Copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. It is an exclusive right given by law for a certain term of years to an author, composer, etc., (or his assignee) to print, publish and sell copies of his original work.
The Indian Copyright Act for a very long time did not recognise the rights of performers like musicians, singers, actors, acrobats, etc. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. In the year 1994, the Copyright Act was amended. The amendment introduced the recognition of the rights of the performer. These rights are called performers rights. Section 38 of the Copyright Act confers rights to performers like actors, dancers, jugglers, acrobats etc. Under section 2 (gg) of the Act, “performer” includes an acrobat, musician, singer, actor, juggler, snake charmer, a person delivering lecture, or any other person who makes a performance. “Performance” in relation to performers’ right means any visual or acoustic presentation made by one or more performers. For example, student performing in a school play is a performer within the meaning of section 2(gg) and his rights are well within the scope of protection accorded by Section 38.
Right to Create Sound Recording or Visual Recording of the Performance
Musical works and sound recordings embodying the music are considered separate subject-matter for copyright. The copyright in the recording of music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. Where the song has not been written down and the composer who is also the performer records the song two copyrights come into existence simultaneously, one for the music and one for the sound recording.
Right to produce a Sound Recording or Visual Recording of the Performance
A performer has a right to produce sound recording or visual recording of his performance. He has the right to make copies of the recording, the right to issue copies of the recording to the pubic, the right to rent or lend copies. However, the recording must display following particulars:
(a) A copy of the certificate granted by the Board of Film Certification
(b) The name and address of the person who has made the video film and a declaration that he has obtained the necessary license or consent of the owner of the copyright in the work for making the video film, and
(c) The name and address of the owner of the copyright in such work
‘Broadcast’ means communication to the public, (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds, and visual image, (ii) or by wire, and includes a rebroadcast. In case of programme broadcast, which includes literary, dramatic or musical works or records in which independent copyright may subsist, broadcasting organisation should obtain the consent or license of the copyright owners in the work in question.
Infringement of Performers Rights
Section 38 of the Copyright Protection Act strengthens the rights of the performers by making certain provisions. Under this if any person without the consent of the performer, does any of the following acts, he will be deemed to have infringed performers rights. These acts includes:
(a) Sound recording or visual recording of the performance; or
(b) Reproduction of the sound recording or visual recording or reproduction for the purposes different from those for which performer gave his consent
(c) Broadcasts the performance, and
(d) Communicate the performance to the public otherwise than by broadcast. However, the above Acts are said to be infringed by a person only when these Acts are committed during the continuance of the performer’s rights.
When a performer has consented to the incorporation of his performance in a cinematograph film the performer losses the right to complain of infringement of that performance which means he assigned his entire rights and that performance to the producer of the cinematograph film.
Remedies against infringement of Performers Rights
The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act.
- Civil remedies: Under civil remedies, the owner of the copyright, or his assignee or his exclusive licensee or a legatee may obtain (a) injunction or (b) claim damages
- Criminal remedies: In addition to civil remedy the Copyright Act enables the owner of the copyright to take criminal proceedings against the infringer. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum period of three years or with a fine of the order of Rs 50,000/- to Rs 2.00 lakhs
- Anton Pillar order: In appropriate cases the court may on an application by the plaintiff pass an exparte order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. The necessity of such an order arises where there is a grave danger of relevant documents and infringing articles are being removed or destroyed so that ends of justice will not be defeated.
The above discussion reveals that copyright is a form of intellectual property protection granted under the law to the creators of the original works of authorship. Copyright law confers exclusive right to performers like actors, musicians, jugglers, snake charmers, etc. to do certain acts. These rights conferred on the performers are a positive step in encouraging their creativity.
Author: Paramjeet Singh, Legal Intern at PA Legal.
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