Performers Right In India

PERFORMERS RIGHT IN INDIAN LAW:

A JUDICIAL APPROACH

INTRODUCTION

This world is the place where often creativity has been denied. Usually the owner , or a creative owner of a specific thing are the victim of  malpractices. The ownership are exploited and therefore for prevention of such exploitation in 1957 the Copyright Act was enacted in India. Copyright has some closely related rights that follow similar principles of protection these are called related rights or neighboring rights. These rights protect persons, other than the creators who are involved in the dissemination of copyrighted works. The use of this term is usually confined to three specific categories of persons: performers, producers of phonograms and broadcasting organizations. The institution of these rights is a relatively recent phenomena in the history of Intellectual Property Rights (IPR) law. There have been the formation of various international treaties, which seek protection of these rights and many countries are now member to these conventions and treaties.

Performers also need to be rewarded for their creativity and their efforts and because of dissemination of their performances via media, these performers fear unauthorized use of their performances. What the law seeks to protect is the residual value in a performance. There is an inherent value in live performing, as it is clear that members of the public are more than willing to congregate at a theatre or music venue to pay for a live performance. However a performance may be enjoyed outside of that environment. The first time that this became apparent, was at the turn of the 20th century with the introduction of sound and film recording. During this period, due to the fact that a performance had extended beyond the music halls and theatres, and that is why these rights came into existence and which did go some way to give a limited protection to performers.

Meaning:-

Copyright Act, 1957, Section 2(qq) states that performer ‘a ‘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’

Copyright Act, 1957, Section 2(q) says that performance’ in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.

Copyright Act, 1957, s. 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:

1.      Reproduces a sound recording or visual recording of the performance which was;

2.      Made without the consent of the performer;

3.      Made for the purposes different from those for which the performer given his consent;

4.      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);

5.      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 organisation of an earlier broadcast which did not infringe the performer’s right; and

6.      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.

ACTS NOT CONSTITUTING INFRINGEMENT OF A PERFORMERS RIGHTS

Copyright Act, 1957, Section 39 speaks about acts not constituting infringement. The following acts do not constitute the infringement of performer’s right in his performance:

1.   The making of any sound recording or visual recording for private use of the person making such recording or solely for the purpose of  bonafide teaching and research;

2.   Fair dealing of excerpts in a performance in the reporting of current events or a bonafide review, teaching or research;

3.    Other acts with any necessary adaptation and modification which don’t constitute infringement of the copyright under Section 52;

4.    Reproduction for the use of judicial proceedings;

5.   Reproduction for the use of the members of the legislature;

6.   Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students and parents and guardians of the students and persons directly connected with the activities of the institution; and

7.   Makes a sound recording or visual recording of the performance. Thus making of the sound recording or visual recording of or the above purposes doesn’t constitute infringement.

APPLICABILITY OF OTHER PROVISIONS:-

Under Section 39A  the following provision of the Act with necessary adaptation and modification apply to performer’s right as they apply to copyright in a work.

• Section 18 and 19 – assignment of copyright
• Section 30 – Licenses
• Section 55 – Civil remedies for infringement of copyright .
• Section 58 – Rights of owner against persons possessing or dealing with infringing copies.
• Section 64 – power of police to seize infringing copies.
• Section 66 – disposal of infringing copies or plates for the purpose of making infringing copies.

Thus in many essential respects the performer’s right bear close resemblance to copyright.

TERM OF RIGHTS:-

The Performer’s rights subsist for 50 years from the beginning of the calendar year next following the year in which the performance is made. Copyright Act, 1957, Section 40 A says about the application of performer’s right to foreign countries where there is no rights of such a nature presently. The Central Government may by notification may extend these rights to such countries if the country has already provided and intended to provide the such rights.

Copyright Act, 1957, Section 42A similarly talks about restriction of foreign organisation and performers, if the foreign country does not give protection of these rights , the central government may by notification may put restriction upon the applicability of the provisions of this act on that country or organisation established there.

WORKING OF PERFORMING RIGHTS SOCIETY:-

The IPRS came into existence on 23rd August 1969. The IPRS is a representative body of Owners of Music, viz. The Composers, Lyricists (or Authors) and the Publishers of Music and is also the sole Authorized Body to issue Licenses for usage of Musical Works & Literary Music within India by any person. Composers are those who are better known as Music Directors, Authors are better known as Lyricists, Publishers of Music are the Music Companies, or those who hold Publishing Rights of the Musical & Literary Works.

The Society is a non-profit making Organization and is a Company Limited by Guarantee and Registered under the Companies Act, 1956. It is also registered under Section 33 of the Copyright Act, 1957 as the only Copyright Society in the Country to do business of issuing Licences for usage of Music. In other words, IPRS is the only National Copyright Society in the Country which is permitted to commence and carry on the Words or any Action intended to be sung, spoken or performed with the music. It has received the Certificate of Registration from the Registrar of Copyrights dated 27-3-1996.

Collective enforcement of copyright is a concept where management and protection of copyright in works are undertook by a society of owners of such works. Obviously no owner of copyright in any work may keep track of all the uses others make of his work. When he becomes a member of a national copyright society, that society, because of its organizational facilities and strength, is able to keep a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works. Because of the country’s membership in international conventions, the copyright societies are able to have reciprocal agreements with similar societies in other countries for collecting royalties for the uses of Indian works in those countries. From this it may automatically be inferred that it will be in the interests of copyright owners to join a collective administration organisation to ensure better protection to the copyright in their works and for reaping optimum economic benefits from their creations. Users of different types of works also find it easy to obtain licences for legal exploitation of the works in question, though the collective administrative society.

In UK as well as in India, Performing rights society (PPS) and for music Phonographic Performance Ltd are two organisation for handling the performance related aspects.Copyright Act, 1957, s. 33 provides for the establishment of copyright society under which IPRS is established. The IPRS is a company limited by guarantee and registered under the Companies Act, 1956. It is a non-profit making body. The society is registered as the copyright society under Copyright Act, 1957, s. 33(3) and is permitted to commence and carry on the copyright business in musical works and/or any words or any action intended to be sung, spoken or performed with the Music., but also amongst the owners themselves. IPRS thus waged its way through these difficult times and managed to keep the fight for a better copyright environment.

IPRS today is a very active society in the Indian copyright field. As regards collection, unlike in the past where it used to collect & distribute and remit only international royalties, it has now started collecting even for Indian music. IPRS has been instrumental in clarifying the ownership of musical rights in India through continuous dialogue with related industry associations.

In Music Broadcast vs. Phonographic Performance13[1], the plaintiff had been granted permission to start an FM Radio Station, for which it had obtained licenses from various organisations including the IPRS. The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the copyright board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.

Administration :-

The Society’s policy and administration are controlled by a Governing Council of Directors elected by the Members at General Meetings every Year from amongst their own numbers, consisting of Members who are Authors, Composers and Publishers. The Council is equally represented by Publishers and Writers. Further, there is also an equal representation between Composers and Authors as also Region wise between North India and South India. The Chairman of the Governing Council is Mr. Hasan Kamaal who is Author Member.

The Society has its Registered and Corporate Office at Mumbai with branch offices at Delhi, Chennai, and Kolkata, through which, the Society carries on its licensing activities.

Activities in field of copyright:

The Society is a strong believer in the policy of Education in the field of Copyright. IPRS has been and continues to be a very active Society in the Indian Copyright field. IPRS was able to forcefully get its proposals for a change in certain provisions of the Indian Law incorporated in the 1995 amendments to the Copyright Act. It played a very vital part in the last Amendment to the Copyright Act of India. The Society is a very active member of the Copyright Enforcement Advisory Council set up by the Ministry of HRD, Government of India to advise the Government on Copyright Issues and its Enforcement. Its CEO is a member of the Core Group on International Conventions consisting of specialists in the field of Copyright and Ministries of the Government of India. He is also on the Core Group to advise the Government of India on any amendments that are required to be made to the Indian Copyright Act, 1957.

A JUDICIAL APPROACH:-

Copyright Act, 1957, s. 39(A) says that the other provisions of the Copyright Act, 1957 will be applied to performers right also, that is provisions like assignment, licenses, civil remedies, rights of the owner possessing or dealing in infringing copies, power of the police, etc.

In Music Broadcast vs. Phonographic Performance[2], the plaintiff had been granted permission to start an FM Radio Station, for which it had obtained licenses from various organisations including the Indian Performing Right Society (IPRS). The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the Copyright Board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.

Performer’s right in cinematograph Films and Musical Works:-

The rights of the performer is based on the concept of the consent of the performer, if the performer has consented to the producer of the cinematograph film for the incorporation of his performance, he may not further claim any right over it , as then the producer of the film becomes assignee of the copyright which subsists in performer’s right. Since a film includes performance of various actors, dancers and so on, their permission is required to film their performance. This is usually done by separate contract with the performers.

However in Fortune film vs. Dev Anand[3], the court said that the copyright protection is available only to film including the soundtrack, the cine artists who act in the film is not protected by copyright law for their acting.

In the case of the Indian Performing Rights Society vs. East Indian Motion Pictures Association[4], the Apex Court held that that if an author of a musical work has authorised a cinematograph film producer to incorporate his works within the cinematograph film thereby permitting him to appropriate his work by such incorporation in the sound track of the film, the composer may not restrain the film producer from causing the acoustic portion of the film to be performed/projected/screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film or from communicating or authorising the communication of the film by radio diffusion.

Neha Bhasin vs. Anand Raj Anand and Anr [5]

The Plaintiff was a singer who claimed that her voice was used by the defendants for three versions of song in Hindi film produced by defendant. The plaintiff alleged that defendant no. 2 in connivance with defendant no. 1 who was the music director, had shown herself to be the singer alongwith defendant No. 2 whereas plaintiff was shown as backup vocalist in all three versions of song.

The plaintiff alleged that this is an infringement of the performers’ right and prayed that instead of defendant No. 2’s name, her name must appear as lead singer. Present suit was filed for seeking decree of permanent injunction against the defendants from using, selling, distributing, exhibiting the motion picture as well as audio cassettes, compact discs, promos of the film containing the song without displaying name of the plaintiff as lead singer. It was alleged by the respondent that the right subsists only in live performances and thus no right exists here as the song is a recorded one. But the Court observed:

‘It is essentially the reproduction of the performance through sound or visual recordings without the permission of the performer that is prohibited. 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. So, as regards the performers’ rights, the plaintiff definitely has a serious triable case’.

Court heard all versions of song and it was held that the voice contained in all versions belonged to petitioner. Thus, plaintiff must have been shown as lead singer instead of defendant. The Court issued interim order for restraining defendants using, selling, distributing, exhibiting, advertising the motion picture as well as cassettes, CDs, promos of the film.

REMEDIES AGAINST INFRINGEMENT OF PERFORMERS RIGHTS:

The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act.

(i)     Civil remedies: Under civil remedies, the owner of the copyright, or his assignee or his exclusive licensee or a legatee may obtain (a) injunction or (b) claim damages

(ii)      Criminal remedies: In addition to civil remedy the Copyright Act enables the owner of the copyright to take criminal proceedings against the infringer. The offence of infringement of copyright is punishable with imprisonment which mayextend from a minimum period of six months to a maximum period of three years or with a fine of the order of Rs 50,000/- to Rs 2.00 lakhs.

(iii)     Anton Pillar order: In appropriate cases the court may on an application by the plaintiff pass an exparte order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. The necessity of such an order arises where there is a grave danger of relevant documents and infringing articles are being removed or destroyed so that ends of justice will not be defeated.

TRIPS AND PERFORMERS RIGHT AND OTHER INTERNATIONAL TREATY:

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement[6] contains provisions in respect of the rights of performers in their unfixed performances. Specifically, Art. 14(1) provides as follows[7]:

‘In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance.... Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation; the broadcasting by wireless means and the communication to the public of their live performance’.

It is to be noted, however, that Art. 14(1) of the Agreement itself contains a very important limitation, since it grants performers a right of fixation only against a fixation in a phonogram. The TRIPS Agreement does not protect performers against unauthorized fixation of their live performances if an audiovisual fixation is involved. Pursuant to all these agreements and relevant provisions, almost all the countries who are signatories to the agreements including India and United Kingdom provides for the protection of the performer’s right in their copyright protection.

In the post TRIPS period, new issues have arisen out of the advancement of digital technologies. Performers are equally vulnerable to the misappropriation of their rights due to communication or reproduction through the Internet. Negotiations were held and a treaty concluded that is, WIPO Performances and Phonograms Treaty (WPPT) 1996. This treaty replaces the Rome Convention, 1961 in respect of the performers rights.

WPPT, 1996[8]:

This  Treaty provides for improved protection for performers, producers of phonograms and broadcasters; however, an area of major concern is that its general application to audiovisual performances is excluded. Now, for the first time rights of the performers included moral rights as well. This treaty grants full exclusive rights to the performers to prohibit the unauthorised broadcast and public communication of their performances.

CONCLUSION

The legal landscape in India has proven inadequate in protecting the innumerable rights performer have in their performances. Today, rapid technological change, inter connected entertainment markets, and the quantum of unprotected folklore in India have made the need for this protection more imminent. This article has argued, through a detailed analysis of four existing performer right regimes, that providing sui generis protection is preferable to the alternatives of protecting performer’s right through copyright and tort laws. While the modalities and details in this scheme  warrant deliberation, accepting both need for reform and policy of sui generis protection, is the first step forward towards giving performers in India their due, a stronger and more all-encompassing performer protection regime.

REFERENCES: 

• Chattejee, Sumitra Kumar. Law of copyright: An overview. In Law of Intellectual Property Rights, edited by Dr Sukanta K.Nanda. Orissa Law Reviews , Cuttak, 2003, p.136.
• Wadhera, B. L. Law relating to patents, trademarks, copyright, designs and geographical indications, 2nd Ed., Universal Law Publishing Co. Pvt Ltd., Delhi, 2000, p.393.
• Narayanan, P. Intellectual property law, 3rd Ed. Eastern Law House, Kolkata, p.270.
• Annual Survey of Indian Law, Vol.XXV. 1989, p.196.

WEB SOURCES: 

• www.googlebooks.com
• nopr.niscair.res.in
• www.archiving-performance.org
• www.copyright.gov.in
• www.lexisnexis.com

[1] 2004 INDLAW MUM 19, 2004 (29) PTC 282 (Bom).

[2] CIVIL APPEAL No. 5183/2005 Phonographic Performance Limited Versus Music Broadcast Pvt. Ltd.

[3] AIR 1979 Bom 17.

[4] 1977 INDLAW SC 185, AIR (1977) SC 1443.

[5] 2006 INDLAW DEL 377, 2006 (132) DLT 196, 2006 (32) PTC 779 (Del).

[6] The term of protection is 50 yrs.

[7] Trade-Related Aspects of Intellectual Property Rights Agreement, art. 14 provides for performer’s right it says that performers have possibility of preventing the acts which are undertaken without their authorisation which are communication to the public and broad cast by wireless means.

[8] Two treaties were concluded in 1996 at the World Intellectual Property  Organization (WIPO) in Geneva. One, the WIPO Copyright Treaty (WCT), deals with protection for authors of literary and artistic works, such as writings and computer programs; original databases; musical works; audiovisual works; works of fine art and photographs. The other, the WIPO Performances and Phonograms Treaty (WPPT), protects certain ‘related rights’ (that is, rights related to copyright) in the WPPT, these are rights of performers and producers of phonograms.