Copyright in performance

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Copyright in
Performances
Sinduja Amudanathan
Trademarks Department

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COPYRIGHT
INTRODUCTION
• Copyright is the part of intellectual property which gives
exclusive legal right to the original creator of the work. The
copyright law protects the intellectual creations in the work
that is original. It protects the work as soon as it is created and
no registration formalities are required. Earlier the concept of
Copyright was limited to the books, painting or films, but now
the ambit is widened even to computer software and
compilation of data.
• The Oxford English Dictionary defines Copyright as “The
exclusive right given by the law for certain term of years to an
author, composer etc ( or his assignee) to print, publish and
sell copies of his original work.”

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• The Copyright Act, 1957
No protection was given to the actors,
musicians, jugglers, dancers etc the act
was silent on the performers’ rights
• The Copyright amendment Act, 1994
Recognised the rights of the performer
under section 38 of the Act ‘Performers
Rights’ are introduced.
Amendments – Indian
Copyright Act

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Section 2(a)(q) of the Act defines performance as follows:
"Performance", in relation to performer's right, means any
visual or acoustic presentation made live by one or more
performers;
Section 2(a)(qq) of the Act defines Performer as follows:
"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;
The section 38A of the Act which provides legal provision for
performers’ right which gives exclusive right or authorizes for
doing any act in respect of the performance without prejudice
to the rights conferred on authors. This provision enables the
performers’ for royalties which are subjected to committed
use.
PERFORMER and PERFORMER’S
RIGHTS

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• A performer has the following rights in his/her
performance:
• Right to make a sound recording or visual
recording of the performance;
• Right to reproduce the sound recording or visual
recording of the performance;
• Right to broadcast the performance;
• Right to communicate the performance to the
public otherwise than by broadcast.
THE RIGHTS OF A PERFORMER

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• 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. Copyright Act, 1957, Section 40 A says
about the application of performer’s right to foreign countries
where there is no rights of such a nature presently. The Central
Government may by notification may extend these rights to such
countries if the country has already provided and intended to
provide the such rights.
• Copyright Act, 1957, Section 42A similarly talks about restriction
of foreign organisation and performers, if the foreign country
does not give protection of these rights , the central government
may by notification may put restriction upon the applicability of
the provisions of this act on that country or organisation
established there.
TERM OF RIGHTS

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APPLICABILITY OF OTHER
PROVISIONS
• Under Section 39A the following provision of the Act with
necessary adaptation and modification apply to performer’s right
as they apply to copyright in a work.
• Section 18 and 19 – assignment of copyright
• Section 30 – Licenses
• Section 55 – Civil remedies for infringement of copyright .
• Section 58 – Rights of owner against persons possessing or dealing
with infringing copies.
• Section 64 – power of police to seize infringing copies.
• Section 66 – disposal of infringing copies or plates for the purpose
of making infringing copies.
Thus in many essential respects the performer’s right bear close
resemblance to copyright.

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NEED FOR PERFORMERS
RIGHTS
The recent development in the Act is the recognition to the rights
of the performers. The Copyright Act, 1957 gave recognition to the
performers after long time. It was only recently when the
technological changes threatened the livelihood of performers that
the law intervened to protect performers. Musicians, singers,
actors, acrobats etc come in the category of performers. In the late
nineteenth century and the early twentieth century technology
was developed that enabled performances to be recorded and
then enable to both live and recorded performances to be
broadcast and communicated to the public locally, regionally,
nationally and eventually internationally. Performers’ were
therefore separated from the performers who had made them. the
development in the technology leads to easy access to the
spectators even to those who are not in the immediate vicinity
when the performances was made. As the live performances or
whether the performance is on the stage or in the broadcasting
studio the nature of their performances is no more transitory.

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Acts not constituting infringement
of a performers’ right under
section 39 of the Act:
Copyright Act, 1957, Section 39 speaks about acts not constituting infringement.
The following acts do not constitute the infringement of performer’s right in his
performance:
1. The making of any sound recording or visual recording for private use of the
person making such recording or solely for the purpose of bonafide teaching and
research;
2. Fair dealing of excerpts in a performance in the reporting of current events or a
bonafide review, teaching or research;
3. Other acts with any necessary adaptation and modification which don’t
constitute infringement of the copyright under Section 52;
4. Reproduction for the use of judicial proceedings;
5. Reproduction for the use of the members of the legislature;
6. Use of sound recording or visual recording of the performance in the course of
the activities of an educational institution if the audience are limited to the
students and parents and guardians of the students and persons directly connected
with the activities of the institution; and
7. Makes a sound recording or visual recording of the performance. Thus making
of the sound recording or visual recording of or the above purposes doesn’t
constitute infringement.

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 In Fortune Films International v. Dev Anand AIR 1979 BOM
17:
The earliest case on performer’s right in Indian court was in 1979,
when section 38 & 39 were not a part of the copy right act. The
Supreme Court held that an actor had no claim over his
performance in a film as this performance did not fall within the
five categories of the artistic work contained in the copy right act.
 Cassettes Industries v. Bathla Cassette Industries 107
(2003) DLT 91:
After the inclusion of section 38 & 39 in 2003 in the Act, the Delhi
High Court held in this case that performer’s rights were
essentially different from copyright, and held that re- recording of
a song without the permission from the original performer
constituted an infringement of performers' rights.
Case Study

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Neha Bhasin v/s.Raj Anand Raj &
Performer’s Rights
It was held in this case that the plaintiff has sung the song and is protected
under the performers rights. The plaintiff Neha Bhasin, a singer, alleged
that her voice has been stolen and falsely attributed and held out to be
used by the defendants for the three versions of the song "ek look ek look"
in the hindi feature film "Aryan the music director -Anand Raaj Anand, had
shown herself to be the lead singer in credits for the three versions in the
inlay card of the audio compact disc and plaintiff has been shown as a
backup vocalist in all the three versions of "ek look ek look", but it is the
voice of the plaintiff that is heard. The plaintiff had agreed to render voice
for the film on the term that remuneration would be paid suitably after
looking to the popularity of the song once it is released in the market.
However, song broadcasted and CDs sold did not contain her name as the
singer. In response to the notice by the plaintiff the respondent send a
notice claiming that, though she had been auditioned to sing the song, it
was the version sung by Poonam that was used by the music director.
However due to technical inadvertence the version of Neha was
overlapped with the version of Poonam, and hence the credit of backup
vocal inserted. However, the court derived at the conclusion that the three
versions of the song are sung by the plaintiff and not the defendant.

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Copyright Societies:
Copyright society is a legal body which protect the interest of owners of the
work in which the copyright exist. Prior to the coming into force of the
Copyright (Amendment) Act 1994, the ss. 33 to 36 dealt with the
Performing Rights Societies which only gave right for issuing or granting
licenses for performance in India of any work in which copyright
subsisted. These sections limited the scope to granting licenses for the
performance in India of any work in which copyright subsisted. But after
the implementation of the amendment Act the scope of Copyright society
was broadened from issuing or granting licenses and all rights relating to
any class of work in which copyright subsist under the Act. The copyright
society is a body created under copyright act 1957 that gives license to the
work and collect royalties.
The Copyright Societies in India like
1. The Indian Performing Rights Society Limited (IPRS),
2. The Phonographic Performance Limited (PPL) and
3. Society for Copyright Regulations of Indian Producers of Films and
Television (SCRIPT)
4. Indian Reproduction Rights Organization (IRRO)
INDIAN COPYRIGHT SOCIETES AND
RELATED CASE LAWS

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• For performers there is a performing rights society which came
into existence on 23rd
August 1969 and named as IPRS. The Indian
performers Right Society is not profit making. It is a company
limited by guarantee and registered under the Companies Act,
1956 and authorized under section 33 of the Act. IPRS has more
than 1500 members who are local composers, lyric writers and
publishers and also represents international music .This body
represents the composers, lyricist and the publisher of music. This
body deals with the issuing or granting of licenses for any musical
work, literary work to any person within the territory of India. It is
one of its own kinds in India for issuing and granting of licenses for
acquiring rights on the music.
• The users who need to perform or broadcast or play any literary
work or musical work they have to take prior permission or in
other words they have to obtain license for public performance.
The users such as radio station, television station etc need to
obtain license.
Indian Performing Rights Society
Limited:

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IPRS Limited v Hello FM Radio (Malar
publications Limited).:
• According to this case the Indian Performing Rights
Society Limited (IPRS) secured an injunction from
the Delhi High Court against Hello FM Radio (Malar
Publications Limited). The defendants were
broadcasting the songs without obtaining licenses
from the Indian Performing Rights Society Limited
(IPRS).In this case IPRS wanted either Hello FM
Radio (Malar Publications Limited) should obtain
license or have to stop broadcasting the songs, or
both. In this case the Delhi High Court granted the
injunction. By restricting the Hello FM Radio from
playing music without obtaining license from the
Indian Performing Rights Limited (IPRS).
.

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Phonographic Performance Ltd (PPL), a copyright society registered
under the Copyrights Act, which took the hotels to court for failing to
pay copyright license fees. PPL is the sole authority to administer the
broadcasting, telecasting and public performance rights and to collect
license fees on behalf of the music industry.
Phonographic Performance Limited v Hotels:
In the past also Mumbai High Court directed hotels to pay towards
copyright license fee for playing music in the new-year parties
organized by them where an entry fee was charged.
Event and Entertainment Management Association v. Union of
India and ors.
The Delhi High Court held that the law laid down in Federation of Hotels
and Restaurant Association of India v. UOI held that the working of the
copyright societies to be monitored and guided by the Copyright Act.
Phonographic Performance Ltd

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 M/s Phonographic Performance Ltd. v M/s Hotel Gold Regency &
Others (MANU/DE/0942/2008):
In this case the Delhi High Court decision has made the life of the Copyright owners
and the Copyright Societies more complicated. As we known that the Copyright
Societies in their capacity as licensees usually institute copyright infringement
suits in their names on behalf of all their members who are actual copyright
owners. This judgment however has put an end to the practice by holding that as
per the scheme of the Copyright Act, 1957.According to this judgment the
Copyright Societies do not have any right to institute a suit for copyright
infringement in their name and therefore only a copyright owner or an exclusive
licensee can sue for copyright infringement.
 The Indian Performing Rights v Kolkata knight Riders:
A suit on copyright violation against Kolkata Knight Riders (KKR) was filed on May
14th, 2008 by The Indian Performing Rights Society (IPRS). The allegation was
about playing 14 popular Hindi film songs like "Om Shanti Om" during IPL
matches at Eden Gardens without permission. The Kolkata High Court refused
the application for injunction on the use of the songs and directed the parties to
file affidavits. This matter is yet to be decided.

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 The Indian Performing Rights Society vs. East Indian Motion Pictures
Association:
the Apex Court held that that if an author of a musical work has authorised a
cinematograph film producer to incorporate his works within the cinematograph film
thereby permitting him to appropriate his work by such incorporation in the sound
track of the film, the composer may not restrain the film producer from causing the
acoustic portion of the film to be performed/projected/screened in public for profit or
from making any record embodying the recording in any part of the sound track
associated with the film or from communicating or authorising the communication of
the film by radio diffusion.
 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

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International Convention
The rights given to performers are a result of many conventions and
treaty. The need for the treaties arose due to the development and
innovation in technology. The concern of the performers has been
addressed in four major international instruments: Rome Convention,
1961; TRIPS 1994, WPPT, 1996 and Beijing Treaty, 2012.
International Convention for the protection of Performers,
Producers, Phonograms and broad casting Organizations (Rome
Convention 1961)
Rome Convention, 1961 granted following rights to the performers under
Article 7:
1. Right to prevent the broadcasting and communication to the public of
their live performances without their consent.
2. Right to prevent fixation to their live performances without their
consent.
3. Right to prevent reproduction of the fixation to their live performances
without their consent under the following circumstances:
If the original fixation was made without their consent

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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.
(i) 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
(ii) 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 mayextend 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.
(iii) 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.
REMEDIES AGAINST
INFRINGEMENT OF PERFORMERS
RIGHTS

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 Garcia v. Google, Inc
Garcia v. Google, Inc. is a copyright case in which the Ninth
Circuit has ordered Google to remove copies of the
notorious "Innocence of Muslims" film from YouTube. Why?
Because one of the actors in the film insists she has a
copyright interest in her performance and, based on that
interest, claims to have a right to have the video taken
offline. Actress Cindy Lee Garcia—who was tricked into
appearing on-screen, overdubbed, for five seconds—sued
Google to have the footage removed. A Ninth Circuit panel
ruled 2-1 in her favor in February 2014. As a result, Google
was forced to remove the film from YouTube and take steps
to prevent future uploads.
CASE LAWS ON
PERFORMERS RIGHTS

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Bollywood Controversy
Singers protest 'feudal' contract, music companies
maintain 'no royalties'.
On going war between ISRA and the Music compines is
going viral. The reason behind that is
The singers are being asked to sign a contract which
stipulates that they are assigning their performer's rights
to the music director who passes them on to the producer
who then has "exclusive right including but not limited to
the right to reproduce the performance in any material
form".
Further states that in the case of any audiovisual
recording of a performance, the singer has to assign
his/her right to royalty under Section 38A (2) to the music
director who passes it to the producer in lieu of a lump
sum of royalty payment
Section 31C according to which a singer has to agree
that he/she will not perform or record a song, and this
includes cover versions, without the permission and
licence of the music director and/or the producer

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• However, from a plain reading of the new Section 39A,
it appears that Parliament may have granted singers
the same rights as composers and lyricists which
means that more people get a slice of the pie, provided
of course that everybody takes a smaller slice of the
pie. Section 39A was an old provision in the law which
basically applied the old Section 18 & 19 to even
performer’s rights enjoyed by singers. During the 2012
amendment, Section 39A was amended to include some
extra provisions (such as TPMs) which would apply to
even performer’s rights. However Parliament didn’t
make any attempt to exclude the newly added provisos
to Section 18 & 19 from the ambit of Section 39(A). As a
result singers who qualify as performers qualify for the
same rights as composers and singers.

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Conclusion
A performance is not just Kamala Hassan singing a song at Filmfare Awards
or Prabhu Deva showing his dancing skills at a ‘Dancing Fest’ or
Shobana Classical acting in a stage show but Christ Gayle celebration of
a wicket, MSD’s Helicopter shot, umpire style of umpiring; manner of
cheering by fans of a particular football club is concerned is also to be
considered as performance and the person doing such act as performer.
There is no protection against imitation of the above said acts under
the performer’s rights provision in Indian Copyright Act. As far as india
is concern if a person copies a famous umpire’s style of umpiring
throughout the match, the only solution would be Section 38B(b) of the
Act which allows a performer “to restrain or claim damages in respect
of any distortion, mutilation or other modification of performance that
would be prejudicial to his reputation.” But even for availing that, he
shall have to prove that the performance by such a person has been
prejudicial to his reputation, which might not be that easy.(Actress
Namitha and Actress Sona Controversy). Thus I conclude saying the
recent amendment in copyright law regarding performers rights is a
good start but it has to have a wider provision and must be broad
enough for the understanding of any performer their rights.

Copyright in performance

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Copyright in performance