Summary
The post examines the legal framework for performers right under Indian copyright law, beginning with the historical lack of recognition both internationally and in India. It outlines how the 1994 Copyright Amendment introduced statutory protection for performers, defining their rights and specifying acts constituting infringement. The post explains the extension of the protection period from 25 to 50 years in line with TRIPS Agreement obligations. It concludes by noting the shortcomings of the Indian legal landscape in fully safeguarding performers' interests and previews a discussion of judicial approaches in later posts.
Introduction
The visual or acoustic performances of actors, musicians, singers, and dancers form a key part of the creative process. Performers who display their talents through their artistic performances are entitled to certain rights over such performances as well as a share in the proceeds from their commercial exploitation.
The rights of performers were not recognised internationally until the adoption of the Rome Convention of 1961. That international treaty called for protection against the unauthorised broadcast of performances without adequate compensation to the performers. Performers’ rights are separate from and additional to the rights granted to the original author or owner of the underlying work. They recognise that a performer, as an artist, has the right under law to restrain others from broadcasting a live performance to the public without consent.
Recognition under Indian Law
The Indian Copyright Act, 1957 did not give due recognition to the rights of performers until 1994. The Copyright (Amendment) Act, 1994 introduced provisions granting certain rights to performers. Section 38 of the Copyright Act, 1957, as amended in 1994, defines the scope of performers’ rights as follows:
If any person during the continuance of performer’s right 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:
- Reproduces a sound recording or visual recording of the performance which was: (i) made without the consent of the performer; (ii) made for purposes different from those for which the performer has given consent; or (iii) made for purposes different from those referred to in S. 39 from a sound recording or visual recording which was made in accordance with S. 39;
- Broadcasts the performance, except where the broadcast is made from a sound recording or visual recording other than one made in accordance with S. 39, or in a rebroadcast by the same broadcasting organisation of an earlier broadcast which did not infringe the performer’s right; and
- Communicates the performance to the public otherwise than by broadcast, except where such communication is made from a sound recording or a visual recording or a broadcast.
Definition of Performer
Under the Act, a “performer” means and includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person who makes a performance.
Term of Protection
As originally enacted in 1994, the Copyright (Amendment) Act fixed the duration of performers’ rights at 25 years from the beginning of the calendar year next following the year in which the performance was made. Article 14 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides for a term of protection of 50 years computed from the end of the calendar year in which the performance took place. To bring Indian law into conformity with this international standard, the Copyright (Amendment) Act, 1999 amended Section 38 to extend the term from 25 years to 50 years.
Current Position
Notwithstanding these legislative developments, the legal framework in India has been considered inadequate in fully protecting the range of rights that performers have in their performances. The judicial approach to performers’ rights in relation to cinematographic works and the entertainment industry continues to evolve.
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.