What are performers' rights under the Copyright Act?

The Copyright Act governs the provisions relating to a performer in India and the rights granted to him thereunder. An actor, a singer, a dancer, a juggler, a conjurer, a snake charmer, amongst others, are all examples of performers under the Copyright Act.

Until 1994, the Copyright Act of 1957 did not recognize a performer's rights in India. The Act does not protect any performance done by an actor in a cinematographic film or any song sung by a singer for a show. . However, in 1994, pursuant to a case decided by the Bombay High Court, performers’ rights were recognized by way of introducing Section 38, 39, and 39A in the Copyright Act. Performers’ rights are completely independent of the rights available in ownership of work. They are categorized as related rights, protecting the interests of those who contribute to doing work.

Performers under the Copyright Act

As per Section 2(qq) of the Copyright Act, a performer is defined to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person making a visual or acoustic live presentation.

Rights available to Performers under the Copyright Act

1. Economic Rights:
Section 38A of the Copyright Act grants certain economic rights to a performer, which are as follows:

2. Right to make sound or visual recordings:
The performer has the right to make sound or visual recordings of his live performance to exclude others. The performer's rights also include the right to reproduce the recording in any form. Suppose the performer has consented to the inclusion of his performance in a cinematographic film through a written agreement. In that case, he shall have no right to obstruct the producer of such film from using such performance.

3. Right to produce sound or visual recordings:
The performer also has the right to produce sound or visual recordings of his performance. In this case, the performer shall enjoy all the rights available to a producer under the Copyright Act vis-à-vis the right to reproduce, give copies for commercial rental, communicate the work to the public, etc.

4. Right to broadcast or communicate performance:
A performer also enjoys the right to broadcast or communicate his performance to the public, if not already broadcast by way of cinematographic film or otherwise, to exclude others. If any person communicates such work to the public without the consent of the performer, then he shall be liable for copyright infringement. 

5. Moral Rights:
In addition to economic rights, as stated above, a performer also enjoys moral rights as per Section 38 B of the Copyright Act. The moral rights include (i) the right to receive credit as a performer for his performance and (ii) the right to claim damages in case his performance is distorted, mutilated, or modified in a manner prejudicial to his reputation.  

6. Exceptions to Performers’ Rights under the Copyright Act
The following acts constitute an exception to the rights granted by Section 38A of the Copyright Act: 

  • Act of reproducing any sound or visual recording for private use or teaching and research work only;
  • Reproduction of the work for a judicial proceeding;
  • Reproduction for reporting, reviewing, or other things that come under fair dealing;
  • Reproduction of the work for use by members of the legislature; and
  • Other acts are not considered infringements under Section 52 of the Copyright Act.

7. Term of Performers’ Rights under the Copyright Act
        As per Section 38 of the Copyright Act, performers’ rights are valid for 50 years from the succeeding calendar year in which the performance was recorded. For example, if the performance was recorded in the year 2021, the term will commence from 1st January 2022 and be valid for 50 years.
The inclusion of performers’ rights is an encouraging step in the domain of copyright law. Several performers are often subjected to unfair practices by producers or music labels in the entertainment industry. Thus, the rights mentioned above would greatly benefit the performers and the work they produce. 

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