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.

14 June 2012

The Performer's Right under the 2012 Act

The definition of a performance in Section 2(q) of the Copyright Act is: ‘performance’, in relation to performer's right, means any visual or acoustic presentation made live by one or more performers. The words ‘made live’ are not defined in the statute, and unless a ‘live performance’ is construed extremely broadly, and the statute is interpreted purposively, it is not clear how it could apply to the recorded performance of an actor in a film. However, the provisions of the statute have been widely interpreted to mean that film actors are intended to be able to benefit from the performer’s right, especially in light of the amendment to Section 2(qq) of the existing Act which defines a performer. As such, there appears to be a technical infirmity in the copyright statute insofar as requiring a recorded performance to be considered to be a live performance, so as to enable a film actor to be considered to enjoy the performer’s right as contemplated by the statute, is concerned.

The definition of a ‘performer’ in Section 2(qq) of the existing Act was amended by the 2012 Act. Under the existing Act, the Section contained an inclusive definition which stated that a performer ‘includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance’. The 2012 Act amended this definition by appending a Proviso to the Section which would disable those performers not mentioned in a film’s credits (including film ‘extras’) from being able to claim all but one of the rights granted to performers by the Act. This Proviso states:

‘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.’

Section 38B is a new provision in the Act which deals with the moral rights of performers. This particular provision — Section 38B(b) of the Act — 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 Section 38B(a) of the Act — 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 of the Act 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 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 of the Act. Section 38(3) of the Copyright Act before the coming into force of the 2012 amendments enumerated a number of acts the performance of which would have been a violation of the performer’s right. Thus, it was been drafted in proscriptive sense. Section 38A of the Act now enumerates acts similar to those listed in Section 14 (which defines the ‘Meaning of Copyright’) of the copyright statute, 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 new Section 38A in the Act may be considered to be prescriptive in nature.

Finally, under Section 38A of the Act, the rights of performers in films have been considerably widened. Under the copyright statute, 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 Act, 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 under the Act 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 may be interpreted to be limited to the film, so that the producer would not be able to enjoy the performer’s right for the purpose of retaining all the revenues generated through the commercial use of a performance (assuming the performance was live).

Further, the prohibition on the producer’s enjoyment of the performer’s right in respect of commercial 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’. It thus appears that a performer would be entitled to continuing royalties for any commercial use of their performance. Although this Proviso is not a model of clarity, it would appear that the intention is to accord to performers the benefits analogous to those which the 2012 Act accords to the authors of underlying works incorporated in films and sound recordings for live performances. This would make available to performers revenue stream which has thus far not been known to have been accorded to them, particularly since applying the provisions of Sections 18 and 19 to the performers right would give performers an ‘equal share of revenues’ for live performances analogous to the ones which the authors of underlying works in films and sound recordings enjoy.

In its report, the PSC broadly supported the provisions restructuring the performer's right and according moral rights to performers. However, it highlighted an observation of the Association of the Radio Operators of India stating that if a ‘performance’ were to be defined in a manner which included communication by any means to public of any sound recordings, current judicial deliberations on whether free broadcast through radio constitutes performance would be virtually overruled. Noting the Association’s observation that the ‘playing of recorded songs cannot be construed as performance and this matter is currently under review of courts,’ the PSC recommended the modification of the proposed amendments in the light of court rulings — this proposal of the PSC, however, did not appear to find mention in the 2012 Act.

As such, a continuing question is whether performers in films i.e. actors would be considered to have a performer’s right as all — this is because Section 2(q) of the Act which defines a performance states that, in relation to performer's right, a performance is any visual or acoustic presentation made live by one or more performers, as discussed earlier. Although a live performance has not been separately defined, it is not entirely clear how the recording of an actor’s performance in a film could be attended by the performer's right, unless the term live performance were to be interpreted extremely enthusiastically and broadly.

(This post is by Nandita Saikia and was first published at Indian Copyright. It is an edited extract from a paper available at SSRN.)

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