Act’s new role for performers

Performers in the film and entertainment industries will have greater protection under the recently notified Copyright (Amendment) Act, 2012. It introduces exclusive and moral rights to conform with international treaties and keep pace with new technology.

Worldwide rights

Here is a summary of international conventions on performers’ rights.

The Rome Convention, 1961, considers performers’ rights similar to authors’ rights. It gave performers and producers of sound recordings certain limited rights.

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The TRIPS Agreement, sets down minimum standards for IP regulation. It contains requirements that national copyright laws must meet, including those regarding the rights of performers, producers of sound recordings, and broadcasting organizations.

The WIPO Performances and Phonograms Treaty (WPPT), adopted in 1996 improved protection for performers, producers of phonograms and broadcasters. It applies to performances exploited in aural or sound recordings but not to audiovisual performances.

The draft WIPO Audio Visual Performances Treaty (WAVPT) provides for the rights of performers in audiovisual performances. The rights are broadly: (i) moral; (ii) economic; and (iii) exploitation, broadcast and reproduction rights.

The WAVPT will safeguard the rights of the performers and strengthen their position in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual productions, both in traditional and new media.

Star billing

Changes in the Copyright (Amendment) Act, 2012, with respect to performers’ rights will impact the film industry. The amendments have taken into consideration the WIPO Copyright Treaty (WCT), the WPPT, and also the draft WAVPT in respect to performers’ rights. While the previous definition of a performer was very wide, the amendment excludes extras and others whose performance is casual or incidental in nature.

Section 38a (i) of the new act provides for performers’ exclusive right to do or authorize the doing of any of the acts in relation to a sound or visual recording for performance. There is no restriction on assigning these rights to a producer or any other person in perpetuity.

Section 38a (ii) categorically provides that once a performer has, by written agreement, consented to the incorporation of his performance in a film he cannot object. A proviso to sub-section (ii) of section 38a allows for the performer to be entitled to royalties in the case of making performances for commercial use. The term commercial use remains vague and will in due course have to be interpreted by the courts.

However, if a film clip containing footage of a performance is shown separately, the performer shall be entitled to royalties. The broadcaster or person hosting the event will pay it to the performer or copyright society of which the performer may be a member.

Going digital

A welcome amendment is the introduction of moral rights of performers, which were previously unrecognized in India. These rights are granted to performers irrespective of assignment. These include a performer’s right to be identified and to claim damages against distortion, mutilation or modification of the performance which could be prejudicial to the performer’s reputation. The scope for frivolous litigation is removed as changes for the purposes of editing, timing or for purely technical reasons will not be regarded as prejudicial.

Sections 65a and 65b introduce additional legal remedies and protection relating to technological measures and rights management information. These are technologies that restrict the use of digital files in order to protect the interests of the rights holder or may be used by performers to protect any unauthorized use of their performances.

The amendment envisages a penalty for any person who circumvents existing technological measures applied for the purpose of protecting the rights conferred by the act (which would include the rights granted to the performers to protect their rights in performance) as well as for tampering of rights management information. This provision is in conformity with the WPPT and draft WAVPT.

Final act

The Copyright (Amendment) Act, 2012, aims to encourage creativity to promote culture, enterprise, and innovation and to protect performers from unfair exploitation of their rights. This should encourage new talent.

While there are some welcome amendments in the form of introduction of exclusive rights of the performers and moral rights granted to them, the amended act lacks clarity on the right of the authors to receive royalties and the mechanism in which such royalties would be administered.

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Naik Naik & Co, founded by Ameet Naik, is a full-service law firm with specific focus on entertainment, real estate, retail and technology. It has three offices in Mumbai and two in New Delhi. Madhu Gadodia (madhuchaudhary@nnico.com) is a partner and Anushree Rauta (anushreerauta@nnico.com) is an associate at the firm.