Performers' rights are of world-wide application and as with literary, musical and dramatic works. One of the Government's arts culture and heritage objectives is to ensure that the legislation relating to performers' rights contributes to the promotion of creativity and innovation and thus therefore protects the interests of the performers' particularly in light of new digital technology and new practices. [1] Performers' rights are a new element in the field of Intellectual Property. Copyright law protects expressions of ideas rather than ideas itself as evolved in the case Baker v Selden [2] .Under section 13 of the Copyright Act 1957, copyright protection is conferred on the literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. [3] Previously this world is a place where often protection for creativity has been denied since ages. It was recently found that when the technological changes threatened the livelihood of the performers that the law came into picture to protect the rights of the performers. In the year 1994, copyright Act was amended. The amendment was introduced so as to recognize the rights of the performers. These are generally called performers rights. Performers also need to be rewarded for their own creativity and their efforts and because of spontaneous spreading of their performances via media, these performers fear from unauthorized use of their performances. So their works of creativity need to be protected and should be given due incentives which will encourage them to perform better.
PERFORMERS & PERFORMANCE
It is still a debatable issue in national and international scenario that who is a performer. Defining a performer is an important question and it is important to determine the scope of a performer so as the small performers are excluded with respect to the major performers. There have been many times that the legislator has ignored the small performers or has granted them rights that potentially violate the rights of major performers. As per layman definition, a performer can be defined as an entertainer who performs a dramatic or musical work for an audience. The Copyright Act 2957 duly includes the definition of a performer in Section 2(qq) 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. Section 2(q) describes about performance with regards to performers' rights. It says any visual or acoustic presentation made live by one or more performers. Thus the performers' rights comprise of all the rights that may accrue to the performer by virtue of his performance. [4] A performance is a live act and therefore no property right can subsist in the performance itself except only in a fixation of that performance .Still then the performer enjoys certain rights in the ether of his work, whether it is recorded or not like the right to authorize the broadcasting of the live performance. The essential nature of copyright, on the other hand, is inherently proprietary. However, when a piece of music is recorded, the rights in the performance become inextricably linked with any literary or musical copyrights in that music so as to exploit the sound recording. Therefore, unless one takes the view that a performance is undeserving protection, it would seem unreasonable if the copyright owner and the performer were not granted at least very similar rights.
SCOPES OF PERFORMERS' RIGHTS
Performers' rights are protected under sections 38 and 39 of the Indian Copyright Act. While a right in the performance accrues to the performer when he engages in a performance as per the basis of performer protection in Indian Law, once the performances are broadcasted, recorded and communicated with permission of the performer then his rights cease to exist. [5] All the rights of the performer is inherited by the owner or the director of the recording or broadcast. But none of the performances of the performer can be broadcasted or communicated or recorded without his consent. In the famous case of Aneesh Pradhan v. Banyan Tree Events Pvt. Ltd., the Plaintiff was one of the accompanying table player in a concert held in April 1997.The defendant released tapes and CDs of the concert in 2000 and the plaintiff alleged that his prior consent was not taken by Banyan Tree Events Pvt. Ltd while recording the performance. The Bombay High Court passed an interim order restraining the defendants from manufacturing, marketing or selling the cassettes titled Nirala, which contain an illegal and unauthorized recording of a music concert held in April 1997. [6] Hence, not obtaining the consent of performers in a film could expose a film maker to lawsuits for example, if a film includes the footage of various Indian classical dancers and singers at different festivals and cultural events around India and if the consent of such performers is not taken prior to making such recordings the producer could be liable for infringement. The precise nature of consent is necessary. If a film producer obtains consent, but does not disclose the purpose for the recording and the how the recording would be used in the future, then the producer would be infringing on the rights of the performers.
These rights generally have a life span of around fifty years but if a performer agrees to make his performance as a part of any kind of movie or drama which will be the practical application then the protections are not available to him. The economic rights of the performers in the performances are protected in India until and unless the performance is fixed. Once the performance in which there exists the performers' creativity is fixed then the performer has no right in the performance independent of the owner of the copyright in the fixed performance. There also has been a lacuna in the process of litigation. The former most case which came into picture in the Indian Courts is So and So Case in the year 1979 where the supreme court pronounced that an actor can have no claim on his performance in a film as this performance did not fall within the categories of artistic work in the copyright Act. This was when section 38 and 39 were not part of the Copyright Act. Subsequently in 2003 Super Cassettes Industries v Bathla Cassette Industries [7] was decided. In this case, the position of copyright was analyzed in respect of version recording and licensing and it was held that coloralable limitation of an original musical work is not entitled to protection under section 52(1)(j) of the Copyright Act 1957. [8] It was also held that the performers' rights are different from the copyright and any kind of recording of a musical work without the permission of the original performer will be declared as an infringement of the performers' rights. Copyright law generally protects the creative and original expressions of the ideas and then makes the ideas accessible by the public in the public domain for encouraging the creativity among the public. But on the other hand it also mandates that these works are needed to be fixed on any kind of tangible media and it should fall within the category of work.
RIGHTS OF THE PERFORMERS UNDER COPYRIGHT PROTECTION ACT
There are certain rights which the performer enjoys under the Copyright Protection Act. These rights are mentioned below-
Right to make sound recording or visual recording of the performance - The performer has the exclusive right to make any kind of sound recording or visual recording under section 1(xx) of the Copyright Protection Act. In addition to that he has the exclusive right to authorize the recording of a live performance and the right to make sound recordings from which such sounds may be produced regardless of the medium on which such recording is made or method by which the sounds are reproduced. [9] Musical works and sound recordings embodying the music are considered to be subject matter for copyright. Where the song has not been written down and the composer who is the performer records the song, then two copyrights come to picture simultaneously that is one for the music and one for the sound recording. In Indian Performing Society v East Indian Motion Pictures Association [10] ,the Apex court held that if an author of the musical work has authorized a cinematography film producer to incorporate his works within the cinematography film thereby permitting the person 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 or projected or 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 authorizing the communication of the film by radio diffusion. [11]
Right to produce a sound recording or visual recording of the performance - A performer has the right to produce sound recording or visual recording of his performance. He has got the inclusive right also to make copies of the recording which upon his will can distribute among the public. Therefore the recordings mandatorily should have a copy of certificate granted by the board of film certification, the name and address of the person who has made the video film and a declaration that he has obtained the necessary license or consent of the owner of the copyright in the work for making the video film and lastly should contain the name and address of the owner of the copyright in such work. If the above conditions irrespective of any reason is failed to comply with then it is offenceable under the eyes of law.
To communicate the Work to the Public otherwise than by Broadcast - Any other means to communicate the work to the public, other than the broadcast.
Right to broadcast the performance - Performer has got the exclusive right to prevent their live performances from being broadcasted in the public. Broadcast means communication to the public either by means of wireless diffusion whether in any one or more of the forms of signs, sounds and visual images or by wire and includes a rebroadcast. The broadcasting organization should broadcast the programs with the consent of the copyright owners of that program in question.
ACTS CONSTITUTING INFRINGEMENT OF THE PERFORMERS' RIGHTS
Section 38(3) of the Copyright Protection Act strengthens the rights of the performers by making certain provisions. Under this if any person without the consent of the performer does any of the following acts, he will be deemed to have infringed the performers' rights. These acts are described as below-
(a) Sound recording or visual recording of the performance
(b) Reproduction of the sound recording or visual recording or reproduction for the purposes different from those for which performer gave his consent
(c) Broadcasts the performance
(d) Communicate the performance to the public otherwise than by broadcast.
However, the above Acts are said to be infringed by a person only when these Acts are committed during the continuance of the performers' rights. When a performer has consented to the incorporation of his performance in a cinematograph film the performer losses the right to complain of infringement of that performance which means he assigned his entire rights and that performance to the producer of the cinematograph film.
ACTS NOT CONSTITUTING INFRINGEMENT OF A PERFORMERS RIGHTS
Section 39 of Copyright Act, 1957 describes about the acts that does not constitute any kind of infringement of copyright. The following acts do not constitute infringement of a performer's right. They are as follows -
(a) Making of any sound recording of or visual recording for private use of the person making such recording or solely for the purpose of bonafide teaching or research
(b) Fair dealing of excerpts of a performance in reporting of current events or for bonafide review, teaching or research or
(c) Other acts with any necessary adaptations and modifications which do not constitute infringement.
(d) 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 person directly connected with the activities of the institution.
(e) Reproduction for the use of judicial proceedings
(f) Reproduction for the use of the members of the legislature
The above acts can be done only with the sound recording or visual recording of the performance. Accordingly the making of a sound recording or visual recording for the above purposes cannot also be an infringement. Where copyright or performer's right subsists in respect of any work or performance that has been broadcast, a license to reproduce such broadcast will require the consent of the owner of rights or performer or both of them depending upon the situation.
REMEDIES AGAINST INFRINGEMENT OF PERFORMERS RIGHTS
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 may extend 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 - Anton Pillar Order is an ex-parte court injunction that requires a defendant to allow the plaintiff to (1) enter defendant's premises (2) search for and take away any material evidence and (3) force the defendant to answer some questions. It is employed usually in cases of possible copyright violation, its primary objective is to prevent destruction or removal of evidence. This order is not a search warrant, but the defendant is in contempt of court if he or she refuses to comply. [12] In appropriate cases the court may on an application by the plaintiff pass an ex-parte 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.
PROTECTION OF PERFORMERS' RIGHTS IN OTHER COUNTRIES
1) United Kingdom
The copyright Act of 1911 gave the British companies the right to prevent the unauthorized copying of the sound recordings for a span of 50 years from the date of making of the original master. The copyright Designs and Patents Act of 1988 added a new dimension to UK copyright law especially for the performers' rights. These gave the performer the right to control the exploitation of his performance. In the present scenario, performers' rights are infringed by any person who without the consent makes a recording of the whole or part of the live performance or broadcasts the whole or substantial part of the performance or makes a recording from any such broadcast. [13] It is also an infringement of such rights to copy a recording of the performance or to issue such copies for a public sale without the consent. In Rickless v United Artists [14] ,the Queen's Bench ruled on the issue on the nature of performers' rights in the context of whether these rights impacted a filmmaker's copyright. It was two prong decisions in which Justice Hobhouse declared on one side that the performers' rights are both of the same category and genus as copyright as both aims at protecting the economic concerns of the performer. On the other hand, he also ruled that performers' rights do not impact the rights of any film maker as the right asserted by the performer was not in the nature of copyright. This kind of scenario of judgment still exists presently.
2) United States of America
USA does not have any specific legislation governing the protection of performers' rights. USA's copyright laws protect the economic rights of the performers like as protected in India. Performers' rights in USA are protected by the right of publicity which is a tortuous doctrine evolved by the American courts rebutting to the claims of infringement of the performers' rights. This is the only major distinction between the system followed in USA as compared to UK and India. In Lahr v Adell Chem. Co. [15] , the court ruled that the performers' were protected against copying of their voices which they had copied their distinctive styles of singing as the defendants in the present case was copying to sell the products. [16]
JUDICIAL PRONOUNCEMENTS
The Indian judiciary made a lot of remarkable pronouncements regarding the issue of protection of the rights of the performers. But still it is a debated issue in the present scenario. Some of the landmark pronouncements are as follows -
Radio Today Broadcasting Ltd v Indian Performing Rights Society [17]
Radio Today Broadcasting, the petitioners, planned to run a radio station through the FM band with the name Radio Today. They applied for a license from the central government and also secured a provisional license. The petitioners' intent is to play both film and non-film songs on this proposed station. The dispute arose due to the fact that Radio Today was not willing to pay royalties to the Indian Performing Rights Society (IPRS) and IPRS in turn brought a legal action for infringement of copyright. Radio Today's main contention was that once the song is composed and marketed through the producers, they were only required to seek permission from the producers' society only and not from IPRS as once the song was prepared and marketed, the complete product would attract royalties and the individual performers are not entitled to such royalties. The IPRS told Radio Today that if the station played the songs, it would amount to copyright violation. Alerted by the threats, Radio Today filed a lawsuit under Section 60 of the Copyright Act, 1957, which provides for remedies in the case of groundless threats of legal proceedings. The issue was whether Radio Today would be obliged to pay any royalty or license fee to IPRS if the songs are broadcast through the radio station in addition to the license fees paid to the producer, Phonographic Performance Limited?
The Court placed reliance on the Supreme Court decision in IPR Society v EIMP Association [18] , wherein it was held that the rights of the lyricist/composer in respect of the song subsequently put in the original film track are extinguished as soon as they are paid for their work. However, they retain their right to assign it to others for commercial exploitation in other modes in cases where such rights are reserved by the agreement between him and the film producer. The Court held that Radio Today has no case and that members of IPRS did assign their exclusive rights to the producers by agreement. Unless it is shown that such rights were assigned in favor of the members of PPL, IPR is entitled to claim royalties from Radio Today if they want to exploit the work. Accordingly, IPR's claim for royalties was held to be well-founded and legitimate and it was held to be entitled to initiate proceedings to protect the interests of its members. It is a fact that certain rights are difficult to protect individually. Creators of aesthetic products are vulnerable to many aspects and are often subject to exploitation. The role played by copyright societies such as IPR, has a major impact on the life of many artists.
Neha Bhasin v Anand Raj Anand and Anr [19]
The plaintiff, Neha Bhasin, was a singer who claimed that her voice was used by the defendants for the three versions of the song "Ek look ek look" in the forthcoming Hindi feature film "Aryan" produced by the defendant No. 2, Poonam Khubani. The defendant No. 2 in connivance with the music director (Anand Raaj Anand) who is defendant No 1 has shown herself as the lead singer. The plaintiff has been shown as backup vocalist in all the three versions of the song. The plaintiff alleged that this act was an infringement of the performer's right and requested that her name must appear as lead singer. So, suit was filed for seeking decree of permanent injunction against the defendants from using, selling, distributing and exhibiting the motion picture as well as audio cassettes containing the song without displaying the plaintiff's name. The main issue in this case was whether this act of the defendants is a clear violation of the performers' rights as a singer?
To the plea of the plaintiff, the court said that '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'. The 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.
WHY TO PROTECT PERFORMERS' RIGHTS
Performers' rights endow the performer complete control over his performance which is the main input of the performer. Performers' in addition to protecting the economic and moral rights of the performer also protects the unauthorized use of his personal identity and style. The performers' rights must be protected irrespective of any monetary or commercial loss caused to the performer. Protection of the rights of the performers helps in getting greater economic gains which leads to greater incentivisation for performers for making more developments in their respective arts and thus in the last it is for the benefit of the public. If the entire part is seen from the view of natural justice and equity then a performance accordingly will be visualized of the performers' personality and a specific part of his property. In India, the performer protection has added a new scope to the protection of the folk fore and large entertainment exports. Entertainment exports like Bollywood are on increasing path due to which there is increased international scrutiny of the Indian intellectual property regime and an increased susceptibility to imitations of performances. [20] But on the other hand there is a huge debate that the performances should be left to be exploited by the public in the public domain. This is so because it is endowing a lot of monopoly rights over the performances.
TRIPS PROVISIONS ON PERFORMERS' RIGHTS
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement does not contain any articles or provisions regarding protection of the performers' rights. But it does contain provisions in respect of the rights of performers in their unfixed performances. Art. 14(1) provides 'In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance.... Performers shall also have the possibility of preventing the following acts when undertaken without their authorization; the broadcasting by wireless means and the communication to the public of their live performance'.
However Art. 14(1) of the Agreement itself contains a very important limitation, since it grants performers a right of fixation only against a fixation in a phonogram. The TRIPS Agreement does not protect performers against unauthorized fixation of their live performances if an audiovisual fixation is involved. With regards to all these agreements and relevant provisions, almost all the countries who are signatories to the agreements including India and United Kingdom provides for the protection of the performer's right in their copyright protection. In the post TRIPS period, new issues have arisen out of the advancement of digital technologies. Performers are equally vulnerable to the misappropriation of their rights due to communication or reproduction through the Internet. Negotiations were held and a treaty concluded that is, WIPO Performances and Phonograms Treaty (WPPT) 1996. This treaty replaces the Rome Convention, 1961 in respect of the performers' rights.
CONCLUSION
After having such kind of rules and regulations for protecting the rights of the performers', still Indian judiciary is lacking behind in one or other way. Till today sometimes India is incapable of giving proper protection to the performers'. The performers should be given proper protection and incentives for their performances or creative works so that they will be encouraged by such deeds and will perform more dedicating which will on the other hand is beneficial to the public at large.
