When discussing intellectual property (IP) in India, trademarks, patents, and copyrights often take center stage. However, two significant yet underexplored domains within the Indian IP framework are Broadcast Reproduction Rights and Performers’ Rights. These rights are critical in safeguarding the interests of artists, musicians, actors, and broadcasters under the Copyright Act, 1957, as amended, especially post the 2012 amendments which significantly expanded the ambit of protection.
This article delves into these lesser-known rights, outlining their definitions, statutory protections, and practical relevance.
Understanding Performers’ Rights
Who Is a Performer?
According to Section 2(q) of the Indian Copyright Act, a performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or any other person who makes a performance.
A performance is defined under Section 2(qq) as any visual or acoustic presentation made live by one or more performers.
This blog is a part of our The Ultimate Guide to Intellectual Property Law Blogpost.
Nature of Performers’ Rights
Performers enjoy two broad categories of rights:
Performers’ Moral Rights
Under Section 38B, performers are granted:
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- The right of attribution, i.e., to be identified as the performer of their performance.
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- The right of integrity, i.e., to prevent any distortion, mutilation, or modification of their performance that would be prejudicial to their reputation.
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These are inalienable and continue with the performer even if the economic rights are transferred.
Performers’ Economic Rights (Section 38A)
A performer has the exclusive right to do or authorize the doing of any of the following:
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- Reproducing the performance in any material form (including sound recording or visual recording).
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- Issuing copies of the performance to the public.
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- Communicating the performance to the public.
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- Selling or renting copies of the performance.
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These rights are available for 50 years from the beginning of the calendar year following the year of the performance.
Broadcast Reproduction Rights
Definition and Scope
The Broadcast Reproduction Right is provided under Section 37 of the Copyright Act. It protects broadcasting organizations (radio, TV stations, online platforms) from unauthorized use of their broadcasts.
This right is a neighbouring right (also called related right), distinct from the copyright in the underlying content (like songs or scripts). It exists even when the broadcaster does not own the content but transmits it lawfully.
Exclusive Rights of Broadcasters
A broadcasting organization has the exclusive right for 25 years from the date of the first broadcast to control:
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- Rebroadcasting of their content.
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- Fixation (recording) of the broadcast.
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- Reproduction of such fixations.
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- Communication of the broadcast to the public.
Infringement occurs when anyone, without authorization:
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- Rebroadcasts or records the program.
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- Makes copies from such recordings.
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- Commercially exploits the content transmitted.
Performer vs Broadcaster Rights: Key Differences
| Aspect | Performers’ Rights | Broadcast Reproduction Rights |
|---|---|---|
| Beneficiary | Individuals (actors, musicians, etc.) | Broadcasting organizations |
| Statutory Section | Sections 38, 38A, 38B | Section 37 |
| Duration of Protection | 50 years from performance | 25 years from broadcast |
| Nature | Moral and economic rights | Economic rights only |
| Scope | Rights over live performances and recordings thereof | Rights over broadcast content (transmission) |
Real-Life Examples and Case Studies
Performers’ Rights in Practice
The 2012 amendments were a turning point. Famous playback singers like Lata Mangeshkar and Asha Bhosale welcomed the amendment which ensured they receive royalties even decades after their performances, especially for broadcasting and streaming.
In Neha Bhasin v. Anand Raj Anand (2023), the Delhi High Court acknowledged the importance of crediting performers, bolstering the enforceability of moral rights.
Broadcast Reproduction Rights: A Broadcaster’s Shield
In Star India Pvt. Ltd. v. Piyush Agarwal (2013), the Delhi High Court restrained a website from unauthorisedly streaming cricket scores and content, holding that broadcasters have reproduction and communication rights even over event-related broadcasts.
Licensing and Royalties
Both performers and broadcasters can license their rights to third parties, and demand royalties for the exploitation of their works. Organizations like the Indian Performing Rights Society (IPRS) and Phonographic Performance Limited (PPL) help manage these rights and collect royalties.
Post the 2012 Amendment, performers are entitled to equal share of royalties in cases of usage in cinematograph films and sound recordings, and any assignment must be in writing.
Challenges and Way Forward
Challenges:
- Lack of awareness: Many artists, especially in folk and regional circuits, are unaware of their rights.
- Weak enforcement: Piracy and unauthorized usage are rampant, with limited legal action.
- Contractual waivers: Performers are often forced to assign away their rights for minimal consideration.
Recommendations:
- Awareness programs by IP offices and industry bodies.
- Stronger collective management by rights societies.
- Standard contracts ensuring performers retain moral rights and fair royalties.
- Digital enforcement mechanisms in the OTT and social media space.
The Unsung Guardians of Creative Expression in the Digital Age
Broadcast Reproduction Rights and Performers’ Rights form a critical part of India’s copyright law framework, ensuring that both creators and distributors are protected. With the growth of streaming platforms, online concerts, and digital broadcasts, these rights have gained new relevance in the digital age. While legislative provisions exist, the real impact will be seen only when performers and broadcasters become aware of and assert their rights.
As India’s creative economy evolves, a balanced and enforceable IP ecosystem that includes these lesser-known rights is vital for fair compensation and cultural growth.
