CHAPTER 7

THE PERFORMER AND THE LAW IN INDIA

Objective of the chapter: The chapter traces the history of the status of the performer in India. lt
endeavors to explore possibilities of common law protection and to analyze the approach of the
judiciary to the issue of performers’ rights. It attempts to clinically analyze the existing statutory
protection for the performer under Copyright Act, 1957 and assess its strengths and deficiencies
in the light of the international instruments and the need for realizing optimum protection and
efficient administration of rights. The chapter undertakes a critical evaluation of the statutory
protection presently available for the performer in India.

History of Performers Status in Ancient, Medieval and the British Period in India

The tradition of performing arts and its perseverance through time in India can be attributed to its
association with religion and mythological lore‘. The genesis of performing arts can be found in
the mythology of the Hindu religion in which it has been recognized as the fifth Veda.2 Its
profound presence can be felt in rituals and temple traditions. Music and the seven swaras
(sounds) were considered as having been passed down from the gods to the mortals.3

The pursuit of performing arts as a professional pursuit was also in vogue in ancient India.“
Actors were trained and used to visit the cities and villages and state capitals to seek favor and
patronage from the r0yalty.5 The king was to provide the protections. There were exclusive
dramatic troupes and the artists lived as a separate social class with a lifestyle and status of their
own. The troupes used to travel from place to place for their performances. There were low
wandering actors as well as well-known actors and actresses with immense patronage.7 The
actors and the supporting cast were differentiated on a theoretical scale 8. Acting as a discipline
was explored as a science and studied, documented and consolidated as a theory for practice of
the same. Thus one finds a study and understanding of the pursuit of acting having an amazing
academic refinement and a structured scientific methodical approach to theatre. This is symbolic
of the seriousness with which the theatrical arts and in particular the performing arts was viewed
in ancient India.
Though the performing arts were seen as significant component of the religious tradition
nevertheless the artist did not enjoy the status that befitted the divine origin that was attributed to
the artsg. In actual practice the artists occupied the lowermost class of society.” The performing
arts and its practice was also affected by the stratification in the society on the basis of caste. The
performing artists commonly belonged to a particular class that solidified into a caste.“ There
were connoisseurs among the kings and others who were avid patrons of the arts in ancient
India.” The artists professionally occupied low social positions dependent on the society for
patronage or the rulers for patronage and sustenance.“ The artists lived as a distinct social class
and were not generally considered of respectable status. The low social position was
complemented by the low economic position enjoyed by the majority of the performing artists
who had to depend on the state patronage for sustenance or on the charity of the public. Wealthy
merchants and all members of the Hindu community were patrons of temples and the arts”. The
temple too supported dance teachers“. When the artist began performing a part of her earning
went to her guru“. Without the patronage of the rulers or musicians could not have developed the
art to a high standard“. In short in ancient India dance was hereditary and patronized by the
temple, the royal courts and the aristocracy.

There is documentation that shows that during the medieval period that natyas came out of the
financial protection of the kings and aristocrats and from the physical limitation of their palaces
and took to open spaces except kuttiyatom. Traditional theatre is stated to have taken roots
related to the life of the people and based on their involvement and patronage. Patronage through
the traditional methods was ebbingls. Between the 13"‘ and the 16"‘ centuries, the Muslim
invaders extended a lot of patronage to the field of music. Different art forms like quawwali
particularly Middle Eastern - Arabianorigin found great encouragement but royal support was
available irrespective of religion. Public concert was practically unknown with respect to
classical musicians and they were well protected by their admirers”. During this period
musicians who acquired an appointment at an eighteenth century or nineteenth century royal
court usually received a generous monthly stipend and often a grant of landed property as well.
He was ranked very highly and often enjoyed a specific honorary title”

The gharana system of imparting learning in the performing arts was prevalent‘9. Though the
system can be said to have moorings in the guru shyshya teaching model of education. While the
guru shishya-parampara did not restrict teaching to be imparted to the children of the teacher
alone other than the restrictions based on the eligibility of twice born castes to be initiated, the
musical system of gharana was particular that the core of the teaching ought not to seep outside
the contours of the lineage.2°. Some of the gharanas were quiet rigorous with respect to the
innovations and style with which they were identified with that even strong strictures were laid
down if ever the knowledge came into the hands of outsiders. Though there were apparently no
legal norms that appear to be violated when there was an untoward seepage of the creation to the
outside world without authorization but it was the norm among the gharanas that there should not
be unauthorized practitioners of the form that was followed by the school of music. Once again it
has to be noticed that it was not the performance of the same that was restricted or regulated but
the transfer of learning by oral or documented means”. Thus there were protectionist measures
but that was not synonymous with a refined notion of intellectual property as understood in
Britain and Europe during the corresponding period.

The advent of the British rule brought in its wake a performing culture akin to the theatre and
entertainment trends in Britain and Europe.” Stage performances were held with professional
theatre performers from England and India”. Good actors commanded huge prices“. The
professional performers were hired on contracts entered into for a period of engagement.25
However just as in England, non-fixed performances did not or were not attributed any
intellectual property relevance in lndia. There is no evidence of any organizational endeavor of
professional theatre performers in the country. This dearth of historical precedence in
organizational enterprise can be identified as one cause that has contributed to the sluggish and
weak response even with the advent of fixation of performances in lndia.

An Overview of the Status of the Aural Performer in lndia

Broadcasting

The British government had made it a point to use broadcasting as a means to harmonize and
knit the empire into a cultural unit. The All lndia Radio commenced broadcasts in lndia in the
1930’s.26 The radio stations followed the British model of remuneration with grading of artists
with the performing artists receiving remuneration per broadcast and a percentage in the like of a
royalty for the repeats as well. The royalty for the recorded western music was covered by the
lndian Broadcasting Company's agreement with the performing Rights Society.” The system of
royalties for repeats of recorded performances of artists was continued for some time in lndia
after independence as well but has ceased to be followed from the seventies. The British
hangover seems to be waning as the effect of past legal systems seem to recede into oblivion
with the native systems replacing practices of the empire.

The performing artistes who rendered the original programming were graded according to their
skills on a scale laid down by the broadcasting establishment”. They had to enter into a standard
contractual agreement with the broadcaster. The remuneration was for a one-time payment with
no additional remuneration for repeat broadcasts. This was for original programs recorded live at
their studioszg. Prior to the incorporation of the government broadcasting into the Prasar
Bharathi Corporation there used to be a contractual deal where in a percentage of the fixed sum
was to be paid to the performing artiste for the repeats of the broadcasts, but this custom was
taken away as the rules became a victim of the anxiety with respect to the commercial viability
of the corporation.” The vestiges of the earlier system are still evident as the format of
agreements used earlier is still in vogue but those clauses are struck off at the time of
agreements‘. The equitable remunerative approach has been abandoned for nowas the fixed pay
system is being followed. The performing artists apparently do not mind the remunerative model
as the model contributes to their popularity and the windfall comes by way of other means of
remuneration open to them.” Artistic pursuits like live performances of folk and classical forms
would be greatly benefited by the repeat remuneration system, as their avenues of exploitation
are scarce.

While commonly the individual bargains are those that stipulate a fixed payment to the artiste
irrespective of the different uses to which his performance may be put to. There may be
exceptional circumstances were in a performer with a bargaining power would have asked for a
varied contractual agreement”. Thus the majority of the performers have to follow the customary
practice of a one-time payment along with which all rights are given away. When the individuals
supply prerecorded albums they are asked to give a consent letter by which they eschew all
further rights with respect to the repeat broadcasts. A written authorization is made or a consent
letter is taken that vests the broadcasting authority with the rights in this regard. An oral consent,
it appears is not sufficient to make over future rights of exploitation over to the broadcaster. The
remuneration changes according to the grading of the artistes.

Audio recordings

The onset of affixation brought substantial“ changes in the remunerative possibilities of the
performing artist in India. With records being produced to cater to the tastes spurred by the
technological marvel of the gramophone, several foreign companies began to expand operations
to India in order to exploit the nascent and immense market potential”. The performing artists
were paid a minimum sum for their services in the fixed medium and there were detailed
agreements drawn up with the artists that provided them with royalty payments as well. The
benefits varied from one artist to the other based upon their demand in the market value and the
following that they commanded among the consumers. The royalty payments were made directly
by the companies (through an agent company) to the artists concerned on a periodicbasis in
proportion to the sales of the records in the market. However this was not extended to the
accompanists of the performers of the accompanying orchestra

With the onset of the sound or talkies in the film industry the performing artists in the audio
sector were provided additional opportunities in the film music field as well. There were no
collective organizations on behalf of artists in the non-film music sector though by the fifties
these organizations arose in some of the regional film industries”. The film music was also
brought out as audio records. In the early stages, the singers with respect to the film and the
audios were distinct unless the sound record producer was able to meet the price commanded by
the playback. The same mode of royalty payments was continued with respect to the records
produced based on the film music.

However gradually this customary practice has given way to one time down payment and the
terms being mostly an outcome of mutual contracts. There are numerous instances where in
singers of yesteryears have been complaining of not being paid their based on royalties by the
companies such as His Masters Voice. The defaults mostly go without redressal as the machinery
is only through courts and no efficient organization exists to voice their grievances. The
contracts do not speak of separate arrangements of remuneration for separate exploitation
avenues or for future technological medium of exploitation.
Performers are also not considered as an element that receive the benefit of collective
administration of rights with respect to royalty payments nor the beneficiaries of collective
bargaining, as they were never considered as entitled to copyright protection. While the music
composer and the lyric writer enjoy the copyright protection as also the sound record producer
and there fore they collectively administer through their respective organizations”. Even after the
grant of special rights in the year 199438 any organizational move for collective administration
by the audio performing artist is not discernible even though some preliminary attempts are
noticeable but collective bargaining and formulation of minimum standard terms do not seem to
have surfaced as a major agenda.

A major handicap is that in the cultural life of the country there has never been a traditional
notion of intellectual property rights particularly among the performing Artists.“ Organizers of
music festivals and other cultural venues do not ever ask the performer for his permission even if
some one was obviously recording the show. If ever the permission is sought for, it is only the
permission of the main artist but not that of the accompanists“. Artists are remunerated through
contractual agreements that are based on one-time payments in case of nonfixed performances in
audio, audio visual and visual performances”. With respect to the fixed audio performances the
performing artists were remunerated on the basis of contracts drawn up and mostly in the early
years it was based on the royalty system with a minimum nominal remuneration in the first
instance. There was a distinction between the playback singers and the singers of other
miscellaneous records. There are no collective organizations on behalf of the performing artists
in the audio sector and therefore there are no collective bargaining terms entered into between
the performing artists and the industry. There is no stipulation of the need for neither any
standard terms nor any formalities such as written agreements in the industry. While the
performing artist in the audio sector is mostly governed by a written contract, there are no
separate agreements for different exploitation of the recording. The producer of the sound
recording is endowed by means of the agreement to make use of the recording for all purposes. It
is a pertinent question whether the agreement for a sound recording can very well be used in
other media like the audio visual without the additional remuneration and authorization from the
performing artist but the contracts either oral or written provide answers to that.
The contractual uncertainties and the manner in which business practices have been conducted
portray or display the vulnerable position that artists hold in a business relationship. Among the
artistic dealings that are struck in India very little is decided on the basis of a formal contract. It
is based on trust and this makes one very vulnerable when it comes to the question of commerce.
It is often noted that the artist shies away from discussing the commercial aspect, which makes
him vulnerable to exploitation“. They are often victims of oral trust and contracts based on the
word of the mouth, misrepresentation, manipulation and fabrication of documents and wrong
statement of accounts. Besides instances of contracts on restraint of trade through which the
artists are bound by exclusive contracts and forced to sign royalty waiver clauses are also
common and stand out for its oppressiveness. As the artistes are in a majority of situations in an
unfair bargaining situation, there is little they can choose from, as it is the contract that
determines their fortune. There have been great deal of instances were in the artists had to take
recourse to the courts for redress against exploitative practices in the aural music industry.“ The
top artistes in the industry have not had to be at the receiving end as much as the rest of those in
the lower ladder. -Those who are accompanists, folk artists and karigars. They even have to bear
the brunt of seeing somebody else take credit for the work besides other problems like
cancellation and non-payment of dues“. The accompanists are not even granted a fitting
acknowledgement .The instances point out to the need for a statutory protection to be granted to
the performer.

The other botheration that compounds matters for the performer is the Internet or web based
communication systems that has become increasingly rampant. Even though the low penetration
of the Internet has not alarmed the sound record industry nevertheless the international labels
have begun to be apprehensive about the same. The consequence of this is on the artist as well as
the music company who do not receive any royalty or returns from the digital media“. While the
music companies have swung into action lately by moving the courts against the dot-com, the
indirect benefit would be on the performer, but the performers have failed to collectively or
individually counter the threat”. With the bandwidth problems being overcome in the near future
the Internet will or is poised to hit the music industry badly in future. lt is going to a bigger threat
than conventional piracy“. The fallout evidently would be on the performer and allied artists.
This shows the need for a more sophisticated protection that takes into account the vagaries of
digital media.
The manner in which the music video boom has caught on in the audiovisual industry, it has
become a separate saleable proposition. The music videos in fact enhance the appeal of the music
albums. However the performing artist becomes an aid to the advertisement process of the sound
album through the music video. However it can be seen that the music videos have become
separate entertainment capsules with music programs being programmed with the sole intention
of catering to music video aficionado rather than as sound album advertisement. The performing
artist receives .no extra remuneration for the music video piece, as this is part and parcel of the
machinery to promote his sound record. lfor which he has been paid and which he is expected to
promote. This is further buttressed by the fact that his legal recourse is also speculative as the
audiovisual performance would be plainly outside the purview of the performers right under
Section 38 (4) of the Copyright Act.

In the fifties the singers used to be paid between rupees 150 and a maximum of rs.500 per song.
By the late eighties the figure was around rupees 1500 and rupees 5000. The remuneration being
dependent on several factors —the budget of the film, the language in which is to be made,
habits and principles of the producer and the relationship between the producer and the singer“.
lronically the singer does not obtain any royalty. The super success of a song need not bring in
financial profits to the singer. The recording company could continue to make profits in the years
to come as well. Once his services are rendered in the recording studio then there would not be
any more basis of claim on the effort that is embodies for posterity in the audiotapes. The
aesthetic satisfaction and the financial comfort were never in direct proportion to one another. As
most of the deals are on a personal basis sometimes no remuneration is expected5°. Being busy
is the most important objective as the ancillary avenues like stage shows bring in steady revenue.
No royalty is given on most recordings but only select Artistes of stature can claim royalty for
the same“. The issue has been debated and consensus evolved but it has not borne fruit
practically. The intense competition amongst the artists and absence of specific legal safeguards
in place to ensure a decent payment have left the artists particularly the newcomers virtually at
the mercy of the producers whims52. The artists desire a minimum level of protection and to be
entitled to a fair remuneration particularly in the absence of a royalty system in place53. The
reason for this chaotic state of affairs is ascribed to the lack of unity among the artists and any
attempt to forge one with this objective“. One reason why the artists are not pressing on the
royalty issue is that in the short term they are happy with the adequate that they get in a month so
there is no room for complaint. The payments vary with the budgetary out lay and the producers’
financial state of affairs“. Despite putting in efforts to impress on the industry the need for
forging a framework for the royalty, the move failed to pick up momentum. Other than instances
were in individual contracts (due to the immensity of the artists bargaining power commanded in
the market) would carry the royalty clauses the artists have never been able to make this a part of
the practice in the industry neither collectively nor through the statutory means. The singers did
unite and organize themselves into an association and embarked on measures to pressurize the
industry to give into a royalty system. A strike was called and for two months all recording was
halted. But then providence intervened in the form of a‘ war with china that interrupted and
turned the favorable wind always. The artists were unable to sustain the momentum of their
resolve in the altered circumstances“.

The aforementioned data on the practices with respect to the performers occupation in audio and
audiovisual industry in the aural realm in particular points out that the performer is neither
customarily nor collectively or statutorily protected in the repeat ed commercial exploitation of
his performance. In the last two hundred years the only noteworthy transition has been from total
dependence on patronage to the contracts owing to altered commercial practices and proliferation
of electronic and digital media. His creative intellectual labor has not been recognized, barring
some exceptions, to be akin to the status of other creative contributors recognized by the
copyright regime. Therefore in the absence of credible economic and social security to the
performer by means of self help, state initiative nor supportive labor measures, recognition of an
intellectual value in the service rendered as regards the monetary recompense is concerned, the
performer was and is vulnerable to exploitation and requires urgent statutory intervention by
means of intellectual property protection as a modus of a share from the profits if any that his
effort fetches.

Efforts by the Government for the Welfare of the Artist

The Government of India has established the Sangeeth Natak Academy in every state in the
country coordinated by a central institution, which is the Kendra Sangeeth Natak Academy.” A
number of schemes have been formulated in order to help the artists in distress either in old age
or incapacitated owing to illness or accident.59 There are a good number of renowned artistes
who spent the major portion of their life for the cause of arts and who are in need of financial
help for their sustenance. In order to recognize and appreciate the artiste‘s accomplishments and
their contributions to the society, the Akademi confers Fellowships and Awards.

The Akademi gives monthly financial assistance to a number of artistes who are in dire necessity
of financial assistance for their livelihood. In addition the Akademi also gives ex-gratia amounts
to unfortunate artistes who are destined to put an end to their artistic life on account of becoming
permanently incapacitated by accident and chronic disease. But despite these not all is well with
the performing artists as a community. Even" celebrated artists and singers have had to fend their
last days in old age homes due to utter penury.61 Even reputed and personalities of world
acclaim like Rugmini Devi has not been spared the cruel finale of spending the last days as a
destitute in an destitute home for artists in another country.62 ln other words while the
performing arts flourished under the royal patronage of the kings and other powers in the ancient
and medieval period it does not seem to have sustained effectively in the modern age despite the
modern welfare state having taken over the responsibilities in this regard.

Common Law Protection for the Indian Performer

The lndian jurisprudence shares a lot in common with the Anglo-Saxon system followed in
United Kingdom owing to their shared political and legal history. There is no reason to think
othenrvise with respect to the application of the common law principles as applied by the courts
in England and followed by the courts in India. With whatever restricted territorial application
that the common law principles mighthave had both with respect to the territory as well as with
regard to the subject matter both the law as well as the common law of England has had an
infectious influence and consequence on the Indian dominion. Jurisdictional perspective finds
that until 1726 both the statute and the law had an application and impact on the lndian dominion
of the east India Company. From the copyright common law stand point this would mean that the
case laws of Donaldson v. Beckett (1779) 98 E.R.257 and the Statute of Anne would have had
repercussions on the lndian soil in the subject matter if any that might have come up. However
similar to the English experience and interpretation it can be said that the statute of Anne dealt
only with writings and the extinguishment of common law rights therein upon its publication.
After 1726, laws of the United Kingdom required a separate declaration or testatum to apply it to
another colonial territory“. Thus the 1911 Copyright Act could be extended to India only through
the promulgation of a separate enactment, which was the Copyright Act, 1914. This also carried
the preemptive provision against common law copyright. However the prohibition was expressed
against any copyright or similar right being attributed to the entities protected by the act. It is
significant that the Act did not contain any protection for the performer nor to their
performances. Therefore the common law right in the performances remained unaffected by the
Copyright Act in lndia. lt is appropriate to recollect that the reason for refusing a common law
property right in performances was the prevalence of Dramatic and Musical Performances Act,
1925 that intended, according to the courts only a criminal remedy and no civil rights. Thus the
existence of a statute in England preempted the attribution of civil rights and status to the
performer. It is important to note that the Dramatic and Musical Performances Act though a pre-
independence legislation was never extended into lndia. Therefore the rulings of the court prior
to the independence or after on the question of performers ‘rights in the context of the Dramatic
and Artistic Performances Act would not be applicable to the Indian subcontinent.“ Even though
no occasion had been given to the courts in lndia to resolve any dispute regarding the status of
the performer in the country by resort to common law principles nevertheless from the
aforementioned analysis it becomes clear that nothing could have logically prevented them from
an attribution of common law property rights to the performers’ performance in lndia.

It is important to note that the two case laws that referred to performers status and position under
the copyright law was never asked to go into the question from the perspective of common law
property rights. Therefore their observations regarding the non-existence of any rights for the
performer under the statute can only be confined to findings regarding the absence of rights in
the statute and nothing more.

Judicial Perspectives with Regard to Performers’ Rights

Performers‘ right in lndia was not a subject of judicial debates as the issue never surfaced
directly before the courts by way of litigation. Intellectual property rights protection does not
appear to have been high on the agenda of the performers organizations (if any) across the
country. Rather the state and the organizations appear to have been concerned more with labor
and social security issues of the performers.“ There has never been a direct approach by any
performer to the courts for inclusion of the performer within copyright law either directly or by
means of any stretched interpretation. The only reported occasion where in the issue was dealt
with by the courts was once in 1977 as a self confessed obiter67 and then in 1978 in the case
filed by the well-known film actor Devanand.68 The latter case explored the possibility of
performance in the film being protected by copyright. It concerned the performer more directly
than the former that was self confessedly a footnote and an obiter. It is noteworthy that both
these cases dealt with the cinematograph medium, in other words the audiovisual medium. In the
aural medium there has not been any decided reported case laws with respect to performers’
right-s either claimed through interpretation of the statute or any contractual misunderstanding.

Significance of IPRS to the Performer

From the standpoint of performers, the IPRS case law is significant because the apex court
stressed the need for giving copyright protection to the creative contributors like singers other
than the traditionally protected entities. The point was significantly made in the context of
agreements regarding engagement of creative contributors in films. Though the case law dealt
with the rights of music composers and lyric writers nevertheless it was a pointer to the manner
in which the recognized entities under the copyright umbrella are treated in the context of the
film industry and therefore of consequence to entities that would be endowed with a similar
status in the future.“ Even if the performers were to be hypothetically granted rights in their
performances in films under the copyright umbrella, the fate of the entity in the judicial
perception would have been the same as that of other creative contributors in films.

The litigation in Indian Performing Rights Society Ltd. v. Eastem India Motion Picture
Association and Others" arose out of the imposition of tariffs, fees and royalties that the IPRS
proposed to collect for the grant of licenses for performance in public of the works in respect of
which it claimed to be an assignee of copyrights and to have authority in the aforesaid licenses”.
A number of individuals including the various associations of producers of cinematograph films
who claimed to be the owner of films including the sound track there of and cinematographers
exhibitors association of lndia filed objections respect of the aforesaid tariff. They repudiated the
claim of the lPRS that it had on behalf of the its members the authority to grant licenses in public
of all existing and future musical works that are incorporated in the sound track of the
cinematograph film in which copyright may subsist in lndia or the right to collect any fees,
charges or royalties.” They also claimed that their members engaged composers and sound
writers under contracts of service for composing songs to be utilized in their films therefore all
the rights that subsist in the musical works in the composers and their works including their right
to perform them in public became the property of the producers of the films and no copyright
subsisted in the composers.” Further it was averred on behalf of the producers that as they were
the authors and first owners of the copyright in the cinematograph film and that they had the
exclusive right inter-alia to cause the said films in so far as the same consisted of sounds which
include musical works to be heard in public as also the exclusive right to, make records
embodying the sound track of films produced by them including any musical work included
therein and the producer has the right to cause them to be heard in public.

The Cinematograph Exhibitors Association too filed objections challenging the right of the IPRS
and besides the aforementioned objections they pointed out that copyright in a cinematograph
vested in the producers meant copyright in the entirety of the film as an integrated unit including
the musical work incorporated in the sound track of the film and the right to perform the work in
public”. The agreement with the distributors of films and the exhibitors of cinematograph films
includes the right to play in public the music that is an integral part of the film. The producers
lease out copyrights of public performance of the films vested in them to the distributors who
give those rights to the exhibitors under an agreement and that when an exhibitor takes a license
for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any
license fee from the exhibitors.

The Copyright Board decided that in the absence of proof to the contrary the composers of lyrics
and music retained the copyright in their musical works incorporated in the sound track of
cinematograph films provided such lyrical and musical works were printed or written and that
they could assign the performing right in public to the IPRS.“ The Copyright Board further held
that the tariff as established by the IPRS was reasonable and they had the right to grant licenses
for the public performances of music in the sound track of copyrighted Indian cinematograph
films and it could collect fees, royalties and charges on respect of those films with effect from
the date on which the tariff was published.

However, the producers and exhibitors moved the High Court as against the order of the
Copyright Board and the High Court upheld their claim holding that unless there is a contract to
the contrary the composer who composes a lyric or music for the first time for valuable
consideration for a cinematograph film does not acquire any copyright either in respect of film or
its sound track which he is capable of assigning and the owner of the film at whose instance the
film is made becomes the first owner of the film and of the copyright in the composition.” The
composer can claim a copyright in his work only if there is an express agreement between him
and the owner of the cinematograph film reserving his copyright. The High Court further went
on to say that Section18 was of no effect as in the circumstances assignment of future work is of
no effect. The IPRS moved the Supreme Court against the judgment of the High Court.

The petitioners argued that if any one made a cinematograph film without a license granted to
him by the owner of the copyright and he exhibits the same in public the work containing a
musical work he has to take the permission not only of the owner of the copyright in the
cinematograph film but also the permission of the owner of the copyright in the literary or
musical work that is incorporated in the cinematograph film.79 This is because according to
Section 13(4) of the Act, the copyright in a cinematograph film or a record does not affect the
separate copyright in any work in respect of which or substantial part of which the film or as the
case may be the record is made.8° The provisions of Section 17(b) of the Act will have no
application to the literary or musical work or the artistic copyright there in and do not take away
the copyright in a literary or musical work embodied in the cinematograph film. The only
method by which the owner of the copyright in the literary or musical work can be divested or
ceases to be the owner of copyright in the work is by assignment, by relinquishment and by the
composer composing the work in the course of his employment under a contract of service with
an employer in which case the employer becomes the owner of the copyright.“ In case of an
assignment of copyright in a future work and the employment of the author to produce the work
under a contract of sen/ice, the question of priorities would be decided on the basis of the
principle that where equities are equal, the first in time shall prevail.

The Judgment

TheSupreme Court held that the work created by the literary or musical author was capable of
assignment. Both the existing as well as the future work of music composer and the lyricist in
their respective works as defined in the Act is capable of assignment subject to the conditions
mentioned in the Section18 of the Act as also in Section19 of the Act being met and that required
an assignment to be in writing signed by the assignor and by his duly authorized agent”. The
second part of the question to be answered by the Court was whether protection to the composer
of lyric or musical work in terms of Section2 (p) meant only notational written, printed or
graphically produced or reproduced music and whether he retains the copyright in the lyric or
musical work if he grants" a license or permission to an author owner of a cinematograph work
for its incorporation in the sound track of a cinematograph film?83. Interestingly as the question
appears to be confined to this (by the defendants own admission) the Court suggested that the
copyright of written music would have to be treated differently from that which is unwritten. It is
noteworthy that nowhere does the Court say expressly that the music which is not in a notational
form or unwritten will not qualify for copyright protection. However, the reference to Section
2(p)8“ while considering this issue gives reason to guess the Courts inclination in this respect.

Relying on a harmonious and rational construction, the Court found that the producer acquires
upon completion of the film, by virtue of Section14 (1)(c)85, a copyright which gives him the
exclusive right of performing the work in public the visual to be seen and the acoustic portion to
be heard in public, without securing any further permission from the author of the lyric or the
music composer for the performance of the work in public“. The Court clearly laid down that the
music composer could not restrain the acoustic portion of the film to be performed or screened in
public for profit or from making any record embodying the recording in any part of the sound
track“. The owner of the copyright in the film can also communicate the film by radio diffusion
as Section 14 (1)(c)(iii) expressly allows the same. The composer of a musical work retains the
right of performing it in public other than as a part of the cinematographic film and no restraint
can be brought to bear upon him.

Though the Court rationalized that there might be a conflict between 8.13 (4) and S.14 (1)(a)
(iii)°8 on the one hand and S.14 (1)(c)(ii) on the other, a harmonious and rational construction
instead of a mechanical construction lead it to the conclusion that once the author of a lyric or a
musical work parts with a portion of his copyright by authorizing a film producer to make a
cinematograph film in respect of his work and there by to have his work incorporated or recorded
on the sound track of a cinematograph work, the latter acquires by virtue of 14(1)(c) on
completion of the cinematograph film, a copyright that gives him the exclusive right of
performing the work in public that is to cause the film in so far as it consists of visual images to
be seen in public or the sound track heard without any further permission of the author of the
lyric or musical work for the performance of the work in public. The Court relied on the report of
the British Copyright Committee set up in the year 1951 to guide the British legislators in their
resolve to enact a new legislation. The distinct right that vests in the film has both the right
relating to making of the copies as well as performing the same in public. According to the
Court, Section 13(4) would not stand in the way for the enjoyment of these rights by the
cinematograph producer.

The composer of a lyric or a musical work retains the right to perform the work in public for
profit otherwise than as a part of the cinematograph film and he cannot be restrained from doing
so. The composer cannot restrain the producer from using the acoustic portion of the film to be
performed or screened or projected for profit or from making any record embodying any
recording in any part of the sound track associated with the film by utilizing such sound track or
from communicating the film or authorizing communication by the radio diffusion.

As Section14(1)(c) expressly permits the author of the cinematograph film to do all these, the
Court noted that any other construction would defeat the intention of the legislature particularly
in the backdrop of the growing importance of the cinematic medium and the immense costs
involved in the production of the cinematic film. The recording in the soundtrack is treated
distinctly from the recording otherwise rendered. Thus the Supreme Court judgment IPRS was
restrained from imposing its tariff policy with respect to performance of musical works in
cinematograph films.

On the important question whether mere engagement would necessarily deprive the music
composer to the performance right in the recording?89, the Court interpreted that by virtue of
Section 17(b) and Section 17(c) of the Copyright Act, when a producer commissions a composer
of music or a lyricist for a reward of valuable consideration for the purpose of making a movie or
for composing the music there of the sounds for incorporation in the soundtrack that is included
in the film, the copyright is vested in the producer as the first owner of the copyright therein. No
right is retained or shared by the composer and the same consequence follows upon the
composer being employed. This would be the presumption subject to a contract to the contrary.

A Self Confessed Obiter with Profound Implications

Justice V.R.Krishna ilyer made a little variation (it was announced at the outset that the
observations were an obiter and an otiose footnote) from his Brother Judge with whom he had
concurred, with respect to the balance of rights between the contributed work in the film and the
rights enjoyed by the owner of rights in the film as a whole“. The learned judge observed that
though the producer is entitled to exercise his rights under Section 14(1)(c) but he is stopped if
the music is performed or produced or reproduced separately in violation of Section 14(1)
(a) .For example, pieces of the soundtrack cannot be played separately and played in the cinema
and other theaters by the producer. The exception only arises in case the circumstances show the
application of Section 17(0). So the producer has no further right beyond a cinema show and
would infringe the right of the composer. In contrast to the sentiments of his Brother judge, he
sees the copyright of the composer capable of being invoked if the music were played in any
restaurant, airplane or radio station or cinema theater. Significantly, Justice V.R.Krishna lyer did
not mention the relevance of Section 17(b) in the context and does not discuss the Section at all.

The learned Judge acknowledged that the artistic or the literary works of man is exploited and
even the works of masters are the subject of piffling payments. He recognized the fact that the
right of the musical composer and the producer coexists under the bounds of the Copyright Act,
1957 and this is achieved via Section 14, which balanced these rights.

A Profound Vision

The most important contribution to the copyright jurisprudence in India was his articulation of
the need for a protective cover under copyright law for the performing artists. The learned judge
pointed out the neglect that the performing artist in the music industry was suffering in
comparison to the music composers and lyricists who were protected and benefited from the
statutory provisions. He added a new dimension by not only crafting a balance between various
right holders contributing to the film but also recommended the need for extension of copyright
protection to new entities like the performing artist. According to him despite being active
intellectual contributors in the work, law has not protected them. The law till now has not
recognized the soulful voice and the wonderful rendering of the songs by the performing artist as
deserving protection under the copyright umbrella”. Under the present law, it is only the
composer who is recognized as an author in relation to a musical work. Similarly the musical
work includes only the composition that has been printed reduced to writing or otherwise
graphically produced or reproduced. This lack of recognition of the performer singer was un-
Indian as both the composer and the singer deserved to be protected. The laws of the respective
countries must protect the right of aesthetic creativity wherever originality is contributed. The
learned Judge felt that the existing infirmity in law needed to be cured and hoped that the singer
is conferred with a right.“ Though from the perspective of the film industry, the emphasis was on
the singer being conferred a right nevertheless it was also a call impliedly and logically to
recognize intellectual creators who were as yet not acknowledged or protected.

Inferences for the Performer from the Judgment

The decision is significant to the performer for two reasons. It hypothetically points to the
situation that can arise if rights are granted to the performer under copyright and the performers
creations are treated as works. The producers’ rights would overwhelm the rights of the
contributor performer just as it did to the rights of the music composer and the lyricist in their
works. Most importantly, a presumption of employment and pass over of rights to the producer
takes place upon mere engagement subject to a contract to the contrary. A mere engagement
would invoke Section 17(b) or Section17(c). Secondly, the thoughts of Justice V.R.Krishna lyer
clarify the fact that no right under the existing statutory copyright canopy exists for the singer or
performer.

A Critical Look at a Significant Judgment

The observations of the judge in the context of the IPRS is significant even though he spoke
about the same while commenting on the topic of the music composer’s and the lyricist ‘s right.
It is also noteworthy that his sentiments went out for the singer in particular in the context of the
rights of the music composer. But in principle the case law dealt with the right of the creative
contributor in the film or the cinematograph and therefore its relevance in the context of
performers rights. Even though the IPRS case dealt with the rights in the cinematographic
medium it is relevant to other affixed media like the sound records as well. The status of the
sound recorder is not much different from that of the cinematograph under the Copyright Actgs.
Therefore any inference with respect to the cinematograph rights would have an equivalent
impact on a like issue with respect to the sound recorders copyright and underlying rights
therein. Therefore the creative contributor in both the sound and the audiovisual medium would
be affected by the obsen/ations and ratio of the case law. The performer if granted a copyright in
the near future or a right in the nature of a copyright would surely be affected by the IPRS
judgment as other copyright protected creative contributors have been by the IPRS decision.
Though several statutory changes have been made in the Copyright Act since the IPRS
judgmentgs, the rationale of the judgment still stands tall as no further judicial interpretations in
the altered legal environment upon similar facts has been pronounced by the judiciary. The
judgment makes Section 13(4) of the Copyright Act superfluous by its attitude to sideline or
belittle its significance. The literal interpretation gave way to a new jurisprudence based upon
considerations of practical convenience rather than legal logic.97 The judgment presumes a grant
of rights to the owner of the cinematograph film or annihilation of the rights of the contributed
work despite absence of agreements as stipulated under Section 18 and 19 of the Copyright Act”.

The judgment categorizes, in the absence of the work being a preexisting work that any
engagement of creative labor with respect to the film would be work rendered on commission
with respect to the cinematograph at the instance of the cinematograph owner or it must be a
work rendered as an employee unless there is a contract to the contrary”. Therefore in the
absence of a contract to the contrary, all relationships between the film producer and the creative
contributor would fall into either of these slots. The creative contributor is deprived of the rights
of an independent contactor by an erroneous presumption of transfer of rights or extinguishments
of rights. The endeavor to marginalize the rights of the creative contributor was not intended by
the Act.

The judgment wrongly comprehended the extent of and ambit of 8.17 (b) and erroneously
included the contributors of underlying works into the category of commissioned works by
which the ownership of the contributed works is transferred to the person at whose instance the
film was made. In fact Section 17(b) pertains to only the author of the film who is the producer
whose authorship would be hit if the film is made or commissioned at the instance of another
person.'°° By extending the ambit to all works of authorship that came into the cinematograph
film the court read in an inclusiveness that was not intended in an otherwise exhaustive section.

Post IPRS: Not Inspiring Either

ln EIMP v. aPRs‘°‘, the High Court of Calcutta, despite facts being distinguishable from the
IPRS judgment, held that the BPRS could not collect the tariff from film producers and
exhibitors. The decision was despite the circumstances and persuasive evidence adduced by the
BPRS that rights were expressly reserved in the contracts entered into between the contributor
and the film producer in England.1°2 This would have lain to rest the requirement of the
Supreme Court in the IPRS decision that a contract to the contrary is required for the rights to
subsist in the contributor.‘°3 Even the fact that these were matters of contract entered into with
respect to foreign authors in other jurisdictions was not given credence by the court‘°”'. The
court found the claim alarming and equated it with seeking copyright in the film by the
contributing entity. The court failed to notice that the Supreme Court had very carefully avoided
any such observation in its judgment in the IPRS a the claim being tantamount to seeking a
copyright in the film work and rather based its decision on other interpretational instruments.
The Calcutta High Court did not feel convinced about the evidence regarding contracts to the
contrary or the contractual practices in England, which was pointed out by the BPRS. Even
assuming that the IPRS decision was sound, the High Court was not true to the application of its
reasoning to the facts of the case at hand. From the performers standpoint therefore the IPRS
dicta still supen/enes and influences the judgment of the courts in India.

M/s. Fortune Films lntemational, Appellants v. Devanand and another, Respondents

The issues in this case revolved around the rights of remuneration and distribution with regard to
the film Darling-Darling starring Devanand. The producers who are the appellants engaged the
respondent cine artist for his services in December 1972106 and the production of the film
commenced in may 1973. It is alleged by the producer but disputed by the cine artist that in July
1973 they had entered into an agreement with Mavani for the East Punjab territory and in July
1974 -with one G.N.Shah for the Bombay and oversees territory. ln August 1974, when about
eight reels of the motion picture was completed a written agreement was entered into between
the producer and the cine artist in the form of a letter written by the producers and confirmed by
the cine artist. Further there was some more correspondence between the two sides as well as the
laboratory that also point to the real agreement between the sides. The case turned on the
interpretation of the agreement and the consequent correspondence that complements, alters or
qualifies the same. The motion picture was released in the East Punjab territories on the 30"‘ of
May 1977. It is the case of the actor that the release was without his knowledge and consent. lt
was also released in Mysore and CPClterritories but this was with the consent and knowledge of
the actor. The lab without the knowledge of the actor delivered thirteen prints for overseas
distribution as wel|.'°7 According to the actor this was without his knowledge and consent and
was also in breach of the agreement made in August 1974.

The issue turned on the interpretation of clause 6 of the contract, which stipulated the conditions,
as well as the mode of payment. The payment to be made to the actor was according to the
territories and the value appended to it specifically. The contract contained a package of
remuneration according to the territory of exhibition.‘°° The payment was to be made by
procuring suitable annuity policies of the LlC of India. It was stipulated that the actors work in
the picture on completion was to belong to him absolutely and the copyright therein was to vest
in him and the producers would not be entitled to exhibit the picture until full payments as under
clause 6 is secured by way of the annuity policies.'°9 Upon the delivery of the annuity policies,
the actors copyright shall vest in the producers. The producers agreed that until the said policies
are delivered to the actor they will not release the said picture nor exhibit or distribute or part
with any prints to any party directly or indirectly for the purpose of exhibition, distribution and
exploitation in the territories specified under the clause 6.

The question mainly contested was whether the prints could be distributed or exhibited by
making per territory payments or the entire remuneration had to be paid for affecting the release
of the prints. The actor sought an injunction on the ground that no release even for the territory
for which money had been paid could be made until the producers met the full commitment of
Rupees Seven. lakhs. The cine artist contended that by reason of the agreement the copyright in
the motion picture was to vest in him subject to the condition of payment.

There was a negative covenant and an express prohibition agreed to by the producers until the
full payment was made. Though there was a relaxation made in respect of territories within
clause 6 that the prints could be distributed as and when payments are received for each territory,
there could not be any release in the territories not specified in clause 6 including Bombay and
overseas until the full payment was made. Further the copyright in his performance was firmly
vested in the cine artist until the sum was fully paid.

The appellant producers contended that the copyright in the motion picture was not to vest in the
cine artist but it referred to the cine artists’ work in the motion picture."° As there was no
provision with respect to the copyright in the picture under the provisions of the Copyright Act
the copyright in the motion picture would belong to the producersm. As the cine actor's
performance was not any work according to the Act despite the provision in the agreement there
could not be any legal vesting in the actor. In other words a non-existent right was conferred on
the actor or a right that was not protected by law in question. It was also contended that the
prohibition applied only in respect of the territories mentioned in clause 6 when harmoniously
read with clause 7. Even if it is assumed that the copyright vested in the actor that was no reason
to grant an injunction as the prohibitions were expressly with regard to the seven territories
specifically mentioned under clause 6 of the agreement.

The Judgment

The High court was hesitant to conclude that the provisions of the agreement would bestow a
copyright in the whole picture to Devanand as it was stated that the work in the picture on
completion would belong to him absolutely and that the copyright therein shall vest in him and
that after the delivery of the annuity policies his copyright would vest in the producers. The court
felt that it required a strained reading in order to accommodate the copyright claim to the whole
picture of the performer from the words of the agreement.

The court examined the contention of the producers that such a copyright in the work of the
performer was not recognized under Indian law of copyright.“ The copyright protected only the
work to be found in the definition of Section2 (f) and only work that was tangible in nature could
be protected. It was contended that the performance of the actor though a component of the film
was not a tangible entity."5 The cine artist had contended that the performance of the artist was
covered by the words artistic work and dramatic work in Sections 2 (c) and 2(h) of the Copyright
Act, 1957. Therefore the artist’s film must be considered as a component of the film that would
be entitled to protection as falling within the definition of the term work.

The court discounted the possibility of the performance coming within the parameters of the term
artistic work, as it was exhaustive in the five categories that it included.“ As for the eligibility
within the definition of ‘Dramatic Work’, the court was obstructed by the fact that there was an
express exclusion of the cinematographic film in the definition of the term ‘Dramatic Work’.“7 It
was advanced on behalf of the actor that the performance of the acting form in the film would
fall within the definition. Since ‘Dramatic Work’ was an inclusive definition even if the
performance fixed in the negative would not fall within the ambit of the words used, but in the
very nature of things by inference the performance should qualify. As for the question of
exclusion of cinematographic film it was contended that it included the totality of the film and
not the performance of the actor and that the singular component would remain protected. On the
other hand it was also proposed that the definition of cinematographic film would also
accommodate the performance of the actor that is also inclusive and not exhaustive.

The court found striking similarities between the British and the Indian Copyright Act in the
country with respect to the definition of the term ‘Dramatic Works’. Both had excluded the
cinematograph from the term dramatic works that was otherwise inclusive.“ The court could not
accept the contention of the cine artist that the performance of the actor could be included within
the recitation or a choreographic work or entertainment in a dumb show"? It has to be fixed in
writing. The words ‘other wise’ provides only for the modern means of communication such as a
tape recorder or a Dictaphone and similar instruments. Though it is an open-ended definition still
all exertions of a dramatic nature cannot be included within the ambit of the definition. The court
was however unsure whether the work on stage or performance in a drama would be covered by
the definition a ‘Dramatic Work’. The court felt that the words ‘fixed in writing or otherwise’
suggests a point of time prior to the acting or scenic arrangement which requirement would need
to be satisfied before the work can secure the ‘Dramatic Work‘ protection.

The court was unsure and saw as debatable whether the record of the acting or scenic
arrangement after the scene is arranged or acting done or contemporaneous therewith would be
coveredm Thus while the acting ingredient within the dramatic work may qualify for protection,
according to the court (though it is unsure), once affixed, the proposition seems to be arguable.
(The court does not seem to have ruled out the possibility either by these observations).

The question whether the cinematographic film would contain the performance of the artist was
considered next by the court. The definition mainly protects the film and the soundtrack attached
to the film. The copyright in the entire film may cover portions of the film in the sense that the
owner of the copyright in the film will be entitled to the right in portions of the film. (This does
not amount to joint authorship recognition.) But the court felt that this idea couldn’t be extended
to encompass an idea that there would be one owner of the cinematograph film and different
owners of portions thereof in the sense of owners’ performers who have collectively played roles
in the motion picture.

In this regard reference was made to the preceding case of IPRS mdecided by the Supreme
Court. Though what the court relied on was a self-admitted or confessed ‘otiose’ footnoteby the
learned justice V.R. Krishna lyer. Though the court did make a note of the observations of the
judge as an aside it appears to have provided the final shape to their inclination against grant of
copyright to the actor’s performance.” The Judge had noted that the existence of the separate
personality in the contributing works under Section13 (4) couldn‘t out down on the copyright of
the film. The court noted that other than this case no other precedents of the Supreme Court or
the High Court or any English decision were referred. Therefore it was important to consider the
matter with reference to the statutory provisions alone. The court felt that in view of the
definitions of the ‘artistic work’, ‘dramatic work’, and ‘cinematograph’ film in the Copyright
Act, it could not recognize the performance of an actor as work that is protected by the Copyright
Act.

The court then noted that the film in its entirety is protected as also the small portions of the
mixture. The protection was not available to the certain components and elements if this mixture
that is the artists performance but may be available to the story, screenplay, scenario or the
music.‘25 In case these satisfy the requirement of a written or similar record. The court
attempted to assess his chances in getting an injunction the terms of the other provisions in the
contract.

A Critical Look at the Judgment

The court did not explore whether such a copyright can be vested by means of contract other
than by way of statute. That is by means of mutual contracts. That is while the copyright holder
cannot proceed on the basis of the statute as a legal right he can do so on the basis of a
contractual right. Particularly since there is no law, which prohibits grant of copyright by means
of contract to any individual no matter he happens to be a performer.

The IPRS decision never categorically decided on the question whether performers had a right
under the Copyright Act. lt was a mere desire that was expressed by the learned judge that the
contributors particularly the musicians needed to be recognized along with the composers.
Nothing was mentioned about audiovisual performers or performers in general nor was the
statute explored to find whether performers fell into the defined space of the copyright protected
entities. Justice Krishna ilyer lamented and wished for a legislative enactment without exploring
either in the ratio of the fellow judge with whom he concurred or in his own footnote that cannot
even be called an obiter. Thus IPRS is not a precedent to be taken into account in order decide
the question of existence of performers protection within the folds of the Copyright Act, 1957.
This cannot be considered as not carrying forward the case of the performer or the actor with
respect to audiovisual performances as the aforementioned observations clearly pertained to the
musical composers and the performing artists status. Further compositions that were written or
graphically represented were to be treated differently from the rest.

One of the intriguing aspects of the Devanand Case could be the decision of the court to disallow
the request for Certificate of Appeal by the Honorable High Court of Bombay. Though no reason
was adduced, it was merely stated that the entire case turned upon the question of interpretation
of the contracts and therefore there arose no reason for the certificate of appeal. This is
astonishing considering the fact that the High Court did explore the possibilities and came upon
certain findings that by no width or yardstick can be considered as obiter. lt has substantial
precedent value and could stand in the way of any performers rights grant in the whole of India
and not merely in the State of Maharashtra as it was a central enactment that was being
interpreted.

The question of law involved in the case was unprecedented and the decision with respect to that
would certainly have had an impact on the interpretation of contracts. For if the copyright
character existed in the performers contribution then the attendant legal consequences and
formalities would have undergone a change and thereby the extent of the contractual
arrangement and its interpretation too would have been different. It would be apt to infer that the
contractual interpretation was given stress when the law worked to the dissatisfaction of the
actor. But the contractual reliance has given only a partial reprieve rather than what would have
been begotten in the sense of a perpetual injunction had a copyright been granted or found to
exist in favor of the performer.

Authorship of Films or Audiovisuals in India

The ‘producer’ is recognized as the author of the cinematograph as well as the sound records
under the Indian Copyright Actm The term ‘producer’ has been defined as one who takes the
initiative and responsibility for the making the workm. It is noteworthy that the definition of the
author of the ‘cinematograph’ need not display any creative characteristic to be considered an
author though the quantum of originality may have to be displayed by the cinematograph or the
sound recording. The contributors to the film such as the music composers or the lyricists do not
have any right to authorship in the film other than the separate right in their works. This too
remains overshadowed by producers’ rights in case of exploitation through the film (if the IPRS
case law is any guidance and final word). The Indian position is in contrast to the changing
trends the world over with authorship in films being apportioned between new entities like the
director, the script writer etc. Though performers have not yet been considered as coauthors
nevertheless performers in audiovisuals have been provided with separate rights.

Old Contracts --New Uses in India.

Though the interpretation and the inference of the courts may not be unanimous in this regard it
is noteworthy that the judiciary in India has underlined the need that the new applications would
be dependent on the content and interpretation of the old contracts.129 Thus where the contract
has not envisaged the new use then, the courts have denied the right to a new application.13° A
significant feature has been that these cases have involved the audiovisual fixation. A complete
transfer of rights for rights to all future uses would only be read if the contract or implied
circumstances inspired such an inference.13‘The grant of a total right to the performer akin to the
copyright would certainly provide security for the performer against unenvisaged uses. However
this would require a similar application of the assignment and licensing rights to performers with
its requirement of minimum formalities.

International Instruments and the Indian Performer

The Rome Convention and the Indian Law

India is not yet a signatory to the Rome Convention despite the fact that it had participated
wholeheartedly in the deliberations of the Rome conclave in the year 1961.132 lt was only after a
lapse of more than 33 years that the India ventured to incorporate the performers rights into the
Indian copyright law in the year 1994.
The Safeguards Clause: Absent Under Indian Law

A fundamental feature of any international instrument or national legislations that has extended
recognition to new media either as a copyrightable entity or a new subject matter requiring
protection has been that the traditional entities like the literary and the artistic subject matter
have always been accorded an explicit protection from any kind of dilution of their rights and
status in the face of new additions.'34 The Indian law surprisingly departs from several other
national legislations or international instruments like the Rome Convention by the fact that there
is no securing provision that preserves the status of literary and artistic works in the context of
the performers rights granted under Section 38 of the Copyright Act. This might be rationalized
on the ground that the right granted under Section 38 of the Indian law has only been of a special
character or a special right and does not carry a co-equal copyright status or even a neighboring
rights status.'35 This absence of qualification can fuel juristic speculation, as the exact character
of the term special right cannot be discerned from the provisions of Section 38. The omission of
the safeguard clause could be owing to the apparent lack of likelihood of any parity in the nature
of copyright or rights enjoyed in comparison to the traditional entities. But a closer analysis of
the Section reveals that the performer could in reality possess much more than what is apparently
a lesser grant of rights.'36 Significantly, it has notbeen forgotten to incorporate the safeguard
clause for copyright protected entities in the Act specifically in the context of protection
accorded to sound and cinematograph recordings.

The Definition of the Performer Under Rome and Indian Act

The definition of performer in the Copyright A0938 is considerably advanced compared to the
elucidation of the same in the Rome Convention. Under the Rome Convention it means actors,
singers, musicians, dancers and other persons who sing, act, deliver, declaim, play in or
otherwise perform literary or artistic worksm. For affording protection to the performer, the
performance under Rome convention has to be derived from a literary and artistic source and any
performer who executes a performance other than those derived from a literary or artistic works
would not be able to avail the protection. This hard-line position had however been softened or
watered down by the Article 9 which enables the respective nation states to provide more
protection or wider definition to the performer whose performance is not based on any literary or
artistic work. But the minimum guarantee warrants that a performers work to be based on a
literary and artistic work to be granted protection.

Rome does not define a performance but the Indian Copyright Act does define performance.
Performance under the Indian act is defined as any visual or acoustic presentation made live by
one or more performers."" Though the General Report of the Rome convention accepts it as a
generic term in the sense of recitation and presentation.

The necessity of any quantum of originality or whether any originality is at all required other
than the proof of a nexus with the written literary or artistic work is not clear from the text of the
Rome convention. But the French text with respect to the convention '43 uses the words artiste
interprete ou executant rather than artist executants — a function of interpretation and
inventiveness therefore appears essential to attribute performer status. But a suggestion of this
nature is not even faintly discernible under the Indian Act. Very wide latitude is provided under
the Indian Act as even ancillary performers; extras, folk and variety artists all come under the
ambit of protection. Neither is the term ‘performer’ nor is the term ‘performance’ linked to
literary and artistic works under the Indian Act. The definition of the performer is inclusive by
nature under the Indian Act. The Rome Convention on the other hand does not bar such an
extension though a much more restricted view would suffice for the minimum terms of the Rome
Convention to be complied with.

Rights Under the Rome and the Indian Act

The Rome Convention does not provide any positive rights of authorization to the performer. In
this regard one can notice considerable similarity between the Rome and the Indian provisions.
The protection granted under Rome only provides for the possibility of prevention.“‘5 It provides
countries the freedom to choose from any assortment of measures to prevent the infringements
provided under Article 7 of the Rome Convention. The minimum protection has been provided
in the Convention while the states are left free to decide on any higher quantum of protection.‘46
Seen in the backdrop of the Rome Convention, the Indian Act not only endows on the performer
any possibility of preventing the acts if done without his consent, as mentioned in the convention
but also goes several steps ahead.
Section 38(2) provides a special right for the duration of 50 years while the Rome Convention
had granted only a period of 20 years"? The infringements under the Indian Act are visited with
civil as well as criminal remedies.148 Even though no authorization rights have been granted
nevertheless, the infringement and consequent grant of civil and criminal measures that include
the right to an injunction, are as good as endowing civil authorization rights. Further the right to
assign and license the right has been granted without much elaboration or any qualifications.
Though there is no explicit grant under the Rome Convention, moves in this direction are not
discouraged as the words prevention of exploitation gives a wide rope for the states to choose
from.

Joint Exercise of Rights

The Indian act fails to provide for a means to facilitate the administration of rights when the
performance is in a group that when several performers participate in the same performance.
This is found expressed in Article 8 of the Rome convention. Though the signatories need not
mandatorily follow the provision in the Convention.

Non-Retroactivity

An area of correspondence between the Rome Convention and the Indian Act is with respect to
the lack of any provision for retroactive application of the rights'5°. This secures all the
transactions prior to the activation of the rights that is the year1995.

Equitable Remuneration

The concept of equitable remuneration of performers and producers was heralded in the Rome
Convention, 1961. But the Convention did not make it a mandatory provision leaving it to the
states to decide whether to implement it. The method of implementing it was also subject to the
limitations mentioned therein.'51 The equivalent of Article 12 of the Rome Convention dealing
with secondary uses of phonograms and its benefits significantly does not find mention in the
Indian Copyright Act either with reference to performers nor with respect to phonogram
producers or the broadcasters. It can be noticed that once the affixation is made, the Convention
does not grant the performer any exclusive right to the broadcasting or other communication to
the public.152 Therefore a very potent segment of exploitation has been left unregulated both in
the Convention as well as in the Indian Act as no exclusive right to broadcasting or
communication to the public is provided once the initial fixation has been done with the consent
or if the width of the contract so provides. lt is also pertinent to note that there is a total absence
of collective administration system for the performer in India though there is an institutionalized
mechanism working in this regard for the sound recorder, the music composer and the
Iyricist.153 Without a sound collective administration mechanism in place there cannot be an
efficient equitable remuneration system in place. This is a striking difference in the system
envisaged by the Rome Convention and India. Though this provision is not mandatory so as to
be a critical disadvantage for the Indian law to adopt the Rome Convention. The absence of any
attempt to establish a system of single equitable remuneration will only lead the performer to be
poorer as currently most of the exploitation is based on these modes of communication.

Performer in the Audiovisual

One of the noticeable areas in which the Indian law and the concept of protection nursed by the
Rome Convention agree is in respect of the protection to the performer in the audiovisual. The
Rome Convention through Article 19 and the Indian Copyright Act through Section 38(4) almost
identically exclude the performer in the cinematograph film. The only apparent distinction is in
the vocabulary used. While the Rome Convention uses the term visual and audiovisual fixation,
the Indian Copyright Act uses the term cinematograph.“ The distinction in this regard could be
negligible considering the fact that the connotation of the same has been enlarged through
amendments to the definition of the word cinematograph as well as judicial decisions in India.
However the use of the word ‘visual recording’ in Section38 granting rights to the performer
narrows down the meaning to be attributed to the word ‘cinematograph’ in 38(4). The term
‘visual and audiovisual fixation‘ as used in Rome encompasses a wide ambit that includes the
cinematograph.

In these circumstances it would be a matter of speculation whether firstly, the convention

countries’ can grant rights to the performers in the audiovisuals and secondly, whether through
mutual contracts, the performer can accomplish what is not countenanced under the treaty or the
law. On both accounts it appears from authoritative guides that there is allowance to grant rights
and attribute credence to contracts in contradiction to the convention ideals.156 It only means
that the Convention does not grant a minimum guarantee with respect to the performer in the
audiovisual. Whether the same rationale (the same rationale cannot prevail as India is not a
member of the Rome Convention) prevails with respect to contracts entered into between the
performer and film producer in India is speculative considering the fact that it is a legislation that
has excluded the performer in the audio visual in lndia.157 In this context, it should be
recollected that even without a strident exclusion by means of statute, the court refused to
attribute copyright on the performer even when the same had been bestowed by means of a
contract, all because the beneficiary was a performer.‘58 Therefore though there is a similarity
between the provisions in the Rome Convention and the statutory provisions in India, the actual
ramifications in practice could bring a different inference. Under Section38, nothing is stated and
no indirect reference made with regard to the common law property rights in performance and
whether the consent to affix could extinguish the common law property right or whether the
effect is to be confined to the special rights granted under Section38 aIone.

The TRIPS and the Indian Performer

The Indian ratification of the TRIPS agreement and the passage of the 1994 amendment
incorporating Section 38 in the Indian Copyright Act'6° are coincidentally within the same time
frame.‘61 The winds of change in the international arena were compulsive factors to alter
national perspectives with respect to the performers and other factors in the intellectual property
framework as the character of emerging international instruments like the TRIPS came with a
rider of being fused with mandatory benefits and sanctions in the trade arena. This obligatory
clause ensures that the content of the TRIPS would be carried forward into the letter and spirit of
the national legislations who were signatories of the GATT and the TRIPS agreement. In
contrast both the Rome Convention as well as the ensuing WPPT was optional in its obligations.

The TRIPS does not deviate nor add significantly to these obligatory limits cast by the Rome
Convention. The resolve to grant a possibility of prevention to the performer is continued
thereby providing a wide ambit of options for the countries to choose from. The performers are
provided with the right to prevent the unauthorized fixation of their unfixed performance and the
reproduction of such fixationm. The broadcasting by wireless means and the communication to
the public of their live performance without the performers authorization are also recognized
under TRIPS as a violation of the performers rights.163 The broadcasting and communication to
the public of the live performance covers audiovisual performances as well and therefore these
acts would require the consent of the performer. The TRIPS only explicitly grants protection to
performances affixed in phonograms. In contrast to this the Indian provision grants the right of
consent to affix from live performances to sound and visual recordings as welI.16" The 1994
amendment in the Indian Act carries so much of the sentiment in the TRIPS agreement.‘65 The
protection extended to affixations against unauthorized reproductions in India was a qualified
protection but TRIPS places no conditions in this respect.‘66 The protection of performances
affixed on phonograms arise even if the reproduction has been rendered in tune with the purpose
that had been granted for affixation but without the express consent of the performer. On the
other hand in India, there is need for the further consent to reproduce if the reproduction is not in
tune with the purpose intimated at the time of grant of consent for the affixation or recording of
the performance.

A subtle yet importance difference is the use of the term ‘authorization’ in TRIPS rather than
‘consent’ that is used in the Rome Convention. In authorization a more assertive, formal and
positive grant is required. Its manifestation requires more definitiveness. The word used in
Section 38(3) of the Indian Act is ‘consent’ and therefore the rigor of formality required could be
lesser than that warranted under TRIPS.

There has been no attempt to define the term ‘performer’ in the TRIPS and therefore the
countries are free to have a definition of their choice. The silence of TRIPS in this regard does
not appear to create any difficulties as the Indian definition is wide to encompass all performers
who render any performance without qualifications like appending them to creative works. The
Rome shadow in this regard does not seem to fall on the TRIPS.

The TRIPS does not make any reference to performers’ rights in audiovisuals. At least the
express exclusion with respect to the same in the Romem and the careful maneuvering followed
in WPPT later on is not carried forth in the TRIPS agreement. Rather there is a complete silence
with respect to the audiovisual affixations. The Indian Act under Section 38(4) follows the Rome
pattern and extinguishes all rights of the performer if he has consented to the incorporation of the
same in a cinematograph. Further, the Indian Act exceeds the grant of rights of the performer as
envisaged in the TRIPS in that the former grants and applies the right to assign and license the
performers rights. It also provides for civil and criminal remedies. The TRIPS does not spell out
its ideas in this respect. Though there is nothing preventing any further grant with a broad
spectrum of options to realize the possibility of prevention and the minimum guarantees.

The live performer in the broadcast and the communication to the public, whether it is in the
audiovisual format or in the audio format, is endowed with protection under Section 38(3) of the
Copyright Act. Under the TRIPS agreement too the live performance of performer in the
audiovisual and the audio in its broadcast and communication to the public is granted protection
and the consent of the performer is required. Nowhere under the TRIPS has it been stated that the
performers rights shall subsist in the live performance. It has only been stated that the duration
shall commence either from the fixation or the date of performance. Under both the instruments,
there is no mandate for consent to be required from the performer for his consent to broadcast or
communicate to the public from the fixation of the performance.

The TRIPS granted a period of fifty-years to the performer as against the 20 stipulated under the
Rome Convention. Though India (1994 amendment) had initially granted only a period of 25
years there was a subsequent amendment that extended the durational platform at par with the
fifty mandated by the TRIPS agreement.1°9 The correlation between the Rome Convention and
the TRIPS inevitably lead to the Rome effect being applicable to India as well. The rights
conferred under TRIPS provide for conditions, limitations, exceptions and reservations to the
extent provided for or permitted by the Rome Convention.‘7° The ambit of exceptions provided
under the Indian Act includes the specifics provided in the Rome conventionm The provisions of
Article 18 of the Berne Convention would also be applicable to the rights of the performers and
producers of phonogramsm Therefore in spite of the fact that India has not been a signatory of
the Rome Convention, with the TRIPS carrying several of the attendant provisions and features
of the Rome Convention, India can be said to indirectly pay its respect to the Rome Convention.

The WPPT and the Indian Standpoint

The WPPTW3 in its endeavor to meet the new technological challenges has attempted to clarify
existing norms, interpret, adapt and introduce new norms to suit the digital environment.” In
other words it modified existing rights as also created new rights for entities that it covered in
particular the performer. The instrument for the first time granted positive exclusive rights of
authorization to the performer to be utilized in a digital era and ancillary rights to combat
technological circumvention.“ India, (with the largest entertainment industry in the world) has
not signed the WPPT to date.

The amendment to the Copyright Act with respect to incorporation of the performers rights took
place in 1994 prior to the creation of the WPPT in the year 1996. The Indian delegation did refer
to the recent amendments in the law during the discussions and acknowledged that the previous
sessions of the WIPO committees were useful in preparing the amendment Iegislation.m The
1994 amendments made delectable alterations tothe Copyright Act. The change was The
amendment to the Copyright Act with respect to incorporation of the performers rights took
place in 1994 prior to the creation of the WPPT in the year 1996. The Indian delegation did refer
to the recent amendments in the law during the discussions and acknowledged that the previous
sessions of the WIPO committees were useful in preparing the amendment Iegislation.m The
1994 amendments made delectable alterations tothe Copyright Act. The change was not merely
confined to the introduction of performers’ right alone. The amendments made significant
changes in provisions in order to make the Act digital friendly. But this digital preparedness may
not seem to have touched upon or rubbed off on the protection granted to the performer under
Section 38.

Fixation

The terminology used in the WPPT has been impelled by its aim of adapting traditional notions
and processes to those in play in the digital environment. Therefore WPPT has taken meticulous
care to define terms representing objects and processes so as to minimize all possibilities of
ambiguities and stall the possibilities of escape from the legal streamlining that is attempted in
the treaty. The word ‘fixation’ has been one that requires an exact description particularly since
the characteristics of the same in the analogue media varies with that in the digital environment.
The word ‘fixation’ is not used under the Indian Act at all. Rather the word ‘recording’ is used in
conjunction with the term sound recording. A separate definition of what is meant by a recording
is not provided in the Copyright Act, 1957. Therefore the exact ambit of the word ‘recording’ is
shadowed by the specific medium that it seeks to explain. Even though the definition of a sound
recordingm’ is large enough to cover all mediums it does not help in clarifying the exact metes
of the word ‘recording’ and when it can be said to have taken place. This would have an
important bearing on the issue as to when a reproduction could have taken place to constitute an
infringement of the affixation or the reproduction right. Affixation connotes much more in terms
of impermanence or transience in tangibility than the word recording. The absence of the word in
the copyright legislation in India seriously affects the precision of legal discourse that surrounds
the subject in the digital environment. Fixation in the WPPT is defined as meaning the
embodiment of sounds, or of the representations thereof, from which they can be perceived,
reproduced or communicated through a device”? The specific words ‘embodiment of sounds and
representation’ take it beyond the technological restraints imposed by the word recording. The
word ‘recording’ might just fall short of the rigor that process in the digital world might
otherwise require in the absence of any definition in the Indian Act.‘8°; Despite amendments in
the eighties and the nineties to meet the digital demands in the Copyright Actm, terminological
changes have not been meticulously effected in the Indian Act in harmony with international
perspectives, nor have the existing words used in the statute been manifestly reformulated in
order to cater to the new world of technology. This places the Indian creator including the
performer at a disadvantage as the right to stop the recording or the reproduction cannot be
directly inferred from the statutory provisions in the context of the processes afforded in a digital
age and has to be at the mercy of judicial discretion with the fear of interpretational
inconsistency. Thus there is a lack of terminological parity and definitional equivalence between
the WPPT and the Indian legislation.

Phonogram or the Sound Record

The word phonogramm is not used in the Indian Act. The application of the word might be of
amusement interest only considering the fact that sound record is good enough alternative to the
term. But it is in the interests of legal certainty to see that the latter term is up to date with the
technological possibilities available today and equal to the specifications of the definition of the
word phonogram. For example the use of the words fixation along with representation of sounds
in the WPPT changes a lot by way of legal possibilities that has nothing to do with the medium
on which the record is made but is suggestive of the manner in which the recording is rendered.
The WPPT has exposed the drawbacks and the over confidence reflected in the Indian legislation
effected by the 1994 amendments.

The word phonogram has not been defined under Indian Copyright Act. However the word
sound record has been used. It has been defined to mean a recording of sounds from which such
sounds may be produced regardless of the medium on which such recording is made or the
method by which the sounds are producedm’. The definition covers a wide ambitm. It is
important to note that it does not exclude the audiovisual or the cinematograph medium from its
definition. This can have grave consequences considering the fact that the rights, infringements
and remedies for the performer in the audio and the audiovisual can be distinct. If the sound
record would also encompass the soundtrack then the performer of sound or audio in the
cinematograph film would claim rights akin to the audio performer.

But the word ‘recording’ in sound record does shrink possibilities in this regard. lt raises
questions such as whether a digital temporary or transient storage could be considered to be a
recording. The word recording carries with it an element of permanence. This ambivalence
comes out strongly in the face of the definition of ‘phonogram’ attempted in the WPPT
supplemented by its definition of the word ‘fixation’. The WPPT defines a phonogram as a
fixation of the sounds of a performance or of other sounds, or a representation of sounds, other
than in the form of a fixation incorporated in a cinematographic or other audiovisual work185.
Firstly there is a clear exclusion of the cinematograph and the audiovisual from the purview. This
is not so in the Indian context. This can certainly raise questions whether the performer in the
sound records can claim a right in the audiovisual or the cinematograph after incorporation in its
sound track of the film. This is despite the exclusion from the cinematograph by virtue of the
Section38 (4) of the Act.

Section38 (3) of the Indian Copyright Act demands that the consent of the performer is taken for
the sound recording or the visual recording, therefore with the meaning of the word ‘recording’
left undefined there is a possibility of conventional analogue media alone being c0vered.187
Particularly since the word ‘recording’ has not been defined and recording has by a common
understanding a character of permanence and might not include a temporary existence. The
prevailing provisions are therefore susceptible to various interpretations leaving the terrain
uncertain and unpredictable.

Publication

Section 3 of the Copyright Act, 1957 defines publication as meaning making a work available to
the public by the issue of copies or by communicating the work to the public. The WPPT defines
publication of a fixed performance or a phonogram as the offering of copies of the fixed
performance or phonogram to the public, with the consent of the right holder, and provided that
copies are offered to the public in reasonable quantity.‘89 The Indian definition is applicable to a
wider range of subject matter including phonograms while the definition of publication in the
WPPT pertains to phonograms alone. It is interesting that the WPPT uses the words fixed
performance or a phonogram but the term fixed performance has not been defined, (though
affixation has been defined). Secondly the agreed statement to WPPT clarifies that the
phonogram will pertain only to tangible copies. Further it is also mentioned that the same has to
be in reasonable quantities. Both these qualifications are absent in the Indian lawas the general
definition under Section 3 applies to the performer, the phonogram producers as well as other
right holders. The Indian definition brings communication to the public also within the ambit of
the definition of the term publication. This is not so under the WPPT.

The Definition of the Performer under WPPT and the Indian Legislation

The WPPT defines the performer as “actors, singers, musicians, dancers and other persons who
act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or
expressions of foIklore"19°. The Indian enactment in contrast is wider and goes beyond the
limits restricted to the performers of f0lklore‘9'. This is an inclusive definition and neither the
derivation from literary works nor fulfillment of the criteria of folklore really matters under the
Indian definition of the performer.'92 It is important to note that this open-ended character is not
expressed in the WPPT. Thus the Indian law is far advanced than the sentiment in the WPPT
with respect to the definition of the term performer. It is noteworthy that the word ‘interpret’ is
not found in the Indian definition. This could reduce the interpretative possibility as to extension
of the definition to cover those who have worked behind the scenes as well and also the doubt
whether the protected need to be further distilled or filtered according to their originality or
creative content.

The Rights Granted by WPPT and the Indian Law

The Right of Reproduction

The word “reproduction” has not been defined in the Indian Copyright Act but the right has been
granted to all copyright protected entities andm the performer has been granted a right to prevent
the reproduction of the fixation of his performances in sound and visual recordings made without
his consent. But this can be activated only if the initial affixation has by itself been unlawful or
made for purposes different from that for which the consent was granted or made for purposes
distinct from the circumstances of fair use.‘94 The WPPT does not define a reproduction in its
definition clauses'95 but the right of reproduction has been unconditionally granted to the
performer in the WPPT195. This very important right that found only a late presence in the
Berne convention of 1967 has been conspicuously included in the WPPT as a positive
authorization right for the performer. The significance as regards its presence in the WPPT is two
fold in that it has been for the first time that an international instrument is providing a positive
authorization right to the performer particularly the right of reproduction that is vital towards a
copyright identitym. Secondly, the formulation of the same is in tune with the demands of the
digital eraand the right has been impliedly and overtly framed to meet the challenge of digital
technology.

The right of reproduction has not been granted to the lndian performer under the “special rights"
granted under Section38 of the Copyright Act. The right of reproduction granted to the literary
authors and artistic works is the only right under the Copyright Act that is equipped explicitly to
deal with the electronic environmentm. In comparison to this, the provision made in the WPPT
with respect to the performers right of reproduction provides a wide ambit to the means of
exploitation and that is further qualified by an agreed statementigg. There is no explanation in
the Act whether the electronic storage is restricted to permanent storage or whether the
temporary storage would be excluded from the ambit of electronic storage. This ambiguity with
respect to the extent of storage or the nature of storage is apparent in boththe WPPT as well as in
the lndian Act with respect to literary and other works. But by means of the agreed statement the
WPPT has accommodated all kinds of reproductions rendered without authorization to be
infringing reproductions regardless of whether they are temporary or permanent. It is clear that
the performer is not bestowed the status of authorship under the lndian Act and even if so
identified still the right would have to be extended and accorded to him in the digital context2°°.
Therefore the infringing use mentioned in Section 38(3)(b)(l) and (ii), where in reproductions of
the recordings made without the consent of the performer or made for purposes different for
those mentioned for which consent was given is not likely to extend to the digital context. As
performers do not form part of the class covered by Section14 and nor is reproduction defined
generally in terms of the digital technology, the law will need amendment and clarity in this
regard.

The Right of Distribution

The performer has not been provided with a right to authorize distribution of the fixed
performances in lndia. It has not been provided even as an ancillary to the right of granting
consent to record or to reproduce those records.2°‘ If the purpose of the reproduction has been
for distribution as against what had been agreed upon at the moment of affixation then
distribution would certainly invalidate the grant of consent for reproduction and therefore it can
be considered an infringement?” The WPPT grants the performer the right to authorize the
making available to the public of the original and the copies of their performances fixed in
phonograms through sale or other transfer of ownership?“ The right pertains to the making
available of original and tangible copies of the same. ln lndia, though Section 14(ii) does extend
the right of issuing copies to the public to the literary, dramatic, musical and artistic works. For
the rest of the works like cinematograph and most significantly the sound recording, the right is
further restricted to selling and giving on hire to the public- the words issue of copies is not used.
There is no word as to “issue or distribution” of the original in the Indian Section in contrast to
this being specifically spelt out in the WPPT.

The Right of Rental

Under WPPT, the performers are granted the exclusive right of authorizing commercial rental to
the public of the original and copies of their performances fixed in phonograms even after
distribution by them by or pursuant to authorization by the performer2°“. But the Indian
legislation does not grant an exclusive right to rental to the performer. ln a statute where in no
right of distribution has been granted to the performer, it is farfetched to expect a right of rental
that follows the distribution of performances. The right granted under the WPPT is for fixed
copies that are tangible objects. Therefore the idea is concentrated around the off-line product
range that includes compact discs and the like. Therefore point-to-point online rental does not
seem to have been contemplated under the WPPT. The Copyright Act grants the right of rental
through the 1994 amendment to the compute programs, the cinematographs and the sound
recorder2°5. Thus while the right of rental is contained in the hire provision with respect to the
sound recorder, there is no hint in the Act as to manner in which the remuneration must be
distributed to the owners of the sound recorder, the cinematograph and the computer program.

The Right of Making Available

One of the most significant contributions of the WPPT in the digital context with respect to the
performer has been the grant of the exclusive right of making available of fixed
performances.2°6 It encompasses the making available to the public of their performances fixed
in the phonograms, 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 them2°7. This takes into account
the new format of marketing and use chosen through the digital circuits like the computer and the
Internet. There is a major vacuum in the Indian law in this respect both with respect to the
performers as well as other works recognized under the Copyright Act.

While there is no separate mention of the right of communication to the public under WPPT, in
India the right of communication to the public apparently encompasses within it the right of
making available. The definition has been understood and interpreted by law scholars as being
adequately prepared to meet the digital necessities. The communication to the public of the live
performance without the consent of the performer is an infringement under the special rights that
has been granted to the performer in India. This applies only to the live performance and not to
recorded performance. But the issue would be whether on demand sourcing could be impliedly
read in to the definition of communication to the public in India or whether it is only a variation
of broadcast.

The right of making available takes into account fixations in phonograms but the Indian Act
deals with only unfixed performances in communications to the public with respect to the
performer. Further, there is a lack of clarity, as the words communication to the public has not
been replicated in the Section with respect to the performer. Rather the words “communication
of the performance to the public" and “communicates to the public” has been used2°B. The
phrase communication to the public as used in the definition clause pertains to “works” into
which category the performers are yet to be included. Therefore the performer cannot avail of the
protection against unauthorized digital delivery.

Equitable Remuneration and the Indian Law

The only area of broad correspondence between the WPPT and the lndian legislation would be in
respect of the rights. of the phonogram producer. lndian legislation on the same had already been
far in advance of the WPPT and copyright status had already been accorded to the sound
recorder along the same lines as that for the cinematograph film2°9. Other than art 15 of the
WPPT that deals with equitable remuneration with respect to the sound recordings that are either
broadcast or communicated to the public there are no striking differences between the lndian
intent and the right of the sound recorder recognized in the WPPT. This is particularly striking
considering the fact that the Berne convention does not recognize the sound recording as a
protectable entity. The lndian Act grants the right to make any sound recording embodying it, to
sell or give on hire and to communicate the sound recording to the public. Thus while the right of
rental can be found in the provision, there is no hint as to the manner in which the remuneration
must be distributed to the sound recorder nor any proposition regarding a remunerative model.

Another conspicuous absence from the lndian legislation with respect to performers as well as
sound recordings and cinematograph films are the anti circumvention protection measures and
protection of rights management information provided for in the WPPT2“. Our legislation has
not incorporated provisions to protect and meet these technical eventualities that go hand in hand
with e digitization.

Moral Rights

A most conspicuous feature of the WPPT had been the grant of moral rights protection to the
performer.” Both the right to integrity and paternity had been granted to the performer with
exceptions. Though it was not as extensive as granted to literary and other entities recognized in
the Berne convention under Art.6 Bis. This is strikingly absent in the special rights granted to the
performer under Section 38 of the copyright act, which appears to follow the Rome trend.

The Model Law and The Performer

The ILO, the UNESCO and the WIPO resolved in the year 1974 to formulate a model legislation
with the ostensible objective of providing a guide to the implementation of the Rome
Convention?” It is a significant product considering the fact that the interests of the developing
countries were kept in consideration while framing the provisions. The exercise provides an
assuring insight into the possibilities that Rome Convention provides in its actual implementation
and clarifies several gray areas that were susceptible to doubt and misgivings.

The Model Law largely follows the same definitional clauses as in the Rome Convention except
for the definition of the term ‘Fixation’ that had not been attempted in Rome and changes to the
definition of the term reproduction“. Fixation has been defined as the embodiment of sounds,
images or both in a material form sufficiently permanent or stable to permit them to be
perceived, reproduced or otherwise communicated during a period of more than transitory
duration. It is important to note that the definition excludes the fixations in a transient form. This
is important considering the fact that othen/vise ephemeral fixations would also have been
amenable to charges of violation. Such a definition has not been attempted in the Indian Act.

The definition of ‘reproduction’ states that it is the making of a copy or copies of a fixation or
substantial part of that fixation.“ The addition of “substantial part of the fixation” to the
definition brings the substantiality test into operation unlike the ramification that would have
been caused by the use of the word ‘part of the fixation.’ This also opens up the possibility of
imitations of the fixations being considered as a violation.

lmportantly the “consent” of the performer required in the Rome is changed to the term’
authorization of the performerm. This is a subtle but important change over. It has to be
mentioned that under this instrument the broadcaster and the producer too have been treated to
similar phraseology as the performer. The enumeration of their rights also begin with the words,"
without the authorization of the …….”

Section 2 (1) says that “without authorization of the performers, no person shall do any of the
following acts - broadcasting of the performances except where the broadcast is made from a
fixation of the performances other than a fixation made under the terms of Section 7(2) or is a
rebroadcast authorized by the organization initially broadcasting the performance". Similarly,
authorization is required for the communication to the public except where it is made from a
fixation of the performance or is made from a broadcast of the performance.

The authorization of the performer is required for the fixation of their unfixed performance. The
authorization is required for the reproduction where the program was initially fixed without their
authorization or where the reproduction was made for reasons different from those for which the
performers gave their authorization and reproduction was rendered for reasons different from fair
use exceptions.

lt is also significantly provided that in the absence of a contractual agreement to the contrary or
of circumstances of employment from which the contrary would normally be inferredm This
shows that there is no restriction to mould obligations by means of the contract. This is an
important addition as it provides guidance in case of an employer —employee relationship
existing between the performer and the organization. However the law does not take away the
rights but only leaves it to the contractual terms.

The model law speaks on post authorization for broadcast and authorization to affix and
reproduction so that the silence in this regard would not lead to any wrong notions of extent of
authorizationm. This lack of clarity was very much evident with respect to Rome as well as the
Indian legislations. The model law clearly states that the authorization to broadcast does not
imply an authorization to license other broadcasting organizations to broadcast the performance
(b) the authorization too broadcast does not imply the authorization to fix the performance (c) the
authorization to broadcast and fix the performance does not imply an authorization to reproduce
the fixation and (d) the authorization to fix the performance and to reproduce the fixation does
not imply an authorization to broadcast the performance from the fixation or any reproduction of
such fixation. These clarify the limits of the authorization granted. The lack of such precise
clarification has led to ominous interpretations of the rights of the performer with the rights
believed to be lost with the consent granted to the user in India and upon consents the user being
endowed with the right to deal according to the way he deems it best.

A most significant provision on the model law is the at once the performers have authorized the
incorporation of their performances in a visual or audio visual fixation, the provisions of
paragraphs (1) and 2(0) and 2(d) have no further application.

This is a significant provision it qualifies with precision the rights that are lost upon
authorization of the performer in the visual and the audiovisual. In India rights en-mass are
supposedly lost, however in the model law it is a qualified loss of rights. In India the visual
fixation is not covered unless by means of interpretation the extent of cinematograph is stretched.
However the performer is allowed to procure more favorable terms for the use of their
performances through contract than what is provided by means of statute?” Duration of 20 years
is laid down buy the statute as a protective termm Civil remedies have been provided to the
performer in the event of violation or threatened violation, which includes the instrument of
injunction, damages including any profits and exemplary damages if the damage is the result of
malicious intent. The criminal remedies envisaged includes both the imposition of fine as well as
imprisonment. However knowledge has been made a component of the criminal offence.223 It
has to be remembered that this is a mere reflection of the possibilities that ‘possibility of
prevention ‘ afforded by the Rome Convention. The law in India carries both remedies though it
is the same as that afforded to the copyright entities.

The attitude of non~retroactivity on both the rights as well as the performances and that have
taken place is provided in the model law through two alternatives?“ It is important to note that
non-retroactivity commonly does not require specify enunciation unless the statute is to
specifically have a retrospective application. However the provision aids in imparting clarity.
The Indian law does not carry any specific provision on this. Therefore it is prospective
application of the statute that is accorded.

It is important to note that while civil remedies are provided, no provision for assignment and
licensing rights have been explicitly provided. Though care is shown while the performer
authorizes someone else to exercise rights on his behalf. The authorization is required to be in
writing. There is no definition of the term authorization with respect to Section2 and therefore
whether any formality is required for the authorization from the performer lacks from any
guideline. As a national statute such a guideline would have been welcome.

The Model Law provides that the provisions are not to affect the protection afforded by any other
law or international treaty.225 A like provision of this nature is absent in the Indian law and
therefore the status of the performer under the alternate protection afforded by any common law
or other law and its impact is prone to interpretation. However this appears to be an unnecessary
provision under Indian conditions and norms of interpretation as unless there is any express
prohibition, such an interpretation of prohibition is not likely by implication.
The Model Law is an eye opener and an important aid in its interpretation. Though the Model
Law has no compelling effect or the model law need not compel any particular interpretation nor
is it a legitimate guide to interpret national statutes nevertheless it does throw light on the
possibilities inherent in the Rome Convention if any state intends to appropriate its statute to its
standard for the efficient protection of the performer.

Protection for the Performer under other Common Law Principles

The performer in India had not been granted any statutory right in his /her performances until the
enactment of the amendment to the Copyright Act in the year 1994. The principles of tort law
such as the right of privacy, the right of publicity and the tort of personality passing off can be
considered to have governed the Indian legal environment and not abhorrent to lndian common
law traditions. The performer in India could always take recourse to these principles when their
image or likeness or more specifically their performance either aurally or visually was being
utilized without authorization and commercially or othenivise utilized without recompense to the
performerm. These principles were the only aid for the performer to turn to in order to be
protected against unauthorized exploitation of their performances. Upon a minute scrutiny of
these doctrines it will be possible to discern that none of these might possibly with precision and
certainty fulfill the protective requirements of the performer.

Nevertheless the performer can be considered under common law notions to be equipped with
civil instruments of injunction and damages in order to enjoin another from appropriating their
labor without gratification. ln spite of there being few reported case laws compounded by a
scarcity of indigenous academic literature with respect to this branch of law, the proprietary right
to personality is recognized in India. Though theoretically variations may well be discerned
between the application of the pure doctrine of personality or publicity rights and that when
applied to the performances of the performer.

However despite indirect references to the doctrines of publicity mentioned above very few cases
have come to the fore with respect to the performers seeking recourse against unauthorized
appropriation or utilization of their performances in India. The only reported decision wherein
the principle has been shown to be an accepted doctrine as applicable to live persons but which
did not in the circumstances apply to the events in the like of ICC world cup was in the case of
ICC Development (lntemational) Ltd. v. An/ee Enterprisesm There are not many cases reported
with respect to the tort of personality passing off in India though passing references are made
which is a testimonyto the recognition granted to this doctrine in lndia.229 But an occasion for
the serious appraisal of the doctrine is still to be taken up in India. However in ICC Development
(International) Ltd. v. Arvee Enterprises, the court's observations during the course of the finding
whether persona value inheres in non living entities is significant and forms the ratio of the case.
lt is significant to note that the court referred to MacCan.‘hy’s on the Rights of Publicity and
Privacy (2"° Edition) at p.460 and to the American Position of Law therein and said,” the right of
publicity has evolved from the right of privacy and can inhere only in an individual or in any
indicia of an individuals personality like his name, personality trait signature, voice etc. An
individual may acquire the right of publicity by virtue of his association with an event, sport,
movie, etc .................. .. Any effort to take away the right of publicity from the individual, to the
organizer (non human entity) of the event would be violative of the Articles 19 and 21 of the
Constitution of India. No persona can be monopolized. The right of publicity vests in an
individual and he alone is entitled to profit from it. For example, if any entity was to use Kapil
Dev or Sachin Tendulkers name/Persona flndicia in connection with the World cup without their
authorization, they would have a valid enforceable cause of action“.23° It is notable that in
coming to this conclusion the court also relied on the Zachchini case that brought out the
similarity of intent between the right of publicity and copyright.

In the Phoolan Devi decision?“ the court clearly found that the right of privacy inheres in the
public figure also unless the same was to be exposed with the authorization of the individual.
This decision has immense ramifications for the performers’ moral rights as well as the
economic right aspirations and it shows that distortion and depiction impinging on the privacy of
the performer would not be condoned unless the authorization of the performer and a proper
intimation to the performer was provided. The court also considered the fact that the victim was
not shown the film after it-was made as she could have objected to the same after the preview. In
the facts of the case the filmmaker deviated from the book from which the screenplay of the film
Bandit Queen was to be based. The court disapproved this. From the performers standpoint any
depiction beyond the role and script that was intimated to him which impinged on his right to
privacy would therefore be actionable. The court however did not delve into the question
whether privacy did have a property character in it to be traded. This also exposes the openness
of the Indian judicial attitude to causes of action in common law considered anathema by the
British purists. The recourse and reference to American juristic position is a further testimony to
the no conservative attitude of the Indian judiciary.

Protection of the Performer Under the Copyright Act, 1957

Prior to the amendment in 1994, the courts inferred that the right in the performance of the Actor
could not be brought within the ambit of dramatic works, within the spectrum of the Copyright
Act, as the definition of Dramatic Work specifically excluded the recordings of cinematographic
works?” The court did not venture forth to make any further opinions or rather felt unsure to do
so. It foreclosed any option of exploring the Copyright Act to help the performing artist
particularly in the audiovisual media with any rights and even contractual investment of
copyright upon the performer was disallowed. The musical or the aural performer was totally
omitted because authorship of the musical works and its contours were statutorily recognized as
being authored by the music composer alone.233 The reciter of a literary work too would not
come within any protective ambit of the Copyright Act?“ Therefore the performer of works and
others could not claim authorship and are not afforded any protection under the Copyright Act.

The Act was amended in the year 1994 in order to accommodate the performer with in the
Copyright Act235. It is noteworthy that the measure was starkly distinct from certain attempts
made initially in United Kingdom by making a separate legislation for the performerm. The
reasons that impelled the need for the amendment were the cascading international developments
in the context of the General Agreement on Tariff and Trade, the impending-TRIPS agreement
and the need to be statutorily prepared to endorse the demands of the changing international
order. The copyright changes went through a full committee procedure in the parliament.” The
elaborate exercise did not bring about any significant changes in the original bill of 1992 or the
policy thrust underlying it. The Joint Parliamentary Committee made several changes and
submitted it in August 1993.238The amendments were brought into effect on the 5"‘ of May
1994 through an official notification in the Gazette of the Government of lndia.239

Performers’ Rights

In the newly incorporated Section 38 under Chapter VIII of the Copyright Act the performer is
granted a Special Right called the Performers’ Right.2"'° The right is to prevail for the benefit of
the performer for a period of 50 years following the year of the performance?“ The Act defines
the term ‘performer’ and ‘performance’. An inclusive open-ended definition is provided for the
term performer and it includes an Actor, singer, musician, dancer, acrobat, juggler, conjurer,
snake charmer, a person delivering a lecture or any other person who makes a performancem. It
can be noticed that the definition does not mention any further qualifications or categorization on
any basis namely originality or skill etc. Also it does not mention the need for any derivation
from literary or artistic works, which is starkly distinct from the inclination that national as well
as international instruments have shown. Performance has been defined as meaning any visual or
acoustic presentation made live by one or more performersm. It is noteworthy that the reference
is only to a live performance. It is further qualified by the use of the terms visual or acoustic
presentation. The absence of the use of the words ‘cinematograph’ or ‘audiovisual’ or any
reference to them is noteworthy as it appears to be completely excluded from the coverage of the
rights. The definition also limits the protection to ‘presentation’ of live performances and not to
recordings. The performance can be rendered either singly or by several numbers.

During the subsistence of performers’ rights, it is an infringement if the following Acts are
committed without the consent of the performer with respect to performances on a sound
recording or a visual recording?“ It would be an infringement of the right if the affixation of the
performance were made without the consent of the performer. The reproduction of the affixation
would be an infringement if the original affixation has been rendered without the consent of the
performer. The reproduction would be an infringement if it were made from a recording, which
had been made for purposes different from that for which the performer had given his consent for
the affixation. The broadcast of the live performance would be an infringement if made without
the consent and similarly any communication to the public would also be an infringement if
made without the consent of the performer. However, if the broadcast or the communication to
the public were made from a sound recording or a visual recording then it would not amount to
an infringement. A rebroadcast of an earlier broadcast that did not infringe the performers’ right
would be valid.

A broadcast from a recording made without consent does not appear to be an infringement. This
could also mean that a recording made for the sake of broadcast would be a valid one even if
made without consent. With respect to rebroadcast the only condition to be fulfilled is that the
initial broadcast ought not to have violated performers’ rights. This can only mean that the initial
broadcast should have received the consent of the performer from his live performance. Whether
the recording from which the initial broadcast has to be made is valid or not is not clear though
the need for the same to be valid for the repeat broadcast can be inferred with some stretched
interpretation.

The communication of the performance to the public is an infringement if made without the
consent of the performer. However, it is not considered an infringement if it is made from a
sound or visual recording or under the fair use exceptions under Section 39. In this instance too
the need for the recording from which the communication is rendered to be valid is not
expressively made out.

The application of performers‘ rights are excluded to the extent that the fair use provisions
mentioned under Section 39 would operate, as allowances for exploitation would not be taken to
be infringements?“ The making of the recording for private use or for bonafide teaching or
research would not be an infringement. The use of excerpts for the use in reporting of current
events or for review, teaching or research would not be considered an infringement. Most
significantly 39 (c) mentions such other acts with necessary adaptations and modifications if it
would not be an infringement under Section 52 of entities protected by copyright. Thus this
Section vests a subjective discretion for enabling fair use according to circumstances subject to
the aforementioned limitation.

The performers’ rights are qualified by the operation of several other provisions of the Copyright
Act that are generally applied to the copyright entitles as well.246 The provisions that govern the
assignment and licensing of copyright generally govern the performers’ rights (Sections
18,19,30). Both civil and criminal provisions invoked upon infringement are applicable to the
copyright entities are equally applicable to the performers’ in the administration of their rights
(Sections 53 & 55). The provisions applicable to search and seizure are also applicable to the
performer. lt is noteworthy that the application of these provisions (39-A) is that, similar to the
qualification to fair use provisions, it is mentioned that these sections shall apply with any
necessary adaptations and modifications. A recent amendment has brought in Section 40-a and
42-a regarding the treatment to be accorded to foreign performers‘ and performances, which is at
par with similar provisions for copyright entities.
A most important exclusion of the right is when the performer has consented to the incorporation
of his performance in a cinematograph film. The performer would not enjoy performers’ right as
provided under the terms of the Section as the Sections from 38(1), (2) to 38(3) have no
application.

The proviso to Section 39 (a) lays down that there is the need for consent from the performer or
the owner of rights in case of reproduction from the broadcast of the performance. The
reproduction from the communication to the public has not been hit by the proviso therefore
there is a void in the protection granted to the performer as today the most demanding challenges
have come from wired communication to the public through the digital means. It is important to
note that what requires consent is for a reproduction of the broadcast. But it is not specifically
mentioned that consent is required for either a recording from a broadcast or a reproduction from
the recording made from a broadcast.

A Critical Assessment of the Performers’ Right under Indian Law

An open-ended inclusive definition has been provided to the word ‘performer’ which is laudable
considering the restricted approach of various jurisdictions and the international instruments.
However there is no mention of the need to meel any criteria regarding the creative quality and
originality. The statute does nol differentiate among performers on the basis of their intellectual
labor. The definition nor the following provision give any guidance with respect to this nor does
it express any accommodation with respect to the practices of trade. The term ‘performance’ too
does not refer to any requirement of fulfilling the need for originality. However slender the
quantum of originality and creativity which is required, even for protection under the copyright
canopy, there is the need for this criterion to be fulfiIled249. This also points out to the
continuing treatment of the performer at par (though not similar to) with the broadcasters, sound
recorders and the cinematograph producers despite the creative labor being much more than the
task of accomplishing transmission or production and more equal to authors of literary and
artistic works.

The duration of the protection of fifty years too belie the actual authorial prowess of the
performer and the rationale of creating the same environment of secure returns and duration of
protection as has been extended to authors of literary, artistic, musical and dramatic works. It can
be recollected that the call of Justice V.R. Krishna Aiyer in the IPRS v. EIMP, AlR 1977 SC
1443, was for the extension of copyright protection to performers. The present rationale does not
secure the performer in the long run nor his heirs and successors to enjoy the fruits of his labor.
There is no reason why the same rationale of durational protection need not be extended to the
performer as has been extended to the authors.

The definition of the term ‘performance’ means either visual or acoustic presentation made live.
However there is no guidance in the Act as to what is the exact connotation of these terms.
Further the use of the words in the order “...acoustic presentation made live" could also raise
interpretations, which suggest that the presentation should be before an audience.

Extent of Rights

Apparently, Section 38 of the Copyright Act, 1957 does not provide any positive rights akin to
authorization rights provided to copyright protected entities. An infringement is committed when
without the consent the live performances (in the enumerated ways) and with qualifications -
reproductions of records is exploited. The following analysis will point reasons for alternate
interpretations. Section 38(1) of the Copyright Act grants a special right to the performer called
the Performers’ Right.25° Amusingly, the Act does not provide any clue with respect to the exact
connotation of the term Special Right and Performers’ Right. Even the relationship with those
traditional entities enjoying the copyright status has not been spelt out by the endowment of what
apparently is a special right?“ It is significant in this respect that the definition of performers‘
rights or a description of the same has not been attempted in the A-ct other than the statement in
Section 38(1) that the performer shall possess it in the performance or when he renders a
performance. The composition of the right does not carry any enumeration of the composition of
the rights nor is there any suggestiveness as to its inclusive or exhaustive character.

The features of the statute create ambiguities and provide avenues for interpretation. The analysis
in this context imports two possibilities to the statute either of which can determine the rights for
the performer in India. The first standpoint follows the version in which it has been ordinarily
understood, that the provision providing for the infringements also represent the rights of the
performer and therefore the extent of the same is limited to the provisions of infringement and no
further or two, that the lay out of the rights suggest that performers’ rights of a common law
property nature might exist separate from the infringements provided, the limits of which can be
identified by the contractual extent and is not provided in the statute. The statute merely provides
infringements, fair use limitations and modalities for assignment and licensing. The right has
been left undefined and it need not have separate manifestations unless specified by the contract
like a reproduction right, a distribution right etc. However, treading on either of these
possibilities is fraught with contradictions, anomalies and logical disharmony. In an extreme
sense it can be said that the very Section of the Act would be void for vagueness and for
incoherence in arrangement as it provides for remedies and possibilities of exploitation without
specifying the rights.

Analyzing the structure of the statutory instrument in which the performers’ right is placed and
the pattern of arrangement of the sections, it must be believed that the facets of performers’
rights has been spread out in various sections under Section 38. Therefore 38(3) reflect instances
of infringement rather than as an elucidation of what constitutes performers’ rights. This
inference or observation points out to the grave anomaly in regarding instances of infringement
as representing the rights possessed by the performer. This provides a vast and immense scope
for interpretation rather speculation of the extent of performers’ rights. It contributes to the
confusion as to the manner of disadvantage that a special right entity should suffer vis a vis the
copyright protected entity.

lt is appropriate to be reminded that the methods of arrangement under the scheme of the
Copyright Act has been to classify the rights and those infringed in the Act separately.25“ A
non-articulation of what constitutes the rights of the possessor of the special right called the
performers’ right would have immense ramifications considering the fact that there are always
immense differences between degrees of rights enjoyed between the copyright as well as
neighboring rights entities.

Ramifications of Consent

Unlike popular conception that performers’ rights mean the need for consent for various uses of
the live performance, there is sufficient ground for interpretation that that mere consent as
provided only regularizes the use of the performance for the particular use by the user and does
not sum up the rights in total or point to a total exhaustion of the performers’ right in the
performance. ln the absence of any further specifications and the consent being provided only for
the affixation, reproduction (qualified) or broadcast and communication to the public of the
performance, the performer would continue to retain the right to restrain any exploitation
unspecified by him. While a mere consent would suffice for the affixation, broadcast,
communication to the public, that does not mean that the performers’ property right in the
performance has been transferred to the user that is the affixer, the broadcaster or the person who
communicates the same to the public. lt can neither amount to alienation nor to licensing. It only
diminishes the need for formalities that would otherwise be required in the case of other
copyright entities. Any further exploitation must therefore essentially entail. a further consent of
the performer. The view appears credible considering the grant of the right to assignment and
licensing of performers’ rights. This is fostered by the view that the lack of consent is a violation
and that the utilization or exploitation without proper assignment and licensing would also be a
violation. Otherwise the grant of the right of assignment and licensing under the Act would be
superfluouszss. lt shows that the right of consent falls short of the possibilities of use thrown
open by assignment or licensing rights. Thus until an assignment of the performers’ right in the
performance takes place, mere consent would only allow limited uses but the right would
continue to subsist in the performance. Any further use or exploitation of the performance would
necessitate a further consent or a proper assignment or license from the performerm. While a
variety of means to exploit the performance legitimately by eliciting the mere consent of the
performer can be found in the Section 38(3) to facilitate exploitation there is no suggestion of the
performers’ right or the special right being transferred or lost with the grant of the consent.
Further the very fact that 38(4) specifically mentions that performers’ rights does not subsist with
the consent in cinematograph shows that itsubsists after the grant of consent on the other media.
This only puts the performer and those who deal with him in a less rigid regulatory but enabling
platform than the entities enjoying copyright protection. Thus it can be said that a range of uses
is possible with the mere consent of the performer. This is unlike the need for a formal licensing
or assignment that is required under the norms of copyright for a proper authorization.

Quiet significantly, there is no stipulation in the Act that the performers’ right extends only to the
need for asking the consent of the performer. Therefore the provisions can provoke the
interpretation that the performers’ rights continues till it has been assigned or licensed in
accordance with Section 18 or 19 of the Copyright Act. While a separate list of minimum bundle
of rights has not been guaranteed to the performer like it has been for the copyright entities, it is
significant that the performer has been granted the right of licensing and assigning his right.
Therefore the right can be apportioned during the period of protection and traded in the manner
they would like to. Though a grant of the right of assignment and licensing need not essentially
mean endowment of the copyright status but this does not seem to be in harmony with the
ordinarily understood right of consent that has been granted to the performer which is considered
to be synonymous with performers’ rights for the Indian performer. An unqualified consent
would not extinguish the right of assignment and licensing inhering in the performer as the
consent merely regularizes the utilization of the performance for the specific purpose. This
indicates that the right does not cease with the grant of consent. The right of assignment and
licensing imparts to the performers’ right a property status that could be interpreted to be much
more extensive than the specific bundle of rights being enjoyed by the copyright entities. Further
not only a criminal recourse that is commonly associated with a minimum measure of prevention
but also a forthright grant of civil remedies has brought the performer to be at par with the
copyright entities. The lack of specification with respect to the rights composition compounded
by the grant of civil remedies and rights of assignment and licensing imparts to the special right a
character of property akin to the common law right of property. lt appears to endow on the
performer the right to assign or license the same in any measure that suits him.

Lack of Definition of Performers’ Rights

A definition of performers’ right has not been attempted and therefore the requirement of consent
cannot be considered to fully define the composition of performers’ right rather it can only be
considered as one instance of an infringement. This can only mean that the performers’ right
would still subsist after the grant of consent to the enumerated uses. There is no hint that
performers’ rights in the performance are exhausted with consent subject to the contract to the
contrary. There is thus no presumed unlimited grant of rights once the consent has been provided
to the affixation or other uses. Rather there is only a grant as specified either expressly or
impliedly. The affixer does not have a complete right to do all that he wishes merely upon the
grant of the primary consent. This is particularly so since the performer is also eligible to use the
provisions relating to assignment and licensing in its dealings. Therefore there cannot arise a
situation that the use of these rights can be rendered superfluous through the grant of total rights
to the affixer by the grant of a mere oral consent. lf one hypothetically considers the fact that by
assignment is meant the assignment of the right to give consent. Such an authorization right is
not apparent on the face of the Act. Other than the need to elicit consent by the user there is no
expression of the right to give consent in the Act in the like of authorization right. This once
again confounds the position pointing to the fact that assignment & licensing refers to
performers’ rights beyond mere consent. The provisions are sufficiently ambiguous to trigger
such interpretations.

Caught in the context of instances of infringement as indirectly specifying the rights, the co-
existence of assignment and licensing with the practice of trade through consent could mean that
the consent could provide rights to the respective right to record etc and an assignment can
convey the right perpetually. (However the difference between the license and consent is even
subtler. The important question would be when would infringement action based on the violation
of licensing requirements arise and when would the regularization of the deal based on (oral)
consent cease). Such a grant would restrict all further grant of consent to all others. The
assignment can be restrictive to certain uses as well as prohibitive. The same could be attempted
by way of licensing as well.

Why are formalities like assignments and licensing provided if consent was all that was required
under the Act? What about licensing and assignments for brief periods of time or fulfillment
upon other conditions. Further contradictions arise when one thinks of consent as an accepted
means of exploiting performers’ rights but it is repugnant to the notion of assignment and
licensing, which requires formalities. Therefore the applicability of the assignment and licensing
provisions complemented by other aforementioned factors clearly point to the existence of
something more other than thelsupposed rights in the provisions specifying infringements.
Sections 18 and 19 have been made available to the performer without carrying out
corresponding amendments in the sections to accommodate the demands of Section 38 for the
performer with its special requirements. lt is important to bear in mind that Section 18 and 19 are
not in themselves part of the copyright bundle but are means to deal with the separate rights that
compose copyright. lt enables the right to assign the copyright, which is a bundle of rights.
Therefore the applicability of Section 18 and 19 to Section 38 means that performers’ right
(whatever be its manifestation) can be assigned to another.
lf one construes the provision on infringement provisions to indirectly mean or represent the
performers‘ right then the performer can be considered to have the option to assign or license the
special right. This would mean the right to grant consent for recording sound and the visual
recording, the reproduction of the same subject to fulfillment of conditions, the broadcast of the
live performance. and the communication to the public of the live performance. One can either
assign or license the same singularly or one can do so separately.

To simplify the contradiction, while the positive right of consent has not been provided to the
performer if any one does the acts mentioned without consent of the performer then the
performer can initiate proceedings against them. There is absence of express grant of any
positive rights of authorization to the performer. But at the same time, to add to the
contradiction, the right to assign and license have been granted. If avoidance of the grant of
authorization rights was the underlying intent then the grant of assignment rights are counter to
that intent and meaningless for the right to assign is granted without specifying the rights to be
assigned.

Common Remedies for Dissimilar Rights

The remedies being common to both the copyright as well as the special rights grantees, there is
definitely an overlap that does not take into account the need for proportionality between
infringements with respect to copyright entities as well as those with respect to lesser rights in
the mantle of performers’ rights. The special right with a shorter duration therefore in effect
provides the same deterrence as is invoked when copyright is violated. These are some vignettes
that point to the existence of a nebulous performer right despite the claim of performers’ rights
being encompassed in the cited list of infringements under Section 38(3) of the Copyright Act.
This gives cause to believe that there exists a right in the mould of performers’ right distinct
from that listed by way of infringements.

Application of Common Provisions

The common application of certain provisions that deal with the performers’ right as well as
copyright subject matter elevate or give reason for the performer to be elevated to another
platform nearer to the status of copyright. This is particularly so with respect to assignments and
licenses. The grant of the right to assign and license only indirectly points to the existence of a
property right. On a comparative level, this goes beyond the preventive right as a minimum
guarantee envisaged under the Rome Convention as well as Performers’ Protection Acts in
United Kingdom that provided only criminal remedies in case of violation.

Unclear Meaning of Words

The Special Right would be further susceptible to varying interpretation, as several terms such as
reproduction and communication to the public etc. have not been separately defined with respect
to the Performers‘ Right. Though many of these words are not separately defined with respect to
the copyright as well, there is a meaning that has come to be attributed. For instance the word
‘reproduction’ would, in the copyright parlance, encompass not only copying directly from the
original but also the substantial copying of the original. Neighboring rights entities commonly do
not enjoy the right of substantial copying-imitation though this is not spelt out in as many
words”.

The meaning to be attributed to the word ‘reproduction’ assumes importance in this regard.
Reproduction is most often synonymous with the idea of substantial copying and therefore the
protected entity could avail of copyright protection even if the subject matter was the target of
imitation or as called in copyright terms of substantial copying. From the literal meaning exuded
from the breadth of the Act Section 38 this - substantial copying seems to be a difficult right to
be attributed to the performer. Section 38 speaks of reproduction only in relation to what is
affixed. lt says that reproductions from the affixations shall only be legal if the initial affixation
had been with the consent of the performerm Thus the reproduction is connected with the affixed
performance. There is no hint of reproduction being a violation if rendered from a live
performance or from an affixed performance by way of substantial copying or reproduction by
way of imitation. There is the need for a procurement of an affixed performance in order to
enable a legal or lawful reproduction of the performance. This can also be interpreted to mean
that substantial copying or an independent imitation is possible from a lawful affixation of the
performance. But this construction seems farfetched because the appropriateness of substantial
copying has never been in the context of propriety of affixation but rather in the original having
been endowed with copyright. Though affixation is an integral part of that process. As the
special right is endowed on the performer at the moment of the live performance then the
substantial imitation of the live performance could also amount to reproduction.
Does the Right Extend to Imitation or Independent Performance of the Song?

The ambiguity in the rights granted is evident in the controversy generated in the entertainment
industry in Kerala when Vinod Yesudas asked singers and organizers to pay royalties for the use
of songs sung by Yesudas at public performances.259 The claim was based both on the sound
recorders performance rights as well as the performers’ right granted to the singer. The demand
impels one to explore whether the performers” right does cover the right to stop the imitation of
a performance. First of all the right is prospectively applicable from the year 1994 alone.
Therefore the majority of the songs by the legend remain unprotected under the canvas of the
special right. Secondly, the word imitation encompasses only a direct or indirect copying from
the fixation or recording and not an imitation or an independent creation. This inference is lent
credibility in the manner in which the word reproduction is used and the right of the need for
consent is granted to the performer for reproducing his performances different from the purposes
for which consent had been granted for recording purposes. The word ’copy’ for the sound
recorder as well as the cinematograph too is provided with this limited direct copying right alone
from the recordings and does not cover an independent creation or imitation. The lack of a
definition of the term ‘reproduction’ is a handicap in order to ascertain the true extent of the
right. The complexity is compounded by the lack of a precise enunciation about the exact extent
of rights, as a construction is well nigh possible that with the consent to record, there are no
further rights retained by the performer in the affixation. The episode exposes the deficiencies in
the statute and also wrong impressions and contradictory impressions nursed by those in the
entertainment industry.

Employer -Employee Relationship and the Performer

The performers’ status vis-a-vis the employer-employee relationship and the commissioner has
gone unexplored and does not find expression under sections 38 to 42-A. Therefore when
dealing in such circumstances, the performer does not lose the right unless the right has been
either transferred by licensing or assignment. This is a jarring omission considering the fact that
all the copyright entities do lose their rights or have their rights transferred either to the
commissioner or to the employer in such circumstances.

Audiovisual Performer and Performers’ Right

The term ‘cinematograph film’ as defined in the Act and interpreted by numerous judgments
encompasses all recordings whatever may be the format in which the moving images are
recorded26°. No statutory rights and remedies for infringements prevail in respect of the
performers’ in the cinematograph film. Therefore even visual recordings such as video or digital
images would be affected by 38(4). However this seems not to be confined to affixed
performances alone rather it extends to live performances intended for cinematographic uses as
well because 38(4) lays down that upon a consent by the performer for incorporation in a
cinematograph film, no performers’ right granted from 38(1) to 38(3) will prevail. Thus the very
notion of performers’ rights does not subsist in a live performance with respect to the affixation
in a cinematograph film. lt may also be surmised that even the statutory need for consent of the
performer is not required to record or affix a performance in a cinematograph film. Therefore, no
statutory remedy can be expected for the unauthorized affixation of the performance in a
cinematograph. The protection against an unauthorized affixation of a live performance can only
be attempted through other tort-based actions like the right to privacy and publicity. In this
respect, it is noteworthy that when the provision says that ‘once the performer has consented ’, it
need not mean that the consent of the performer with respect to affixation of an audiovisual
performance is mandatory as it is specifically provided that all rights including 38(1), (2) and (3)
are abrogated in such an eventuality. The disadvantage might be considered graver than the
prohibition imposed in the Rome convention to which the lndian legislation has great similarity.

Another surmise that is portended is that once consent has been provided for affixation in a
cinematograph then that performance would be completely denuded of all rights (as stated in
Section 38(4) and therefore even with respect to other media - aural- the performer would not be
able to would not be able to exercise his rights. Though such a construction would be remote
nevertheless the Section without any reservation and qualification does open up possibilities of
argumentation in this respect.

lt is noteworthy that the words used are ‘once the performer has consented to the incorporation of
his performance in a cinematograph film’. The use of the word ’incorporation ‘ is unique
considering the fact that the words such as recording or reproduction have not been used.
Incorporation is an uncommon word in the copyright parlance. lt is neither affixation (recording)
nor is it a reproduction. According to the dictionary, it is an act of merger or amalgamation or
integration or assimilation. The word is yet to form part of the copyright vocabulary signifying a
method of use or a right. Rights are lost upon the incorporation of a ‘performance’ -— which
means a visual or an acoustic presentation rendered live but not a recorded performance?“ This
could mean that if performers’ rights subsist in a recorded audio performance or a visual
recording then the bar would not operate even upon consent for incorporation from the same.
When an audio recording or a visual recording is reproduced for affixation or incorporation into
the cinematograph then 38(4) cannot be invoked and if this is done without consent beyond the
purposes for which the original recording had been made then it would be an infringement
provided the purpose requirement under 38(3)(b) is fulfilled.

This raises an important issue whether the process of dubbing or playback singing can be
categorized as the incorporation of a live performance or reproduction or incorporation from a
recording. If it were incorporated from a live performance into the cinematograph film then it
would snuff out performers’ rights by Section 38(4).

It is worthy of note that if consent is the crux of the right under section 38(3) then where is the
question of abrogation of rights when the abrogation supposedly takes place after consent is
given. From the manner in which the provisions are laid out this once again points to the
performers’ right being something much more than mere requirement of ‘consent’ or what is
specified as infringements under section 38(3) requisitioning the consent of the performer.

Section 38(4) can also be interpreted to mean that it is not any of these actions with respect to the
cinematograph alone that would not be construed as infringements but any of the applications
38(1) to 38(3) like recording for sound records or visual recording, reproduce the same and even
broadcast and communicate to the public the live performance would not be available to the
performer once he has consented to the incorporation in a cinematograph. This is a grave
consequence as even with respect to other media, the artist can contemplate no action for
infringement and no rights prevail. These consequences are once again owing to the lack of
clarity in the formulation of the statute.

lt appears that the statute is not reflecting what was actually contemplated by the legislatures. If
the performers rights, the period of protection and the right to take infringement action is lost
with the consent for incorporation in a cinematograph and ifwith respect to other recordings it is
not so lost then it once again points to the prevalence of an undefined right beyond what is
commonly understood that performers’ right means the right to take action for infringement for
exploitation without consent. Therefore in the face of these confusing meanings and illogical
outcomes that the literal statute exudes, it can be said that the present lay out is fraught with
contradictions and ambiguities. The grant of assignment and licensing rights without elucidating
performers rights also pops up issues whether it is only the right to take civil or criminal action
that is assigned or licensed when one reads rights into infringement provisions under 38(3). Such
conjectures arise due to the lack of a proper definition of performers’ rights.

Sound or Visual Recording

The use of the words sound or visual recording in Section 38(3) of the Copyright Act creates a
further difficulty in assessing the impact of Section 38(4) in that Section 38(4) completely
excludes the performances on audiovisuals (cinematographs) from the purview of performers’
rights. The words visual recordings appear in contrast to the intent of disallowing performers’
rights with respect to the cinematograph films. The term “visual recording” has not been defined
in the Copyright Act. However it does appear in the definition of the cinematograph. There is no
copyright granted for a visual recording nor is there a mention of any authorship nor has it been
categorized as a work. It is a puzzle to attempt to decipher the extent of the word visual
recording and its exact extent. Though a visual recording does not have any right by itself, it is
evident from the terms of Section 38 of the Copyright Act that the performer in a visual
recording has more rights than the performer in a cinematograph film. Considering the distinct
terminology used it becomes important to speculate whether the latter term has been used in a
narrower context of cinema or in visual recordings in the like of cinema. Without a sound
delineation on a juridical basis between the words visual recording and a cinematograph film, it
is as good as making the two terms in the Copyright Act a lame presence without any
consequence. Surely that cannot be the rationale behind the two words found inscribed.

The Section extends protection to both audio as well as visual recording. The use of the term
visual recording creates difficulties. The word audiovisual has not been conspicuously used nor
has its equivalent — the cinematograph been used with respect to the medium provided
protection. The term “ visual recording ” creates interpretative difficulties because it has not been
defined in the Copyright Act and secondly if analyzed in itself creates difficulties in
technological definition. The word visual recording appears to bring forth a sui generis media
that poses difficulties in identification. It also indicates a medium sans sound. Though
cinematography is defined as a visual recording it includes a sound recording as we|l.262 This
can also mean that while all cinematograph works are visual recordings all visual recordings are
not cinematographs. This leaves a medium that is not protected under the Copyright Act but the
performers’ therein would be protected. That is they would enjoy the performers’ right and their
consent would have to be taken to this end. But this creates a problem in identity as to what is
visual recording and how is it distinct from cinematograph.

The term visual recording cannot be considered as a distinct species out of the pale of Section
38(4) of the Copyright Act. From the standpoint of courts it would take some conviction to draw
a distinction between a visual recording and the cinematograph film as they have long ruled that
the cinematograph film encompasses both video films and allied recordings. This was even prior
to the amendment to this end made in the Copyright Act. Therefore the observations to the effect
that the consent of the performer would be required with respect to recordings on the videotape is
misplaced and a wrong interpretation. The point is that if the Act wished to make a difference
between the visual recording and the cinematograph then it has been irresponsible by not
providing the inputs for a more assured inference regarding the status. lt could mean that the
performer is protected in an unprotected medium. The consent of the performer would have to be
taken during the 50-year period during in, which the performance subsists and the producer of
the visual recording would be left with no rights at all in such an eventuality. Surely this could
not have been the intent of the legislatures.

Need for Delineation between Audio and Audiovisual Fixations

There is the need for clearer delineation between the definitions of audio and audiovisual
fixations. Under the Indian law the terms representing these have been sound records and
cinematographs respectively. While the word cinematograph does encompass the sound track as
well it can be noticed that the sound record does not exclude the sound track263. This can create
scope for p speculation where in the sound track performers’ could either qualify for sound
record performer protection and vice versa. The clear-cut enunciation would be important
considering the fears raised at the internati ; performers particularly since the audiovisual
performer would be treated separately from the treatment of audio performer. The difference a
pure audiovisual fixation of sound and a reproduction incorporated into an audiovisual would
need to be maintained to this end. This is compounded by the lack of a definition of the term
audiovisual performer. This would create ambiguities with respect to the position of sound track
performers’ like dubbing artistes, voice over and playback artistes. It also raises a problem of
sound records made from soundtracks.

Absence of Formality

Another significant characteristic of the performers‘ rights in its present form has been the total
absence of the need for any kind of formality such as the need for a written instrument with
respect to the consent taken for primary affixation of the live performance. However the
application of sections 18 and 19 making performers’ rights amenable to assignment and
licensing creates a contradiction264. ln the absence of a contract or assignment in the written
form as mandated by the sections 18, 19 and 30 the rest of the provisions as provided in the
Section19 apply (other than for licensing purposes. This means that where there has been no
recourse to a written contract or if there has been a written contract then if there has been no
mention or reference to the minimum terms that need to be spelled out then the minimum
statutory terms would be invoked. If an assignment has been made without subscribing to the
modalities as prescribed then the minimum guarantee impliedly laid down by the law would
govern the agreement. The minimum terms demand that the rights assigned needs to be
mentioned specifically, the duration and the territorial extent of the exploitation in case of an
assignment. lt shall also specify the amount of royalty payable and whether the contract of
assignment shall be subject to the revision, extension or termination on terms mutually agreed
upon. If the period of assignment is not stated then it shall be deemed to be five years from the
date of assignment. lf the territorial extent were not stated then it would have to be presumed to
be intending the territory of India. Thus the Section lays down statutory safeguards in the
absence of specific terms to the contrary in the agreement as required by law. This does not
however set aside the expression of indefinite assignment if specifically provided in the contract.
A conspicuous exclusion has been the omission of 19 A from the sections applicable to the
administration of performers’ rights. It provides for a mechanism for resolution of disputes
pertaining to assignment of copyright. The absence is not rationally answered as it is found to be
a significant appendage to sections 18 and 19 of the Copyright Act, 1957. The prevalence of two
pronged formalities with respect to utilization of performances exposes a bifurcation of rights
enjoyed by the performer.

The absence of the form of licensing has also left the performers’ rights practices ambiguous and
poorer. By leaving out Section 31 A from among the provisions that have to be adhered or can be
resorted from the enumerated ambit provided by Section 39A of the Copyright Act, there is
considerable ambiguity with respect to the formalities that has to confirmed to when the
performance is to be licensed. While Section30 is to be applied with respect to the performers’
rights administration there is no mention of Section 30- A in the same manner as Section 19A
has been left out265. However while the absence of 19 A takes away only the manner of tackling
disputes, with respect to the assignment of copyright the absence of 30 A takes away both 19 as
well as 19 A from determining the manner of licensing Activity under Section 30. This means
that the minimum guarantees granted to the author under Section 19 are absent to a
performerlicensor under Section 30. This leaves the performer a likely victim of unfair bargains
and in the absence of explicitly written contracts the presumption would lie heavily in favor of
the licensee. A licensing practice without statutory safeguards and minimum guarantees would
expose the performer to unfair exploitation especially since the onus of proving the presumption
to the contrary would be on the performer who evidently would be the weaker of the two in the
bargain.266

Use of Recorded Performances

A major drawback of the Act is that it is apparently limited to only the need for consent from the
performer for recording live performances, broadcasting and communication to the public of the
live performances. The only control over the recorded performances is with respect to the
reproduction of the recording, which would be considered an infringement if the initial recording
was without consent or if the purpose for which the initial recording was made is different from
that for which the performer gave his consent. The Section does not clearly say that it would
amount to an infringement if the reproduction is used for a different purpose from that for which
consent for the recording was granted by the performer. It only says that reproduction would be
an infringement if the initial recording were used for a different purpose from that for which the
performer gave his consent for recording. lt also brings to the fore the fact that the Act does not
say that the application for a different purpose would be an infringement but that a reproduction
of a recording that had been applied for a different purpose from the purpose for which the initial
consent for the recording was given would be an infringement. Once again the Act lacks in
clarity of purpose. However it can also be inferred that if the act of reproduction or the purpose
of reproduction is different from the purpose for which the initial consent for recording was
granted by the performer then that would amount to infringement. The issue of intent & purpose
imparts sanctity to contracts exploiting performers ‘rights and provides possibilities of extension
of rights into the use of reproductions from recorded performances for purposes different from
that for which consent had been granted. It indirectly expands the ambit of Performers’ rights.

Questions Over Broadcasting from Records

The Act does not require the consent of the performer with respect to the use of recorded
performances for broadcasting and communication to the public. lt is not apparently an
infringement. The need for consent is required only for the broadcast or communication to the
public of the live performance. Surprisingly it is not an infringement even if the initial recording
that was broadcast was without the consent of the performer and is an illegal one. This is a
serious deficiency considering the immense potential for exploitation. It is not clear whether
initial consent for the recording should have been begotten by the broadcaster from the performer
or would consent granted to record to anybody suffice for the purposes of the Section for
legitimizing broadcasting from the recorded performance.

Collective Administration

The Section is silent with regard to the application of collective administration as a viable
mechanism for the benefit of administration of performers’ rights. Section 33 (Dealing with
registration of copyright society) or Section 34 (administration of rights of owner by copyright
society) does not find mention among the specified rights under Section 39-A that applies to the
performer. However it may be indirectly find mention by the fact that the wording of Section 33
that deals with collective administration of copyright entities also brings within its scope other
rights administration for regulation, scrutiny and recognition under the Act.267 lt has taken into
consideration the possibility of collective rights administration being extended beyond the
traditional confines. Though no right is extended any entity-copyright subject matter or to any
other entity to have a collective rights administration, there is nothing averse in the Act with
respect to the same being exercised by the other rights holders. However there is no mandatory
obligation that there ought to be a collective administering body to deal with the rights of the
creators. Section 34 to 36-A of the Copyright Act, only provides a regulatory framework in case
the entities decide to run a collective administration scheme. However there is no reference to the
same in Sections 38 to 41 of Act. Even with respect to copyright entities there is no separate
right to administer their rights collectively rather the means of regulating their enterprise in this
regard alone prevails. Collective administration would be a useful tool in scrutinizing the
exploitation of the performances in the multitudinous ways possible today. Therefore the silence
of the Act needs to be altered particularly in the context of international understanding with
respect to performers’ rights and avenues for exploitation to be managed by means of equitable
remuneration growing by the day.

Application of Provisions Common to Copyright Entities

Section 39-A of the Copyright Act demands the application of Sections 18 to 66 to the
performers’ as well but with a qualification. The sections are to be applied with necessary
adaptations and changes. It is not clear as to how the degree of adaptations and modifications is
to be wielded and who is to do that. There are no guidelines in this regard and this creates a lot of
uncertainty that had been created with the provisions adopted with regard to the administration of
performers’ rights. Deviations would take place under the guise of modifications and adaptations
that can affect the protection accorded to the performer either negatively or positively. If the
issue is to be decided by the courts as and when disputes arise then the majority of the performer
would be left in a disadvantageous position considering the despairing unfair bargaining position
they occupy in commercial deals and the cost of litigation. The provision making room for
adaptation with regard to manner of dealings in exploitation and the safeguards therein would be
susceptible to changes based on convenience of the powerful (the person in an advantageous
bargaining power) making use of the leeway-flexibility provided by the Section as an
opportunity). lt is not mentioned clearly whether the adaptations should be read in favor of or to
advance the rights of the performer. Though this appears to have been the major intention as the
legislation is meant for the protection and welfare of the performer. The adaptations and
modifications should not negate the minimum guarantees afforded by these provisions. It should
be borne in mind that the adaptations and modifications should not be detrimental to the
performer nor extinguish the security afforded to him. lt should not be made to evade the
observance of the grant of rights. In the absence of necessary modifications and adaptations
being made by the law or the rules, the basic guarantees similar to that enjoyed by the copyright
entities must apply without variation.

The Act does not appear to have taken into account the character of the performers’ profession
and its distinctive requirements nor its specific attributes, though it has realized that the same
conditions as for the copyright may not apply in reality and cannot be expected there of. Whether
this is in the nature of dilution or whether it is in the nature of additional safeguard to protection
or not is left to speculation considering the special rights status of a sui- generis kind bestowed
on the performer in contrast to the rights and status enjoyed by the copyright entities.

Fair Use Provisions

The lack of assuredness with respect to the exact extent of the right is prevalent with respect to
the fair use provisions under Section 39(0) as well. lt would need to be debated whether fair use
in respect of copyright entities should be considered as fair use in respect of performers‘ as well
and vice versa. But as at present the fair use with respect to the performer has been appended to
that of the works even if it is totally an independent performance without the involvement or
being derived from any of the works. A lack of certainty pervades the fair use provision in 39(0)
as other Acts, with any necessary adaptations and modifications, which do not constitute
infringement of copyright under Section 52, are exempted. This raises a vital question as to
whom, how and to what extent the necessary extent of adaptations and modifications are to be
decided.

Compulsory and Statutory Licensing

The aforementioned in coherence in the formulation of Section 38 is compounded by strange

omissions. The absence of any provision for compulsory or statutory licensing or application of
the existing provisions to performers‘ would make administration of performances difficult. This
would be so because as performers’ rights would continue to subsist till it is alienated by means
of assignment or through licensing, any exclusion of the performers’ rights from the purview of
Section31 or the fair use of provisions of Section 52 would pose immense difficulties for the
administration of rights. The performers‘ under the abovementioned circumstances can very well
obstruct the administration of rights, as both these provisions do not have any application to
performers’ rights.

With respect to remixes of originals in the market, the need for prior permission was to be met in
terms of Section 52(1)(j) of the Copyright Act. While the provisions could be interpreted as if the
prior permission of the author of the underlying works and the sound record producer was
essential there is perceivably no mention of the performer as an entity whose prior permission
was essential to bring out an album imitating the original. But recent case law on the subject
suggests a more broad approach as if there is an importance attributed when the singer is
changed and the permission of the original owner of the work the sound record is required while
making an adaptation and using a new singer. 269 However there is no suggestion to the effect
that the permission of the singer needs to be procured. The fair use provision in Section 52(1)(j)
applies to sound recordings based on literary, musical or artistic works. The performers’ right has
not been recognized as a work under the Act. However all the provisions of Section 52 can be
made applicable to the performers’ rights under Section 39(c)27°, which means Section 52(1)(j)
can also be an exception to the rights though there is a subjective satisfaction and discretion
endowed on the authority deciding on the issue. The performer being a vital ingredient in all-
audio performances requires a more decisive voice when it comes to allowing remixes. This is so
as the remixes that are attempted after a period of two years would certainly eat away into the
potential sales of the recording and proportionately into the royalty if any to percolate to the
artist. Therefore straightforward explicit amendment needs to be carried out in the Copyright Act
in this respect.

Moral Rights

A glaring omission from the array of rights granted to the performer is the moral rights of the
intellectual creator. The right has been granted to the entities possessing copyright status. The
moral right of integrity and the right of paternity has been granted to the authors under Section
57 of the Copyright Actw. However there is no mention of the extension of the right to the
performer, thereby leaving a huge difference between the performer and the other entities. The
deficiency also exposes the performer to the abuse of his affixed performance by way of
mutilation and distortion that could most inevitably ruin his esteem and honorm This is
particularly so in a digital environment without geographical limits. The manipulation of sound
and images and the technological tools to facilitate the same do not warrant much monetary
investment and technical skills. This anomaly requires rectification at the earliest. Despite the
multifarious means by which the performances are susceptible to be appropriated and
manipulated in a digital age, the Act fails to take into account the possibilities of abuse in this
regard. With respect to distortions or modifications by others while the sound recorder and the
visual recorder can utilize the moral rights with respect to the sound record and the visual
records, the performer is left with no resort. India is yet to recognize any moral right for the
performer in any context be it in digital or otherwise. Therefore amendments have to be made in
the Act in order to secure a right for the performers’ in this regard, which has been made
available to the literary and other creators under the act. The digital realm would be most
susceptible to easy manipulation and distortion and in the absence of protection; performers’
would be an easy prey.

Representative Action

The provisions do not facilitate the means of managing group performances through a
representative action.

No Safeguard Clause

No safeguard clause is expressly provided securing the rights of copyright holders. Further there
is no provision similar to 13(3) and 13(4) of the Copyright Act streamlining the relationship
between the cinematograph, sound recorder and the performer.

Rental Right

As no rights are expressly provided from the recorded performances several rights available to
entities protected by copyright are not available to performers. Even the rights available to the
authors of cinematograph and sound recorders such as the right of rental (hire) have not been
made available to performers. This takes away a major segment of exploitation from the purview
of statutory protection. The Act immensely falls short of current national .and international
standards primarily because no express authorization rights are granted. To confound matters
there is no elucidation of what constitutes performers rights, it has to be matter of inference to be
made from the infringement provisions.
Digital Preparedness- the Indian Law and the Performer

The preparedness of the Indian law to meet the challenges posed by the digital realm needs to be
explored for the performers’ just as it is important for the traditionally protected entities. The
only certain reference to the advent of the computer age into the scheme of the copyright law
other than of course the protection accorded to the computer programs has been the reference to
electronic storage in the right of reproduction granted to the literary works?” Other than with
respect to reproduction, in none of the other rights such as the issue of copies, performance or
adaptation does one find the explicit notion of electronic medium and its specific characteristics.
The term ‘communication to the public’ is upon interpretation supposed to define the process in
the digital medium. The concept of ‘making available’ cannot be read in upon a preliminary
reading of the section. Secondly, there is no mention of the need for taking care of interactive
situations where programs are made available on demand at a place and time chosen by the
recipient. Therefore commonplace situations in a digital world cannot be expressly identified in
the statute but have to be read in by interpretation.

In the provision concerning reproduction where in the electronic medium has been taken into
consideration there is no suggestion as to whether even temporary storage or inadvertent storage
would be construed to be reproduction. The medium of the internet being a process where in
even temporary access would require access in one form or the other to the computer memory,
unless the law clearly specifies taking into account the subtleties of the medium even those who
would not nurse the intention of actual reproduction would be liable. A right to authorize
reproduction has not been granted to the performers’. Even if a reproduction right can be read in
by means of section 38(3)(b) it cannot be said with certainty that the specificities of digital
medium has been taken into consideration. lmportantly the law does not suggest as to what
constitutes storage — permanent or temporary. There are no case laws to provide guidance in
this respect either.

It is important to note that the there is no reference to temporary storage with respect to copies,
distribution or communication to the public right of either the cinematograph or the sound
recordings. The absence of such specifications would have a detrimental effect on the
performers’ protection, as these rights are quiet interconnected. While the definition of the words
‘cinematograph’ and ‘sound recordings’ might take into account any technology on which
moving images or sound may be affixed or recorded there is no reference to the rights of diverse
exploitation being digitally oriented. The rights also need to be digitally compatible. The
analogue mode of delivery and market place is totally different from the market that a digital
delivery has to grapple with.

A deficiency that threatens enterprise on the digital medium could be one regarding the liability
of intermediaries or secondary contributors to infringements. For instance both the internet
service operators and even the premise holders of public internet computer services are equally
liable under the standards of the present law if unauthorized material is streamed and
downloaded or used in any manner from the internet. Though the Indian juristic output is yet to
see case law directly on this point nevertheless the case laws in other countries point out to
varied rationale that the courts are guided in this regard. The Indian copyright law is still silent
on the question and the traditional norms of liability on intermediaries could very well make it
tough on them to disprove or prove their innocence. The attribution of intent and knowledge
based on the facts and circumstances could very well impose a great burden on the intermediary
Internet service provider so that the enterprise in this realm could be hazardous. This would have
a detrimental impact on the administration and dissemination of performances as well. As under
the huge deluge of works the intermediaries would not be able to know the infringing works
from the others. Though under the aegis of the present WCT and the WPPT the countries are free
to make exemptions from liabilities as regards the sen/ice providers.“ The Indian position with
respect to online intermediaiy liability does not find specific mention in the Copyright Act. One
has to infer the possibilities of liability from the general provisions pertaining to the secondary
contributors to infringements and attempt to avoid the liability in the infringement process.
Knowledge and lack of it acts as a leniency-triggering factor in these circumstances. The only
near comparison as a reference point in this issue in India could be the Information Technology
Act, 2000.

Section 79 of Information Technology Act, 2000, lays down the instances where in the Internet
service provider can be considered as infringing the provisions of the Information Technology
Act. While the liability is general in nature what is defined are those instances where in the
Internet Service Provider is not considered liable. It cites two factors or criteria that are required
to be fulfilled. either that he had no knowledge or that he had exercised all due diligence to
prevent its occurrence. It should also be shown that all due means, proper sufficient or
reasonable efforts were made and those could not prevent the commission of the offence. In such
circumstances the network Service Provider could not be held liable. A defense is also provided
if the Service Provider has taken in good faith, reasonable effective and appropriate Action to
prevent access?” The plea of innocence is not merely enough if it is suggested but it has to be
proved. This means the proof of the non-existence of such circumstance so as to raise suspicion
or to lead an inference or belief about the commission of an offence or contravention. There has
to be an absolute conviction as the level of knowledge. Knowledge cannot be considered to
prevail even without exercise of reasonable care and diligence. It is important to prove that he
had exercised all due diligence to prevent the commission of offence or contravention of the law.
The only reference that comes nearest is the provision with respect to plate makers.279 But it
would take a lot of extended interpretation and construction if that should intend to include the
Internet intermediaries or other file shares on the digital medium.

The jurisdictional question is a vexing one in all countries. Though it is a little less in the Indian
context owing to the unitary model of judicial distribution nevertheless it is matter of concern.
Varying intellectual property laws are not perceived across different states in India. Though
territorial jurisdictional problems could be a problem. There is little convergence of thought
when it comes to the question of private international law with respect to the Internet. With the
participants being in different countries the exact identification of the lexfori could be difficult.
With performances being a pool of talent from different countries and the Internet distribution
being placed in different countries the need is for a unified vision on private international Iaw.

One of the most vexing problems of dealing over the Internet is that traditional ideas of licensing
and transfer no longer have any application to the Internet. Therefore if one were to go by the
traditional ideas or norms warranted by the Act then even accessing or reading from the screen
would require a license fully conforming to the formalities under the Act. This ambiguity has not
been plugged by the Copyright Act to be equal to the requirements of the Internet. The use of the
Internet even innocently is therefore fraught with hazards that are commonly overlooked and is
at loggerheads with set rules of the Act.

The performers’ right also does not specifically mention the right of making available. However
this point can be contradicted on the ground that if communication to the public encompasses the
right of making available generally then communication to the public is found in the performers’
right though it is confined to live performance alone. The only drawback in applying this
provision would be that under 2(f) of the Copyright Act ‘Communication to the Public‘ would be
confined to works.281 Because it specifically refers to works and a ‘performance’ is not included
among the ‘works’. Whether the definition of communication to the public in the Act takes into
account the on demand interactive situation at the time and place chosen by the consumer is
itself debatable considering the clearer formulation of the same by international instruments.

The aforementioned analysis shows that providing opportunities for varied interpretations makes
the area of performers’ rights susceptible to unpredictability and further weakens the already
vulnerable position of the performer. Ambiguities, contradictions, inadequate elaboration and
incoherent arrangement of the statute obstruct a clear view of the object to be secured by the
legislation. In the face of strides taken by international instruments and other national
jurisdictions to protect the performer and tackle the digital challenges, it can be seen that the
Indian law needs to incorporate a more secure performers’ rights regime with digital specific
provisions.