New rights for performers in updated Copyright Act

The law relating to performers’ rights underwent a significant overhaul during the 2012 amendments to the Copyright Act, 1957. Prior to India’s accession to the TRIPS agreement in 1994, the rights of performers in their performances were not recognized in India. Subsequent amendments to the Copyright Act in 1994 had given limited protection to such rights.

The Copyright (Amendment) Act, 2012, was intended to bring the Copyright Act in line with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, even though India is yet to accede to these treaties. The amendments, best known for favouring authors of literary and musical works, also expanded the protection available to performers under the act, mainly by broadening the definition of a “performer”, granting moral rights to performers and widening the protection afforded to performers in general.

A new proviso excludes performers whose performance is “incidental or casual”, and has not been acknowledged in the credits of a film, from the definition of “performer”. In relation to the film and television industry this potentially excludes extras from the scope of the definition and rights granted by the act.

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The exclusive rights of performers now provided in section 38A are much akin to those vested in authors of “works” in section 14. Section 38A(2) bars a performer who has consented to the incorporation of their performance in a cinematographic film from interfering with the producer’s enjoyment of the performer’s right in the film. This provision thus appears to distinguish a performer who has consented to a “visual recording” being made of a performance and a performer who consents to the incorporation of their performance in a cinematographic film. It appears that the legislature intended to continue to exclude film actors (and playback singers) from the ambit of performer’s rights while strengthening rights for performers in general.

‘Contrary agreement’

The 38A(2) exclusion, however, is subject to any “contrary agreement” between the performer and the producer of a film. This implies that unless a performer is able to negotiate an agreement which stipulates their continuing control over these rights notwithstanding the exclusion, the performer will be unable to assert these rights in respect of the film.

Curiously, a proviso to this provision seeks to clarify that the performer shall be “entitled for royalties in case of making of the performances for commercial use”. While unhappily worded, when read with the provision as a whole, the proviso can be read to mean that the performer retains a right to claim royalty in respect of the performance when the recorded performance is used commercially, apart from the film itself.

In essence it seems that the legislature intended to continue with the policy of excluding performances incorporated in films (with the consent of the performer) from the ambit of the right itself, however, this exclusion is now subject to private contract. It also appears that this exclusion is limited to the use of the performance as part of the film per se. Consequently, any “splitting” of the elements of a film, i.e. the use of a playback singer’s performance on ring tones, sound recordings made available on iTunes, etc., would be subject to the performer’s right.

The “survival” of the right outside the film has been further buttressed by the application of sections 18, 19 and 30 to the performer’s right provisions. Section 18 deals with assignments and section 30 with licences while section 19 deals with the mode of assignment (i.e. the format of assignment agreements). When read with section 30A, section 19 applies to the mode of licences. Sections 18 and 19 have gained notoriety for incorporating a non-waivable and non-assignable right to an equal share of royalty in favour of authors of literary and musical works. Section 39A of the act now mandates that the same royalty right would be applicable to performers.

Given the exclusion discussed before, it is logical that the royalty right would thus be applicable for the “ex-film” usage of performances only.

Another change is the grant, in section 38B, of moral rights to performers which are akin to the moral rights available to authors of copyright works. This is unprecedented and India has taken a lead by incorporating this provision. The moral rights granted are the right of paternity, i.e. the right of a performer to be identified as the performer; and the right of integrity, i.e. a performer’s right to protect their reputation and prevent the distortion or mutilation of their work. An explanation to this section stipulates that modifying a performance purely for technical reasons or editorial purposes will not violate the moral rights of the performer.

Doubtless drafting issues with the performer rights provisions will continue to be debated within the entertainment industry and be the basis of litigation. However, the 2012 amendments have paved the way for expanding performers’ rights and have provided them with much needed protection in this era of advanced technology and communication.

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Ameet Datta (ameet@saikrishnaassociates.com) is a partner at Saikrishna & Associates, where Suvarna Mandal (suvarna@saikrishnaassociates.com) is an associate. The views expressed in this article are personal.