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What Are The Rights Of Performers Under Indian Copyright Law?

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 of performance.
 
 

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
  1. Performers have the right to prevent others from broadcasting or communicating to the public by means other than broadcasting without their consent
  2. They have the right to prevent others from fixation of their unfixed live performance without taking their consent.
  3. They have the right to prevent others from reproduction of their live performance without their consent.
  4. 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

  1. 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 or actor
     
  2. 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.
     
  3. 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.
     
  4. Performer has the right to communicate the work other than by broadcast:

    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[1] 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 singer”.

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:

Civil Remedies:

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 damages.

Criminal Remedies:

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 both.

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.
 
Conclusion
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.

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