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:
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.)
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).
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.)