Ajay Sharma1, Kumar Sargam2
1Assistant Professor, Department of Law, Lovely Professional University, Punjab
2Assistant Professor, Department of Theatre & Music, Lovely Professional University, Punjab
The Indian Copyright Act protects performers against the unlawful use of their performance. Thus, Performer rights are the rights available to a performer against people who are doing illegal usage of performance. These rights are highly vital in the present period, which is dominated by the use of technology. This research paper will go over the definition of a performer, international agreements on performers’ rights, the necessity of giving performers legal protection, the legal status of performers’ rights in India, and challenges in enforcing performers’ rights amidst the rise of OTT. This paper will critically evaluate all these concepts and will demonstrate that the present law is inadequate current origin of OTT platforms. In addition to this, the success of any law depends upon the extent to which the people are aware of their rights. For this, an empirical study will be conducted to find out the implications and awareness of the law among various performers in the academic sector.
Keywords: Performers’, Copyright, OTT, Protection, Academic
How to cite this paper:
The creators are bestowed with right of copyright by the Copyright Act, of 1957, which prevents unauthorized use of their intellectual property or creative works. The category of performers to whom right is given by the law are: producers of cinematograph films and sound recordings, as well as authors of literary, dramatic, musical, and creative works, who are granted this privilege by the law. The copyright protection offered to the works of original authors, musicians, designers, dramatists, architects, and producers of sound recordings, cinematograph films, and computer software fosters an environment that is conducive to creativity, tempting them to produce more work and inspiring others to do the same. In 1914, India passed its first copyright legislation, which was modeled after the English Copyright Act of 1911. Later on, this Act was replaced by a new law ‘The Copyright Act, 1957’. This Act was updated in 1994 and 2012 to reflect the most recent advancements in information technology as well as international standards for performers’ and copyrights. There was no provision for the protection of performers’ rights in the original 1957 Act. Only after the 1994 amendment were certain performance rights recognized, which were then supplemented by other performer rights granted in the 2012 amendment.
Performer and Performers rights
The Copyright Act defines “performer” as “any person who makes a performance,” which includes actors, singers, musicians, dancers, acrobats, jugglers, conjurers, snake charmers, lecturers, and other performers. The proviso to the definition of performer states that, except for clause (b) of Section 38B, a person whose performance in a cinematograph film is casual or incidental in nature and, in the usual course of business, is not acknowledged anywhere including in the film’s credits, shall not be treated as a performer.
The Act also defines “Performance” as any live visual or auditory presentation given by one or more performers in regard to performer’s rights. In the Act, various rights are recognized to performers in order to safeguard their interests under Chapter VIII, sections 38, 38A, 38B, 39 and 39A. Thus, rights given to performers by the Copyright Act, 1957 are called performers rights.
International Instruments on Protection of Performers’ Rights
- The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations,1961(Art. 7-9)
This Convention’s protection of performers must include the potential to:
(a) the broadcasting of their performance and the communication of it to the public without getting their permission, unless the performance is already a broadcast performance or was created from a fixation.
(b) the fixing of their unfixed performance without their agreement;
(c) the replication of a fixation of their performance without their consent:
(i) if the original fixation was made without their consent;
(ii) if the reproduction is created for reasons other than those for which the performers consented;
(iii) if the original fixation was made in accordance with Article 15, and the reproduction is made for non-mentioned reasons.
Article 7 (2)(1) further provides that in those cases, where consent was given by performer for broadcasting, the Contracting State shall have a duty to regulate the protection against rebroadcasting, fixation for broadcasting purposes, and the reproduction of such fixation for broadcasting purposes.
- Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) 1994:-
Article 14 of the TRIPS provides for Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations. Under this “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 and the reproduction of such fixation. 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”.
- WIPO Performances and Phonograms Treaty (WPPT) (1996):
Chapter II, Articles 5-10 deals with rights of performers. Article 5 deals with moral rights of performers. It provides that the performer shall have a right to be identified as the performer in his performance made in his live aural performances or performances fixed in phonograms. This right will subsist after his death, at least until the expiry of the economic rights. Article 6 deals with economic rights of performers in their unfixed performances. Under this, performers shall enjoy exclusive rights of authorising their performances: “the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance” and “the fixation of their unfixed performance.”
Article 7 provides the right of reproduction under which “performers shall enjoy the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in phonograms, in any manner or form.”
Article 8 covers the rights of distribution. Under this, “performers shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership.”
Article 9 deals with the right of rental. It provides that “performers shall enjoy the exclusive right to authorizing the commercial rental to the public of the original and copies of their performances fixed in phonograms as determined in the national law of contracting parties.” 
Article 10 covers the right of making available of fixed performances. This provides that “performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonogram, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.”
Need of Legal Rights to Performers in India
Since there are many international instruments which provides for the performers rights and of which India is a signatory so there was international pressure on India to provide for legal rights to performers. This is also reflected in one of the purposes of the Copyright (Amendment) Act, 2012 under which the Act is necessary to be conformity and concurrence with International standards of performer protection as specified in international instruments. In addition to this, there was demand from performers as well to provide them with legal rights about their performances.
Legal Position of Performers Rights in India:
- Performer’s Right:-
Section 38 provides for what is Performer’s rights under which it is provided that where any performer appears or engages in any performance, he shall have a special right to be called as the “performer’s right” about such performance.
- Terms/duration of Rights:-
Before the Amendment of 2012, the duration of protection for performer’s right was twenty-five years. But after the amendment, section 38(2) provides that the performer’s right shall be for fifty years from the end of the year in which the performance took place.
- Exclusive Right of Performers:-
38A of the Act deals with exclusive rights of performers. These rights are exclusive rights given to the performer which are subject to the provisions of the Act. Under this provision, “the performer has an exclusive right to do or authorize to do any of the following acts in respect of the performance or any substantial part thereof:-
(2) If the performer has by written agreement given his consent for incorporation of his performance in a cinematograph film, and in the absence of a contract to the contrary, he shall not object to the enjoyment by the producer of the film of the performer’s rights in the same film. However, nothing will affect the performer’s right to have royalties in case of making of the performance for commercial use.”
- Moral Rights of the Performer: –
Section 38B further provides the moral rights of the performer. Under this, the performer of a performance shall also have the following rights: –
- Identification as performer of his performance
- Restrain and claim damages (in case by distortion etc in his performance, his reputation is hurt)
- Activities that amount to violation of Performer’s rights: –
- Reproducing the performance’s work without the consent of performer.
- Making use of performer’s work without his consent.
- Making use of performer’s work for a different purpose without performer’s consent for that purpose.
- Broadcasting a performer’ work without fulfilling the requirements of section 39 of the Copyright Act.
- Sharing of the performance by any means except broadcast without performer’s consent.
- Activities that don’t amount to violation of Performer’s rights: –
- The act of reproducing any audio or video recording whether for personal use or to be used in teaching and research work.
- Reproduction of the work for the purpose of judicial proceeding or for the purpose of report of a judicial proceedings.
- Reproduction of the work with the object of reporting, reviewing or other activities covered under fair dealing.
- Reproduction of the work prepared by the Secretariat of a Legislature with an object that it will be exclusively to be used by members of that legislature.
- The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.
- Some other activities expressly mentioned in section 52.
- Remedies Available to Performer Against Violation of Performer’s Rights: The Copyright Act, 1957, under section 55 and Sections 63-70 provides various remedies to performer against whom the violation of performer’s right has been made. These remedies are: –
- Civil Remedies: –
The aggrieved party may go the court and obtain temporary or perpetual injunction against the party guilty of violation of performer’s rights. The party may also demand for damages. Further, the cost of the proceedings may also be demanded from the guilty party.
- Criminal Remedies: –
The aggrieved party may also initiate criminal proceedings against the guilty party. Under this remedy, if it is proved that “the person has knowingly infringes or abets the infringement of any right conferred by the Act (except the right conferred by section 53A), then such person shall be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.”
In the case of Neha Bhasin v. Anand Raj Anand, Neha Bhasin, a singer, filed a perpetual injunction against the defendant, stating that the defendants were utilizing, selling, distributing, and showing the movie “Aryan – Unbreakable,” which contains the song “Ek Look Ek Look,” as well as audio cassettes, compact discs, and promotional materials for the movie without identifying the plaintiff as the main vocalist. She claimed to be the primary vocalist on the song.
The Court stated that “every performance must be live in the first instance, whether it is in front of an audience or a studio. If this performance is videotaped and later exploited without the performer’s permission, the performer’s right is violated. The Court awarded a remedy to the plaintiff by granting the injunction.
- Jurisdiction of the Court: –
Every suit or other court proceedings in respect of violation of any right given by the Copyright Act, 1957 shall be filed in the District Court having jurisdiction.
- Cognizance of offense: –
The court which is not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall have the power to take the cognizance of the offence under this Act.
The Evolution of OTT and Protection of Performers’ Rights in India
Over-the-top (OTT) networks are streaming services that deliver content via the Internet rather than conventional broadcast or cable TV channels. The rise of OTT platforms has transformed the entertainment business, putting a wealth of material at the fingertips of customers. However, as these sites increase in popularity, there are growing worries about the protection of performers’ rights.
The problem of performer rights has become more complicated with the introduction of over-the-top (OTT) networks. As a result, performers are either not properly paid for their labor or have their rights violated by OTT platforms. Some platforms, for example, have been accused of using material without acquiring the required permissions or giving royalties to the artists. Another problem is a lack of openness in revenue-sharing agreements between platforms and artists. Many performers are unaware of how much they are compensated or how the money produced by their material is distributed.
Another problem is the absence of OTT platform legislation and oversight in India. OTT networks, unlike conventional media such as television and cinema, are not subject to the same degree of control and censorship. This dearth of oversight has raised questions about the quality and substance of some of the material on these platforms, as well as how performers are treated. To address these concerns, there have been demands for the Indian government to create a legislative structure that safeguards the rights of OTT platform artists. The Information Technology (Intermediary Standards and Digital Media Ethics Code) Regulations, 2021 govern OTT networks in India. These guidelines require OTT platforms to ensure that all material uploaded on their platforms complies with Indian laws and does not violate any rights, including the rights of performers. The regulations also require OTT platforms to set up a dispute redressal method to handle any concerns regarding the violation of performer’s rights or any other rights. Furthermore, the Indian government has suggested changes to the Copyright Act that would expand artists’ rights to include the right to a fair share of income produced from commercial usage of their performances on digital platforms, including OTT platforms. The Indian parliament is presently reviewing the suggested amendments. However, the government should consider enacting a new law to regulate the rights of artists on digital platforms.
The performers in the academic sector are unaware of performers’ rights given by the Copyright Act, 1957.
The researcher has used both doctrinal and non-doctrinal research methodology for the research. Doctrinal research includes text books, research papers, newspapers. Non-doctrinal research includes collection of data through structured questionnaire from various performers working in academic sector. The total number of respondents for the study was 50.
The respondents were asked to check the awareness on law governing performers and performer’s rights in India. The performer’s rights in India are mainly governed by the Copyright Act, 1957. Figure 1 indicates that 42.9% were slightly aware of the law and 24.5% were not aware at all. There were 14.3% respondents who were strongly aware and 18.4% moderately aware of the law respectively.
The respondents were asked about the name of the law which governs performers’ and performers’ rights. The performer’s rights in India are mainly governed by the Copyright Act, 1957. Figure 2 shows that 53.3% answered it right that the Copyright Act, 1956 governs the performers and performers rights. However, 8.9 % respondents answered for the Patent Act, 1970 and 6.7% answered for the Design Act, 2000. There were 31.1% who opted all of the mentioned laws governing the performers and performers rights in India.
The respondents of the survey were asked about the nature or scope of performers rights i.e. what are the performer’s rights? Performer’s rights are basically legal protection granted to performers Figure 3 suggests that 46.7% held that performer’s rights are the legal rights granted to individuals who perform in public places, while 43.5% held that these are legal rights granted to individuals who perform on stage. 6.5% and 4.3% held that these are the legal rights granted to individuals who perform in movies or in private places respectively.
The respondents were asked about the eligibility criteria for claiming performer’s rights in India. As the Copyright Act, 1957 does not differentiate Indian citizens and foreigners for protection of performer’s rights. Under the Act, protection is given to performers whether they are Indian citizens, permanent residents of India or foreigners. Thus, foreign performers in India can also enjoy the same rights and protection as Indian performers. But majority of the respondents were unaware of this as Figure 4 shows that 54.3% respondents held that these rights are available to Indian citizens only. 4.3% held that permanent residents of India and 2.2% held that Indian citizens and foreigners both can claim performer’s rights respectively. There were 39.1% respondents who held that All mentioned categories i.e. Indian citizens, permanent residents of India and foreigners are eligible to claim performer’s rights.
The respondents were asked whether they consider themselves as performer as per the definition of performer given in the Copyright Act. As per figure 5, 52.1% consider them as performers while 10.4% consider that they don’t fall in the category of performer’s as per the law. There were 37.5% respondents who are unaware whether they come in the category of performer’s or not.
In this question the respondents were asked about their category as per the applicable law. Figure 6 represents that 68.9% of the respondents were musician and 35.6% were lecturer. 6.7% and 15.6 % of the respondents were actors and dancers respectively.
In this questions, the respondents were asked to fill their category as performer if they don’t fall in the mentioned categories of performers. Figure 7 suggests that there are performers like painters, lyricist, vocalist etc. There were many respondents who answered that they are not performers.
This question was asked to check the awareness or understanding of performer’s about the life or duration of performers rights. Section 38A of the Copyright Act, 1957, specifies the term of protection of performance. Under this section, the general term of protection for performer’s rights in India is 50 years from the year of performance. But as per figure 8, 42.6% considers that performer’s rights are for unlimited duration. 25.5% held that performer’s rights are available for 25 years from the end of calendar year in which the performance was first given. 25.5% and 6.4% held that performer’s rights are available for a period of 50 years and 70 years from the end of calendar year in which the performance was first made respectively
In this questions, the respondents were asked whether the act of reproducing any sound or visual recording either for the purpose of private use or for teaching and research work constitutes breach of performer’s rights. The Copyright Act, 1957,under section 52(1) permits the reproduction of copyright work including performances for teaching and research work or for private use. Thus, this section provides an exception to the exclusive rights of performers. As per figure 9, 51.1% held that yes it constitutes breach of performer’s rights and 43.8% held that it may or may not constitute breach of performer’s rights. There were 4.2% respondents who held that it does not constitute breach of performer’s rights.
If there is a breach of performer’s rights, then the performer has to approach the court for redressal. In this context, the question was asked from the respondents that which remedy is available to a performer against violation of performer’s rights. Section 55 and section 63 of the Copyright Act, 1957 provides for civil and criminal remedies respectively if there is violation of performer’s rights. Figure 10 highlights that 42.8% of respondents is of the view that there are both civil and criminal remedies available against violation. 28.9% held that there is only civil remedies while 11.1 % held that there is only criminal remedies available for violation. There were 17.8% respondents who held that there is neither civil nor criminal remedies available for violation of performer’s rights.
OTT is the new emerging area of entertainment which is gaining popularity day by day. However, it also posing threats to the protection of performer’s rights over OTT. In this respect, the respondents were asked about their view regarding efficiency of existing copyright law to protect performer’s right on OTT platform. Figure 11 indicates that 46.9% of the respondents held that the existing law is able to protect performer’s rights on OTT platform. 34% of the respondents held that it may be able to protect while 17% respondents held that the existing law is not efficient to protect performer’s right on OTT platform.
Any Suggestion(s):- The respondents have given various suggestions on the issue of performers rights. Most of the suggestions are that the awareness need to be made on performer’s rights and the stringent law need to be enacted or the existing laws need to be amended.
The Copyright Act’s rights granted to performers are a very positive development. According to copyright law, performers such as actors, musicians, jugglers, and snake charmers have the only right to execute certain performances. While it is obvious that the addition of Performer’s Right to the Copyright Act through the 1994 Amendment has accepted that performers have interests (economic and moral) in activities involving their performances and the creative works that integrate these performances, this recognition is not the only factor at play. However, there is still much to be desired because the advantages of the legislation are relatively limited and much less than what the community and international conventions have in mind. To date, the artists have received recognition and earnings thanks to the present legislation. To preserve Indian performers’ rights and provide fair compensation, we must significantly alter the rules as a result of recent developments in the entertainment sector and the growth of internet streaming platforms. The emergence of internet streaming services has revealed a gap in the current copyright rules, which permits the streaming services and copyright owners to take a substantial portion of the proceeds from creative works while leaving the artists to survive on leftover crumbs (figure 11). The rights of performers need to be better protected. To make sure that provisions are there both on paper and in practise, it is only possible if the correct adjustments are made to the copyright legislation. Lastly, the enactment of the law is not enough but awareness of the law is the requirement for successful implementation of law. The Act must contain a provision to create awareness about the given rights to performers so that the performers can take the benefit of law where their rights are being violated.
 Section 2(q) “Performance” in relation to performer’s right as it means any visual or acoustic presentation made live by one or more performers.
 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Rome, 26 October, 1961, available at: https://treaties.un.org/doc/Treaties/1964/05/19640518%2002-04%20AM/Ch_XIV_3p.pdf.
 Agreement on Trade Related aspects of Intellectual Property Rights, 1994, Article 14.1., available at: https://www.wipo.int/edocs/pubdocs/en/intproperty/464/wipo_pub_464.pdf
 WIPO Performances and Phonograms Treaty, 1996, Article 6(i).
 WIPO Performances and Phonograms Treaty, 1996, Article 6(ii).
 WIPO Performances and Phonograms Treaty, 1996, Article 7.
 WIPO Performances and Phonograms Treaty, 1996, Article 8.
 WIPO Performances and Phonograms Treaty, 1996, Article 9.
 WIPO Performances and Phonograms Treaty, 1996, Article 10.
 The Copyright Act, 1999, section 38(2), The performer’s right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.
 Ins. By Act 27 of 2012. (w.e.f. 21-6-2012)
 Ins. By Act 27 of 2012. (w.e.f. 21-6-2012)
 The Copyright Act, 1957, section 39.
 The Copyright Act, 1957, section 52(d).
 The Copyright Act, 1957, section 52(e).
 The Copyright Act, 1957, section 52(l).
 The Copyright Act, 1957, section 63.
 2006 (32) PTC 779 Del.
 The Copyright Act, 1957, section 62(1).
 The Copyright Act, 1957, section 70.
 Tanveer Malnas, “How are online streaming giants eating into Performers’ Rights in India?”, available at: https://www.lawctopus.com/academike/performers-rights-in-india/.