- Right to produce sound or visual recordings:
The performer also has the right to produce sound or visual recordings of his performance. In this case, the performer shall enjoy all the rights available to a producer under the Copyright Act vis-à-vis the right to reproduce, give copies for commercial rental, communicate the work to the public, etc.
- Right to broadcast or communicate performance:
A performer also enjoys the right to broadcast or communicate his performance to the public, if not already broadcast by way of cinematographic film or otherwise, to exclude others. If any person communicates such work to the public without the consent of the performer, then he shall be liable for copyright infringement.
- Moral Rights:
In addition to economic rights, as stated above, a performer also enjoys moral rights as per Section 38 B of the Copyright Act.
The moral rights include
- the right to receive credit as a performer for his performance and
- the right to claim damages in case his performance is distorted, mutilated, or modified in a manner prejudicial to his reputation.
Exceptions to Performers’ Rights under the Copyright Act
The following acts constitute an exception to the rights granted by Section 38A of the Copyright Act:
Section 39 of the Copyright Act lays down certain exceptions to the rights granted by Section 37 of the Copyright Act:
- Act of reproducing any sound or visual recording for private use or teaching and research work only;
- Reproduction of the work for a judicial proceeding;
- Reproduction for reporting, reviewing, or other things that come under fair dealing
- Reproduction of the work for use by members of the legislature; and
- Other acts that are not considered infringement under Section 52 of the Copyright Act. Mainly are:
- Fair dealing with a literary, dramatic, musical or artistic work (not being a computer programme) for the purpose of private use including research
- Criticism or review, whether of that work or of any other work
- Utilise the computer programme for the purpose for which it was supplied; or
- To make back-up copies purely as a temporary protection against loss, destruction or damage
- A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events in a newspaper, magazine or similar periodical.
Term of Performers’ Rights under the Copyright Act
As per Section 38 of the Copyright Act, performers’ rights are valid for 50 years from the succeeding calendar year in which the performance was recorded. For example, if the performance was recorded in the year 2021, the term will commence from 1st January 2022 and be valid for 50 years.
The inclusion of performers’ rights is an encouraging step in the domain of copyright law. Several performers are often subjected to unfair practices by producers or music labels in the entertainment industry. Thus, the rights mentioned above would greatly benefit the performers and the work they produce.
The visual or acoustic performances of actors, musicians, singers or dancers form a key part of the creative process and the performers who display their talents through their artistic performances must be entitled to certain rights over such performances as well as a share in the proceeds from its commercial exploitation. However, the rights of the performers were not recognized internationally until the adoption of the Rome Convention of 1961.