Provisions of Copyright Act & Copyright Rules
Section 38A Exclusive Right to Performers (Performers' Rights)
- Without prejudice to the rights conferred on authors, the performer's right which is an exclusive right subject to the provisions of the Act to do or authorize for doing any of the following acts in respect of the performance or any substantial part thereof, namely :-
- to make a sound recording or a visual recording of the performance, including
- reproduction of it in any material form including the storing of it in any medium by electronic or any other means
- issuance of copies of it to the public not being copies already in circulation
- communication of it to the public
- selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording
- to broadcast or communicate the performance to the public except where the performance is already broadcast
- Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film, he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the Performer's right in the same film:
Provided that, nothwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use
Section 38B Moral Rights of the Performer
The Performer of a performance shall, independently of his rights after assignment, either wholly or partially of his right, have 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 and;
- to restrain or claim damages in respect of any distortion, mutilation, or other modification of his performance that would be prejudicial to his reputation
Explanation For the purposes of this clause, it is hereby clarified that mere removal of any portion of a performance for the purposes 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.
Section 18 New Provisios :
- Provided further that no such assignment shall be applied to any medium or mode of exploitation of the performance which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the performance
- Provided also that the Performer of the Performance included in a visual recording shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such performance in any form other than for the communication to the public of the performance along with the visual recording in a cinema hall, except to the legal heirs of the Performer or to a copyright society for collection and distribution and any agreement to contrary shall be void.
- Provided also that the Performer of the Performance included in the Sound Recording but not forming part of any visual recording shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such performance except to the legal heirs of the Performer or to a copyright society for collection and distribution and any assignment to the contrary shall be void.
Section 19 addition of 3 new Sub-sections :
- The Assignment of copyright in any performance contrary to the terms and conditions of the rights already assigned to a copyright society in which the performer of the performance is a member shall be void
- No assignment of copyright in any performance to make a visual recording shall affect the right of the performer of the performance to claim an equal share of royalties and consideration payable in case of utilization of the performance in any form other than for the communication to the public of the performance along with the visual recording in a cinema hall
- No assignment of the copyright in any performance to make a sound recording which does not form part of any cinematograph film shall affect the right of the performer of the performance to claim an equal share of royalties and consideration payable for any utilization of such performance in any form
Performers as per Section 2 (qq) of the Act includes an Actor, Singer, Musician, Dancer, Acrobat, Juggler, Conjurer, Snake charmer, a Person delivering a lecture or any other Person making a performance.
Section 39A of the Act, provides for the application of Sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64, 65, 65A, 65B, & 66 with necessary adaptations and modifications to the Performers' Rights as they apply in relation to copyright in a work.