The visual or acoustic performances of actors, musicians, singers or dancers forms a key part of the creative process and the performers who display their talents through their artistic performances must be entitled for 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. This international treaty called for protection against unauthorized broadcast of any performances without providing adequate compensation to the performers. These rights are over and above the rights granted to the original author and/or owners of the work. These rights recognize that a performer being an artist has the privilege under the law to restrain others from broadcasting his/her live performance to the public without his permission.
The Indian Copyright Act, also for a very long time failed to give due recognition to the rights of the performances and it was only in 1994, that the Copyright Act was amended to give certain rights to the performers. The 1994 Amendment has defined the concept of performers right in following manner:
Section 38 says that if any person during the continuance of performer’s right without the consent of the performer does any of following acts in respect of the performance or a substantial part thereof he will be deemed to have infringed the performer’s rights:
a) Reproduces a sound recording or visual recording of the performance which was;
i. Made without the consent of the performer;
ii. Made for the purposes different from those for which the performer has given his consent;
iii. Made for purposes different from those referred to in sec 39 from sound recording or visual recording which was made in accordance with S. 39(acts not constituting infringement);
b) 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 rebroadcast by the same broadcasting organization of an earlier broadcast which did not infringe the performer’s right; and
c) Communicates the performance to the public otherwise than by broadcast except where such communication to the public is made from sound recording or a visual recording or a broadcast.
A ‘Performer’ shall mean and include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.
Initially, the 1994 Act had fixed these rights for a period of 25 years from the beginning of the calendar year next following the year in which performance was made. However, as per Article 14 of TRIPS Agreement, the term of protection is for 50 years computed from the end of the calendar year in which the performance took place. Thus, a subsequent amendment came in Section 38 of the Copyright Act, 1957 by way of the Copyright (Amendment) Act, 1999 to extend the period to 50 years that was previously 25 years.
The legal landscape in India has proven inadequate in protecting the innumerable rights performers have in their performances.
In the subsequent post during this blog-a-thon we would be discussing about the judicial approach towards performer’s right in relation to the cinematographic works and entertainment industry.
Authored by Nithin V. Kumar
