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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

Performer’s Rights

Kajal Bhati*

INTRODUCTION

Performer’s Rights are type of Intellectual Property rights known as neighbouring or related rights as these rights are neighbours to or are considered related to Copyright.
Neighbouring Rights provide legal protection to the interest of the persons or organizations that add substantial creative, technical or organizational skill in the process of bringing a work available to public.

Performers (singers, actors, dancers, musicians etc.) in particular are eligible for protection because of their creative interpretations giving life to the work and need to be rewarded for their creativity and efforts. What the law seeks to protect is the residual value in a performance. There is an inherent value in live performing, as it is clear that members of the public are more than willing to congregate at a theatre or music venue to pay for a live performance. However, a performance may be enjoyed outside of that environment. As it becomes easy and cheap, with the aid of information technologies like audio/video recorders and computers, to make mechanical reproductions of performances by popular performers of musical or dramatic works, there are also growing demands for protecting performances by performers who add original and creative contribution to the existing works1.

NEED FOR PROTECTING PERFORMER’S RIGHTS

The need for protecting the performer’s rights rose with the passage of time and the international understanding and domestic protection to the Neighbouring Rights including Performer’s Rights only developed since Rome Convention, 1961 emphasized the protection of neighbouring rights. According to Adam Smith, the reasons for the non-recognition of Neighbouring Rights till the first half of the 20th Century are two fold:

a) Social And Historical: During the formative period of copyright, the actors, or strolling players were regarded as ‘vagrants’ by law. The players, buffoons, musicians, opera-singers, opera dancers and the like were the classical examples of ‘unproductive labour’.

b) Historical And Technological: The work of all the performers used to perish in the instant of its production.2 After the performance, nothing was left except the impression created in the memory of the public and consequently every time the public wanted to appreciate a performer’s performance he would have to be called and paid for the performance.3 Today however, the transient nature of the performances no longer exists as the rapid development in the technological field has made it possible to fix live performance whether the performance is on the stage or in the broadcasting studio.

Thus, the necessity of legal framework to provide statutory safeguard to the performers became the need of the hour.

Justification for Protecting Performer’s Rights

The grant of performer’s rights has also been justified on many levels. The Utilitarians argue that greater protection to the performers in their performances leads to greater economic gain, greater development of the arts and thus, greater public good. In Indian context, it would be hypocritical for a legal system that appreciated this argument in the context of patents and copyrights, to ignore it in the context of performer protection.4

The protection of Performer’s Rights can also be validated on the basis of natural justice and equity. A performance is seen as an extension of the performer’s personality and a part of his property, the control over these rights being natural right of humans5.

MEANING OF PERFORMER’S RIGHTS

The phrase ‘performers’ rights’ comprises all the rights that may accrue to a performer by virtue of his performance. They are hence, a bundling of three distinct types of legal rights:

a) Economic rights: Economic rights include property rights of reproduction, adaptation, distribution, rental, lending, remuneration and communication and ensure that the commercial worth of the performance is protected.

b) Moral rights: Moral rights are the rights of attribution and integrity over the work performed6 and ensure that the moral worth of the performance is protected.

c) Non-tangible rights: Non-tangible rights protect the creative worth of the performance and are the most difficult to define. They include the right over the persona of the performer7, the right against use of likeness or name of the performer8, rights over the performer’s creativity in execution of the performance, over his unique and distinct expression and style.

Are Classical Music Performers Getting A Raw Deal?

It has been contended that classical musicians in India face several problems arising from the unauthorized recording and sales of their live performances in sharp contrast to musicians working within the film industry or outside the country as the classical musicians are unprotected by unionized bargaining power, and are left to negotiate professional terms and conditions on their own, without the help of agents, managers, etc. and consequently they are, vulnerable and open to exploitation of their rights by all.9

COPYRIGHT (AMENDMENT) BILL, 2010

Copyright Amendment Bill was introduced in order to amend the laws for providing the protection to performer’s right and included the definition of a “performer”10 which states that a performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance and as per section 38B, the performer shall have moral right of attribution as a performer unless omission is dictated by manner of use of performance. The insertion of sections 38A and 38B seeks to widen the concept of the performer’s rights. This widening is very much justified as this will reduce the exploitation of the lyricists, singers etc. Earlier the rights were bought by the music director or any other concerned person and were exploited but this can be curbed by bringing this amendment.

CONCLUSION

Indian Legislature recognized the need to protect the creative interpretations of the performers and consequently inserted Sections 38 and 39 in the Copyright Act, 1957 with the view to protect the residual value in the performance. It is regrettable to note that even the non-tangible rights of the performers fail to find any recognition either in the Copyright Act, or even in the law of torts unlike in US where the Right of Publicity adequately safeguards the non-tangible rights of the performers. In respect of the economic rights of performers in their performances, they are protected in India, only until the performance is fixed. Once fixed, the performer has no right in the performance independent of the owner of the copyright in the fixed performance. In addition, India needs to take urgent steps towards enacting specific enactments or in the alternative specific provisions need to be inserted in the existing legislations to protect the Indian cultural heritage in the form of folklore. A large aspect of community art and culture in India today is unprotected as it does not fall under the ambit of existing intellectual property laws. This is susceptible to limitations and commercial exploitation, leaving the developers of local art forms with no legal recourse. Hence, from the above discussion it becomes very important for the Indian laws and on an international level that the performers should get the protection for their work as provided to other artistic work under copyright law.

-------------------------------

* Advocate Delhi High Court

  1. Pandey:Neighbouring Rights Protection In India JIPR 9(4) 356-370 at p. 362
  2. Adam Smith, The Wealth of Nations as quoted in Ahuja, VK Law of Copyright and Neighbouring Rights, 2007, p. 141
  3. Sanjay Tandon, Neighbouring Rights
  4. Sanhita Ambast, Protecting Performer’s Rights : Does India Need Law Reform? JIPR 13(6) 574-582 at p.578.
  5. Taubman Antony, Nobility of Interpretation: Equity, Retrospectivity and Collectivity in Implementing New Norms for Performers’ Rights, Journal of Intellectual Property Law, 12 (2005) 351-425
  6. Sterling J, World Copyright Law (Sweet and Maxwell,London), 1998, p. 55. quoted in Sanhita Ambast, Protecting Performer’s Rights: Does India Need Law Reform? JIPR 13(6) 574-582 at p. 575
  7. Onassis v Christian Dior, 122 Misc.2d 603. Here, the case was based on the defendant employing a ‘look alike’ of the plaintiff who encapsulated the persona of the plaintiff.
  8. Presley v. Russen, 513 F.Supp. 1339, where action was based on the defendant’s using the image and likeness of the deceased singer and names associated with him while rendering his own musical services. The court here decided in favour of the estate of Presley, who had brought the suit about.
  9. ShubhaMudgal: Performer’s Rights:Problems and Issues regarding Recording of Live Concerts (2000)
  10. Section 2 (qq), Copyright Act, 1957
 
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