This article is written by Trisha saha, a law student of Amity University, kolkata.
The Broadcasting Organisations such as Television ,Radio , have been vested with certain rights known as ‘Rights of Broadcasting Organisations’. The Copyright (Amendment) Act,1994 has incorporated a new section in place of the old section 37 of the Act.
Section 37 now provides that every broadcasting organisation will have a special right termed the “Broadcasting Reproduction Right” in respect of broadcasts. The term of the ‘Broadcasting Reproduction Right is twenty-five years from the date of broadcasts. During the subsistence of Broadcasting Right, if there is a commission of the following acts by whosoever without a licence or consent of the owner of the right (the Broadcasting Organisation) then it will amount to be an infringement of the ‘Broadcasting Reproduction Right’.
- Following are some infringing acts :
- Re – broadcasting the broadcast
- Causing the broadcast to be heard or seen by the public on payment of any charges.
- Making any sound recording or visual recording of the broadcast
- Making any reproduction of such sound recording or visual recording where such initial recording was done without a license or where it was licensed for any purpose not envisaged by such license.
- Selling or hiring to the public or offering for sale or hire, any sound recording of the broadcast.
The rights of performers and broadcasting organisations are often termed as neighbouring rights or related rights since the performers and broadcasting organisations act as intermediaries or link to transmit the works of authors to the public at large. These have been developed in parallel to the Copyright Act. It was only in 1994, that the Copyright Act was amended to give certain rights to the performers. The 1994 Amendment has defined the concept of performers right in India.
A “performer”, according to the Copyright Act, 1957 means a person who by acting, singing, playing an instrument, dancing or in some other way performs a literary, artistic, dramatic or musical work.1 However, in a cinematograph film a person whose performance is casual or incidental in nature and, in the normal course of the practice of the industry, is not acknowledged anywhere including in the credits of the film shall not be treated as a performer except for certain purposes. And a “broadcaster”, refers to a person who makes, with consents as required by law, a radio or television broadcast. A “broadcast” means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast.2
The visual or acoustic performances of actors, musicians, singers or dancers form a key part of the creative process and the performers who display their talents through their artistic performances must be entitled to certain rights over such performances as well as a share in the proceeds from its commercial exploitation. However, the rights of the performers were not given importance internationally until the adoption of the Rome Convention of 1961. This international treaty called for protection against the unauthorized broadcast of any performances without providing adequate compensation to the performers.3 . It can be said that the rights of performers are in a way more than that of an owner of a copyright, since, by such rights, a performer has the power under the law to stop others from broadcasting his/her live performance to the public without his permission.
Governing laws and rights
India is a common law country and a signatory to various international IP treaties. The key statutes which protect intellectual property in the Indian media and broadcasting industry are:
- the Copyright Act 1957; and
- the Trademarks Act 1999.
- These acts are exhaustive in terms of identifying:
- original content;
- owners’ rights;
- remedies for infringement;
- fair use and defences;
- broadcasting, moral and performance rights; and
- border measures against the import of infringing copies and material.
In particular, copyright protection is extraterritorial on account of India being a signatory to the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. Copyright registration is not mandatory under Indian law for seeking protection. In addition, the courts protect common law rights, such as personality and merchandising rights.
The current challenges unique to the media and broadcasting industry can be gauged from the variety of issues which have been the subject matter of judicial review and interpretation.
Development of Copyright law in India
The development of copyright law in India is closely associated with British Copyright law. Statute of Anne the first Copyright law in England was passed in the 17th century which provided that the author of any book already printed will have the sole right of printing such book for a term mentioned therein. Thereafter came the act of 1814, and then the act of 1842 which repealed the two earlier acts of 1709 and 1814. The Copyright Act of 1911 in England had codified and consolidated the various earlier Copyright Acts on different works. Then came the Act of 1956. In India, the first Copyright Act was passed in 1914. This was nothing but a copy of the Copyright Act of 1911 of the United Kingdom with suitable modifications to make it applicable to then British India. The Copyright Act of 1957, which is the current statute, has followed and adopted the principles and provisions contained in the UK Act of 1956 along with the introduction of many new provisions. Then came the Copyright (Amendment) Act,1983 which made a number of amendments to the act of 1957 and the Copyright (Amendment)Act,1984 which was mainly introduced with the object to discourage and prevent the spread of widespread piracy prevailing in video films and records. Therefore, the Copyright (Amendment)Act,1994 has effected many major amendments in the Copyright Act of 1957.
Importance of Broadcasting
Advancement in technology has modernized the techniques of broadcasting live coverage and has motivated many people to take part in the spectacular enjoyment of showcasing major live events. Copyright and other related rights, especially the one relating to broadcast have strengthened the relationship between the broadcasters and the performers/producers.
Nowadays, media houses pay a huge sum of money to the broadcasters to exercise exclusive rights to broadcast top events. For most of the organizations, the sale of broadcasting rights and media rights have become a major and biggest source of income in order to generate funds. Such funds may be used to finance live events, performers, decorations, music equipment, etc.
The royalties which are earned by the broadcasters from selling their exclusive footage to the other media outlet competitors enable them to earn more and more money and thereby invest in the costly structural organization and technical infrastructure for setting up the broadcasting space.
Protection of the Performers act
The performers have a special right known as the “Performer’s right” for appearing or engaging in any performance. Such right shall subsist till fifty years from the beginning of the calendar year next following the year in which the performance is made.
- Section 38 A provides for the exclusive rights of the performer.
The performer has the right (exclusive right subject to the provisions of this Act) to do or authorise the doing of any of the following acts in respect of the performance or any substantial part thereof (without prejudice the rights conferred on the Author):
- to make a sound or visual recording of the performance; or
- to broadcast or communicate the performance to the public except where the performance is already broadcasted.
Once a performer has consented to his performance in a cinematograph film by means of a written agreement, he shall not in the absence of any contract to the contrary, object to the performer’s right in the same film enjoyed by the producer of the film.
Moral Rights of the Performer
- Section 38 B provides for the moral rights of the performer.
The performer shall independently of his right after assignment, either wholly or partially of his right, have the right—
(a) to claim to be identified as the performer of his performance except where a clause of omission has been dictated by the producer; and
(b) to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.
[Note – It is hereby clarified that mere removal of any portion of 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.]
- Section 39 provides for the acts that do not infringe broadcast reproduction right or performer’s rights.
Such acts are as follows:
(a) making any sound or visual recording for the private use of such person, or solely for purpose of bona fide teaching or research;
(b) use (consistent with fair dealing) of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research;
(c) such other acts with necessary adaptations & modifications, which do not constitute an infringement of copyright u/s 52.
Section 39A provides for certain provisions to apply in case of broadcast reproduction right and performer’s rights.
Sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64, 65, 65A, 65B and 66 shall, with necessary adaptations and modifications, apply in relation to the broadcast reproduction right and the performer’s right as they apply in relation to copyright in a work including the provisos made in this regard in the Copyright Act.
Rights of a Broadcasting Organisation
A “broadcast” means communication to the public by any means of wireless diffusion, whether in any ones or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast.4A “broadcaster”, refers to a person who makes, with consents as required by law, a radio or television broadcast.
Provisions in the Copyright Act
The main objective of the Copyright Act deals with the rights of copyright in its “original” literary, dramatic, musical, artistic works, cinematographic films and sound recordings.
The provisions relating to broadcast has been listed in Chapter VIII of the Copyright Act from section 37 – 39 A.
- Section 2 (dd) of the Act defines “Broadcast” as – ‘broadcast means communication to the public –
- By any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
- By wire and includes a rebroadcast
- Section 37 provides for the protection of the special broadcast reproduction rights of the broadcasting organization. This broadcast reproduction right subsists for 25 years from the beginning of the calendar year next following the year in which broadcast is made.
If any person, without the license of the owner of these rights, re-broadcasts or causes the broadcast to be heard or seen by the people on payment of any charge or sells or hires to the public then such a person shall be deemed to have been infringed the broadcast reproduction right of the owner.
Exceptions to performer’s right and broadcasting organisation’s right
Section 39 of the Copyright Act, 1957
Section 39 of the Copyright Act, 1957 enumerates certain exceptional cases wherein the performer may not be able to avail the protection and rights under the act. Such acts not infringing broadcast reproduction right or performer’s right are listed as:
a. the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research; or
b. the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; or
c. such other acts, with any necessary adaptations and modifications, which do not constitute an infringement of copyright under section 52. These acts are reproduction for the use of judicial proceeding —Section 52(1) (c), reproduction for the use of members of a legislature—Section 52(1) (d), and the use in a certified copy in accordance with any law in force—Section 52(1) (e).
The aforesaid can be done only with the sound recording or visual recording of the performance. Accordingly, the 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—Section 52 (1) (i).
making of a sound recording or visual recording for the aforesaid purposes cannot also be an infringement. Where copyright or performer’s right subsists in respect of any work or performance that has been broadcast, a license to reproduce such broadcast will require the consent of the owner of rights or performer, as the case may be.
Broadcaster’s Right in United States
In the United States, it is very interesting to note that the Constitution itself provides for intellectual property protection under Article 1(8) clause 8 which is also known as Copyright Clause, it states that Congress shall have the power to promote the progress of science and useful arts, by securing limited times to authors and inventors the exclusive right to their respective writing and discovering. Pursuant to this Copyright Clause, the first American copyright law was enacted by Congress in 1790. Major revisions were made in 1831,1870 and 1909 when ultimately the Copyright Act of 1976 was enacted which came into effect on January 1, 1978.
International protection of Broadcaster’s Right
- TRIPS and Broadcaster’s right
Article 14(3) of trips Agreement also confers certain rights upon Broadcasters under TRIPS are in comparable terms to the Rome Convention where the TRIPS Agreement in unequivocal terms provides various rights upon the broadcasters.
- Gramophone Co. of India Ltd v. Super Cassette Industries ,1995 PTR 64
The Gramophone Company of India Ltd. Which was the plaintiff produced audio records titled “Hum Aapke Hain Kaun” under rights alleged to have been assigned to it by Rajshree Productions Pvt Ltd., who were copyright owners of the cinematographic work. They had already sold 55 lakh audio cassettes and 40,000 compact discs titled “Hum Aapke Hain Kaun”. The plaintiff alleged that the defendant too had launched an audio cassette by adopting “Hum Aapke Hain Kaun as its title with its design, colour scheme, get up and layout deceptively and confusingly similar to that of the plaintiffs. Hence, they sought a permanent injunction restraining the defendants from manufacturing, selling, or passing off audio cassettes under the said title.
As per the defendants what they were making was version recording permissible under Section 52(1)(j) of the act and that it was done only after sending notice in prescribed form to the copyright owner; was accompanied by royalties at the rate fixed by the Copyright Board. A version recording is a sound recording made of an already published song by using another voice or voices with different musicians and arrangers. Version recording is neither copying nor reproduction of the original recording.
An ex parte injunction had already been granted in this case . The High Court of Delhi later varied the injunction that was made ex parte by stipulating that the defendants were not to use in the carton or inlay car or any other packaging material, a design, color scheme, layout and get up similar to that of the plaintiff and not to use in the title the words “Hum Aapke Hain Kaun” simplicitor or any other combination of the above words which would be calculated to lead to the belief that the defendants record was the plaintiffs record. The court also directed the defendant that the un-offending alternate title was to contain underneath a declaration in sufficiently bold letters that the record is not from the original sound track bur only a version of different artists. The word ‘not’ should be underlined.
- Garware Plastics and Polyester Ltd., Bombay v. Telelink, AIR 1989 Bom 331
The question to be decided was whether showing a video film over a cable T.V Network amounted to infringement or not .The court held as under :
“The video film may be watched by a large section of the public in the privacy of their homes but this does not make it a private communication so as to take it out of the definition of broadcast under section 2(dd) of the copyright Act, 1957. The viewers of cable T.V. Network are apportion of public and they cannot be considered domestic viewers of the owner of the copyright and they in fact ,pay the cable T.V Network company for watching the film. Showing films over cable T.V. without proper authorization amounts to infringing of copyright.”
The visual or acoustic performances of actors, musicians, singers or dancers form a key part of the creative process and the performers who display their talents through their artistic performances must be entitled to certain rights over such performances as well as a share in the proceeds from its commercial exploitation. However, the rights of the performers were not recognized internationally until the adoption of the Rome Convention of 1961.One can say that the rights of performers are in a way more than that of an owner of a copyright, since, by such rights a performer has the power under the law to restrain others from broadcasting his/her live performance to the public without his permission. The rights of the performers and broadcasting organisation are often termed as neighbouring rights or related rights since the performers and broadcasting organisations act as intermediaries or links to transmit the works of authors to the public at large. These have been developed in parallel to the Copyright Act. It was only in 1994, that the Copyright Act was amended to give certain rights to the performers. The 1994 Amendment has defined the concept of performers right in India. Section 37 and 38 of the act deals with the performer’s rights. Section 38A and Section 38B added by the Amendment of 2012 has enlarged the scope of performer’s rights by granting them moral rights like that to the authors of a work. At the same time, the Act lays down certain exceptional cases under Section 39 which thereby limits the scope of such rights.
1. Section 2 (qq) of the Copyright Act, 1957
2. Section 2 (dd) of the Copyright Act, 1957
4. “work” means any of the following works, namely: — a literary, dramatic, musical or artistic work; a cinematograph film; a sound recording.
5. AIR 1979 Bom 17
6. Chapter 9, Law of Copyright and Neighbouring Rights by
8. Section 2 (qq) of the Copyright Act, 1957
9. Section 2 (q) of the Copyright Act, 1957
10. 2014 (58) PTC 169 (Del)
12. Section 38A (2) of the Copyright (Amendment) Act, 2012
13. Proviso of Clause (2) of Section 38A of the Copyright (Amendment) Act, 2012
14. Section 2 (dd) of the Copyright Act, 1957
15. Clause (2) of Section 37 of the Copyright Act, 1957
16. Law relating to intellectual property –BL Wadhera