'Performer' under copyright law and the genesis of performer's rights
The scope of protection offered by copyright law is not merely restricted to the creative works produced by artists or performers. In fact, it also bestows certain rights upon creators and performers. Through the protection offered by copyright law, a performer may claim ownership over their original works. This way, a third party cannot use their work without the performer's permission. Such rights may also allow performers to license their original works through which they may receive some amount of monetary compensation. However, unlike today, performer's rights have not existed since the creation of the Copyright Act in India. The Indian judicial system discerned a gap in the copyright system with respect to performer's rights after adjudicating the case of Fortune Films v. Dev Anand in 1979. This case fuelled the genesis of performer's rights in India. Subsequently, sections 38, 39 and 39A were inserted into the copyright act in India, which dealt with a performer's rights. Section 2(qq) of the copyright act defines that a performer may include an actor, dancer, musician, acrobat, singer, snake charmer, conjurer juggler, a person delivering a lecture or any other person who puts up a performance.
International treaties and agreements related to performer's rights
The origination of performer's rights can also be traced back to International Conventions. Most prominently, the Rome Convention of 1961 is known as the International Convention responsible for the protection of performers, producers of phonograms and broadcasting organizations. The Rome Convention was established by the International Labor Organization, United Nations Educational, Scientific and Cultural Organization, and World Intellectual Property Organization. According to the Rome Convention, a performer's rights were protected for 20 years from the end of the year on which the performance took place. Furthermore, the TRIPS agreement also bestows certain rights upon performers such as the right to prevent reproduction of live performances, the right to protect their work from broadcast and communication to the public by wireless means and the right to prevent the fixation of their live performance on phonograms. Such conventions and agreements formed the basis for propounding performer's rights under Indian copyright law.
Performer's rights under Indian Copyright Law
- Performer has the right to broadcast a performance
Once a performer delivers a live performance, the performer may permit a third party to broadcast the live performance. If a third party broadcasts the live performance without prior permission from the performer, it may amount to copyright infringement. However, there is an exception to this. If the live performance is used in a cinematograph film, the rights pertaining to the performance will vest on the producer of the cinematograph film. However, the producer is not allowed to procure commercial gains by using the live performance. If a producer or a third party uses the live performance for commercial gains, the performer is well within their rights to claim royalties for the same.
- The performer has the right to produce a sound recording or a visual recording of the performance
The rights pertaining to reproducing a sound or a visual recording in the form of copies, commercially renting the copies or uploading the sound or visual recording on a public platform vests on the performer. Thus, a performer can also be considered the producer of the sound or visual recording. However, the performer has to obtain the consent of all the parties involved in creating the sound or visual recording. This may include lyricists, composers or actors.
- The performer has the right to make a sound or a visual recording
A performer may create a sound or a visual recording and subsequently permit a third party to record the performance. However, the third party is disallowed from using the visual or sound recording for any other purpose. A third party is particularly disallowed from using the recording for any monetary gains as well. However, prior consent must be obtained from the performer if the performance is integrated into a cinematograph film. In this case, the rights pertaining to the performance will vest with the producer of the cinematograph film.
- The performer has the right to communicate the work through different mediums that may not include broadcasting
A performer is well within their rights to communicate their work through various mediums to the general public. This may include wireless mediums such as social media or OTT platforms and mediums that use wires to broadcast performances.
Moral rights that vest on a performer
Moral rights include rights that are non-commercial in nature which vests on the performer. As per the moral rights bestowed upon performers by the copyright act, a performer has the right to:
- "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; and
- To restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation."
Essentially, this means that the performer is bestowed with certain rights wholly or partly even upon assigning the performance to a third party. Moreover, if the performance is distorted or mutilated in a manner that could potentially damage the performer's reputation, the performer is well within their rights to restrain or claim damages from the party who has made the modifications in question.
What are the remedies available to a performer in case of infringement?
When a performer's rights are infringed upon, the Court may provide the right to search the defendant's premises through a Court order. This order is called the 'Anton Piller order'. An Anton Piller order is issued so that the plaintiff and their attorney can probe the defendant's premises to obtain any relevant evidence that may support the fact that the performer's rights have been infringed. Apart from an Anton Piller order, civil and criminal remedies are other options that a performer may avail in case their rights are infringed upon. Civil remedies may include obtaining a temporary or a permanent injunction, and criminal remedies may include obtaining a fine from the infringer and jail sentences that may extend up to three years.
Therefore, the inclusion of performer's rights is a highly fruitful step in the realm of copyright law. Several performers are often subjected to unfair practices by producers or music labels in the entertainment industry. Thus, the aforementioned rights would greatly benefit the performers and the work they produce.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
