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Concept Of Related Rights Under Copyright Law

From many years entertainment has played a very significant role in human beings' lives be it movies, songs, Drama etc. All the forms of entertainment gained equal recognition and praise by their respective audience irrespective of the country or language they have had been or still being performed. As the time passed by event, the nature of the entertainment Industry has changed, before Independence the film used to be shot in black and white later with the time, and due to technology, the focus shifted from black and white to color films.

As the time of the entertainment industry was changing leaps and bounds the performers Actors, Singers, Lyricist, Music composers all of them started gaining popularity for their performances on screen or in the Background. Many people back then started mimicking their favorite performers, which performer's up to some extent use to like.

This popularity gained by the performers put them into larger risk of getting their work copied or as we call it getting their infringed. During that era there was no concept called "performers Rights" under Indian Copyright Law Actor's performance in the film or performance of singer with whose help the song written or composed was communicated to the audience were not protected. After many years of this inequality finally in the year 1994 the concept of performers rights was adopted in India.

Introduction:
The Indian copyright law has recognized two types of rights:
  1. copyright
  2. Related rights

Copyright refers to the right which is granted to Authors, artists and other creators in order to protect their work (Literary as well as artistic) on the other hand, the related rights also known as neighboring rights granted to those who are the technical authors of the work but has a significant amount of contribution towards the creation of the work.

For example, if A writes a song for T-series in exchange of the remuneration and royalties then, T-series becomes the Author and owner of the song, but A will still have few rights to protect his work with respect to performing such song to the public at large although not being an author anymore. These rights are called as "RELATED RIGHTS" under copyright law,1957. Basically, these rights deal with the rights of such persons who does not create the work instead, communicates such work by performing or broadcasting it to the public at large. Related right is generally used to showcase creativity or technical and organizational skill which justifies the recognition of a copyright like property in nature.

Apart from recognizing related rights such performers rights and broadcasting rights under Indian Copyright law, India also made himself a party to different legislation with respect to Related or Neighboring rights.

Those legislation are follows:
  1. Berne Convention for the protection of Literary and Artistic Works, 1886.
  2. Universal Copyright Convention.
  3. Convention for the Protection of producers of Phonograms against unauthorized Duplication of their Phonograms, 1971.
  4. Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.1994.

As per the international conventions and WIPO related rights are bifurcated into three different beneficiaries:
  1. Broadcasting Rights:
    this Right is related to broadcasters, who disseminate the said work through broadcasting through TV, Radio, Internet etc. According to the Indian Copyright law, the tenure for broadcasting rights is of 25 years and it has been mentioned under section 39 of the Copyright act, 1957 which states " No broadcast reproduction right or performer's right shall be deemed to be infringed by: "S 39. Acts not infringing broadcast reproduction right or performer's right. :No broadcast reproduction right or performer's right shall be deemed to be infringed by:
    1. the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research; or
    2. the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; or
    3. such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under section 52". And over the years, this right has been proven to be the quickest way for exploiting the work by circumventing it through different means therefore, all the broadcasting organizations such as news channels, Radio channels possess these rights.
       
  2. Phonograms:
    Another aspect of related rights is phonograms, Phonograms means an "Aural Fixation" (except for soundtracks, of films or video cassettes), whatever in form (disc, tape). The protection is provided for the years of 20 years which will start from the date of first fixation or the first publication of the phonogram whatsoever however, the protection granted by the domestic countries can eb extended up to 50 years.

    This right was recognized under the treaty of WPPT which was passed in the year 1996. These rights are most importantly granted to the producers of phonograms which have a completely right over the sound recording. Furthermore, no mentioned with regards to this protection has not been mentioned under the Indian Copyright Law, 1957 but since India adopted the legislation of WPPT, producers of phonograms are entitled for the protection.
     
  3. Performers:
    the third most important part of the related rights are "Performers" the provisions of which has been elucidated in this article, India has recognized performers rights under the Indian Copyright (amendment) 1957, which was in consonance with the Rome Convention in the year 1961 and also the WPPT act, 1996 Performers are considered as pivotal link between the performance and society. performers give their best to deliver the essence or theme of their artwork to the people but are often incapacitated when it comes to the protection of their work because copyright act does not expressly elucidate any such rights given to the performers in India until 1994 amendment under copyright law which could protect their work from infringement under their respective copyrights Act.

Now-a-days, due to globalization innumerable entertainment streaming platforms like you tube channels and diverse OTT platforms such as Spotify, amazon prime music, netflix have started evolving. People from all over the world who are fond of listening to music or who revere a particular performer as their icon, to state it ordinarily who claims themselves as their "fans" can enjoy their piece of work or art of work through such digital platforms, but is this process legal? People put up such work of the performer [1] on their you-tube channels without seeking the artists consent which ultimately results in infringement of performers right. In this Article we are going to study Related Rights also known as Neighboring Rights under copyright act 1957.

Performer's right is intrinsically associated with the "performer" whether it is a singer, actor, musician, dancer, acrobat, juggler, or even a person delivering a lecture (section 2(q) of the Indian copyright act,1957). However, there was no recognition given to such rights by the Indian copyright act,1957 till the act got amended in 1994, Fortune Films V. Dev Anand after which performers right were given recognition and were defined under section 38 of Indian copyright act, 1957:

Performer's Right:
Any engagement of a performer in any kind of performance renders him the right through which he can hold his own interest in the performance known as "performer right". Such right according to the rome convention,1961 and section 38 of copyright act 1957 subsists for 20 years from the beginning of the calendar year to the next following year with-respect to the date on which such performance was made. Furthermore, in continuance of these rights in respect of any performance if a person continues to do following acts without the consent of the said performer:
  1. Reproduces a sound recording or visual recording of the performance which has been:
    1. Made without the consent of the performer;
    2. Made for the purposes which are different from those for which the performer has given his consent;
    3. Made for purposes which are different from those purposes referred in sec 39 from sound recording or visual recording which was created in consonance with S. 39 which states (acts not constituting infringement);
  2. secondly, if there is a Broadcasting of the performance except where such broadcast is made from a particular sound or visual recording other than those made in parlance with S. 39 or which are rebroadcasted by the same broadcasting organization of an earlier broadcast which did not infringe the right of a performer.
  3. thirdly, renders such performance to the public at large otherwise than by broadcast except, wherein such communication to the public is made from sound recording or a visual recording or a broadcast.[2]

Why performers right should be protected?
Earlier performers right never received that kind of recognition as there were no digital platforms to disseminate such work and even there were no such technological developments therefore people use to go live to watch the performance and no fixation of the performance was possible so performer was obliged to repeat his performance as and when required but, today since technological developments are touching skies it became very easy to circumvent performers work (performance) digitally through recording or even by means of broadcasting and exploit such work commercially to reap profits, and also made it easy to fix a live performance.

Artists or performer try to deliver their best out of their compositions or performance, so that they could measure up to the audience expectations. Rapid growth in modern technology made it facile to record such performances or broadcast them without seeking performers consent for commercial purposes which ultimately increases the economic value of that work resulting in huge number of profits to the broadcasting company or sound recording company whilst performers are entitled to a certain amount from those profits for their work which perhaps wouldn't be of much a worth.

To avoid such instances and to acquire appropriate compensation or rewards for their work performers rights were enshrined under the statute, so that performers could gain the kind of recognition they deserve which was earlier use to get overshadowed by the broadcasting and sound recording companies. Development of such rights laid down specific procedure and authorities to deal with sound recording of the performance or even broadcasting of such performance on radio or television, eventually increasing the labor opportunities.

International Conventions:

Apart from the Copyright Act, the international convention for broadcasting organizations generally known as Rome convention, 1961 became the first convention to recognize performer rights along with international labor organization and mainly, the World Intellectual Property Organization (WIPO) .

The protection laid down by the Rome convention for the protection of performer's right is 20 years from the fixation of the work created Similarly Article 19 of the Rome convention elucidates "if any performer has agreed for the incorporation of his work through agreement or contract in any audio-visual form or visual form then in such scenario the provisions related to performer's right (Article 7) will not be applicable to the performer."

Rights Of Performers Under Rome Convention:

Article 7 talks about the rights acquired by the performers under the Rome convention they are:
  1. Right to prevent others from non-consensual broadcasting or communicating of the performance except otherwise where, the performance is already a broadcasted performance or is made from fixation.
  2. Right to prevent others from fixing a price for the performance without their consent or for performance which is made for different purpose rather than the one for which the performer consented for and wherein the original fixation is made inconsonance with A. 15 and the reproduction of the same differs from those provisions mentioned in the same.
  3. Right to prevent from commercial exploitation of their work when consent is not obtained from them.[3]


WPPT (WIPO PERFORMANCE AND PHONOGRAMS TREATY, 1996)[4]
Another convention which elucidates rights pertaining to the performers for their work purely fixed in the phonograms is WPPT which was established 1996 in Geneva, and which more importantly extended the rights which can include licensing. Right to reproduction (Article7), "Right of Distribution" (Article8), "Right of rental (Article 9)" and "Right of availability of fixed performances (Article 10)".
  1. Article 7- performers can avail this exclusive right wherein they get the power to authorize the reproduction of their performances fixed in phonograms or any other medium.
  2. Article 8- this article empowers the performers to distribute their work in public either originally or copies thereof through sale or transfer of ownership.
  3. Article 9- This right Empowers performers to rent his/her performance to public either original or copies thereof in consonance with the national laws of the contracting parties
  4. Article 10: By Accessing this Right, performers can disseminate their performance by wire or wireless means in such a medium where public can get access to it at a time and place chosen and suitable for them.[5] As Provisions of This convention were purely subjected to the performer's performance exclusively fixed in phonograms and not in audio-visual performances this was the time Beijing treaty came into picture

The Beijing Treaty was established to regulate audio-visual performances eventually, expanding the rights of the performers. This treaty was signed on 24th June 2012 but never came into force until it was finally ratified by 30 eligible parties, ultimately, coming into force on April 20th, 2020. This Multilateral treaty Acknowledged, the intellectual property of the performer's performance in audio-visual works internationally eliminating the discrimination between sound performances and Audio-visual performances laying down a strong foundation that all performers are entitled to the intellectual property Rights Protection regardless of the fact how they are been delivered.

Copyright Act 2012 Amendment

Copyright Act 1957, again got amended in 2012 which was in compliance with the WIPO Performers and phonograms treaty, 1996 also known as WPPT and the Beijing Treaty 2012, which explicitly provided the performers with the following rights under section 38A and 38B of the Copyright (Amendment) Act,1957 and in addition to that, this amendment also entrusted the right to receive royalties in case if such work has been used for commercial purposes.

Say for instance, if a Dungeon & dragons Productions intends to put a particular song in the movie which was originally made in different language, then, here the performer who has performed such piece of work will be entitled to get royalties from dungeons & dragon productions for that song.

Exclusive rights for performers
Without being prejudicial to the Rights granted to the Authors by the Copyright Act 1957, performer Rights is an exclusive Right which permits to execute following acts with respect to performance or any substantial part thereof under Section 38A of the Copyright (Amendment) Act
namely:
  1. to make a sound recording or a visual recording of the performance, including- reproduction of it in any material form including the storing of it in any medium by electronic or any other means; (Right to Reproduction)
  2. issuance of copies of it to the public not being copies already in circulation; (Right to distribution)
  3. communication of it to the public
  4. selling or giving it on rental basis or offering it for sale or in case of commercial rental any copy of the recording; (Right of Rental)
  5.  to broadcast or communicate the performance to the public except where the performance is already broadcast.

(2) Once a performer, by a written agreement, gives his consent for incorporation of his performance in a particular cinematograph film he shall not be opposed by the producer of the film from enjoying his performer's right in the same film, provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial.

The performer's right would be at par with the rights of the producers/music composers once the performer through an agreement willingly agrees to subsume his piece of work in a film and then the producer would be entitled to gain economic benefits through the commercial use of the performance and the producer in any way cant preclude the performer from rendering the adequate amou0nt of royalties for commercially exploiting his (performers) work. Furthermore, if the performers work is being communicated to the public or society other than films e.g., live performance even in this case the performer will gain royalties for his work as these rights are unassignable in nature.

Yet, another Section 38B of Copyright ACT,1957 which was inserted after the 2012 amendment extended moral rights to the performers in case of any infringement by any other person. As the name (Moral Rights) itself exemplify, the Rights which are non-economic they are more of performer's personal rights attached with his/her creation or performance.

Section 38B: [7]
The Performer of performance shall, independently of his Rights after assignment, either wholly or partially of his Right, have the Right:
  1. To claim to be identified as a performer (Article 5 WPPT 1996: moral right)
  2. Restrain or claim damages in respect of any distortion, mutilation, or any other modification of his performance Which is prejudicial to his/her reputation. (Article 5 of WPPT Moral right)
Notwithstanding the provisions of section 38B of Copyright Act 1957 & according to the amendment of 2012 of the Copyright Act there are certain exceptions with-respect to section 38B(2), which states that if any portion of the performance or recording undergoes editing due to some technicalities such as: the duration of the recording, such reasons cannot be deemed prejudicial to the performers reputation thereby, absolving the provisions laid down in Section 38B(2).

Case Laws:
[8]Neha Bhasin Vs Anand Raj Anand
Facts

"Facts of the case were, the defendant hired the sound engineer for mixing the music with regards to the film "ARYAN-UNBREAKABLE" around January, 2006. One of the songs that the sound engineer was engaged to make it a remix was named as "EK LOOK EK LOOK". The engineer here, was handed over with the two recordings which was copies of the master recording of the song as per the instructions of the defendant.

The instructions given by the defendant further mentioned the name of the lead vocalist as "Poonam Khubani" and the name of "Neha Bhasin" as the back up vocalist. In the Inlay cards of CDS that were sold in the market, the plaintiff was shown only as a backup artist whereas Poonam Khubani was shown as the main lead vocalist.

Neha Bhasin, the plaintiff of the case, contended that she was called by the defendant for the recording of the song "EK LOOK EK LOOK" and she was the main lead vocalist of the song and Poonam Khubani was given false credit for having sung the song as a main lead vocalist whereas, it is the song sung in the plaintiff's voice which has reached the public. Plaintiff came to know about this when she saw the song on the television she confirmed the same on the purchase of a cassette and an audio CD. And sent a notice was sent to defendants

The particulars of the notice mentioned:
  1. That though Plaintiff had auditioned with defendant No 1 for the concerned song, the defendant No 1 decided to use the voice of defendant No 2 for the said song.
  2. Plaintiff Voice got mixed up with defendant No 2 voice by the sound engineer inadvertently
  3. This inadvertence was carried to the printer and that's why the name of plaintiff was on Inlay Card
  4. As soon as this was brought to notice of defendant No 1, the sound engineer was asked to rectify the mistake
  5. All the next lot of CD's and cassettes have been postponed and all the material being recalled
  6. With the above mentioned claims the petitioner also sought an apology from the defendants.

Issues:
  1. Was defendant no 2 the lead singer of the song?
  2. Was layering a valid defense by the defendants?
  3. performers right only subsist in live performances.
  4. was there a contract between the party.

Contentions
Plaintiff's Contentions:
  1. the Petitioner contented that she was approached through her manager when she agreed to sing for him for which no remuneration was paid to the plaintiff, prior to the first recording post which few more recordings were taken place along with the Rap piece.
  2. All the three versions are in Plaintiff's voice and defendant no 2 is not the main singer. Plaintiff voice has been stolen and has been falsely claimed to be that of defendant no 2.
  3. Moreover, the petitioner also contented that, this act of defendant has violated the performer rights of the petitioner under section 38 of the copyright Act 1957, and also as per the provisions laid down under the Rome convention.

Defendants' contentions:
  1. the Defendant's solely relied on the defense of layering, wherein they stated that the voice of defendant no 2 was "layered" to that of the plaintiff
  2. such layering projected defendant no 2 as the lead singer of the song in the film.
  3. Because of this layering defendant No 2 was claimed to be the lead singer of the song and the plaintiff was claimed to be the backup vocalist.
  4. The defendant contended that, the version of the plaintiff has been removed and have been replaced with the voice of the defendant and all the CDs are being recalled.

Judgement:
  • An ex-parte order was passed by the high court of Delhi against the defendant and restrained them from Using, selling, distributing, exhibiting the motion picture as well as audio cassettes, compact discs, promos of the said film containing the song EK LOOK EK LOOK without highlighting the name of the plaintiff as the lead singer.
     
  • Furthermore, the court was of the opinion that, "Every performance has to be live in 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

United Kingdom Perspective:
Earlier, there was no recognition of performers rights in the United Kingdom, till 1911 act the performers rights was being neglected just like India until the 1994 amendment. In 1925, United Kingdom made an attempt to protect the performers rights, it was in the year 1925 when the government of United Kingdom made performers rights and criminal offence by introducing the "Dramatic and Musical Performers Act, 1925" but did not granted civil protection to the performers this was put forward into test in the case of Musical Performers Protection vs British international Pictures Ltd. (Blackmail case).

In this case, the George committee was of the opinion that performer rights are not eligible for civil protection moreover the George committee also rejected the proposal made by the Musicians Union and variety Artistes federation which states that performers should be entitled a right which would be of same nature as that od copyright, which was rejected by the committee by passing an order that it wont be possible to extend the scope of copyright to performers and undesirable to give performers the right. Therefore, the Copyright Act, 1956 was passed by the legislature of United Kingdom. Which rendered civil rights on performers.

The debate for the protection for performer rights in United Kingdom went on for years, until 1988, the year which changed the perspective of the legislature with regards to the performer's rights in United Kingdom. through the case of RICKLESS vs UNITED ARTISTS CORP which changed the dynamics of the protection of performer rights in the United Kingdom.

Rickless v/s United Artists Corp
Facts
In this case, the defendant's wanted to make a sixth installment of the movie titled "The Trail of the Pink Panther" by using clips and out-takes of the scenes from the last 5 movies which was performed by the late actor "peter Sellers" in earlier pink panther movies. The plaintiff contended that the rights of the performance of the late Peter Sellers vests with the him, and the defendants are bound to take the rights from the actors executors for execution of the film.

Analysis
While deciding the case, the court placed an reliance upon the 1958 Act,
  1. whether the act provides performers civil remedies for breach of statutory duty or whether it restricts its scope to the criminal remedies.
  2. Whether the Act provides the reproduction of a performance without the permission of the performer after death is illegal.
Initially, the Court placed a balance of convenience, in the favor of Plaintiffs on both the above-mentioned questions and entrusted the damages in the amount of US $1 million. The defendants made an appeal to the high court. And claimed that section 2 of the 1958 (as amendment 1963) act does not confer a civil right on the plaintiff.

Judgement
In this Judgement, Sir Nicolas Browne Wilkinson opined. "The section elucidated In the act especially renders criminal offence. Nevertheless, In some circumstances, it can also confer private rights under the civil law. The judge concluded that the 1958 Act, does render a civil right of action to the plaintiff and the movie "the trail of the Pink Panther" constitutes a breach of these rights. Furthermore, was dismissed by confirming that Section 2 gives civil actions along with the criminal penalties.

Suggestion:
In my opinion, Neighboring Rights granted to the performers, broadcaster and producers of phonograms are of vital importance as they protect the inherent interest of the performers or broadcasters. Furthermore, any infringement of such rights by any person might result into severe punishment civil as well criminal wherein respective damages can be awarded by the court. In my opinion although there are regulations under the statute yet, there are infringements with respect to the performance performed by the performers.

For example, Taylor swift case in the United States of America, when "Taylor Swift" was precluded from singing her own song by the Music Label Big Machine Records on stage during her US tour likewise in India, the above-mentioned case mentions the clear case of performer rights.

In India, despite having a regulation performers works are subjected to infringements this is because performers are still not aware about their rights because of which all the record labels pressure the artists or performers and try to exploit their work in order to reap profits. To overcome this problem the performers should be very diligent when it comes to negotiating with the record labels and also when it comes to any contractual obligations, because these intricacies of the contracts come with a high price.

One of the main issues with regards to these contractual obligations is MSA (Master Service Agreement). When the performer signs this agreement, he waves off all the rights with regards to the song and all the rights vests with the record label for eternity and record label can make money by exploiting such work.

Conclusion:
In my opinion, everything that emanates from Human Mind or intellect whether it may be an artistic work, or a literary work has its own value which cannot be forsaken. Performer who develops any piece of work or renders performance has got his own integrity which cannot be put out on stake, and this was perceived very well by the authorities of India and hence, new section were incorporated under the Copyright Act, 1957 which gave allied rights to the performers, Broadcaster and phonograms producer to protect their work from infringement or mutilation by any third parties.

After contemplating all the above points, we can say that `just like other countries even India was very diligent when it comes to protection of their respective performers and looking at the growth of the music industry globally all these provisions will strongly help the performers to understand as well as protect the rights with respect to their performance.

End-Notes:
  1. https://www.bananaip.com/ip-news-center/ip-blog-a-thon-performers-right-under-indian-copyright-law-part-i/
  2. https://indiankanoon.org/doc/1667421/
  3. Wipo.lex.wipo.int
  4. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_227.pdf.
  5. Law of Copyright by Dr. S.R. Myneni
  6. Copyright Act 1957
  7. https://lawessential.com/ip-case-laws/f/neha-bhasin-v-anand-raj-anand

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