Neighbouring rights: performers, producers and broadcasters - Law of Copyrights

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1. Why a separate category?
2. The international instruments
3. Broadcast reproduction right (section 37)
4. Performer s right (sections 38, 38A, 38B)
5. The case law
6. Critical evaluation
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The idea in one line. Performers, record producers and broadcasters do not create works in the classic sense; they perform, fix or transmit works made by others. Civil law systems protect them through droits voisins, rights neighbouring on copyright. India protects record producers as owners of “works” and gives performers and broadcasters “special rights” in Chapter VIII of the Act.

1. Why a separate category?

In the continental tradition, copyright protects intellectual creation by a natural person. A recording or broadcast is a technical and financial achievement. Protecting it as a work would dilute the concept of authorship, so a separate set of shorter, narrower rights was created. The common law tradition, being economic in outlook, simply called recordings and films “works”. India keeps both approaches:

Sound recordings and films are works under section 13, owned by the producer.
Broadcasts get a broadcast reproduction right (section 37).
Performances get the performer’s right (sections 38 to 38B).

2. The international instruments

Rome Convention, 1961

The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, administered jointly by WIPO, UNESCO and the ILO, was the first neighbouring rights treaty. It gives performers the possibility of preventing fixation and broadcasting of their live performances without consent, gives producers of phonograms a right of reproduction, gives broadcasters rights over rebroadcasting and fixation, and provides for equitable remuneration for secondary use of phonograms. The minimum term is twenty years. India is not a party.

TRIPS, Article 14

TRIPS gives performers the possibility of preventing unauthorised fixation and broadcasting of live performances, gives producers of phonograms a reproduction right, and gives broadcasters (or, alternatively, owners of the underlying works) rights over fixation and rebroadcasting. Terms: 50 years for performers and producers, 20 for broadcasts.

WIPO Performances and Phonograms Treaty (WPPT), 1996

The WPPT updated the rights of performers and phonogram producers for the digital environment, including the right of making available on demand, moral rights for performers in their live and fixed aural performances, and obligations on technological measures and rights management information. Its protection of performers is confined to aural performances. India acceded to the WPPT and the WCT in 2018.

Beijing Treaty on Audiovisual Performances, 2012

The Beijing Treaty fills the gap the WPPT left, extending protection to performers in audiovisual fixations such as films. It allows members to provide that consent to fixation in a film transfers the performer’s exclusive rights to the producer, subject to contract. It came into force in 2020.

The broadcasting treaty

A WIPO treaty to update the rights of broadcasting organisations has been under negotiation in the Standing Committee on Copyright and Related Rights for over two decades. The disagreement is over whether to protect only signals or also post-fixation and internet transmissions, and over the effect on access to content.

3. Broadcast reproduction right (section 37)

Every broadcasting organisation has a special right called the broadcast reproduction right, for twenty-five years from the beginning of the calendar year following the year of broadcast. During that period, it is infringed by anyone who without licence:

re-broadcasts the broadcast;
causes it to be heard or seen by the public on payment of any charges;
makes any sound or visual recording of it;
makes a reproduction of such a recording where the initial recording was made without licence, or for purposes not permitted;
sells, gives on commercial rental or offers for sale any such recording.

The right exists alongside copyright in the underlying content. A sports broadcaster may sue pirate streaming sites both for the broadcast reproduction right and as owner or exclusive licensee of copyright in the film of the match. Most John Doe and dynamic website-blocking orders granted by the Delhi High Court during cricket tournaments rest on this right. The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 separately requires sharing of signals of sporting events of national importance.

4. Performer’s right (sections 38, 38A, 38B)

Who is a performer. Section 2(qq) includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person who makes a performance. In relation to a film, a person whose performance is casual or incidental in nature, and is not ordinarily acknowledged in the credits, is excluded.

Term. Fifty years from the beginning of the calendar year following the year of performance (section 38).

Exclusive rights (section 38A, as substituted in 2012): to make a sound or visual recording of the performance, to reproduce it, to issue copies, to communicate it to the public, to sell or give it on commercial rental, and to broadcast or communicate the performance except where it is already broadcast.

The film proviso. Once a performer has, by written agreement, consented to the incorporation of the performance in a film, he cannot object to the producer’s enjoyment of the performer’s right in the same film. But he remains entitled to royalties in case of commercial use of the performance. This tracks the Beijing Treaty model and the royalty logic of the 2012 amendment.

Moral rights (section 38B): attribution and integrity, discussed in the moral rights note.

5. The case law

Fortune Films v. Dev Anand (Bombay High Court, 1979): before performers’ rights existed, an actor’s performance in a film was held not to be a “work”, so the actor had no copyright in it. This gap was the reason for the 1994 amendment.
Neha Bhasin v. Anand Raj Anand (Delhi High Court, 2006): a singer’s live performance was recorded and used in a film without her consent. The court held that the performer’s right was infringed and that a live performance, not only a recorded one, is protected.

6. Critical evaluation

Points for an LL.M. answer. (1) Treating recordings as works gives producers a sixty-year term and the full apparatus of copyright, longer than Rome or TRIPS require; critics say this protects investment, not creativity. (2) The royalty rights for performers depend on collection through copyright societies, and India’s collecting societies have had a troubled history (see the note on collective management). (3) The broadcasting treaty debate is a debate about access: developing countries fear a layer of rights over public domain or freely licensed content.

How this is examined

Expect a short note on performers’ rights or on the Rome Convention, or a question on international initiatives that requires the neighbouring rights treaties. Use section 2 here for the treaties and sections 3 and 4 for the Indian provisions, and always state the terms (25 and 50 years).