Neighbouring Rights Protection in India: Sanjay Pandey
Neighbouring Rights Protection in India: Sanjay Pandey
Neighbouring Rights Protection in India: Sanjay Pandey
Keywords: Webcasting, performers’ rights, neighbouring rights, legal regime, trade perspective
In India, the Copyright Act, 1957 (as right and Related Rights has given shape
amended in 1999), the rules made there to the world’s first ‘webcasting treaty’
under and the international copyright or- that reinforces mandates of Rome Con-
der, 1999, govern copyright and vention in widest possible language. The
neighbouring rights. Before disclosing the Copyright Act, 1957, gives the creators of
nice ties of neighbouring rights protection literary, dramatic, musical and artistic
in India, it is pertinent to note that Indian works, cinematograph films and sound
law might require closer scrutiny and re- recordings exclusive rights to reproduce,
looking in the light of recently concluded perform, translate and communicate their
WIPO treaty on broadcasters’ right 1..The works to the public. It also gives broad-
WIPO’s Standing Committee on Copy- casting organizations ‘broadcast repro-
duction right’2 and bestows on performers
*Email: advocatepandey@rediffmail.com ‘performer’s right’3. Chapter VIII of the
PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 357
Copyright Act elucidates broadcasters’ creator of work and the exploiter of the
and performers’ rights, which is also work. A legal regime is designed only to
called the neighbouring rights. The term ensure the sanctity of the rights that
of ‘protection of performer’s rights has proliferates creation of work. In this
been extended to 50 years through the context, copyright is classified as a
Copyright (Amendment) Act, 1999. The private right regime where the State has a
Act also provides the authors certain minimal role to play.
moral rights like the right to claim au-
thorship and to restrain or claim damages But looking at the philosophy of
in respect of any distortion, mutilation, copyright, which imperatively reveals
etc. of their works. The Copyright Act that protection of intellectual creation
provides a Copyright Board4 to settle against unauthorized exploitation ensures
copyright disputes, a Copyright office for freedom of knowledge creation, it would
registration of copyright works, and set- be correct to state that copyright law has
ting up of copyright societies5 to do copy- long emphasized that copyright protection
right business. does not exist for its own sake but rather
to serve the public interest. The
Indian copyright protection regime Constitution of the United States declares
owes a lot to international development in that the purpose of copyright in that
this area. International approach to the country is to promote the progress of
copyright protection provides that authors science and useful arts, by securing for
of literary and artistic works shall enjoy limited time-period to authors and
the exclusive right of authorizing, the inventors, the exclusive right to their
making available to the public of the respective writings and discoveries6.
original and copies of their works through Similarly, the world’s first copyright law,
sale or other transfer of ownership. Thus, the English Statute of Anne (1710) stated
copyright can be defined as a person’s that its purpose was to ‘encourage
exclusive right to authorize certain acts, learning.’
(such as reproduction, publication, public
performance, adaptation, etc.) in relation International understanding and
to his or her original work of authorship. domestic protection developed since
Though the creator of the work owns the Rome Convention of 1961 emphasized
copyright initially, but it might be sold or the protection of neighbouring rights,
assigned licence on mutually agreed which are considered ancillary to the
terms and conditions, in whole or in part, copyright regime.
to a commercial publisher, a filmmaker, a Neighbouring Rights
recording studio or to someone else who In addition to copyright, there are other
could exploit the work commercially. As neighbouring rights that may attach to a
a consequence, copyright often benefits work. Such a protection has been given a
commercial interests more than individual framework through the Rome
authors, however, this depends entirely Convention, 1961, but there are domestic
on the terms of agreement between the legislations speaking specifically on this
point. In India, Chapter VIII copyright protection. India is a member-
(Broadcasters’ and Performers’ Right) of state of the following international
Copyright Act, 1957, too provides for the conventions on copyright and
same. The Dutch Neighbouring Rights neighbouring rights:
Act, (Wet op de Naburige Rechten) grants
exclusive exploitation rights to (i) Berne Convention, 1886, for the
performing artists, such as musicians and protection of literary and artistic
actors, recording companies and works since 1 April 1928 (The
broadcasters. Performing artists are also convention concluded in 1886
entitled to moral rights. There is no was revised in 1896, 1908, 1928,
formality that has to be undergone to 1948, 1967, 1971 and was
acquire neighbouring rights. The rights amended in 1979).
are acquired by the act of performing, (ii) Universal Copyright Convention
recording or broadcasting, similarly as (UCC), under the auspices of
copyright exists the moment pen leaves UNESCO, since 20 October 1957
the paper. (The UCC was adopted at Ge-
In Canada, the same is accomplished neva in 1952, came into force
and strengthened through the from 16 September 1955 and was
Neighbouring Rights Collective of revised at Paris in July 1971).
Canada (NRCC). NRCC, established in (iii) Convention for the Protection of
1997, is a collective umbrella that collects Producers of Phonograms
a percentage of advertising revenue (as Against Unauthorized Duplica-
mandated by the Copyright Board), from tion of their Phonograms, since
commercial radio stations across Canada. 12 February 1975 (the convention
It is the body designated by the Copyright was adopted at Geneva in Octo-
Board to administer equitable ber 1971 and came into force
remuneration. from 18 April 1973).
In United States, there is strong (iv) Multilateral Convention for the
movement now to balance competing Avoidance of Double Taxation of
interests of protection and freedom of Copyright Royalties and Addi-
knowledge. The Digital Millennium tional Protocol, since 31 October
Copyright Act, 1998, has provided for the 1983, with some reservations.
most possible stringent protection of (v) WIPO Performances and Phono-
copyright and neighbouring rights7. The grams Treaty, adopted by the
history of neighbouring rights in United Diplomatic Conference on
States is not as old as US copyright 20 December 1996
regime8, but since 19769. neighbouring (vi) WIPO Copyright Treaty, adopted
rights have become a feature of US by the Diplomatic Conference on
copyright protection. 20 December 1996
India has for long accepted the
At the international level, related rights
international obligations in regard to
are conferred by the International
Convention for the Protection of check on the trade of pirated information
Performers, Producers of Phonograms material. Secondly, the ownership of an
and Broadcasting Organizations, better intellectual product and the corresponding
known as the Rome Convention. This right to income from that product in much
Convention was adopted in 1961. It is the same way as ownership of something
jointly administered by the United physical entitles one to its benefits. The
Nations Educational, Scientific and third consequence is the fundamental
Cultural Organization (UNESCO), the nature of private property, and is
International Labour Organization (ILO) appropriate to a capitalist economy11.
and WIPO. Copyright and neighbouring This ownership imposes restrictions on
rights now form part of the TRIPS the free availability of the product to
(Trade-Related Aspects of Intellectual others, so that they have to pay the price
Property Rights) Agreement 1994, which demanded by the owner in order to obtain
came into force on 1 January 1995. it. Copyright ownership is important in
The membership of these Conventions determining the level of output of the
and Agreements ensures that Indian copy- good in question, and therefore the extent
right holders get rights in those other of its dissemination. From the
countries which are members of these international perspective, this ownership
treaties. India is a member of WIPO, a determines the gains from cross-border
specialized agency of the United Nations, flows to the concerned countries. Finally,
which deals with copyright and other in- copyright bestows upon the creator of a
tellectual property rights, and plays an work, a moral right to be associated with
important role in all its deliberations. a work (or to remain anonymous) and to
maintain the integrity of a work. Moral
Trade Perspective of Neighbouring Rights rights remain with the author, subject to
There is an international trade waiver, even after the economic rights are
perspective of neighbouring rights as transferred. This pedagogy of logical
well. This is so because after coming into derivation is equally applicable to
force of WTO administered agreements, neighbouring rights.
‘trade and intellectual property’ have
shown a direct nexus and it could be seen
Proposed Protection: The 2003 Broadcasters’
that in appropriate cases this nexus might Rights Treaty
show directly or inversely proportionate Neighbouring rights have taken a new
relationship between ‘trade’ and dimension with easy accessibility of
‘intellectual property’. As stated by now, technology to the world at large. In day to
neighbouring rights have been considered day affairs, it could be seen that people
a facet of copyright and legal recognition are indulging in public large-screen
of a copyright has three consequences 10. showing of live broadcasts of
Firstly, it establishes a barrier to the free international sports events; showing of
flow of trade (in information), this could unauthorized copies of television
be in the sense when a legal regime puts a programmes to customers in various
types of shops, or to the public at fairs or of Broadcasting Organizations, these
exhibitions; sale of unauthorized organizations would enjoy the right to
recordings of broadcast programmes by a authorize or prohibit fixations of
dealer in radio or television equipment to broadcasts, including broadcasts made by
the public; broadcasting or cable wire; the right to authorize or prohibit the
distribution of pre-broadcast satellite reproduction of such fixed broadcasts; the
signals, which carry sports or right to authorize or prohibit the
entertainment programmes; publication in retransmission of broadcasts; the right of
newspapers, magazines and books of still making available to the public of fixed
photos taken from the television screen, broadcasts; the right to authorize or
particularly of broadcasts of news and prohibit the communication to the public
sports programmes, there are numerous of broadcasts, if such communication was
other instances12 that perpetuate 2003 made in places accessible to the public
treaty. All this was not so perceived when against payment of an entrance fee, and
Rome Convention13 was conceptualized. the right to authorize or prohibit the
Forty years ago, the notion of a distribution of fixed broadcasts. The draft
neighbouring right was all but Treaty addresses the issue of signal piracy
revolutionary. Perhaps understandably, by introducing a provision on the
certain authors' representatives were not protection of signals prior to their
really at ease with the prospect of authors broadcasting. Moreover, the draft also
having neighbouring rights on their own provides for provisions on the protection
rights, but, in the light of recent of technological measures and rights
developments, all such notions have management systems. The proposal also
undergone a sea change and the world is takes into account the need to safeguard
moving closer to a new regime of the balance with the rights of other
neighbouring rights. categories of rights holders, and
It is a fact that broadcasters have particularly those who contribute to
enjoyed international protection for their programmes, such as authors, and the
broadcasts since the adoption of the interests of users and the public at large.
Rome Convention, 1961. However,
It is to be noted that for any protection
despite huge technological developments
regime, it is important that it must not
(FM, stereo, audio and video recorders,
liquidate rights as to freedom of
DVD-CD recorders and players, satellite,
information and access to knowledge. In
cable, digital and on-demand delivery),
the present proposed treaty ‘broadcast’
this protection has not been revised. The
has been much more widened and the
WIPO Standing Committee on Copyright
rights protected sought to include sounds,
and Related Rights has advanced
images or sounds and images, or of the
initiatives to streamline neighbouring
representations thereof, with additional
rights regime in the context of
terms that address the issue of how the
technological developments. According
material is disseminated. Seen on these
to draft WIPO Treaty14 on the Protection
terms, it appears that this treaty comes
closer to engulf even database protection. 3 Distribution of fixations,
This view is substantiated by the US 4 Rebroadcasting (simultaneous),
proposal15 to exclude from the definition 5 Cable retransmission (simultane-
of broadcast transmissions over computer ous),
networks or any transmissions where the 6 Retransmission over the Internet
time and place of reception may be (simultaneous),
individually chosen by members of the 7 Deferred broadcasting/cable/Inter
public. The definition16 of ‘broadcasting’ net transmission based on fixation,
in the WIPO treaty is significant on the 8 Making available of fixed broad-
point that it does include mere casts,
retransmission by cable of broadcasts of a 9 Communication to the public (in
broadcasting organization or the making places accessible to the public
available of fixations of broadcasts as set against entrance fee),
out in Article 717 of the EU proposal to 10 Obligations regarding technologi-
the draft treaty. However, this limitation cal measures of protection and
does not appear in the US definition for rights management information.
webcasting. Instead, there is only a
requirement that the webcaster makes the All these have been proposed by the
material accessible to the public at the WIPO treaty to be included by the
same time. If the threshold is simply member countries in their domestic
making accessible the materials at the statutes. In furtherance thereof some more
same time, then plausibly the entire world suggestions of the member countries have
wide web is covered, including every been added to this list, which includes,
image and sound on the Internet. If text is decryption of encrypted broadcasts, rental
included under images or sounds (or of fixations and making available of
representations thereof), if the treaty does unfixed broadcasts20.
not intend this then it can and should be
clarified. Neighbouring Rights: Indian Context
The proposed broadcasters' treaty at The history of copyright is the history
WIPO seeks to give broadcasters, cable- of the response of law to technological
casters and webcasters ten more developments. Since 1971, when the
additional rights18 (given below) to the Berne Convention was last amended, and
three mentioned in the TRIPS the Rome Convention (International
Agreement19.. But their suitability to Convention for the Protection of
particular member country shall have to Performers, Producers of Phonograms
be analysed with respect to existing legal and Broadcasting Organizations) in 1961,
regime and requirement of the member there have been sweeping technological
country as to the protection of changes. The advent of digital
neighbouring rights. technologies has posed serious challenges
1 Fixation, to the copyright regime. To examine the
2 Reproduction of fixations, impact of the new technologies on
copyright and neighbouring rights, the matters such as period of copyright
WIPO had set up two committees of protection (60 years in India). The law
experts on possible (i) Protocol to the was amended in December 1999 to grant
Berne Convention in September 1991 and a 25-year term of protection for
(ii) instrument for protection of the rights (Broadcasters’ right) neighbouring rights.
of performers and producers of
phonograms in September 1992. These It could be seen that just as the concept
committees, after exhaustive discussions, of copyright had been established in
in which India was an active participant, response to the advent of printing press
drafted basic proposals for three new technology, it may also appear that the
treaties, viz., concept of neighboring rights emerged in
line with rapid developments in various
information technologies. Even in
(i) Treaty for Protection of Literary countries, where there is no concept of
and Artistic Works, neighbouring rights as such,
(ii) Treaty for Protection of the technological adaptations of copyright
Rights of Performers and Produc- works such as sound recordings and
ers of Phonograms, and broadcasts are granted copyright
(iii) Treaty on sui generis Protection protection with some limitations on the
for Databases. copyright. As it becomes easy and cheap,
with the aid of information technologies
The conference adopted two treaties, like audio/video recorders and computers,
the WIPO Copyright Treaty and WIPO to make mechanical reproductions of
Performances and Phonograms Treaty. In performances by popular performers of
the area of copyright and neighbouring musical or dramatic works, there are also
rights, Indian law has shown a significant growing demands for protecting
advance and protection term for these performances by performers who add
multiple rights has been enhanced to original and creative contribution to the
provide wider protection. According to existing works.
international commitments, the term of Although Copyright Act, 1957, has
protection for copyrights and right of identified performers right in Section
performers and producers of phonograms 3821, yet moral rights of the performers
is not less than 50 years. In case of are not explicitly incorporated. Moral
broadcasting organizations, the term of right of a performer states that a
protection is at least 20 years. India being performer has the moral right to claim,
a signatory to the Berne Convention has when reasonably practicable, to be
streamlined the Indian copyright laws in identified as the performer of his
order to conform to WTO requirements. performance and to prohibit any
In fact, Indian copyright laws provide for distortion, mutilation, or other
greater protection to copyrights than is modification of his performance that
required under WTO obligations in some would be prejudicial to his reputation22
Operational Regime of Neighbouring authorize the broadcasting or communi-
Rights cation to the public of their works by
Neighbouring rights (also called wire, rebroadcasting, loud speakers, or
related rights) protect the rights of similar methods and permission to
performers, producers of phonograms broadcast does not include permission to
(sound recordings), and broadcasting record the work broadcast. Similarly,
organizations. Phonograms are sound Berne Convention also provides that
recordings such as audiotapes, records, or authors of literary rights also have the
music CDs. Some of the problems exclusive right to authorize their public
addressed by the TRIPS Agreement recitation, any communication to the
include the unauthorized copying or public of the recitation, and the same
broadcasting of live performances and the rights with respect to translations. It also
unauthorized reproduction of recordings provides that authors of literary or artistic
or of radio and television broadcasts. works enjoy the exclusive right of
Under the TRIPS Agreement, nations authorizing adaptations, arrangements,
must provide a legal protection regime by and other alterations of their works24.
which performers, broadcasters, and It could be seen that in almost all
producers of phonograms can prevent domestic legislation the rights provided
such acts except with their authorization. by copyright apply to authors, related
Inspite of technological advancement, rights, known as neighbouring rights,
there is no dirth of instruments in the concern other categories of owners of
market that can be used efficiently rights, namely, performers, the producers
prejudicing rights of performers and of phonograms and broadcasting
broadcasters. The term neighbouring organizations. Related rights could be
rights furthermore implies that in many more succinctly defined as the rights that
respects the right itself is similar to the belong to the performers, the producers of
author's copyright. This particularly phonograms and broadcasting organiza
concerns the basic individual rights tions in relation to their performances,
granted (such as the right of reproduction phonograms and broadcast respectively25.
or of rebroadcasting), the fact that the Although neighbouring rights flow out
right is limited in time, and the various of copyright regime, still some difference
legal remedies are there in case of could be identified between them. Related
infringement of the rights. rights or neighbouring rights differ from
Berne Convention23 reserves to authors copyright in that they belong to owners
of dramatic works, dramatic-musical regarded as intermediaries in the
works, and musical works, the exclusive production, recording or diffusion of
right to authorize their public perfor- works. The link with copyright is due to
mance or communication to the public, the fact that the three categories of related
and any translations thereof. Berne rights owners are auxiliaries in the
Article 1 ibis provides that authors of intellectual creation process since they
literary works have the exclusive right to lend their assistance to authors in the
communication of the latter’s works to still depends upon the scope of licences
the public26. A musician performs a granted by the copyright owner whose
musical work written by a composer; an copyright works are incorporated in the
actor performs a role in a play written by film.
a playwright; producers of phonograms – The concept of neighbouring rights
or more commonly the record industry – originated from analogue technologies28,
record and produce songs and music it faces a substantial change in its scope
written by authors and composers, played in response to rapid developments in digi-
by musicians or sung by performers; tal technologies which consist of com-
broadcasting organizations broadcast puters, digital on-line communications,
works and phonograms on their stations. satellite communications and so on. Since
This basic characteristic of neighbouring digital technologies brought about new
rights as intermediary rights makes them concepts like digital reproduction, on-line
distinct from copyright. transmission, satellite broadcasting, pub-
lic performance connected to computer
Operational Regime in Info-Tech Age network and the like, it is highly uncer-
Overall design of neighbouring rights tain whether these new concepts fit into
in India has a positive correlation with the existing neighbouring rights system or
developing information technology as whether amendments should be made to
well. This implies that neighbouring existing copyright statute. A classical
rights enforcement regime has to be case on the need of broadcasters’ right in
modified keeping in view technological hi-tech era could be illustrated as the
develop- ments. In considering broadcasting organization's entrepreneu-
neighbouring rights in the perspective of rial efforts can be thwarted not only by
information techno- logy developments, it direct use of its broadcast but also by un-
is worth noting that copyright protection authorized use of a pre-broadcast pro-
for films, sound re- cording and allied gramme carrying signal transmitted via a
matters under the In- dian Copyright Act terrestrial or satellite telecommunications
has a peculiar stance in the middle of link and intended only for the broadcaster
traditional concept of copyright and civil itself for use in its broadcast. An example
law concept of neigh- boring right 27. would be a cricket match played in coun-
Although the Indian Copy- right Act does try A; the live coverage (picture and in-
not specifically name the rights of film ternational sound) is sent simultaneously
producers as the neighbour- ing rights, it via a communications satellite to the au-
has clearly assimilated the film producers’ thorized broadcaster in country B; a com-
rights to the concept of neighbouring petitor or cable operator in country B in-
rights. It is to be noted that amendments tercepts the satellite signal and uses it
made in 1999 to the Copy- right Act himself, probably even adding his own
(table on p. 365), has not brought very advertising.
significant changes in the fundamental Another facet of neighbouring rights
structure that the film pro- ducers’ infringement could be seen in Indian
exploitation of their own films
Provisions of the Copy- Impact/outcome/infringement etc of neighbouring rights of copyright
right Act, 1957 as
amended in 1999
Owner of neighbouring right may assign rights under the work to any one
Section 18 provided that in the case of the assignment of copyright in any future work,
the assignment shall take effect only when the work comes into existence.
The owner of the neighbouring rights in any existing work or the prospective
owner of the neighbouring right in any future work may grant any interest in
the right by licence in writing signed by him or by his duly authorized agent:
Section 30 Provided that in the case of a licence relating to neighbouring right in any
future work, the licence shall take effect only when the work comes into exis-
tence.