P ROJECT R EPORT ON

PERFROMERS RIGHT VIS A VIS COPYRIGHT LAW

Submitted to:
Ms. Aparajita Das
(Faculty Copyright Law)

Submitted by:
Bhanupratap Singh Shekhawat
Roll no. 50
Semester VII (A)

Hidayatullah National Law University, Raipur

Submitted on: 16 t h August, 2016

A CKNOWLEDGEMENTS
I feel highly elated to work on the topic PERFORMERS RIGHT VIS-A-VIS
COPYRIGHT LAW The practical realization of this project has obligated the assistance
and help of many people. I express my deepest regard and gratitude to my teacher, Ms.
Aparajita Das for her unstinted support. Her consistent supervision, constant inspiration and

invaluable guidance have been of immense help in understanding and carrying out the
nuances of the project report.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in
the form of our library and IT Lab that was a source of great help for the completion of this
project.

Bhanupratap Singh Shekhawat

Roll no. 50
(Semester VII)

TABLE OF CONTENTS
INTRODUCTION.................................................................................. 1
DEVELOPMENT OF COPYRIGHT LAW IN INDIA AND
INTERNATIONAL REGIME.................................................................. 4
Recent developments......................................................................................4
Need for the protection of Performers Right.................................................5
International Treaties And Coventions...........................................................6
COPYRIGHT LAW IN INDIA................................................................. 8
Subject matter.................................................................................................8
Work................................................................................................................9
Authorship and Ownership...........................................................................11
Registration of Copyright..............................................................................13
Term of Copyright.........................................................................................14
Performers Rights........................................................................................14
Broadcasters Rights.....................................................................................15
PERFORMERS RIGHT IN INDIA....................................................... 16
Definition.......................................................................................................16
Performers Right in India under Copyright..................................................19
Copyright Societies.......................................................................................22
Judicial Approach..........................................................................................24
CONCLUSION.................................................................................... 29
CHAPTER 1

INTRODUCTION
The tradition of performing arts and its perseverance through time in India
can be attributed to its association with religion and mythological lore. 1 The
genesis of performing arts can be found in the mythology of the Hindu
religion in which it has been recognized as the fifth Veda. 2 Its profound
presence can be felt in rituals and temple traditions. Music and the seven
swaras (sounds) were considered as having been passed down from the
gods to the mortals.3 The pursuit of performing arts as a professional
pursuit was also in vogue in ancient India. Actors were trained and used to
visit the cities and villages and state capitals to seek favor and patronage
from the royalty.4 The king was to provide the protections. There were
exclusive dramatic troupes and the artists lived as a separate social class
with a lifestyle and status of their own. The troupes used to travel from
place to place for their performances. There were low wandering actors as
well as well-known actors and actresses with immense patronage. 5 The
actors and the supporting cast were differentiated on a theoretical scale. 6
Acting as a discipline was explored as a science and studied, documented
and consolidated as a theory for practice of the same. Thus one finds a
study and understanding of the pursuit of acting having an amazing
1 M.L. Varadpande, invitation to lndfan Theatre, Arnold -Heinemann, New Delhi (1Sedn.
4987), pp.9-10. From aboriginals to Mohenhjadaro and Indus drama took shape
independently as ritual and popular entertainment.

2 S. Bandhopadhyaya, Indian Music Through the Ages, B.R. Publishing

Corporation, New Delhi $15 edn. -1985), p.9.
3 Supra note at 1,
4 Id p. 21.
5 Anupa Pande, A Historical and Cultural Study of the Natyashashtra of Bharatha,
kusumanjali Prakashan, Jodhpur (1s edn.-1991), p.27.
6 Id p. 6

academic refinement and a structured scientific methodical approach to

theatre. This is symbolic of the seriousness with which the theatrical arts
and in particular the performing arts was viewed in ancient India.
Though the performing arts were seen as significant component of the
religious tradition nevertheless the artist did not enjoy the status that
befitted the divine origin that was attributed to the artsg. In actual practice
the artists occupied the lowermost class of society. The performing arts and
its practice was also affected by the stratification in the society on the basis
of caste. The performing artists commonly belonged to a particular class
that solidified into a caste.7
There were connoisseurs among the kings and others who were avid
patrons of the arts in ancient India. The artists professionally occupied low
social positions dependent on the society for patronage or the rulers for
patronage and sustenance. The artists lived as a distinct social class and
were not generally considered of respectable status. The low social position
was complemented by the low economic position enjoyed by the majority of
the performing artists who had to depend on the state patronage for
sustenance or on the charity of the public. Wealthy merchants and all
members of the Hindu community were patrons of temples and the arts.
The temple too supported dance teachers.
When the artist began performing a part of her earning went to her guru.
Without the patronage of the rulers or musicians could not have developed
the art to a high standard. In short in ancient India dance was hereditary
and patronized by the temple, the royal courts and the aristocracy.
There is documentation that shows that during the medieval period that
natyas came out of the financial protection of the kings and aristocrats and
from the physical limitation of their palaces and took to open spaces except
kuttiyatom.

7 Supra note at 1.

Traditional theatre is stated to have taken roots related to the life of the
people and based on their involvement and patronage. Patronage through
the traditional methods was ebbing.8 Between the 13th and the 16th
centuries, the Muslim invaders extended a lot of patronage to the field of
music. Different art forms like quawwali particularly Middle Eastern Arabianorigin found great encouragement but royal support was available
irrespective of religion. Public concert was practically unknown with
respect to classical musicians and they were well protected by their
admirers. During this period musicians who acquired an appointment at an
eighteenth century or nineteenth century royal court usually received a
generous monthly stipend and often a grant of landed property as
well. He was ranked very highly and often enjoyed a specific honorary title9
All the artists who present their skills and expressions so as to display their
innate creativity have certain rights over their performance; these rights
are called Performers Rights. This batch of Related Rights protect the
interests of a performer (musician, actor, singer, dancer etc.) over their
performance; as application of their intellect is involved in dissemination of
their talent.
These rights are over and above that of the original author of the work. To
safeguard these interests, many countries grant moral as well as the
economic rights to the performers, and the rights of paternity and integrity
are required by the WIPO Performances and Phonograms Treaty. These
performers are entitled to various rights in their performances, whether
these take place on the stage, music studio, or during a concert. Performers
also do have rights over any recordings, films or broadcasts of their
performances. But what if a performance is of an already copyrighted work?
Will the performer still get protection under these rights?
8 Nemichandra Jain, lndian Theatre, Tradition, Continuity and Change, Vikas
Publishing House Private Limited, New Delhi ll edn. -1992), p.56.
9 The Performer and the law in India, School of legal studies, 2008.

The answer is Yes, the performers' rights will be supplementing the rights
of copyright owners with respect to the performance and subsequent
exploitation of any recording or broadcast of the said performance. The
reason being that these performers also need to be duly rewarded for their
sense of imagination, creativity and labour.
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 permission of a performer must also be sought before a
recording of the live performance is made. These are referred to as a
performer's non-property rights.10
Copyright is the part of intellectual property which gives exclusive legal
right to the original creator of the work. The copyright law protects the
intellectual creations in the work that is original.It protects the work as
soon as it is created and no registration formalities are required. Earlier the
concept of Copyright was limited to the books, painting or films, but now
the ambit is widened even to computer software and compilation of data.
The Oxford English Dictionary defines Copyright as The exclusive right
given by the law for certain term of years to an author, composer etc ( or his
assignee) to print, publish and sell copies of his original work.11
This project deals with the critical evaluation of performers right under the
Copyright Act, 1957. Performers rights are new element in the intellectual
property law. The performers (dancers, actors, singers etc) interest should
be protected as there is application of intellect in diffusion of talent. To
prevent the exploitation of the ownership the copyright act gives protection
to the performers. In India although the performers are protected but how
far these rights turned fruitful for them is a question which the paper will
be dealing as these performers contribute to the promotion of creativity and
10Akshat Razdan, Performers Rights in India,
http://www.lawinfowire.com/articleinfo/performers-rights-india.
11 The Oxford English Dictionary, 1884

innovation, adequately the interest of the performer should be protected. It

endeavors to analyze the approach of the judiciary to the issue of
performers right. It tries to examine international instrument and need of
protecting performers right in the light of these international instruments.
The project will compare the laws regarding the performers right with
other countries and will also scrutinize all provisions related to performers
right under Copyright Act, 1957.

CHAPTER 2

DEVELOPMENT OF COPYRIGHT LAW IN INDIA AND

INTERNATIONAL REGIME
Copyright is the part of intellectual property which gives exclusive legal
right to the original creator of the work. The copyright law protects the
intellectual creations in the work that is original. It protects the work as
soon as it is created and no registration formalities are required. Earlier the
concept of Copyright was limited to the books, painting or films, but now
the ambit is widened even to computer software and compilation of data.
The Oxford English Dictionary defines Copyright as The exclusive right
given by the law for certain term of years to an author, composer etc ( or his
assignee) to print, publish and sell copies of his original work.12
Before the amendment of the Copyright Act in 1994, no protection was
given to the actors, musicians, jugglers, dancers etc. The Copyright Act,
1957 (herein after referred to as the Act) was silent on the performers
rights after the amendment in 1994 recognized the rights of the performer
under section 38 of the Act Performers Rights are introduced.
The section 38A of the Act which provides legal provision for performers
right which gives exclusive right or authorizes for doing any act in respect
of the performance without prejudice to the rights conferred on authors.
This provision enables the performers for royalties which are subjected to
committed use.13
Recent developments
The recent development in the Act is the recognition to the rights of the
performers. The Copyright Act, 1957 gave recognition to the performers
12 Supra note at 11.
13Sneha Ayachit, Performers Right: A critical analysis of law in India and beyond,
http://lawmantra.co.in/performers-right-a-critical-analysis-of-law-in-india-andbeyond-by-sneha-ayachit-llm/

after long time. It was only recently when the technological changes
threatened the livelihood of performers that the law intervened to protect
performers. Musicians, singers, actors, acrobats etc come in the category of
performers. Under Section 2(qq) of the Act performer includes an
acrobat, musician, singer, actor, juggler, snake charmer, a person delivering
lecture, or any other person who makes a performance. The section 38 of
the Act confers right to performers like actors, dancers, jugglers, acrobats
etc.
The Act is needed in order to ensure that the rights are not exploited and to
reward the creative efforts of the person who does the work.
Need for the protection of Performers Right
Before anatomize the Performers Right the fundamental question needs
to be answered. Why the performers Right should be protected? The need
for the protection of Performers Right arose with the passage of time. The
fundamental reason was the technological development that enabled
recording & broadcasting of the performers right. But earlier these rights
were not there and according to Adam Smith, there could be mainly two
reasons for not recognizing the performers rights.
1) Social and historical:
During the formative period of copyright, the actors, or strolling players
were regarded as vagrants by law. The players, buffoons, musicians, operasingers, opera dancers and the like were the classical examples of
unproductive labour.
2) Historical and technological:
The work of all the performers used to perish in the instant of its
production.14
The points given by the Adam smith cannot sustain the reason is as under
In the late nineteenth century and the early twentieth century technology
was developed that enabled performances to be recorded and then enable
14 Dr.V K Ahuja, Law Relating to Intellectual Property Rights, 110, (2007)

to both live and recorded performances to be broadcast and communicated

to the public locally, regionally, nationally and eventually internationally.
Performers were therefore separated from the performers who had made
them.15
Although the reasons stated by Adam Smith cannot be accepted today, as
the development in the technology leads to easy access to the spectators
even to those who are not in the immediate vicinity when the performances
was made. As the live performances or whether the performance is on the
stage or in the broadcasting studio the nature of their performances is no
more transitory.
In Fortune Films International v. Dev Anand16
The question whether copyright subsisted in the performance of a
performer was decided by the Bombay High Court 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.
The Copyright Act divides the performers into three categories:
1)

Performers giving live performances.

The performer when he performers in front of the audience (live) or

engages in any performance he has right over that performance.
2)

Performers in a cinematograph film with credits in the film.

The performer when he gives his rights to the person with any written
agreement to make it a part of any commercial use, the performer shall be
entitle to have royalties or some monetary benefit.
3)

Performers in a cinematograph film without credits in the film.

15 Competition and Enterprise Branch Ministry of Economic Development,

Performers Right A Discussion Paper, (July 2001)
http://www.med.govt.nz/business/intellectual-property/pdf-docslibrary/copyright/performers-rights-discussion-paper-pdf
16 Fortune Films International v. Dev Anand , AIR 1979 Bom 17

There are many performers in supporting cast which are commonly termed
as extras in any play, film etc. The Copyright Act till now doesnt give any
protection to such people except moral rights which might be prejudicial to
their reputation.17

International Treaties And Coventions

THE ROME CONVENTION, 1961 (INTERNATIONAL CONVENTION FOR
THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS
AND BROADCASTING ORGANIZATIONS)
While the Berne Convention for the Protection of Literary and Artistic
Works protects the rights of authors, the Convention protects the rights of
performers, producers of phonograms and broadcasting organizations.
These rights are described as rights related to copyright because they
protect the intermediaries in the production, recording or broadcasting of
the works of copyright owners.1 It has been observed that the object of
related rights is .to protect those people or organizations that add
substantial creative, technical or organizational skill in the process of
bringing a work to the public.2 Related rights do not cover actual works but
things involved in the bringing of the work to the public. 3 Related rights are
also referred to as neighbouring rights because they are viewed as
neighbours to the protection of works of authorship under copyright.18
Article 3 of the Convention provides the following crucial definitions-

17 Supra note at 13.

18 Alhaji Tejan-Cole, International copyright law part ii: The rome convention,
1961 (international convention for the protection of Performers, producers of
phonograms And broadcasting organizations) www.belipo.bz/wp
content/uploads/2011/12/romeconvention.pdf

(a) performers means actors, singers, musicians, dancers, and other

persons who act, sing, deliver, declaim, play in, or otherwise perform
literary or artistic works;
Minimum Rights for Performers
The first set of minimum rights listed in the Convention is the set of rights
granted to performers. Article 7 (1) of the Convention states that protection
given to the performer shall include the possibility of preventing(a) the broadcasting and communication to the public, without their
consent, of their performance, except where the performance used in the
broadcasting or the public communication is itself already a broadcast
performance or is made from a fixation;
(b) the fixation, without their consent, of their unfixed performance;
(c) the reproduction, without their consent, of a fixation of their
performance:
(i) if the original fixation was itself made without their consent;
(ii) if the reproduction is made for purposes different from those for which
the performers gave their consent;
(iii) if the original fixation was made in accordance with the provisions of
Article 15, and the reproduction is made for purposes different from those
referred to in those provisions..19
THE WIPO PERFORMANCES AND PHONOGRAMS TREATY WPPT,1996
came with an amendment of 2012 which gave a new dimension to the
moral rights that states that performer shall independently of his right
after assignment, either wholly or partially of his right, have the right(a)

To claim his performance and

(b)

To protect his performance from any distortion, mutilation other

modification this in return might axe his performance.

(c)

Not allowing any person to use the performance without prior

permission of the performer.

19 Supra note at 18.

The Copyright (Amendment) Act of 1999.20

20 Id.

CHAPTER - 3

COPYRIGHT LAW IN INDIA

SUBJECT MATTER
Copyright is a right given by the law to creators of literary, dramatic,
musical and artistic works and producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of
the work. There could be slight variations in the composition of the rights
depending on the work. Copyright ensures certain minimum safeguards of
the rights of authors over their creations, thereby protecting and rewarding
creativity. Creativity being the keystone of progress, no civilized society can
afford to ignore the basic requirement of encouraging the same. Economic
and social development of a society is dependent on creativity. The
protection provided by copyright to the efforts of writers, artists, designers,
dramatists, musicians, architects and producers of sound recordings,
cinematograph films and computer software, creates an atmosphere
conducive to creativity, which induces them to create more and motivates
others to create.21
If copyright protection is applied rigidly, it can hamper progress of the
society. However, copyright laws are enacted with necessary exceptions and
limitations to ensure that a balance is maintained between the interests of
the creators and of the community. To strike an appropriate and viable
balance between the rights of the copyright owners and the interests of the
society as a whole, there are exceptions in the law. Many types of
exploitation of work which are for social purposes such as education,
religious ceremonies, and so on are exempted from the operation of the
21Copyright office, http://copyright.gov.in/

rights granted in the Act. Copyright in a work is considered as infringed

only if a substantial part is made use of unauthorizedly. What is substantial
varies from case to case. More often than not, it is a matter of quality rather
than quantity. For example, if a lyricist copy a very catching phrase from
another lyricists song, there is likely to be infringement even if that phrase
is very short.22
Subject to certain conditions, a fair deal for research, study, criticism,
review and news reporting, as well as use of works in library and schools
and in the legislatures, is permitted without specific permission of the
copyright owners. In order to protect the interests of users, some
exemptions have been prescribed in respect of specific uses of works
enjoying copyright. Some of the exemptions are the uses of the work
i.
ii.

for the purpose of research or private study,

for criticism or review,

iii.

for reporting current events,

iv.

in connection with judicial proceeding,

v.

performance by an amateur club or society if the

performance is given to a non-paying audience, and

vi.

the making of sound recordings of literary, dramatic

or musical works under certain conditions.23

The Copyright Act, 1957 protects original literary, dramatic, musical and
artistic works and cinematograph films and sound recordings from
22 Alka Chawla, Law of Copyright: Comparative Perspectives, (1 st ed. 2013)
23 Supra note at 17.

unauthorized uses. Unlike the case with patents, copyright protects the
expressions and not the ideas. There is no copyright in an idea. Copyright
does not ordinarily protect titles by themselves or names, short word
combinations, slogans, short phrases, methods, plots or factual information.
Copyright does not protect ideas or concepts. To get the protection of
copyright a work must be original.24
WORK
A work means any of the following, namely, a literary, dramatic, musical or
artistic work, a cinematograph film, or a sound recording. "Work of joint
authorship" means a work produced by the collaboration of two or more
authors in which the contribution of one author is not distinct from the
contribution of the other author or authors.25
Copyright subsists throughout India in the following classes of works:
o Original literary, dramatic, musical and artistic works;
o Cinematograph films; and
o Sound recordings.
An artistic work meanso a painting, a sculpture, a drawing (including a diagram, map,
chart or plan), an engraving or a photograph, whether or not
any such work possesses artistic quality;
o a work of architecture; and
o any other work of artistic craftsmanship.

24 Copyright office, copyright.gov.in/documents/copyrightrules1957.pdf

25 Id.

"Musical work" means a work consisting of music and includes any

graphical notation of such work but does not include any words or any
action intended to be sung, spoken or performed with the music. A musical
work need not be written down to enjoy copyright protection.26
"Sound recording" means a recording of sounds from which sounds may be
produced regardless of the medium on which such recording is made or the
method by which the sounds are produced. A phonogram and a CD-ROM
are sound recordings.27
"Cinematograph film" means any work of visual recording on any medium
produced through a process from which a moving image may be produced
by any means and includes a sound recording accompanying such visual
recording and "cinematograph" shall be construed as including any work
produced by any process analogous to cinematography including video
films.28
"Government work" means a work which is made or published by or under
the direction or control of
o the government or any department of the government
o any legislature in India, and
o any court, tribunal or other judicial authority in India.
"Indian work" means a literary, dramatic or musical work,
o the author of which is a citizen of India; or
o which is first published in India; or
o the author of which, in the case of an unpublished work is, at
the time of the making of the work, a citizen of India.
26 Copyright Act, S. 2(1)(p).
27 Copyright Act, S. 2(1)(xx).
28 Copyright Act,S. 2(1) (f).

AUTHORSHIP AND OWNERSHIP

Copyright protects the rights of authors, i.e., creators of intellectual
property in the form of literary, musical, dramatic and artistic works and
cinematograph films and sound recordings. Ordinarily the author is the first
owner of copyright in a work.
In the case of a literary or dramatic work the author, i.e., the person who
creates the work.

In the case of a musical work, the composer.

In the case of a cinematograph film, the producer.

In the case of a sound recording, the producer.

In the case of a photograph, the photographer.

In the case of a computer generated work, the person who causes the
work to be created.

There are many right holders in a musical sound recording. For example,
the lyricist who wrote the lyrics, the composer who set the music, the singer
who sang the song, the musician (s) who performed the background music,
and the person or company who produced the sound recording.29
A sound recording generally comprises various rights. It is necessary to
obtain the licences from each and every right owner in the sound recording.
This would ,inter alia, include the producer of the sound recording, the
lyricist who wrote the lyrics, and the musician who composed the music. In
the case of a government work, government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein. In the
case of a work made or first published by or under the direction or control
of any public undertaking, such public undertaking shall, in the absence of
29 V.K Ahuja, Law of Copyright and Neighbouring Rights: National and
International Perspectives, (1st ed, 2013).

any agreement to the contrary, be the first owner of the copyright therein.
In the case of a literary, dramatic or artistic work made by the author in the
course of his employment by the proprietor of a newspaper, magazine or
similar periodical under a contract of service or apprenticeship, for the
purpose of publication in a newspaper, magazine or similar periodical, the
said proprietor shall, in the absence of any agreement to the contrary, be
the first owner of the copyright in the work in so far as the copyright relates
to the publication of the work in any newspaper, magazine or similar
periodical, or to the reproduction of the work for the purpose of its being so
published, but in all other respects the author shall be the first owner of the
copyright in the work.30
In the case of a work made in the course of the authors employment under
a contract of service or apprenticeship, the employer shall, in the absence
of any agreement to the contrary, be the first owner of the copyright
therein.31
In the case of a photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph film made, for valuable consideration at the
instance of any person, such person shall, in the absence of any agreement
to the contrary, be the first owner of the copyright therein. The owner of the
copyright in an existing work or the prospective owner of the copyright in a
future work may assign to any person the copyright either wholly or
partially and either generally or subject to limitations and either for the
whole term of the copyright or any part thereof.
It shall be in writing signed by the assignor or by his duly authorised agent.
It shall identify the specific works and specify the rights assigned and the
duration and territorial extent of such assignment. It shall also specify the
30 Id.
31 Supra note at 21.

amount of royalty payable, if any, to the author or his legal heirs during the
currency of the assignment and the assignment shall be subject to revision,
extension or termination on terms mutually agreed upon by the parties.32
Where the assignee does not exercise the rights assigned to him within a
period of one year from the date of assignment, the assignment in respect of
such rights shall be deemed to have lapsed after the expiry of the said
period unless otherwise specified in the assignment. If the period of
assignment is not stated, it shall be deemed to be five years from the date of
assignment. If the territorial extent of assignment of the rights is not
specified, it shall be presumed to extend within the whole of India. The
author of a work may relinquish all or any of the rights comprising the
copyright in the work by giving notice in the prescribed form to the
Registrar of Copyrights.
REGISTRATION OF COPYRIGHT
Acquisition of copyright is automatic and it does not require any formality.
However, certificate of registration of copyright and the entries made
therein serve as prima facie evidence in a court of law with reference to
dispute relating to ownership of copyright.
Copyright comes into existence as soon as a work is created and no
formality is required to be completed for acquiring copyright. However,
facilities exist for having the work registered in the Register of Copyrights
maintained in the Copyright Office of the Department of Education. The
entries made in the Register of Copyrights serve as prima-facie evidence in
the court of law. The Copyright Office has been set up to provide
registration facilities to all types of works and is headed by a Registrar of
Copyrights.33

32 Id.

Application for registration is to be made on Form IV ( Including Statement

of Particulars and Statement of Further Particulars) as prescribed in the
first schedule to the Rules ;
a. Separate applications should be made for registration of each work;
b. Each application should be accompanied by the requisite fee
prescribed in the second schedule to the Rules ; and
c. The applications should be signed by the applicant or the advocate in
whose favour a Vakalatnama or Power of Attorney has been executed.
The Power of Attorney signed by the party and accepted by the
advocate should also be enclosed.
Each and every column of the Statement of Particulars and Statement of
Further Particulars should be replied specifically.
Both published and unpublished works can be registered. Copyright in
works published before 21stJanuary, 1958, i.e., before the Copyright Act,
1957 came in force, can also be registered, provided the works still enjoy
copyright. Three copies of published work may be sent along with the
application. If the work to be registered is unpublished, a copy of the
manuscript has to be sent along with the application for affixing the stamp
of the Copyright Office in proof of the work having been registered. In case
two copies of the manuscript are sent, one copy of the same duly stamped
will be returned, while the other will be retained, as far as possible, in the
Copyright Office for record and will be kept confidential. It would also be
open to the applicant to send only extracts from the unpublished work

33Office for Harmonization in the Internal Market ,Guide to Intellectual Property

Rights in India, 2014.

instead of the whole manuscript and ask for the return of the extracts after
being stamped with the seal of the Copyright Office.34
When a work has been registered as unpublished and subsequently it is
published, the applicant may apply for changes in particulars entered in the
Register of Copyright in Form V with prescribed fee.
Application for registration of copyright alongwith statement of particulars
and instructions for filling up the statement of particulars are at Appendix I.
TERM OF COPYRIGHT
The general rule is that copyright lasts for 60 years. In the case of original
literary, dramatic, musical and artistic works the 60-year period is counted
from the year following the death of the author. In the case of
cinematograph
publications,

films,

sound

anonymous

and

recordings,

photographs,

pseudonymous

publications,

posthumous
works

of

government and works of international organisations, the 60-year period is

counted from the date of publication.35
PERFORMERS RIGHTS
As per the Indian Copyright Act, 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.
"Performance" in relation to performers right, means any visual or acoustic
presentation made live by one or more performers.36
34 Id.
35 N.K Acharya, Textbook on Intellectual Property Rights, 2012.
36Id.

A performer has the following rights in his/her performance:

Right to make a sound recording or visual recording of the

performance;

Right to reproduce the sound recording or visual recording of the

performance;

Right to broadcast the performance;

Right to communicate the performance to the public otherwise than

by broadcast.

Performers rights subsist for 25 years. Once a performer has consented for
incorporation of his performance in a cinematograph film, he shall have no
more performers rights to that performance.
BROADCASTERS RIGHTS
"Broadcast" means communication to the public:

by any means of wireless diffusion, whether in any one or more of the

forms of signs, sounds or visual images; or

by wire.

The rights of a broadcasting organization with reference to a broadcast

are :

right to re-broadcast the broadcast;

right to cause the broadcast to be heard or seen by the public on

payment of any charges;

right to make any sound recording or visual recording of the

broadcast;

right to make 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;
and

right to sell or hire to the public, or offer for such sale or hire, any
sound recording or visual recording of the broadcast.

The term of protection for broadcasters rights is 25 years.

CHAPTER - 4

PERFORMERS RIGHT IN INDIA

Definition
The definition of a performance in Section 2(q) of the Copyright Act is:
performance, in relation to performer's right, means any visual or acoustic
presentation made live by one or more performers. The words made live
are not defined in the statute, and unless a live performance is construed
extremely broadly, and the statute is interpreted purposively, it is not clear
how it could apply to the recorded performance of an actor in a film.
However, the provisions of the statute have been widely interpreted to mean
that film actors are intended to be able to benefit from the performers
right, especially in light of the amendment to Section 2(qq) of the existing
Act which defines a performer. As such, there appears to be a technical
infirmity

in

the

copyright

statute

insofar

as

requiring

recorded

performance to be considered to be a live performance, so as to enable a

film actor to be considered to enjoy the performers right as contemplated
by

the

statute,

is

concerned.37

The definition of a performer in Section 2(qq) of the existing Act was

amended by the 2012 Act. Under the existing Act, the Section contained an
inclusive definition which stated that 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. The
2012 Act amended this definition by appending a Proviso to the Section
which would disable those performers not mentioned in a films credits
(including film extras) from being able to claim all but one of the rights
granted

to

performers

37 Supra Note at 35.

by

the

Act.

This

Proviso

states:

Provided that in a cinematograph film a person whose performance is

casual or incidental in nature and, in the normal course of practice of the
industry, is not acknowledged anywhere including in the credits of the film,
shall not be treated as a performer except for the purpose of clause (b) of
section 38B.38
Section 38B is a new provision in the Act which deals with the moral rights
of performers. This particular provision Section 38B(b) of the Act
states that the performer of a performance shall, independently of his right
after assignment, either wholly or partially of his rights, have the right to
restrain or claim damages in respect of any distortion, mutilation or other
modification of his performance that would be prejudicial to his reputation.
The other right which a performer would have under Section 38B(a) of
the Act is the right to claim to be identified as the performer of his
performance except where omission is dictated by the manner of the use of
the performance. This right under the proposed Section 38B(a) obviously
cannot apply to extras in films as they are not credited by definition. The
two rights enumerated under the proposed Section 38B of the Act comprise
the Moral Rights intended to be accorded to performers, and are
analogous to the Moral Rights which are accorded to the authors of works
protected by copyright. It is pertinent to note that the provision also
contains a safeguard against abuse of moral rights in the form of an
Explanation which would state that the mere removal of any portion of a
performance for the purpose of editing, or to fit the recording 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.
This too is analogous to the rights granted to authors: the moral right of an
author would not be considered to have been violated merely because his

38 Id.

work has, for example, not been displayed to his or her satisfaction. 39
In addition to this, the provisions regarding the violation of the Performers
Right have been significantly restructured in the Bill, and have been
transposed to a new Section: 38A of the Act. Section 38(3) of the Copyright
Act before the coming into force of the 2012 amendments enumerated a
number of acts the performance of which would have been a violation of the
performers right. Thus, it was been drafted in proscriptive sense. Section
38A of the Act now enumerates acts similar to those listed in Section 14
(which defines the Meaning of Copyright) of the copyright statute, but
instead of stating that performing them without consent would cause one to
violate the performers right, it states that these it is the exclusive right of
the performer to perform or authorise the performance of these acts or any
substantial part thereof. As such, the new Section 38A may be considered to
be perspective in nature.

40

Finally, under Section 38A of the Act, the rights of performers in films have
been considerably widened. Under the copyright statute, once a performer
consents to the incorporation of his performance in a cinematograph film,
no performers right would apply to that particular performance. The Act,
however, does not completely do away with the performers right. Firstly, it
contemplates that the consent of a performer for the incorporation of his
performance in a cinematograph film would be in wrting and would not be
in oral.

41

39Rachna Puri Singh , Practical Approach to Intellectual Property Rights , (1st ed.
2012)
40 Id.
41 www.nishithdesai.com/.../user.../Intellectual_Property_Law_in_India.pdf

Further, once a performer gives valid consent for the incorporation of his
performance in a film, he would not generally be able to object to the
enjoyment by the films producer of his performers right in it. There are
two important caveats under the Act though: firstly, the performer may
enter into an agreement to the contrary i.e. there would be no statutory
prohibition to his entering into an agreement which stated that he could
object to the producer enjoying his performers right in the film. Secondly,
the producers enjoyment of the performers right in the film may be
interpreted to be limited to the film, so that the producer would not be able
to enjoy the performers right for the purpose of retaining all the revenues
generated

through

the

commercial

use

of

performance.

Further, the prohibition on the producers enjoyment of the performers

right in respect of commercial use is buttressed by a Proviso which states
that notwithstanding anything contained in Section 38A(2), the performer
shall be entitled for royalties in case of making of the performances for
commercial use. It thus appears that a performer would be entitled to
continuing royalties for any commercial use of their performance. Although
this Proviso is not a model of clarity, it would appear that the intention is to
accord to performers the benefits analogous to those which the 2012 Act
accords to the authors of underlying works incorporated in films and sound
recordings for live performances. This would make available to performers
revenue stream which has thus far not been known to have been accorded
to them, particularly since applying the provisions of Sections 18 and 19 to
the performers right would give performers an equal share of revenues for
live performances analogous to the ones which the authors of underlying
works

in

films

and

sound

recordings

enjoy. 42

In its report, the PSC broadly supported the provisions restructuring the
42 copyright.lawmatters.in/2012/.../the-performers-right-under-2012-act

performer's right and according moral rights to performers. However, it

highlighted an observation of the Association of the Radio Operators of
India stating that if a performance were to be defined in a manner which
included communication by any means to public of any sound recordings,
current judicial deliberations on whether free broadcast through radio
constitutes

performance

would

be

virtually

overruled.

Noting

the

Associations observation that the playing of recorded songs cannot be

construed as performance and this matter is currently under review of
courts,

the

PSC

recommended

the

modification

of

the

proposed

amendments in the light of court rulings this proposal of the PSC,

however,

did

not

appear

to

find

mention

in

the

2012

Act. 43

As such, a continuing question is whether performers in films i.e. actors

would be considered to have a performers right as all this is because
Section 2(q) of the Act which defines a performance states that, in relation
to performer's right, a performance is any visual or acoustic presentation
made live by one or more performers, as discussed earlier. Although a live
performance has not been separately defined, it is not entirely clear how the
recording of an actors performance in a film could be attended by the
performer's right, unless the term live performance were to be interpreted
extremely enthusiastically and broadly.
Performers Right in India under Copyright
Section 2(q)

performance includes any mode of visual or acoustic

presentation, including any such presentation by the exhibition of a

cinematograph film, or by means of radio-diffusion, or by the use of a
record, or by any other means and , in relation to a lecture, includes the
delivery of such lecture;44
43 Supra Note at 22.
44 Copyright Act, Section 2(q)

Section 2 (qq) 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;45
The performers Right is the result of amendment of the Copyright Act in
1994, there was no protection of the rights of performances as explained in
section 2(qq). The amendment introduced the recognition to rights of the
Performer under section 38. These sections gave birth to the Performers
Rights.
Moral Rights in India
The moral rights are the gift of Berne Convention, the Article 6bis gave a
system of moral rights that were internationally recognized principles. India
took the inspiration of moral rights from 6bis, which gave a proper platform
for the implementation of the moral rights. Although the Indian legislation
has a broader scope are dynamic and has more flexible interpretation than
Article 6bis.
Under section 57 of the Copyright Act 1957, confer moral rights to the
author. The section does not apply to the performers rights. In the Indian
context the provision of s 57 meets minimum requirements of Berne
Convention. Under section 57 of the Act the author has the right to protect
himself from infringement or claim damages for any infringement of the
copyright although it in terms of the software. According to Copyright Act
Section 39A the moral rights are the rights to claim the authorship of the
work, and the right of the integrity of the work. To be precise the aim of the
moral rights is to protect the interest of the performers as the economic
rights already exist in India, although the adaptation of the moral rights is
easy.46

45 Copyright Act, Section 2(qq)

46 http://lawmantra.co.in/performers-right-a-critical-analysis-of-law-in-india-andbeyond-by-sneha-ayachit-llm/

Acts not constituting infringement of a performers right under section 39 of

the Act:
The rights of the performer and broadcasting organization are not
conclusive. Following are the acts which does not constitute infringement of
a performers right:
a)

A person makes any sound recording or visual recording for the

private use or solely for bona fide teaching or research purpose,

b)

Excerpts of a performance are used, consistent with fair dealing, in

the reporting of current events or

for bona fide review, teaching or

research,
c)

An act is done after necessary adaptation and modification which does

not constitute infringement of copyright under section 52 of the Act.

The WIPO Performances and Phonograms Treaty WPPT,1996 came with an
amendment of 2012 which gave a new dimension to the moral rights that
states that performer shall independently of his right after assignment,
either wholly or partially of his right, have the right(a)

To claim his performance and

(b)

To protect his performance from any distortion, mutilation other

modification this in return might axe his performance.

(c)

Not allowing any person to use the performance without prior

permission of the performer.

The Copyright (Amendment) Act of 1999.
Application of broadcasting rights and performers rights to foreign
broadcasting organisations and performers- Section 40A
S.40A where any foreign country has made provisions to give Indian
Broadcasting organisation and performers the same right as available in
India, the broadcasting organizations and performers of that country will be
granted similar rights in India, for details.47
S.42A which was again inserted by Copyright (Amendment) Act 1999.
47 Id.

Restriction of rights of foreign broadcasting organizations and performerssection 42A

If any foreign country does not give adequate protection to broadcasting
organizations

and

performers

the

broadcasting

organizations

and

performers of that country will not be entitled to corresponding rights

available in India.48
Prior to the Amendment of 2012 in Copyright Act 1957, parody and mimicry
were held to be legally permissible but it is yet to be seen how the courts
will treat the parody and mimicry performed by performers post 2012 in
view of newly inserted clause (b) to section 38(b).
Finally the phrase performers right comprises all the right that may
accrue to a performer by virtue of his performance. They are hence a
bundling three distinct types of legal rights: Economic rights, moral rights
and non tangible rights. Economic Rights include right of reproduction,
adaptation, distribution, rental, lending remuneration and communication.49
The moral rights are the rights of attribution and integrity over the work
performed. Non-tangible rights are most difficult to define. They include the
right over the persona of performance, the right against the use of likeness
or name of the performance, rights over the performers creativity in
execution of performance over his unique and distinct expression and style.
These are the three basic rights which a performer has. The performers
right subsists for 50 years from the next year in which the performance was
made.
The right of the performers under the Copyright Act 1957 is in a narrow
scope as per the protection of performer in Indian law, once the
performances are broadcasted, recorded or communicated with the consent
48 Alka Chawla Law of Copyright: Comparative Perspective,(1 st Edi.2013)
49 Sanhita Ambast, Protecting PerformersRight:Does India need Law Reform,
Vol13, Journal of Intellectual Property,
(mar.28,2008) http://nopr.niscair.res.in/bitstream/123456789/2432/1/JIPR
%2013(6)%20574-582.pdf

of the performer, his rights over any kind of performance i.e visual or vocal
dies. A performance cant be broadcasted, reproduced or recorded if the
prior permission of the performer is not taken when such reproduction is
not allowed.
In Super Cassettes Industries v. Bathla Cassettes 50, the reason for failure of
production of performers right is because the copyright law protects the
creation and not the ideas thus balancing the competing, interest of
ensuring incentives and encouraging creativity becomes difficult.
The law in India which governs the Performers Right are under developed
when compared with the laws in U.K and U.S.A are intricate.
When compared with U.S.A the Indian laws are weak although the
protection given by USA is in a similar form as India gives but the principle
mechanism is the law of tort. Although there is no specific legislation which
gives protection to the Performers, the rights of performers is protected by
the right of publicity which is evolved by American Courts. A tortuous
doctrine evolved by American courts in direct response to claims of
infringement of performers right. This makes the American system
distinctly different from Indian and English regimes, and warrants a closer
look at American performer protection law policy.51
When compared with England, there the Performers Protection Act was
passed in 1925.the performers right in England are in equal footing with
India. In England the Performers are granted economic rights. The
inadequacy in the English legal system is primarily with respect to
unprotected moral rights and non tangible rights. As in the Indian system,
this is primarily because England uses a system of copyright to protect
performers interest.

50 Super Cassettes Industries v. Bathla Cassettes , 2003 VIIIAD Delhi 572.

51 Deborah E., Intellectual Property: The Law of Trademarks, Copyrights, Patents,
and Trade Secrets (English) 3rd Edition

At the end we can say that the legal system of USA is strong when
compared with India both the economic rights and some non tangible
rights of performers are protected. There are some limitations also however
the right of publicity is a useful judicial innovation; its applicability is
limited only in a country like India, where the judicial system has not
developed a jurisprudence of publicity rights.52
Copyright Societies
Copyright society is a legal body which protect the interest of owners of the
work in which the copyright exist. Prior to the coming into force of the
Copyright (Amendment) Act 1994, the ss. 33 to 36 dealt with the Performing
Rights Societies which only gave right for issuing or granting licenses for
performance in India of any work in which copyright subsisted. These
sections limited the scope to granting licenses for the performance in India
of any work in which copyright subsisted. But after the implementation of
the amendment Act the scope of Copyright society was broadened from
issuing or granting licenses and all rights relating to any class of work in
which copyright subsist under the Act. The copyright society is a body
created under copyright act 1957 that gives license to the work and collect
royalties.53
The Delhi High Court in Event and Entertainment Management Association
v. Union of India and ors.54 It was held that the law laid down in Federation

52 Id.
53 Supra note at 51.
54 Event and Entertainment Management Association v. Union of India and ors., W.
P. (C) 5422/2008 & CM APPL 10648/2010

of Hotels and Restaurant Association of India v. UOI 55 held that the working
of the copyright societies to be monitored and guided by the Copyright Act
When a person generates his own work, there is a possibility that there
might be infringement of his work. So in order to avoid such difficulty
owners of copyright work together and form societies to licenses their work
for performance or communication to the public or issue rights to other.
Copyright societies means a society registered under sub section (3) of
section 33 of the Act. In UK as well as in India the Performing rights society
which is established of copyright society under which IPRS is established.
The Copyright Societies in India like The Indian Performing Rights Society
Limited (IPRS), The Phonographic Performance Limited (PPL) and Society
for Copyright Regulations of Indian Producers of Films and Television
(SCRIPT) Indian Reproduction Rights Organization (IRRO) are registered
with Central Government.
These societies are active in term of protecting the rights of the performer,
Phonographic Performance Limited (PPL) which administers the right of the
recording companies like Tips, Universal and Times Music etc. It negotiates
the terms of remuneration with the broadcasters, television, other users like
hotel, restaurant etc.
In Music Broadcast Pvt. Ltd v. Phonographic performances ltd.56 The issue
before the Copyright Board was reasonable determination of tariff to be
payable radio broadcasters for exploiting by way of broadcast the sound
recording administered by phonographic Performances Ltd. (PPL).
For performers there is a performing rights society which came into
existence on 23rd August 1969 and named as IPRS. The Indian performers
Right Society is not profit making. It is a company limited by guarantee and
55 Federation of Hotels and Restaurant Association of India v. UOI, 2004 (29) PTC
282 Bom
56 Music Broadcast Pvt. Ltd v. Phonographic performances ltd., 2004 (29) PTC 282
Bom.

registered under the Companies Act, 1956 and authorized under section 33
of the Act. IPRS has more than 1500 members who are local composers,
lyric writers and publishers and also represents international music .This
body represents the composers, lyricist and the publisher of music. This
body deals with the issuing or granting of licenses for any musical work,
literary work to any person within the territory of India. It is one of its own
kinds in India for issuing and granting of licenses for acquiring rights on the
music.
The users who need to perform or broadcast or play any literary work or
musical work they have to take prior permission or in other words they have
to obtain license for public performance. The users such as radio station,
television station etc need to obtain license.
It is the most authenticate source to remit, distribute and collect not only
Indian royalties but also international royalties. The IPRS is a very active
society for the protection of performers right in India. It has helped in
improving the economic status of the performers and the users they also
find very easy to obtain license for making legal use of the protected work.
It is the most authenticate source to remit, distribute and collect not only
Indian royalties but also international royalties.
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 57, 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,

society

administering

the

public

57Music Broadcast vs. Phonographic Performance, Civil Appeal No. 5183/2005

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.
Performers 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 performers 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 Anand58, 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 Association59, the Apex Court held that that if an author of a
musical work has authorised a cinematograph film producer to incorporate
58 Fortune film vs. Dev Anand AIR 1979 Bom 17.

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 Anr60
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. 2s 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:

59 Indian Performing Rights Society vs. East Indian Motion Pictures Association ,
AIR (1977) SC 1443.
60 Neha Bhasin vs. Anand Raj Anand and Anr , 2006 INDLAW DEL 377

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 performers
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)

Agreement61 contains provisions in respect of the rights of performers in

their unfixed performances. Specifically, Art. 14(1) provides as follows:62
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
61 The term of protection is 50 yrs.
62 Trade-Related Aspects of Intellectual Property Rights Agreement, art. 14
provides for performers 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.

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 performers 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
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.

CHAPTER - 5

CONCLUSION
Indias Copyright Act, 1957 has been significantly amended. In May 2012,
both houses of the Indian Parliament unanimously placed their seal on
the Copyright Amendment Bill, 2012, bringing Indian copyright law into
compliance with the World Intellectual Property Organization Internet
Treaties. Leaders of the opposition in both houses and representatives
from various parties gave spirited support to the bill tabled by the
government. The Copyright Act, 1957 had been amended five times prior to
2012, once each in the years 1983, 1984, 1992, 1994 and 1999, to meet
with the national and international requirements. The 2012 amendments
make Indian Copyright Law compliant with the Internet Treaties theWIPO
Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty
(WPPT). Also, while introducing technological protection measures, the
amended law ensures that fair use survives in the digital era by providing
special fair use provisions. The amendments have made many authorfriendly

amendments,

special

provisions

for

disabled,

amendments

facilitating access to works and other amendments to streamline copyright

administration.63
The amendments introduced through Copyright (Amendment) Act 2012 can
be categorized into:
1. Amendments to rights in artistic works, cinematograph films and sound
recordings.
2. WCT and WPPT related amendment to rights
3. Author-friendly amendments on mode of Assignment and Licenses
4. Amendments facilitating Access to Works

63 P. Narayanan, Intellectual Property Law,293(3rd ed 2013)

5. Strengthening enforcement and protecting against Internet piracy

6. Reform of Copyright Board and other minor amendments
Performers Rights
The Amendment Act 2012 has introduced affirmative performers rights.
Subsections 3&4 of the present section 38 have been omitted and a new
section 38A has been inserted in compliance with Articles from 6 to 10 of
WPPT.64
Section 38A provides for performers right as an exclusive right to do or
authorize the doing of any of the acts in respect of the performance without
prejudice to the rights conferred on authors. The proviso to the section
enables performers to be entitled for royalties in case their performances
are subjected to commercial use.
This is a welcome development as earlier the performers were not entitled
to royalties because they only had a negative right to prohibit fixation of
their live performances. The negative right has now been converted to the
positive rights.65
Along with the above, the Amendment Act 2012 has also sought to amend
the definition of Communication to Public (Section 2 (ff)) extending the
right to performances. The rights under this head hitherto limited to
authors have been extended to performers by the present amendment.
This is consequential to the grant of new rights to performers. The right of
communication to public is essential to protect the work on the internet
and such protection hitherto available for works now extends to
performances.
64 Id.
65 Institute of Company Company Secretaries Of India, Intellectual Property
Rights Law and Practice ICSI,

A new section 38B grants moral rights to performers in line with Article 5 of
WPPT. Moral rights have been extended to performers, considering the
possibility of digital alteration of performances in a digital environment. The
explanation to the section clarifies that editors are free to perform their
tasks

without

the

fear

of

legal

consequences.

Another

significant

amendment in line with Article 9 of WCT is regarding the duration of

protection of photographic works. The term of copyright in a photograph
has been made at par with other artistic works, namely, until sixty years
after the death of the author. 66 The performers right has been restructured;
for the most part, the restructuring has not resulted in substantial changes
although one striking difference is that performers are now entitled for
royalties in case of making of the performances for commercial use under
the new Section 38A. Performers have also been accorded moral rights in
the new Section 38B. These rights are similar to the moral rights accorded
to authors and basically encompass the rights to paternity and integrity. An
amendment to the definition of a performer in Section 2(qq) means that,
among film actors, only those performers credited in cinematograph films
would be entitled to the performers right and to the right to integrity. All
performers in cinematograph films, whether or not credited, however, are
granted the right to integrity. 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 performers 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
66 Id.

first step forward towards giving performers in India their due, a stronger
and more all-encompassing performer protection regime.

BIBLIOGRAPHY
BOOKS REFERRED
1. M.L. Varadpande, invitation to lndfan Theatre, Arnold -Heinemann, New
Delhi (1Sedn. 4987), pp.9-10. From aboriginals to Mohenhjadaro and Indus
drama took shape independently as ritual and popular entertainment.
2. S. Bandhopadhyaya, Indian Music Through the Ages, B.R. Publishing
Corporation, New Delhi 15 edn. -1985), p.9.
3. Anupa Pande, A Historical and Cultural Study of the Natyashashtra of
Bharatha, kusumanjali Prakashan, Jodhpur (1st edn.-1991), p.27.
4. Nemichandra Jain, lndian Theatre, Tradition, Continuity and Change, Vikas
5.
6.
7.
8.
9.

Publishing House Private Limited, New Delhi llth edn. -1992), p.56.
The Oxford English Dictionary, 1884
Dr. V K Ahuja, Law Relating to Intellectual Property Rights, 110, (2007)
Alka Chawla, Law of Copyright: Comparative Perspectives, (1st ed. 2013)
Copyright office, copyright.gov.in/documents/copyrightrules1957.pdf
V.K Ahuja, Law of Copyright and Neighbouring Rights: National and

International Perspectives, (1st ed, 2013).

10. Office for Harmonization in the Internal Market ,Guide to Intellectual
Property Rights in India, 2014.
11. N.K Acharya, Textbook on Intellectual Property Rights, 2012.
12. Rachna Puri Singh , Practical Approach to Intellectual Property Rights ,
(1st ed. 2012)
13. copyright.lawmatters.in/2012/.../the-performers-right-under-2012-act
14. Alka Chawla Law of Copyright: Comparative Perspective,(1st Edi.2013)
15. Deborah E., Intellectual Property: The Law of Trademarks, Copyrights,
Patents, and Trade
Secrets (English) 3rd Edition
16. Event and Entertainment Management Association v. Union of India and
ors., W. P. (C) 5422/2008 & CM APPL 10648/2010
17. P. Narayanan, Intellectual Property Law,293(3rd ed 2013)
18. Institute of Company Company Secretaries Of India, Intellectual Property
Rights Law and Practice ICSI,
WEBSITES REFERRED
1. The Performer and the law in India, School of legal studies, 2008.
2. Akshat
Razdan,
Performers
Rights
in
India,
http://www.lawinfowire.com/articleinfo/performers-rights-india. Sneha
Ayachit, Performers Right: A critical analysis of law in India and

beyond,

http://lawmantra.co.in/performers-right-a-critical-analysis-of-

law-in-india-and-beyond-by-sneha-ayachit-llm/
3. Competition and Enterprise Branch Ministry

of

Economic

Development, Performers Right A Discussion Paper, (July 2001)

http://www.med.govt.nz/business/intellectual-property/pdf-docslibrary/copyright/performers-rights-discussion-paper-pdf
4. Alhaji Tejan-Cole, International copyright law part ii:

The rome

convention, 1961 (international convention for the protection of

Performers,

producers

of

phonograms

organizations)

And

broadcasting

www.belipo.bz/wp

content/uploads/2011/12/romeconvention.pdf
5. Copyright office, http://copyright.gov.in/
6. www.nishithdesai.com/.../user.../Intellectual_Property_Law_in_India.pd
f
7. http://lawmantra.co.in/performers-right-a-critical-analysis-of-law-inindia-and-beyond-by-sneha-ayachit-llm/
8. Sanhita Ambast, Protecting PerformersRight:Does India need Law
Reform,

Vol13,

Journal

of

Intellectual

Property,

(mar.28,2008) http://nopr.niscair.res.in/bitstream/123456789/2432/1/JI
PR%2013(6)%20574-582.pdf
CASES REFERRED
1. Super Cassettes Industries v. Bathla Cassettes , 2003 VIIIAD Delhi
572.
2. Fortune Films International v. Dev Anand , AIR 1979 Bom 17
3. Federation of Hotels and Restaurant Association of India v. UOI, 2004
(29) PTC 282 Bom
4. Music Broadcast Pvt. Ltd v. Phonographic performances ltd., 2004
(29) PTC 282 Bom.
5. Neha Bhasin vs. Anand Raj Anand and Anr,