Copyright in performance

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Copyright in Performances

Sinduja AmudanathanTrademarks Department



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COPYRIGHTINTRODUCTION

• Copyright is the part of intellectual property which gives exclusive legal right to the original creator of the work. The copyright law protects the intellectual creations in the work that is original. It protects the work as soon as it is created and no registration formalities are required. Earlier the concept of Copyright was limited to the books, painting or films, but now the ambit is widened even to computer software and compilation of data.

• The Oxford English Dictionary defines Copyright as “The exclusive right given by the law for certain term of years to an author, composer etc ( or his assignee) to print, publish and sell copies of his original work.”



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• The Copyright Act, 1957No protection was given to the actors,

musicians, jugglers, dancers etc the act was silent on the performers’ rights

• The Copyright amendment Act, 1994Recognised the rights of the performer

under section 38 of the Act ‘Performers Rights’ are introduced.

Amendments – Indian Copyright Act



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Section 2(a)(q) of the Act defines performance as follows: "Performance", in relation to performer's right, means any visual or acoustic presentation made live by one or more performers;

Section 2(a)(qq) of the Act defines Performer as follows: "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 section 38A of the Act which provides legal provision for performers’ right which gives exclusive right or authorizes for doing any act in respect of the performance without prejudice to the rights conferred on authors. This provision enables the performers’ for royalties which are subjected to committed use.

PERFORMER and PERFORMER’S RIGHTS



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• A performer has the following rights in his/her performance:

• Right to make a sound recording or visual recording of the performance;

• Right to reproduce the sound recording or visual recording of the performance;

• Right to broadcast the performance;• Right to communicate the performance to the

public otherwise than by broadcast.

THE RIGHTS OF A PERFORMER



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• The Performer’s rights subsist for 50 years from the beginning of the calendar year next following the year in which the performance is made. Copyright Act, 1957, Section 40 A says about the application of performer’s right to foreign countries where there is no rights of such a nature presently. The Central Government may by notification may extend these rights to such countries if the country has already provided and intended to provide the such rights.

• Copyright Act, 1957, Section 42A similarly talks about restriction of foreign organisation and performers, if the foreign country does not give protection of these rights , the central government may by notification may put restriction upon the applicability of the provisions of this act on that country or organisation established there.

TERM OF RIGHTS



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APPLICABILITY OF OTHER PROVISIONS

• Under Section 39A the following provision of the Act with necessary adaptation and modification apply to performer’s right as they apply to copyright in a work.

• Section 18 and 19 – assignment of copyright• Section 30 – Licenses• Section 55 – Civil remedies for infringement of copyright .• Section 58 – Rights of owner against persons possessing or dealing

with infringing copies.• Section 64 – power of police to seize infringing copies.• Section 66 – disposal of infringing copies or plates for the purpose of

making infringing copies.

Thus in many essential respects the performer’s right bear close resemblance to copyright.



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NEED FOR PERFORMERS RIGHTS

The recent development in the Act is the recognition to the rights of the performers. The Copyright Act, 1957 gave recognition to the performers after long time. It was only recently when the technological changes threatened the livelihood of performers that the law intervened to protect performers. Musicians, singers, actors, acrobats etc come in the category of performers. In the late nineteenth century and the early twentieth century technology was developed that enabled performances to be recorded and then enable to both live and recorded performances to be broadcast and communicated to the public locally, regionally, nationally and eventually internationally. Performers’ were therefore separated from the performers who had made them. the development in the technology leads to easy access to the spectators even to those who are not in the immediate vicinity when the performances was made. As the live performances or whether the performance is on the stage or in the broadcasting studio the nature of their performances is no more transitory..



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Acts not constituting infringement of a performers’ right under

section 39 of the Act:Copyright Act, 1957, Section 39 speaks about acts not constituting infringement. The following acts do not constitute the infringement of performer’s right in his performance: 1. The making of any sound recording or visual recording for private use of the person making such recording or solely for the purpose of bonafide teaching and research;2. Fair dealing of excerpts in a performance in the reporting of current events or a bonafide review, teaching or research;3. Other acts with any necessary adaptation and modification which don’t constitute infringement of the copyright under Section 52;4. Reproduction for the use of judicial proceedings;5. Reproduction for the use of the members of the legislature;6. Use of sound recording or visual recording of the performance in the course of the activities of an educational institution if the audience are limited to the students and parents and guardians of the students and persons directly connected with the activities of the institution; and7. Makes a sound recording or visual recording of the performance. Thus making of the sound recording or visual recording of or the above purposes doesn’t constitute infringement.



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In Fortune Films International v. Dev Anand AIR 1979 BOM 17:

The earliest case on performer’s right in Indian court was in 1979, when section 38 & 39 were not a part of the copy right act. The Supreme Court held that an actor had no claim over his performance in a film as this performance did not fall within the five categories of the artistic work contained in the copy right act.

Cassettes Industries v. Bathla Cassette Industries 107 (2003) DLT 91:

After the inclusion of section 38 & 39 in 2003 in the Act, the Delhi High Court held in this case that performer’s rights were essentially different from copyright, and held that re- recording of a song without the permission from the original performer constituted an infringement of performers' rights.

Case Study



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Neha Bhasin v/s.Raj Anand Raj & Performer’s Rights

It was held in this case that the plaintiff has sung the song and is protected under the performers rights. The plaintiff Neha Bhasin, a singer, alleged that her voice has been stolen and falsely attributed and held out to be used by the defendants for the three versions of the song "ek look ek look" in the hindi feature film "Aryan the music director -Anand Raaj Anand, had shown herself to be the lead singer in credits for the three versions in the inlay card of the audio compact disc and plaintiff has been shown as a backup vocalist in all the three versions of "ek look ek look", but it is the voice of the plaintiff that is heard. The plaintiff had agreed to render voice for the film on the term that remuneration would be paid suitably after looking to the popularity of the song once it is released in the market. However, song broadcasted and CDs sold did not contain her name as the singer. In response to the notice by the plaintiff the respondent send a notice claiming that, though she had been auditioned to sing the song, it was the version sung by Poonam that was used by the music director. However due to technical inadvertence the version of Neha was overlapped with the version of Poonam, and hence the credit of backup vocal inserted. However, the court derived at the conclusion that the three versions of the song are sung by the plaintiff and not the defendant.



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Copyright Societies:Copyright society is a legal body which protect the interest of owners of the work

in which the copyright exist. Prior to the coming into force of the Copyright (Amendment) Act 1994, the ss. 33 to 36 dealt with the Performing Rights Societies which only gave right for issuing or granting licenses for performance in India of any work in which copyright subsisted. These sections limited the scope to granting licenses for the performance in India of any work in which copyright subsisted. But after the implementation of the amendment Act the scope of Copyright society was broadened from issuing or granting licenses and all rights relating to any class of work in which copyright subsist under the Act. The copyright society is a body created under copyright act 1957 that gives license to the work and collect royalties.

The Copyright Societies in India like 1. The Indian Performing Rights Society Limited (IPRS),

2. The Phonographic Performance Limited (PPL) and

3. Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT)

4. Indian Reproduction Rights Organization (IRRO)

INDIAN COPYRIGHT SOCIETES AND RELATED CASE LAWS



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• For performers there is a performing rights society which came into existence on 23rd August 1969 and named as IPRS. The Indian performers Right Society is not profit making. It is a company limited by guarantee and registered under the Companies Act, 1956 and authorized under section 33 of the Act. IPRS has more than 1500 members who are local composers, lyric writers and publishers and also represents international music .This body represents the composers, lyricist and the publisher of music. This body deals with the issuing or granting of licenses for any musical work, literary work to any person within the territory of India. It is one of its own kinds in India for issuing and granting of licenses for acquiring rights on the music.

• The users who need to perform or broadcast or play any literary work or musical work they have to take prior permission or in other words they have to obtain license for public performance. The users such as radio station, television station etc need to obtain license.

Indian Performing Rights Society Limited:



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IPRS Limited v Hello FM Radio (Malar publications Limited).:

• According to this case the Indian Performing Rights Society Limited (IPRS) secured an injunction from the Delhi High Court against Hello FM Radio (Malar Publications Limited). The defendants were broadcasting the songs without obtaining licenses from the Indian Performing Rights Society Limited (IPRS).In this case IPRS wanted either Hello FM Radio (Malar Publications Limited) should obtain license or have to stop broadcasting the songs, or both. In this case the Delhi High Court granted the injunction. By restricting the Hello FM Radio from playing music without obtaining license from the Indian Performing Rights Limited (IPRS).

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Phonographic Performance Ltd (PPL), a copyright society registered under the Copyrights Act, which took the hotels to court for failing to pay copyright license fees. PPL is the sole authority to administer the broadcasting, telecasting and public performance rights and to collect license fees on behalf of the music industry.

Phonographic Performance Limited v Hotels:In the past also Mumbai High Court directed hotels to pay towards copyright license fee for playing music in the new-year parties organized by them where an entry fee was charged.

Event and Entertainment Management Association v. Union of India and ors.The Delhi High Court held that the law laid down in Federation of Hotels and Restaurant Association of India v. UOI held that the working of the copyright societies to be monitored and guided by the Copyright Act.

Phonographic Performance Ltd



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M/s Phonographic Performance Ltd. v M/s Hotel Gold Regency & Others (MANU/DE/0942/2008):

In this case the Delhi High Court decision has made the life of the Copyright owners and the Copyright Societies more complicated. As we known that the Copyright Societies in their capacity as licensees usually institute copyright infringement suits in their names on behalf of all their members who are actual copyright owners. This judgment however has put an end to the practice by holding that as per the scheme of the Copyright Act, 1957.According to this judgment the Copyright Societies do not have any right to institute a suit for copyright infringement in their name and therefore only a copyright owner or an exclusive licensee can sue for copyright infringement.

The Indian Performing Rights v Kolkata knight Riders:A suit on copyright violation against Kolkata Knight Riders (KKR) was filed on May 14th,

2008 by The Indian Performing Rights Society (IPRS). The allegation was about playing 14 popular Hindi film songs like "Om Shanti Om" during IPL matches at Eden Gardens without permission. The Kolkata High Court refused the application for injunction on the use of the songs and directed the parties to file affidavits. This matter is yet to be decided.



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The Indian Performing Rights Society vs. East Indian Motion Pictures Association:the Apex Court held that that if an author of a musical work has authorised a cinematograph film

producer to incorporate his works within the cinematograph film thereby permitting him to appropriate his work by such incorporation in the sound track of the film, the composer may not restrain the film producer from causing the acoustic portion of the film to be performed/projected/screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film or from communicating or authorising the communication of the film by radio diffusion.

Music Broadcast vs. Phonographic Performancethe plaintiff had been granted permission to start an FM Radio Station, for which it had obtained

licenses from various organisations including the Indian Performing Right Society (IPRS). The defendant, a society administering the public performance rights of publishers of sound recordings, refused to reduce their prohibitive high tariff. The plaintiff, while applying to the Copyright Board for a compulsory license, filed an action seeking permission to broadcast sound recordings of the defendant on reasonable royalty rates. The Bombay High Court observed that the current rate quoted by the defendant was prima facie excessive. The court directed the defendant to grant a license to the plaintiff. This order assumes importance as, although a court may not fix royalty rates and is not competent to grant a compulsory license, it may, in exceptional cases, compel the rights holder to grant an interim license until the disposal of the compulsory license application.



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International Convention

The rights given to performers are a result of many conventions and treaty. The need for the treaties arose due to the development and innovation in technology. The concern of the performers has been addressed in four major international instruments: Rome Convention, 1961; TRIPS 1994, WPPT, 1996 and Beijing Treaty, 2012.

International Convention for the protection of Performers, Producers, Phonograms and broad casting Organizations (Rome Convention 1961)

Rome Convention, 1961 granted following rights to the performers under Article 7:

1. Right to prevent the broadcasting and communication to the public of their live performances without their consent.

2. Right to prevent fixation to their live performances without their consent.

3. Right to prevent reproduction of the fixation to their live performances without their consent under the following circumstances:

If the original fixation was made without their consent



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The following remedies may be availed in a suit against infringement of performers rights under Sections 55 and 63 to 70 of the Copyright Protection Act. (i) Civil remedies: Under civil remedies, the owner of the copyright, or his assignee or his exclusive licensee or a legatee may obtain (a) injunction or (b) claim damages(ii) Criminal remedies: In addition to civil remedy the Copyright Act enables the owner of the copyright to take criminal proceedings against the infringer. The offence of infringement of copyright is punishable with imprisonment which mayextend from a minimum period of six months to a maximum period of three years or with a fine of the order of Rs 50,000/- to Rs 2.00 lakhs.(iii) Anton Pillar order: In appropriate cases the court may on an application by the plaintiff pass an exparte order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. The necessity of such an order arises where there is a grave danger of relevant documents and infringing articles are being removed or destroyed so that ends of justice will not be defeated.

REMEDIES AGAINST INFRINGEMENT OF PERFORMERS

RIGHTS



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Garcia v. Google, Inc

Garcia v. Google, Inc. is a copyright case in which the Ninth Circuit has ordered Google to remove copies of the notorious "Innocence of Muslims" film from YouTube. Why? Because one of the actors in the film insists she has a copyright interest in her performance and, based on that interest, claims to have a right to have the video taken offline. Actress Cindy Lee Garcia—who was tricked into appearing on-screen, overdubbed, for five seconds—sued Google to have the footage removed. A Ninth Circuit panel ruled 2-1 in her favor in February 2014. As a result, Google was forced to remove the film from YouTube and take steps to prevent future uploads.

CASE LAWS ON PERFORMERS RIGHTS



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Bollywood Controversy

Singers protest 'feudal' contract, music companies maintain 'no royalties'. On going war between ISRA and the Music compines is going viral. The reason behind that is The singers are being asked to sign a contract which stipulates that they are assigning their performer's rights to the music director who passes them on to the producer who then has "exclusive right including but not limited to the right to reproduce the performance in any material form". Further states that in the case of any audiovisual recording of a performance, the singer has to assign his/her right to royalty under Section 38A (2) to the music director who passes it to the producer in lieu of a lump sum of royalty paymentSection 31C according to which a singer has to agree that he/she will not perform or record a song, and this includes cover versions, without the permission and licence of the music director and/or the producer



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• However, from a plain reading of the new Section 39A, it appears that Parliament may have granted singers the same rights as composers and lyricists which means that more people get a slice of the pie, provided of course that everybody takes a smaller slice of the pie. Section 39A was an old provision in the law which basically applied the old Section 18 & 19 to even performer’s rights enjoyed by singers. During the 2012 amendment, Section 39A was amended to include some extra provisions (such as TPMs) which would apply to even performer’s rights. However Parliament didn’t make any attempt to exclude the newly added provisos to Section 18 & 19 from the ambit of Section 39(A). As a result singers who qualify as performers qualify for the same rights as composers and singers.



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ConclusionA performance is not just Kamala Hassan singing a song at Filmfare Awards or

Prabhu Deva showing his dancing skills at a ‘Dancing Fest’ or Shobana Classical acting in a stage show but Christ Gayle celebration of a wicket, MSD’s Helicopter shot, umpire style of umpiring; manner of cheering by fans of a particular football club is concerned is also to be considered as performance and the person doing such act as performer. There is no protection against imitation of the above said acts under the performer’s rights provision in Indian Copyright Act. As far as india is concern if a person copies a famous umpire’s style of umpiring throughout the match, the only solution would be Section 38B(b) of the Act which allows a performer “to restrain or claim damages in respect of any distortion, mutilation or other modification of performance that would be prejudicial to his reputation.” But even for availing that, he shall have to prove that the performance by such a person has been prejudicial to his reputation, which might not be that easy.(Actress Namitha and Actress Sona Controversy). Thus I conclude saying the recent amendment in copyright law regarding performers rights is a good start but it has to have a wider provision and must be broad enough for the understanding of any performer their rights.

Copyright in performance

Law

Transcript of Copyright in performance