INTRODUCTION:
Copyright is a certain kind of intellectual property protection guaranteed under the established law to the original creator’s work of authorship. This right is exclusively given to authors, composers etc for a certain time period to print ,publish and sell copies of his original work.
The first Copyright Act was passed in India in the year of 1914 under the British rule and the Copyright Act that is presently in force was enacted in the year of 1957 and amended in the year of 1999. The rights of performers like musicians, actors, singers etc were not recognised by the Copyright Act for a long time. The amendment of 1994 introduced the rights of a performer calling them the performers rights under section 38 of the Copyright Act . This was done in order to protect the livelihood of the performers which was threatened by the technological changes.
Under section 2(gg) of the act performer includes an acrobat, musician, singer, juggler, snake charmer, a person delivering lecture or any other performer who makes a performance. Performance in relation to the performance right means any visual or asotic presentation made by one or more performers.
RIGHTS OF A PERFORMER UNDER THE COPYRIGHT PROTECTION ACT:
The performer has the exclusive right to do the following under the act:
1. PERFORMANCE RIGHT TO MAKE SOUND RECORDING OR VISUAL RECORDING OF THE PERFORMANCE:
According to section 1(xx) of the Copyright Protection Act, performer has a right to make sound recording or visual recording of his performance. The law also authorises him to record a live performance and he possesses an exclusive right to make sound recordings from such sounds maybe produced regardless of the medium on which such recording is made on method by which the sounds are produced. Besides only if the sound record is lawfully made the copyright shall subsist otherwise it does not if the recording may include any component that is an infringement of any literary, dramatic or musical work.
The sound recordings and music works incorporating the music are considered to be two different subjects for copyright. The copyright of the music was entrusted with the composer while the copyright of the music recording is entrusted with the producer of the sound recording. While the composer has not written down the lyrics but he performs the song and records it ,two copyright simultaneously comes into existence; that is one is for the music and other for the recording.
2. RIGHTS TO PRODUCE A SOUND RECORDING OR VISUAL RECORDING OF THE PERFORMANCE:
A performer has a right to produce a sound recording or visual recording of his performance according to the laws prescribed. He has the right to make copies of the recordings as well as issue copies of the recordings for the public or rent and lend the copies. But there are certain conditions which are to be displayed with the recordings:
a. A copy of certificate granted by the board of film certification;
b. The name and address of the owner of the copyright in such work; and
c. The persons name and address who has made the film and a declaration by him that he has obtained the licence necessary or the owner’s consent of the copyright in the work for the making of the film.
If the performer fails to comply with the aforementioned turns he can be punished under law and this conditions are mainly laid down to detect any sort of piracy .
3. RIGHT TO BROADCAST THE PERFORMANCE:
The performer has a right to prevent the broadcasting of their life performances.
Broadcast means communication to the public (i) any means of wireless diffusion weather in any one or more of the forms of signs, sound and visual image or (ii) by wire and includes a rebroadcast.
But in case of broadcast of any performance that may include literary, dramatic or musical works or records which contain independent copyright the consent of the copyright owners must be obtained by the broadcasting organisation.
The earliest cases on Performer’s rights, owing to the non-recognition of Performer’s rights under the Indian copyright law, completely denied the existence of rights of Performers. In Fortune Films International v. Dev Anand [AIR 1979 Bom 17], the Honourable Supreme Court stated that an actor in a film has no rights over his performance in the film.
However, this position changed in 1994 with the Indian Copyright Act, 1957 extending recognition to Performer’s Rights with the inclusion of Sections 38 and 39. In 2003, the Delhi High Court, in Super Cassettes Industries v. Bathla Cassette Industries [107 (2003) DLT 91], while establishing that performer’s rights were different from copyright, held that re-recording of a song without the authorization of original performer constituted an infringement of the performer’s rights. This decision marked an important step forward by the Indian judiciary, with respect to the recognition of Performer’s rights in India.
As ‘performance’ under the Indian Copyright Act has been defined as any visual or acoustic presentation made live by one or more performers, the Delhi High Court, in Neha Bhasin v. Anand Raj Anand [2006 (32) PTC 779 Del.], addressed the question of what would constitute a ‘live performance’. The Court observed that “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.”
TERMS OF RIGHTS:
Copyright protection in India generally extends for the life time of the author and 60 years after that, but for performance rights, the performer has the economic rights for 50 years after the start of the year following the performance.
INFRINGEMENT OF PERFORMER’S RIGHTS :
Under section 38 of the copyright protection at the performers rights are reinforced. The Act guarantees the performers rights and if they are violated without the consent of the performer he can sue for infringement of his rights. The certain provisions under which he can sue are are:
a. Sound recording or visual recording of the performance; or
b. Reproduction of the sound recording on visual recording on reproduction for the purposes different from those for which the performer give his consent;
c. Broadcasts the performance; and
d. Communicate the performance to the public otherwise than by broadcast.
Although the above-mentioned acts can be said to be infringing the performers rights when they are committed during the continuance of the performers rights.
Along with this there are certain acts which do not constitute infringement of performers rights. This actor mentioned under section 39 of the act. Those acts are as follows:
i. Making of any sound recording or visual recording for private use of the person making such recording of society for the purpose of teaching and in good faith;
ii. Fair dealing of experts of a performance in reporting of current events in review in good faith;
iii. Other acts with any necessary adaptation and modifications which do not constitute infringement of copyright under section 52; and
iv. Use of sound recording or visual recording of the performance in the course of the activities of an educational institute if the audience is limited to students, parents and guardians and the person directly connected with the activities of the institution under section 52(1(i)).
The acts mentioned above can be done only in cases of sound recording and visual recording and the purposes cannot be called infringement of the performers rights.
REMEDIES AGAINST INFRINGEMENT OF PERFORMERS RIGHTS :
the section 55 and section 63 270 of the copyright protection Act guarantees the following remedies in cases of infringement of the performers rights.
1. Civil remedies: The owner of the copyright or his assignee or his exclusive licensee may obtain (a) injunction or (b) claim damages.
2. Criminal remedies: The offence of infringement is punishable with imprisonment which may extend from a minimum period of 6 months to a maximum period of three years or with a fine of ordered rupees 50000 to 200000.
3. Anton Pillar Order: In appropriate cases, the courts may an application by the plaintiff pass an ex parte order requiring the defendants to commit the plaintiff accompanied by solicitor autonomy to enter these premises and inspect relevant documents that officers and thereof is there off or remove them for safe custody. The necessity of such an order arises when there is a grave danger of relevant documents and infringement of articles that being removed or destroyed so that ends of justice is not defeated.
CONCLUSION:
We may conclude that copyright is a form of intellectual property right protection guaranteed under the law and the creators of the original works of authorship. The copyright law confers exclusive rights to performers like actors, musicians, dancers, acrobats, snake charmers etc to do certain acts. This right are guaranteed to them to encourage them in creating more creative content without the fear of any kind of piracy.
