Effect of copyright (amendment) Act, 2012 on indian flim industry. Indian Copyright Law and Performers' Rights

1. AMITY UNIVERSITY HARYANA
INTELLECTUAL PROPERTY LAWS
ASSIGNMENT
ON THE TOPIC
“IMPACT OF COPYRIGHT (AMENDMENT) ACT 2012 ON
PERFORMERS’ RIGHT IN INDIA”
SUBMITTED TO:
Mr. Atul Jain
Faculty, Amity Law School
SUBMITTED BY:
Nikhil Kumar Tyagi
Student LL.M (2014-15)

2. Table of Contents
S.No. Particulars Page No.
1. List of Abbreviations used 1
2. Introduction 2
3. International Treaties and Conventions on
Copyright
3
4. Need for the protection of Performers’ Right 4
5. Performers’ Right under Indian Copyright law 4
6. Moral Rights in India 5
7. Copyright (Amendment) Act, 2012 [Provisions
related to Performers’ Right]
6
8. Conclusion 9
9. References 10

3. 1
List of Abbreviations Used
Abbreviations Full Forms
WIPO World Intellectual Property Organisation
WCT WIPO Copyright Treaty
TRIPs Trade Related Aspects of Intellectual Property
Rights

4. 2
1. Introduction
The scope of copyright which was restricted only to the protection of literary and artistic
works in the earlier days, has now been broadened to include not only literary and artistic
works, but also dramatic and musical works, cinematograph film, and sound recordings. In
addition, neighboring rights which consist of the rights of performers, the rights of
producers of phonograms and the rights of broadcasting organizations are also covered by
the copyright law. Copyright is not a perpetual right. It exists for a specific term. After the
expiry only the term, the work falls in the public domain and opens to public to use without
permission of the owner.
In India the first Copyright Act was passed in the year 1914. At present, the Copyright Act,
1957 governs copyright law in India. The original Act of 1957 has been amended in the year
1983, 1984, 1992, 1994, 1999 and recently in 2012. Philosophy of the Copyright law is: ‘The
law does not permit one to appropriate to him, what has been produced by the labour, skill
and capital of another’. In India registration is not necessary either for the subsistence or for
the enforcement of copyright an author of the work becomes owner thereof, the moment
the work is created. However, the Register of Copyright is prima facie evidence of the
particulars entered therein. It is advisable to register the copyright in the work.
The subject matter of copyright, as per the copyright Act the thing protected is called a
“work”. Copyright subsists throughout India in (a) original literary, dramatic, musical and
artistic works (b) cinematograph film and (c) sound recording (Section 13). These terms are
defined in the Act. Apart from these works, no other work is entitled to copyright under the
Act. Section 14 of the Act defines a Copyright for the purposes of the Act. A Copyright
means the exclusive right to do or authorize the doing of acts in respect of a work or any
substantial part thereof.
Before the amendment of the Copyright Act in 1994, no protection was given to the actors,
musicians, jugglers, dancers etc. The Copyright Act, 1957 was silent on the performers’
rights after the amendment in 1994 recognized the rights of the performer under section 38
of the Act ‘Performers Rights’ are introduced. By the 2012 amendment to the Copyright Act,
the performers (Singers, Actors, Music composers etc.) have got their “rights” (more rights)
which were demanded for more than two decades. 2012 amendment had a large impact on
the Indian Film Industry. Here I tried to bring out the impact the of the 2012 copyright
amendment on the Indian Film Industry.

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2. International Treaties and Conventions on Copyright
Copyright is granted only by the law of the country in which the work is created. Therefore,
if copyright does not subsist in certain country, to prevent piracy in that country is
impossible. To meet this problem international conventions are formed. The Member States
offer minimum copyright protection on reciprocal basis to the works originating in another
member country.
In 1886, the International Convention for the Protection of Literary and Artistic Works
commonly known as “Berne Convention” was adopted to recognize and regulate the rights
of the copyright owners. This was the first international convention on copyright which was
revised several times at Berlin in 1908; at Rome in 1928; at Brussels in 1948; at Stockholm in
1967; and at Paris in 1971, to meet the various challenges posed by the technological
development. In 1952, Universal Copyright Convention was adopted which was revised at
Paris in 1971.
In 1967, the ‘Convention Establishing the WIPO’ was adopted by which WIPO was
established. In 1996, WIPO adopted two treaties – WIPO Copyright Treaty and WIPO
Performances and Phonograms Treaty. In addition, to these treaties, three more treaties
were also adopted in the field of neighboring rights. These are International Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
1961, commonly known as ‘Rome Convention’; Convention for the Protection of Producers
of Phonograms against Unauthorized Duplication of their Phonograms 1971; and
Convention Relating to the Distribution of Programme – Carrying Signals Transmitted by
Satellite 1974. Apart from this, in 1994 TRIP agreement was adopted as part of the Final Act
Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations. . India is a
member of both these conventions as well as of TRIPs agreement.
Articles 9 to 14 of TRIPS deal with Copyright and related rights. Members are required to
comply with Articles 1 to 21 of the Berne Convention. Article 9 states that Copyright
protection shall extend to expression and not to ideas, procedures and methods of
operation or mathematical concepts as such. Under Indian Law, Performers’ rights were
introduced by the Copyright (Second Amendment) Act, 1994 in compliance to the
requirements of the Rome Convention.

6. 4
3. Need for the protection of Performers’ Right
Before anatomize the “Performers’ Right” the fundamental question needs to be answered.
Why the performers’ Right should be protected? The need for the protection of Performers’
Right arose with the passage of time. The fundamental reason was the technological
development that enabled recording & broadcasting of the performers’ right.
Acts not constituting infringement of a performers’ right under section 39 of the Act:
The rights of the performer and broadcasting organization are not conclusive. Following are
the acts which does not constitute infringement of a performers’ right:
a) A person makes any sound recording or visual recording for the private use or solely
for bona fide teaching or research purpose,
b) Excerpts of a performance are used, consistent with fair dealing, in the reporting of
current events or for bona fide review, teaching or research,
c) An act is done after necessary adaptation and modification which does not constitute
infringement of copyright under section 52 of the Act.
4. Performers Rights under Indian Copyright Law
Legal Provisions
Section 2(q) “performance” includes any mode of visual or acoustic presentation, including
any such presentation by the exhibition of a cinematograph film, or by means of radio-
diffusion, or by the use of a record, or by any other means and , in relation to a lecture,
includes the delivery of such lecture;
Section 2 (qq) “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;
This means anybody who performs with his ‘own’ skills and/or knowledge is performer.
The Copyright Act divides the performers into three categories:
1) Performers giving live performances.

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The performer when he performers in front of the audience (live) or engages in any
performance he has right over that performance.
2) Performers in a cinematograph film with credits in the film.
The performer when he gives his rights to the person with any written agreement to make
it a part of any commercial use, the performer shall be entitle to have royalties or some
monetary benefit.
3) Performers in a cinematograph film without credits in the film.
There are many performers in supporting cast which are commonly termed as “extras” in
any play, film etc. The Copyright Act till now doesn’t give any protection to such people
except moral rights which might be prejudicial to their reputation.
The performers’ Right is the result of amendment of the Copyright Act in 1994, there was
no protection of the rights of performances as explained in section 2(qq). The amendment
introduced the recognition to rights of the Performer under section 38. These sections gave
birth to the ‘Performers Rights’.
5. Moral Rights in India
The moral rights are the gift of Berne Convention, which gave a system of moral rights that
were internationally recognized principles. India took the inspiration of moral rights from
Berne Convention, which gave a proper platform for the implementation of the moral
rights. Although the Indian legislation has a broader scope are dynamic and has more
flexible interpretation than that given under the Convention.
Indian Copyrights Act recognises moral rights of the author, which exist with the author
even after assignment of the work. These rights are - to claim authorship of the work; and
to restrain and claim damages in respect of any distortion, mutilation, modification or other
act in relation to the work, which is done before the expiration of the term of copyright, if
such distortion etc. would be prejudicial to his honour or reputation. Section 57 has been
amended so as to have the right to integrity subsist even after the expiry of copyright in the
relevant work, and to enable not just the author but, now, also his legal representatives to
exercise the right to paternity — presumably, this means that legal representatives may
initiate legal proceedings if the author of a work is not credited as such.

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The WIPO Performances and Phonograms Treaty WPPT, 1996 came with an amendment of
2012 which gave a new dimension to the moral rights that states that performer shall
independently of his right after assignment, either wholly or partially of his right, have the
right-
(a) To claim his performance and
(b) To protect his performance from any distortion, mutilation other modification this in
return might axe his performance.
(c) Not allowing any person to use the performance without prior permission of the
performer.
6. Copyright (Amendment) Act, 2012 [provisions related to performers’ rights]
Performers’ Rights
The performer’s right has been restructured; for the most part, the restructuring has not
resulted in substantial changes although one striking difference is that performers are now
‘entitled for royalties in case of making of the performances for commercial use’ under the
new Section 38A. Before this amendment, performers were not legally backed for having
share in the royalties earned on their ‘work’ and mostly the producers were enjoying the
royalties and performers were only paid once a fixed amount by the producers at the time
of completing the ‘work’. After the 2012 amendment, producers are no longer allowed to
keep all the royalties to songs, lyrics or other works of arts. Now, these rights will have to be
shared with the artist who created them
Performers have also been accorded moral rights in the new Section 38B. These rights are
similar to the moral rights accorded to authors and basically encompass the rights to
paternity and integrity. An amendment to the definition of a ‘performer’ in Section 2(qq)
means that, among film actors, only those performers credited in cinematograph films
would be entitled to the performer’s right and to the right to integrity. All performers in
cinematograph films, whether or not credited, however, are granted the right to integrity.
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

9. 7
category of performers. Under Section 2(qq) 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. The section 38 of the Act confers right to performers’
like actors, dancers, jugglers, acrobats etc.
Finally the phrase ‘performers’ right’ comprises all the right that may accrue to a performer
by virtue of his performance. They are hence a bundling three distinct types of legal rights:
Economic rights, moral rights and non-tangible rights. Economic Rights include right of
reproduction, adaptation, distribution, rental, lending remuneration and communication.[8]
The moral rights are the rights of attribution and integrity over the work performed. Non-
tangible rights are most difficult to define. They include the right over the persona of
performance, the right against the use of likeness or name of the performance, rights over
the performer’s creativity in execution of performance over his unique and distinct
expression and style. These are the three basic rights which a performer has. The
performers’ right subsists for 50 years from the next year in which the performance was
made.
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,
Sections 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. Both authors and owners may now be members of copyright societies, and a
number of amendments have been made to attempt to ensure that the interests of both
authors and owners are protected, and that copyright societies are not mismanaged. The
new Section 33A also requires each copyright society to publish its Tariff Scheme.
Other related provisions
Exception to copyright infringement: The new Section 52(1)(zb) facilitates access to
copyrighted works by persons with disabilities provided that the reproduction of accessible
formats is on ‘a non-profit basis but to recover only the cost of production’, and the

10. 8
organization ensures that the accessible copies are used only by persons with disabilities
and takes reasonable steps to prevent the entry of the accessible copies into ordinary
channels of business.
Statutory licences: The new Section 31C facilitates the making of cover versions five years
after the first sound recording of the concerned work is made, and generally with royalty
payable for a minimum of 50,000 copies during each year in which copies are made. It could
be considered to be a substitute for the old Section 52(1)(j) which the 2012 amendments
deleted from the copyright statute. The new Section 31D enables ‘any broadcasting
organisation desirous of communicating to the public by way of a broadcast or by way of
performance of a literary or musical work and sound recording which has already been
published’ to do so by paying royalty to the copyright owner. The rates of royalty under
both these statutory licences are to be fixed by the Copyright Board, and the Sections
contain detailed procedures to be followed by those wishing to avail of these statutory
licences.
Fair dealing: Section 52(1)(a) now allows for fair dealing with respect to any work (except a
computer programme), and fair dealing is not restricted to literary, dramatic, musical or
artistic works other than computer programmes as was the case earlier. The purposes for
which fair dealing is permissible has also been ‘expanded’ although the expansion may not
actually bring in any substantive change from a practical point of view.
Archival storage and reproduction by libraries: The new Section 52(1)(n) allows: ‘the
storing of a work in any medium by electronic means by a noncommercial public library, for
preservation if the library already possesses a non-digital copy of the work’, and the scope
of Section 52(1)(o) has been restricted to allow only non-commercial public libraries to
make not more than three copies of books unavailable for sale in India for their own use, as
opposed to any public library as was the case earlier.

11. 9
7. Conclusion
The legal structure for the protection of performers’ right in India is found feeble and more
substantial laws should be made to protect them. Although due to the rapid growth in the
technology and in the entertainment world, proper protection and implementation will
always be a challenge. The 2012 amendment made a first honest attempt to protect the
Performers’ rights, but still the law in India which governs the Performers’ Right are under
developed when compared with the laws in U.K and U.S.A are intricate. When compared
with U.S.A the Indian laws are weak although the protection given by USA is in a similar
form as India gives but the principle mechanism is the law of tort. Although there is no
specific legislation which gives protection to the Performers’, the rights of performers is
protected by the right of publicity which is evolved by American Courts. A tortuous doctrine
evolved by American courts in direct response to claims of infringement of performers’
right. This makes the American system distinctly different from Indian and English regimes,
and warrants a closer look at American performer protection law policy. At the end we can
say that the legal system of USA is strong when compared with India both the economic
rights and some non –tangible rights of performers are protected. There are some
limitations also however the right of publicity is a useful judicial innovation; its applicability
is limited only in a country like India, where the judicial system has not developed a
jurisprudence of publicity rights.
In 2012 amendment some of the provisions are little confusing. An amendment to section
18 of the act says that authors of literary or musical works featured in movies shall “receive
royalties to be shared on an equal basis” with others who have copyright over the work
(such as producers.) It’s not clear whether “equal basis” means 50% or whether it depends
on the number of people with whom the royalties are shared. The amended law also makes
it compulsory for radio and broadcasters to pay royalties every time they air a recording.
The biggest impact of these changes will be on India’s film industry, especially on the
lyricists and composers of Bollywood music, who have long lobbied for rights over their
work. It’s nearly two years since the 2012 amendment are enforced but it’s not the right
time to comment on the true picture created in Indian film industry because of this
amendment, as two years is not enough to come any conclusion. But no doubt, after 2012
amendments artists in Film industry gets some strong protection and especially economic
rights over their ‘work’.
Before the 2012 amendment, those who have the money were more powerful than those
who make the arts. The amendment act recognizes this, and it addresses a power balance
but this alone is not enough.

12. 10
References
 Indian Copyright Act, 1957
 Indian Copyright (Amendment) Act, 2012
 Dr. V K Ahuja, Law Relating to Intellectual Property Rights, Lexis Nexis
 Kate Darling, Contracting About the Future: Copyright and New Media, Northwestern
Journal of Technology and Intellectual Property, Vol. 10 issue 7, 2012
 Udit Sood, The Touch of ‘Jadoo’ in the Copyright (Amendment) Act, 2012: Assessment of
the Amendments to Sections 17,18 and 19, NUJS Law Review, Oct-Dec 2012