Who would you call a performer? This question could simply be answered by saying a person who entertains an audience. Now to be more specific what would performance mean under the Indian Copyright Act, 1957? The definition of the performance is given in the Act. Section 2 (q) which states “performance, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers”. This could mean a juggler jugging the balls is a performer. We see abundance of talent and creativity on a public platform. Hence such a performer is entitled to performance rights. There arises a need for performances to be protected. The Copyright Act has made provisions for protection of performers work.
Prior to the amendment of the Copyright Act 1994 there was no protection for the performers under the law. The performers were considered vagrants by law. With the progressive generation many people have started associating to the creativity of various performers. Subsequently it led to the need for rights of performers. In the late 19th and early 20th century technology started developing and performances could be recorded as well as broadcasted live. Since then the performers were separated from the makers of the performances. This change has led the protection of performers.
Copyright gives protection of exclusive rights to the creator of the work. These exclusive rights can now be claimed by the performers with amendment of the Copyright Act 1994. The major amendment of the Act was under section 38 which states “Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance”. For instance, a singer singing a song, lyricist writing the song and the composer setting a tune for the song will be entitled for performers rights under the Copyright Act. Such act involves creativity from the performers. As to protect them they are also entitled to stop someone from recording and selling their work. So when you go for a music show and you plan to record the whole show you can only see it privately but not share it which would be in violation of the performer’s right.
The performances of actors, singers, dancers and musicians have an intrinsic part in the process of creation. For the protection of performers from commercial exploitation the first international recognition came from the adoption of neighboring rights. This was recognized in the Rome convention 1961. This treaty gave performers in audiovisual works such as feature films, videos and television dramas rights against any unauthorized recordings.
However, in performances of sound recordings, once performers had consented to initial recording of their performance they were given no rights over its use. Initially as per the 1994 the Copyright Act had fixed these rights for a period of 25 years from the beginning of the calendar year next following the year in which performance was made. Subsequently the TRIPS Agreement had enhanced the term of protection of performers for 50 years computed from the end of the calendar year in which the performance took place. This implementation in the TRIPS Agreement had also lead to the amendment of the Copyright Act 1999 to extend the period to 50 years that was previously 25 years.
Section 38 of the Act makes it clear that where any person records (visual or sound) without the consent of the owner. Such a person is infringing the rights of the owner. There are certain exceptions when the performances can be recorded. Such exception will not lead to infringement. One of the exceptions is when the person is using such recording for teaching or research purpose.
In performer’s right it is also significant to look into the moral rights. The moral rights were incorporated from the Berne convection. The Indian legislation has broadened scope and has more flexible interpretation. There are two moral rights protected under the law. The first right is the performers should be given credits for their performance. The second right is the performer can claim compensation if his or her performance have been distorted in a way that would harm his or her reputation.
Copyright protects the expression and not the idea. For instance, I have an idea of making a song and that song can only have protection when it is made and performed. Now it would be right to say that the expression of the idea needs to be set in a tangible form.
It is unfortunate that the performer’s rights under the Copyright Act 1957 are narrow. Once the performances of the performer are broadcasted, recorded or communicated with the consent of the performer then the rights of performer ends immediately after reproduction.