Earlier the rights of performers were not granted protection under Copyright
Jurisprudence. The performance done by an actor in a cinema or the performance
of a singer in a song recording were not accorded any protection. In 1994 the
works the concept of performers rights under Copyright Jurisprudence was
recognized. The Rome Convention of 1961 provided recognition to the concept of
performers rights. It was said that performers have rights and without their
consent, their content cannot be broadcasted. Section 38 and 39 of the Copyright
Act recognize the concept of performer rights.
The First Law, related to Copyright was enacted by the British, it had no
concept of the rights of performer. Even in the Copyright Act of 1957 there was
no mention of performer rights. In the case of Fortune Films v s Dev Anand Bombay
High Court said that there were no performer rights as per Indian Copyright Law.
In 1994, by way of amendment Sections 38, 39 and 39 A were introduced which
dealt with the concept of performer rights. Indian Law recognized the concept of
performer in an exhaustive manner. Section 2(q)(q) says that actor, musician,
dancer, acrobat, snake conjurer, a person delivering lecture or making any kind
Origin Of Performers Rights:
In earlier times, the role of the individual in broadcasting the content was not
recognized. In the year 1961, with the enactment of the Rome Convention, the
concept of performer rights was accorded recognition. As per the terms of this
Convention performers works were protected for the duration of 20 years. Article
7 of the Convention accords protection to the rights of the performers
Performers have the right to prevent others from broadcasting or
communicating to the public by means other than broadcasting without their
They have the right to prevent others from fixation of their unfixed
live performance without taking their consent.
They have the right to prevent others from reproduction of their live
performance without their consent.
They have the right to prevent the commercial exploitation of their
performance for any other purpose, for which the consent is not obtained.
What Are The Rights Of The Performer Under The Copyright Act
Performer has right to make sound or visual recording:
A performer has the right to make the sound or visual recording. He can also
give consent to other people to record the live performance. Without the
consent of the performer, no other person can make use of that sound
recording. But, in case, their performance is for the cinematograph film and
the written agreement is made consenting the incorporation of his
performance in such film then all the rights will, therefore, be enjoyed by
the producer of such film irrespective of whether the performer is a singer
Performer has the right to produce the sound or visual recording:
A performer may also become producer of the sound or visual recording and
can enjoy all the rights that a producer enjoys such as reproducing a number
of copies, giving the copies for commercial rental, communicating the work
to the public etc. But for that purpose, the performer must have the prior
permission from the individual copyright owner like lyricist and music
composer and should have the certificate related to the sound or visual
recording by the competent authority.
Performer has the right to broadcast performance:
Performers can prevent others from broadcasting their live performance. In
case the consent of the performer is not taken and any other individual is
broadcasting his performance then it will amount to copyright infringement.
But, if the performance is for the cinematograph film and then rights will
be enjoyed by the producer of the cinematograph film but if the performance
is commercially exploited for other purposes than such film then the
performer has the right to claim the royalties.
Performer has the right to communicate the work other than by
Performer can use other means to communicate with the public than by means
of broadcast. Broadcast means communication to the public either by means of
wireless diffusion or by wire.
Judicial Pronouncements Vis A Vis Performer Rights:
In the case of Neha Bhasin vs Anant Raj Anant the Bombay High Court
directed the showing of the Plaintiffs name as the playback singer, and not as
the backup singer as it was successfully proved by the Plaintiff that she had
sung the song in all versions. The Court opined that although she did not have
performers rights in the song, as that it is available only for live events, she
had moral rights in the song and had a right to have her name displayed as the “lead
In the case of Super Cassettes Industries v. Bathla Cassette Industries, the
Delhi High Court held that copyright and performers rights are two different
things and in case the song is re-recorded then the prior permission of the
original singer is required.
Remedies against Performer’s Rights Infringement
The remedies are available against the infringer of performer’s right in Section
55 and also from Section 63 to 70 of the Copyright Act. The following remedies
may be availed:
The owner of the performer’s right or his exclusive licensee may go to the court
and obtain the injunction either temporary or permanent or they may also claim
Not only civil remedy but criminal remedy is also available against the
infringer. The infringer may be sentenced for six months which may extend up to
three years or may be liable to pay a fine of Rs. 50,000 to Rs. 2,00,000 or
Anton Pillar Order:
Sometimes the court gives permission to the plaintiff, on an application by him,
to enter into the defendant’s place along with the attorney and inspect the
relevant documents. This is necessary because the defendant may remove the
documents from his premises if he knows before.
The rights that conferred to the performers are a very encouraging step in the
field of Copyright law. They always had a special place in the copyright work
but their work was never given the kind of appreciation that was required. Now
their rights are protected under Copyright law and also this strengthens their
financial position as well.