“Provided that in a cinematograph film a person whose performance is casual or incidental in nature and, in the normal course of practice of the industry, is not acknowledged anywhere including in the credits of the film, shall not be treated as a performer except for the purpose of clause (b) of section 38B.”Clause (b) of Section 38B is a new provision which is proposed to be inserted into the Copyright Act, and it deals with the moral rights of performers. This particular provision states that ‘the performer of a performance shall, independently of his right after assignment, either wholly or partially of his rights, have the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation’. The other right which a performer would have (under Clause (a) of the proposed Section 38B) is the right to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance. This right under the proposed Section 38B(a) obviously cannot apply to extras in films as they are not credited by definition.
The two rights enumerated under the proposed Section 38B, however, comprise the “Moral Rights” intended to be accorded to performers, and are analogous to the “Moral Rights” which are accorded to the authors of works protected by copyright. It is pertinent to note that the proposed provision also contains a safeguard against abuse of moral rights in the form of an Explanation which would state that ‘the mere removal of any portion of a performance for the purpose of editing, or to fit the recording within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation’. This too is analogous to the rights granted to authors: the moral right of an author would not be considered to have been violated merely because his work has, for example, not been displayed to his or her satisfaction.
In addition to this, the provisions regarding the violation of the “Performer’s Right” have been significantly restructured in the Bill, and have been transposed to a new Section: 38A. Currently, Section 38(3) of the Copyright Act enumerates a number of acts the performance of which would be a violation of the performer’s right. Thus, it has been drafted in proscriptive sense. Section 38A enumerates acts similar to those listed in Section 14 (which defines the “Meaning of Copyright”), but instead of stating that performing them without consent would cause one to violate the performer’s right, it states that these it is the exclusive right of the performer to perform or authorise the performance of these acts or any substantial part thereof. As such, the proposed Section 38A may be considered to be prescriptive in nature.
Finally, under Section 38A(2), the rights of performers in films have been considerably widened. Under the Copyright Act, once a performer consents to the incorporation of his performance in a cinematograph film, no performer’s right would apply to that particular performance. The proposed amendment, however, does not completely do away with the performer’s right. Firstly, it contemplates that the consent of a performer for the incorporation of his performance in a cinematograph film would be in writing, and would not merely be oral.
Further, once a performer gives valid consent for the incorporation of his performance in a film, he would not generally be able to object to the enjoyment by the film’s Producer of his performer’s right in it. There are two important caveats here though: firstly, the performer may enter into an agreement to the contrary i.e. there would be no statutory prohibition to his entering into an agreement which stated that he could object to the Producer enjoying his performer’s right in the film. Secondly, the Producer’s enjoyment of the performer’s right in the film is quite clearly limited to the film, and the Producer would not be able to enjoy the performer’s right for the purpose of out-film use such as in ring tones or public performances.
The prohibition on the Producer’s enjoyment of the performer’s right in respect of out-film use is buttressed by a Proviso which states that ‘notwithstanding anything contained in Section 38A(2), the performer shall be entitled for royalties in case of making of the performances for commercial use’. Although this Proviso does not appear to be a model of clarity, it would appear that the intention is to accord to performers the same benefits as would be accorded to the authors of underlying works for the use of their works otherwise in conjunction with the film. This would make a stream of revenue accessible to performers which has thus far generally been denied to them.
Read the entire article here at SSRN: "Films and the Copyright (Amendment) Bill, 2010".
(This post is by Nandita Saikia and was first published at LawMatters.in.)