ABSTRACT

For their work, Indian copyright exhaustively offers the author's rights. The actors should also
have some right to exploit the work by either talking to the public or transmitting the work. The
Indian constitution historically did not grant enough protection to the copyright holder. But the
intention is somewhat appropriate through an amendment made in the copyright act and thus
granting rights to the artist in their performances. The artist was given exclusive rights and moral
rights under section 38A and section 38B through the 2012 amendment. The report will also
address the interests of performers in certain international agreements.

INTRODUCTION

Copyright is a form of protection of intellectual property given to the creators of the original
authorship works under the law. It is an exclusive right granted by law to an artist, composer, and
so on (or his assignor) to print, publish and sell copies of his original work for a certain period of
years. The first copyright law was passed in India in 1914. It was an effectively modified copy of
the 1911 English Copyright Act to make this applicable to then British India. The Act, presently
in force was legislated in the year 1957 and is known as Copyright Act, 1957 as amended by
Copyright (Amendment) Act, 1999.

For a very long time, the Indian Copyright Act did not recognize performers ' rights such as
musicians, singers, actors, acrobats, etc. It was only recently that the technological changes
threatened performers ' lives that the law acted to protect performers. The Copyright Act was
revised in 1994. The amendment added the performer's rights acknowledgment. Such rights are
considered rights of artists. Section 38 of the Copyright Act grants performers rights such as
singers, dancers, jugglers, acrobats, and so on.

The object of copyright, as the protected item is called a "play" under the copyright law for (a)
original literary, dramatic, musical and artistic works (b) cinematographic film and (c) sound
recording (Section 13), copyright subsists in India. The Act describes these terms. No other work
is entitled to copyright under the Act other than these works. For the purposes of the Act, Section
14 of the Act describes a copyright. A Copyright means the exclusive right to perform or allow
actions relating to a work or any substantial part of it.
 INTERNATIONAL TREATIES AND CONVENTION ON COPYRIGHT

Only the law of the country in which the work is produced grants copyright. Therefore, if there is
no copyright in some country, it is impossible to prevent piracy in that country. International
conventions were established to address this problem. Member States reciprocally grant minimal
copyright protection for works from another Member State.1

In 1886, to recognize and govern the rights of copyright owners, the International Convention for
the Protection of Literary and Artistic Works commonly known as the "Berne Convention" was
adopted. This was the first international copyright convention to be revised several times in 1908
in Berlin; in 1928 in Rome; in 1948 in Brussels; in 1967 in Stockholm; and in 1971 in Paris to
meet the various challenges posed by technological development. 2 The Universal Copyright
Convention, which was amended in Paris in 1971, was adopted in 1952.

The' WIPO Convention,' which founded WIPO, was adopted in 1967. WIPO adopted two treaties
in 1996–the WIPO Treaty on Copyright and the WIPO Treaty on Performances and Phonograms.
Moreover, in the area of neighbouring privileges, three more treaties were also added to these
treaties. These are the 1961 International Convention for the Protection of Performers,
Phonogram Producers and Broadcasting Organizations, commonly referred to as the' Rome
Convention;' the 1971 Convention for the Protection of Phonogram Producers from
Unauthorized Duplication of their Phonograms; and the 1974 Convention for the Distribution of
Program-Carrying Signals.

RIGHTS OF A PERFORMER UNDER COPYRIGHT PROTECTION ACT

 Right to make sound recording or visual recording of the performance

A performer has the right under Section 1 (xx) of the Copyright Protection Act to make sound
recording or visual recording of his performance. He also has the right to authorize the recording
of a live performance and the exclusive right to capture sound from which such sounds can be
created regardless of the medium on which the recording is made or the means by which the
sounds are replicated. Rights in a sound recording will only survive if it is done legally. If the

1
http://vips.edu.
2
https://www.smartcopying.edu.au.
recording contains any content that infringes any literary, dramatic or musical work, there will be
no copyright in the recording of the audio.3

For copyright purposes, musical compositions and sound recordings embodying the music are
regarded as distinct subject matter. The copyright of music recording is distinct from the music's
copyright.4 The composer's copyright in the music vests and the music copyright registered vests
in the sound recording company.

 Right to make a recording of the performance or a visual recording

A performer has the right to produce his performance's sound recording or visual image. He has
the right to make recording copies, the right to issue recording copies to the public, the right to
lease or borrow copies. Nevertheless, the recording must include the following details:

(a) A copy of the certificate issued by the Board of Film Certification

(b) The name and address of the person producing the video film and a declaration that the
holder of the copyright has obtained the required license or consent in making the video film,
and

(c) The name and address of the copyright owner.

 Right to broadcast the performance

Performers are also allowed to avoid showing their live performances. Broadcast means
communication to the public, i.e. by any means of wireless broadcasting, whether in one or more
types of signs, sounds or visual images, ii) or wireless broadcasting, which requires
retransmission. Consent should be sought from broadcasting associations in the case of a
television program containing literary, dramatic or musical works or records in which
independent copyright can exist.

REASONS FOR WEAK POSITION OF PERFORMERS UNDER

COPYRIGHT REGIME

4
Shweta S. Deshpande “Journal of Library & Information Technology”, Vol. 28, No. 3, 2008, pg. 68
There seems to be two explanations for the vulnerability of the lawful role of the actor. The first
of these is historical and cultural. During the formative era of copyright, performers or "strolling
players" are deemed by law as "vagrants." Adam Smith gave "players, buffoons, musicians,
opera-singers, opera-dancers" as classic examples of "unproductive labour" in his work The
Wealth of Nations.5

Historical and technical is the second reason.

Adam Smith goes on to say: "In the instant of their creation, the work of all of them is lost." In
his days, that was perfectly correct. In the previous chapters, we noted that repairing the work in
a tangible form so that it can be repeated is a prerequisite for protection in many jurisdictions. 6
Consequently, the ephemeral nature of a performance may have provided a legitimate reason to
deny performers a copyright. With the advent of books, movies, radio and television, this
justification has been lost. From the moment it was possible to fix errors and fixations both
repeated in large numbers and presented for large audiences.

INFRINGEMENT OF PERFORMER’S RIGHT

Through having these rules, Section 38 of the Copyright Protection Act enhances the performers '
rights. Accordingly, if any person does any of the following acts without the performer's
permission, he shall be deemed to have infringed performer rights. Such activities include:

(a) Sound recording or visual recording of the performance;

(b) Sound recording or visual recording or reproduction for reasons other than those for which
the artist gave his consent;

(c) Broadcasting the performance; and

(d) Transmitting the performance to the public otherwise than by broadcasting.

Nevertheless, the above acts are said to be infringed by an individual only when such acts are
committed during the performer rights continuation.

5
https://shodhganga.inflibnet.ac.in
6
https://shodhganga.inflibnet.ac.in
When a performer has consented to integrate his performance into a cinematographic film, the
performer loses the right to sue about that performance's violation, which means that he has
delegated all of his rights and that performance to the film producer.7

NEED FOR THE PROTECTION OF PERFORMER’S RIGHT

The basic question needs to be answered before anatomizing the "Performers' Right." Why
should the right of the performers be protected? With the passage of time, the need to protect the
right of performers emerged. The fundamental reason was the advancement of technology that
allowed the right of the performers to be filmed and transmitted.

Acts that does not constitute a violation of a performer's right under section 39 of the Act. The
performer's and broadcasting organization's rights are not definitive. 8 (a) A person shall make
some sound recording or visual recording for private use or solely for bona fide teaching or
research purposes, (b) Excerpts of the performance shall be used, consistent with fair dealing, in
the coverage of current events or for bona fide study, teaching or analysis, (c) an act shall be
performed after required adaptation and alteration which does not constitute an infringement or
infringement.

MORAL RIGHTS IN INDIA

Moral rights are the privilege of the Berne Convention, which provided an internationally
recognized concept of moral rights. India was influenced by the Berne Convention's moral rights,
which offered a proper forum for the realization of moral rights. Given the wider scope of Indian
law, it is complex and has a more versatile definition than that provided under the Convention.9

The Indian Copyright Act acknowledges the author's moral rights which remain with the writer
even after the work has been assigned. Such rights are-to assert authorship of the work; and to
prevent and claim damages in relation to any alteration, mutilation, modification or other act in
relation to the work done prior to the expiry of the term of copyright, if such distortion etc.
would be harmful to his honour or reputation.10

7
https://www.bananaip.com
8
Shweta S. Deshpande “Journal of Library & Information Technology”, Vol. 28, No. 3, 2008, pg. 68
9
https://www.researchgate.net
10
https://www.researchgate.net
Section 57 has been amended to preserve the right to dignity even after the expiry of copyright in
the work concerned and to enable not only the author but now also his legal representatives to
exercise the right to paternity — presumably this implies that legal representatives may initiate
legal proceedings if the author of the work is not recognized as such.