Ghost Post: Performance under Copyright Act restricted to live performance?

A practising lawyer sent me this very interesting ghost post on a possible conflict, in the scope of performance rights, between the Copyright (Amendment) Act, 2012 and the Copyright Rules, 2013. The lawyer in question has preferred to remain anonymous. I think the post raises some interesting issues for debate. I don't think the issue has been raised in any of the constitutional challenges but I'm guessing it should crop up soon enough. 

Performance under Copyright Act restricted to live performance?

While the infirmities in the amendment to the Copyright Act and Rules continue to be debated and challenged, the amendments with respect to the performer’s rights seem to have attracted relatively less attention.

It would be interesting to highlight few inconsistencies in the amendments pertaining to performer’s rights.

Section 2 (q) of the Copyright Act defines "performance” in relation to performer's right to mean any visual or acoustic presentation made live by one or more performers;

Section 38 A (2) categorically provides that once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not be entitled to object to the enjoyment by the producer of the film, including his performance in the same film.  However, the proviso to Section 38 A (2) provides that the performers’ entitlement to receive royalties is only in case of the performances being made for commercial use.

Interestingly, while the Copyright Act fails to clarify what construes to be “commercial use”, the explanations to Rule 68 of the Copyright Rules, 2013 clarify three things:

1)  The royalty collected from enjoyment of the performer’s right in (i) to (v) of clause (a) of sub section (1) and proviso to sub.-section (2) of Section 38 A, shall be shared equally between the performer and other owner of copyright

2) Commercial use as mentioned in proviso to sub-section (2) of Section 38 A, means the exploitation of the performers right by way of reproduction , issue of copies or distribution, communication to public including broadcasting and commercial rental of the cinematograph film.

3)  Performance includes recording of visual or acoustic presentation of a performer in the sound and visual records in the studio or otherwise.”

It can thus be seen that Explanation 3 to Rule 68 has not only expanded the scope of the term “performance” but is clearly inconsistent with the definition of performance provided under Section 2 (q) of Copyright Act. While the Act limited the definition to “live performances” i.e. performances which are not pre-recorded, the Rules have gone ahead and included within its scope pre-recorded performances. What constitutes “live performance” has been a debatable issue which was briefly addressed in the case of Neha Bhasin vs Anand Raj Anand [2006 (32) PTC 779 Del] wherein the Delhi High Court observed that “Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer's right is infringed.”  In that sense, Explanation 3 to Rule 68 could be in conformity with Delhi HC’s interpretation of live performance, but clearly ultra vires its parent Act.

Impact: On a harmonious reading of Section 39 A, Section 18 and 19 of the Copyright Amendment Act, 2012, one could conclude that the performers are entitled to non assignable rights to receive royalties for every performance for commercial use. If the exclusive rights granted to the performers are not restricted to merely live performances, then by virtue of Explanation 2 to Rule 68, every time a performance is reproduced, distributed, communicated to the public or commercially rented, it would attract royalties for the performers. In effect, every time a movie is telecast, a song played (as a whole or in parts), the performers which would include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance (except extras i.e. a person whose performance is casual or incidental in nature), would be entitled to non assignable royalties.

It would be interesting to see the implementation of these amendments and the disbursement of royalties to the performers.

Another practising lawyer writes in with the following comments: 

I've read your blog on performer's rights with interest.  There is indeed ambiguity about the meaning of a "live" as distinct from a "studio" performance. 

However, the short point I want to make is that Section 39A can't apply to  the third  proviso to Section 18 which is specifically limited to literary and musical works.  If they had extended to all copyrighted works, then there would have been a case to apply Section 39A.  But Section 18 does not even apply to all copyrighted works that may be included in a film, like dramatic works—screenplay and choreography—and artistic works, including photography which is so basic to the film, and set design. Therefore Section 39A simply cannot apply here, being specifically excluded along with many copyrighted works.