Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

13 March 2012

The Performer's Right

The performer's right is defined in Sections 38 and 2(q) of the 1957 Copyright Act in the following terms: it arises when a performer appears or engages in a live performance, and subsists for fifty years from the year after which the performance is made. Pertiently, the statute does not define what a 'live performance' is, and as such, presumably, it could be enthusiastically interpreted in extremely broad terms.

Many of the provisions which apply to copyright also apply to the performers right with necessary adaptations. Specifically, the following Sections of the Copyright Act also apply to the performer's right:
  • Sections 18 and 19 (copyright assignments and the modes of assignment);
  • Section 30 which deals with copyright licences but not Section 30A which makes applicable the modes seen in Section 19 to licences;
  • Sections 53 (importation of infringing copies);
  • Section 55 (civil remedies for infringement);
  • Section 58 (owner's rights against persons possessing or dealing with infringing copies);
  • Section 64 (power of the police to seize infringing copies);
  • Section 65 (possession of plates for the purpose of making infringing copies); and
  • Section 66 (disposal of infringing copies or plates for the purpose of making infringing copies).
Like copyright, the performer's right comprises a number of rights, and is also subject to exceptions analogous to the fair dealing exceptions to copyright infringement. In effect, the performer's right prevents any person from (1) recording a live performance without the consent of the performer, or (2) reproducing a recording of a live performance if the original recording was either made without the consent of the performer or was made for a purpose to which the performer did not consent, or (3) reproducing a recording of a live performance where (a) the original recording was made for private use, teaching, research, to report the news in a manner or for any other purpose consistent with fair dealing as contemplated by Sections 39 and 52 of the Copyright Act (b) and the reproduction was for a purpose other than those mentioned in (a).

The broadcast of a live performance is not a violation of the performer's right if (1) the broadcast is a rebroadcast by a broadcasting organisation of one of its an earlier broadcasts which did not violate the performer's right or (2) if the broadcast is made from a recording which has itself not been made under the relaxed provisions of Section 39 — Section 39 allows for performances to be recorded without the consent of the performer for private use, teaching, research, to report the news in a manner or for any other purpose consistent with fair dealing. Remarkably, there appears to be no requirement that the broadcast is made from a recording which was authorised by the performer — the only requirement appears to be that the broadcast not be made from a Section 39 recording.

The reproduction of a broadcast, however, requires the permission of the owner of rights or the performer or both of them, as the case may be, where copyright or a performer's right subsists in the work or performance which has been broadcast.

Equally remarkably, the communication to the public of a recording of a live performance does not generally appear to be an offence. Section 39(4) of the Copyright Act states that the communication of a performance to the public otherwise than by broadcast is an offence unless the communication is from a sound recording or a visual recording or a broadcast. There does not appear to be any requirement that the communication be from an authorised sound recording or an authorised visual recording or a permissible broadcast.

Pertinently, the performer's right is effectively negated by the performer agreeing to the incorporation of his/her performance in a film. This, however, is not stated (in the statute) to be the case where the performer agrees to the incorporation of his/her performance only in a sound recording.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Credit

This site is supported by FrontierNxt.