BY SURYA PRIYA <ul><li>PERFORMERS RIGHT </li></ul>
PERFORMERS RIGHT <ul><li>A performer is each person who contributed to the sounds or action in the performance, plus the conductor of the performance. </li></ul>
Who is a performer? As per the Indian Copyright Act, 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. What is a performance? "Performance" in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.
PERFORMERS’ RIGHT Performers’ rights apply to any of the following live performances whether in the presence of an audience or otherwise: (1) a performance (including an improvisation) of a dramatic work, or part of such a work, including a performance given with the use of puppets; (2) a performance (including an improvisation) of a musical work or part of a musical work; (3) the reading, recitation or delivery of a literary work or part of a literary work, or the recitation or delivery of an improvised literary work; (4) a performance of a dance; (5) a performance of a circus act or a variety act or any similar presentation or show; and (6) a performance of an expression of folklore.
RIGHTS WHICH ACCRUE TO EVERY PERFORMER A performer has the right to prevent the recording, broadcasting or inclusion in a cable programme service of their live performance. They also have the right to prevent the making of a recording from a live broadcast or cable programme service. However, in respect of this, there is the home recording exemption: (1) Recording Rights: performers have the right to prevent copies being made of their recorded performance without their consent; (2) Distribution Rights: performers have the right to prevent their recording being distributed on to the market for the first time;
(3) Rental Rights: performers have the right to prevent the recording being rented; (4) Lending Rights: performers have the right to prevent their recordings being lent. (5)MORAL RIGHTS
MORAL RIGHTS There are an additional set of rights, which may not be bought or sold which recognize the artistic importance of a performance above and beyond it’s economic value. These are referred to as ‘moral rights’. In every performance a performer has: (1)the right to be identified as the performer; (2) the right to object to any distortion, mutilation or other modification or other derogatory action in relation to the performance, which would prejudice his or her reputation; (3) in addition to these rights, every person in the State has the right not to have a performance falsely attributed to them; and (4) the moral rights of a performer cannot be bought or sold. However they can be waived and it will often be the case that as a condition to any contract which a performer may enter into that employers or production companies will seek a waiver of those rights. Earlier no moral rights were granted to the performers. But now under the WIPO Performances and Phonograms Treaty, 1996 the rights have been extended to include these moral rights.
Term of the Right The term of protection under Rome Convention, 1961, art. 14 is 20 yrs. The Performer’s rights subsist for 50 years from the beginning of the calendar year next following the year in which the performance is made.
CASE LAWS 1, Neha Bhasin vs. Anand Raj Anand and Anr The Plaintiff was a singer who claimed that her voice was used by the defendants for three versions of song in Hindi film produced by defendant. The plaintiff alleged that defendant no. 2 in connivance with defendant no. 1 who was the music director, had shown herself to be the singer alongwith defendant No. 2 whereas plaintiff was shown as backup vocalist in all three versions of song. The plaintiff alleged that this is an infringement of the performers’ right and prayed that instead of defendant No. 2’s name, her name must appear as lead singer. Present suit was filed for seeking decree of permanent injunction against the defendants from using, selling, distributing, exhibiting the motion picture as well as audio cassettes, compact discs, promos of the film containing the song without displaying name of the plaintiff as lead singer. It was alleged by the respondent that the right subsists only in live performances and thus no right exists here as the song Is a recorded one. But the Court observed:
‘ It is essentially the reproduction of the performance through sound or visual recordings without the permission of the performer that is prohibited. Every performance has to be live in the 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 performer’s right is infringed. So, as regards the performers’ rights, the plaintiff definitely has a serious triable case’. Court heard all versions of song and it was held that the voice contained in all versions belonged to petitioner. Thus, plaintiff must have been shown as lead singer instead of defendant. The Court issued interim order for restraining defendants using, selling, distributing, exhibiting, advertising the motion picture as well as cassettes, CDs, promos of the film.
2, In Music Broadcast vs. Phonographic Performance , The plaintiff had been granted permission to start an FM Radio Station, for which it had obtained licenses from various organisations including the Indian Performing Right Society (IPRS). The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the Copyright Board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.
LEGAL PROVISIONS RELATING TO PERFORMERS’ RIGHT <ul><li>Trade-Related Aspects of Intellectual Property Rights Agreement, art. 14 provides for performer’s right it says that performers have possibility of preventing the acts which are undertaken without their authorisation which are communication to the public and broad cast by wireless means. </li></ul><ul><li>Two treaties were concluded in 1996 at the World Intellectual Property Organization (WIPO) in Geneva. One, the WIPO Copyright Treaty (WCT), deals with protection for authors of literary and artistic works, such as writings and computer programs; original databases; musical works; audiovisual works; works of fine art and photographs. The other, the WIPO Performances and Phonograms Treaty (WPPT), protects certain ‘related rights’ (that is, rights related to copyright) in the WPPT, these are rights of performers and producers of phonograms. </li></ul>
CONTD <ul><li>Indian Copyright Act, 1957 today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention, 1886 (as modified at Paris in 1971), the Universal Copyright Convention, 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. 1995. Though India is not a member of the Rome Convention, 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention, 1961 provisions. </li></ul><ul><li>India amended its copyright law in 1994, well before the deadline of 01 January, 2000, to incorporate the rights of performers, going beyond the requirements of TRIPS to cover audio visual performances. </li></ul><ul><li>Copyright Act, 1957, s. 39(A) says that the other provisions of the Copyright Act, 1957 will be applied to performers right also, that is provisions like assignment, licenses, civil remedies, rights of the owner possessing or dealing in infringing copies, power of the police, etc. </li></ul>