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The Stage of Law: Examining Performers’ Rights in India and Australia’s Entertainment Industries
Karnika Bansal*
Abstract
Performers play a crucial role in the creative process by bringing various copyrightable subject matters, such as songs, dances, dramatic performances, and films (cinematographic works), to life. However, unlike other stakeholders, including lyricists, music composers, and production companies, performers often do not receive equivalent property rights. This paper contends that despite certain protections granted to performers under copyright laws in many countries, including India and Australia, there remain gaps and limitations that hinder the full recognition and protection of performers’ rights. This situation leads to questions regarding the nature of performers’ rights and how the law distinguishes neighbouring rights within the copyright law framework. The primary aim of this paper is to assess whether the existing framework of performers’ rights principally benefits the performers themselves or leans more towards a market-centred approach favouring producers. This analysis, particularly focused on the contexts of India and Australia, builds a case for the recognition of co-authorship rights for performers.
I Introduction[1]
Performers’ rights, also known as neighbouring rights, are a distinct set of legal protections related to, but separate from, traditional copyright. These rights are granted to individuals or entities that contribute to the performance of copyrightable subject matter but are not the original creators/authors of the underlying works incorporated therein. In this context, neighbouring rights are defined as follows:
In the traditional narrower sense, the term “related rights” (or its synonym “neighboring rights”) means the rights of performers in respect of their performances, the rights of producers of phonograms in respect of their phonograms, and the rights of broadcasting organizations in respect of their broadcasts.[2]
The purpose of neighbouring or related rights is to recognise and safeguard the contributions of certain individuals and organisations that play a crucial role in making creative works available to the public.[3] These rights, closely linked to authored works, provide legal protection for the efforts of these contributors. Typically, these rights are assigned to three groups: performers, producers of phonograms (sound recordings), and broadcasting organisations.[4] However, some laws specify that the exercise of neighbouring rights should not interfere with or diminish the protection of copyright.[5]
International copyright instruments, such as the Rome Convention[6] and Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’),[7] have significantly influenced this legal landscape,[8] establishing minimum standards for contracting countries.[9] At the national level, legislation such as the Copyright Act 1968 (Cth) of Australia and the Copyright Act, 1957 of India, provide the necessary legal framework for this discussion.
II Performers’ Rights in India
India was among the 18 countries[10] that signed the Rome Convention in 1961.[11] Prior to this convention, Indian copyright law did not recognise performers and their rights.[12] To align its copyright laws with the Rome Convention, India extensively amended its copyright law in 1994,[13] nearly 30 years after signing the Convention. Later, in 1999, it underwent minor changes to comply with the TRIPS Agreement.[14] Regarding performers’ rights, the most recent amendments to the Copyright Act 1957 were made in 2012, following the WIPO Performances and Phonograms Treaty (‘WPPT’).[15]
Before 2012, performers’ rights under the Indian Copyright Act 1957 were considered negative rights, meaning they only allowed performers to ‘prevent’ unauthorised third-party use, in line with the Rome Convention. However, the 2012 amendments led to the removal of these provisions, which were replaced by two key sections, ss 38A and 38B,[16] to establish positive rights for performers.[17]
Section 38A(1) outlines the exclusive rights granted to performers. These rights are separate from the rights of the original authors and include the authority to authorise various acts related to their performance or any substantial part thereof. These acts include: (i) making a sound or visual recording of the performance, its reproduction in any material form, and storage in any medium; (ii) issuing copies to the public; (iii) communicating the performance to the public; (iv) selling or renting it commercially; and (v) broadcasting or communicating the performance to the public, except when the performance is already broadcast.
Section 38 B of the Indian Copyright Act 1957, on the other hand, outlines the moral rights of performers, akin to those granted to authors under s 57. These moral rights, inherent to the performer, remain unaffected by the assignment of other rights. They include the right to be recognised as the performer of the work and the right to object to any modification or distortion of the performance that could harm their reputation.[18]
So far, the changes introduced in 2012, do not raise any critical concerns. However, the next set of changes made to the Act, specifically the addition of the Third and Fourth Proviso to s 18, presents interesting concerns regarding their interpretation and application. These amendments state that authors/composers of literary/musical works used in a cinematographic film or otherwise shall have an inalienable right to receive royalties on an equal basis to copyright holders/owners. Furthermore, under s 39A(1), ’it is stipulated that s 18’s provisions will extend to performers ‘with necessary adaptations and modifications .... as they apply in relation to copyright in a work’.[19]
If interpreted strictly, this amendment implies that performers also have the right to share royalties with copyright owners. No Indian court, yet, has applied the interpretation discussed with certainty, despite multiple attempts over the years, both in India and internationally, as will be detailed in the forthcoming sections. Thus, the concept of ‘royalty’ has emerged as a contentious issue in the audiovisual industry. As such, when it comes to royalty payments, a song’s intellectual property is typically linked to its composer or music label. This could be attributed to the Copyright Act not recognising ‘performance’ as a work eligible for copyright protection.[20] Consequently, performers’ alleged copyright is often attributed to record labels or studios.
Another reason for contention is that royalty-sharing provisions are likely to conflict with traditional industry practices. They usually involve signing copyright agreements with performers for one-time payments, which include the transfer of all rights and the elimination of the obligation to pay ongoing royalties. To illustrate these points further, the following section delves into case law concerning both actors and singers who have sought copyright over their respective performances under the Indian Copyright Act.[21] The first case, dating back to the 1970s, was an early landmark in performers’ rights. It tackled the issue of copyright in performances by audiovisual performers.[22] Meanwhile, several cases filed by the Indian Singers' and Musicians' Rights Association (‘ISAMRA’), formerly known as Indian Singers’ Rights Association (‘ISRA’), in Indian courts, highlight a new judicial perspective on paying royalties to singers for their contributions to sound recordings.[23]
One of the seminal cases in Indian copyright law regarding performers’ rights took place in 1978. Although it predates the 1994 amendments and occurred before the term ‘performer’ was defined in the Act, this case continues to be a significant authority on performers’ copyright issues.[24] The case, Fortune Films International v Dev Anand,[25] involved the renowned film actor Dev Anand. The Bombay High Court heard this as an appeal from the original lawsuit related to the Hindi motion picture, ‘Darling Darling’. The Court’s focus was on determining whether a performer in an audiovisual work, such as a cinematographic film, could hold copyright over their performance.
The brief facts of the case are that in December 1972, Fortune Films International engaged Dev Anand for his services in the mentioned film and signed a written agreement with him.[26] This agreement included, among other things, a compensation schedule and the transfer of rights in intellectual property, particularly copyright, to producers upon the completion of agreed payments. According to the agreement, the actor was to be paid a specific sum before the release of the film in seven named territories.[27] However, in 1977, the film was released in only three of those territories and several additional, unapproved locations, including international ones. Dev Anand filed a legal action under the Copyright Act arguing that this constituted a breach of their agreement and violated his alleged performance copyright in the cinematographic film.
At first instance and in an unprecedented move,[28] a single judge of the Bombay High Court granted an interim injunction against the producers in January 1978.[29] This ruling was quickly appealed, leading the appellate court to reassess the issue of copyright in the actor’s performance. The court’s deliberations were guided by the existing statutory framework and the contractual agreement between the parties. During the appeal, Dev Anand based his copyright claim on the assertion that an actor’s performance qualifies as ‘artistic work’ or ‘dramatic work’, as defined in ss 2(c) and 2(h) of the Copyright Act, 1957, at that time.[30] In response, the producers contested this claim, arguing that the Act did not recognise or protect such copyrights and emphasising that only ‘tangible’ works were covered under the Act’s definitions.[31]
After considering the arguments presented by both parties, the appellate court concluded that an actor’s performance does not fit within the Act’s definition of a ‘work’ eligible for copyright protection. The Court recognised that for copyright to exist, a work must be original and fall into one of three categories:[32] (1) literary, dramatic, musical and artistic works; (2) cinematographic films and (3) records.[33]
Therefore, the Court reasoned that an actor’s performance must first meet the Act’s definition of ‘work’. If it does, the next question is what rights the Act confers in such cases. The Court also examined various definitions within the Act, including those of ‘artistic work,’ ‘author,’ ‘cinematographic film,’ ‘dramatic work,’ ‘performance’ and ‘work.’
In the notable examination of the definitions of ‘dramatic work’ and ‘cinematographic film’, as well as the implications of the agreement between the parties, Desai J. made several observations that remain pivotal in understanding the position of performers in both copyright law and contract operations. He noted as follows:
... The question is; whether he has any copyright in his performance? If there is and it is covered by the definition of 'work' to be found in Sub-section (y) of Section 2, then it will be protected notwithstanding that the copyright in the entire film, the composite work, may vest in the producers. If, however, the performance of the cine artiste does not satisfy this definition, then there is no question of any dichotomy and co-existence, since there is no 'work' in the cine artiste's performance which is protected by the Act. In the view that we have taken of the definition of "artistic work", "dramatic work" and "cinematograph film", it would appear that the Copyright Act, 1957. does not recognise the performance of an actor as 'work' which is protected by the Copyright Act. ...[34]
As such, the Court concluded that, ‘it would be clear and obvious that the performance given by an artiste in a cinematograph film cannot be equated with any of the five categories indicated; as it is a comprehensive definition; unless expressly covered...’[35]
In relation to the agreement between the two parties, the Court opined that even if the performer had a copyright specific to his performance under the agreement, this did not necessarily entitle him to the broad injunctions he sought. The performer’s rights would be governed by the terms of that agreement. If the performer granted the producers permission to release the film in certain territories while restricting others, then any protection or right the performer has must adhere to the agreement’s specifics.[36]
Ultimately, the Court, in allowing the producers’ appeal, firmly rejected the notion that the Indian Copyright Act extends copyright protection to performers in such scenarios. Additionally, the Court noted the absence of any prior judicial decision, either in Indian or English law, that supported such a claim by a performer.[37] Thus, the Court restricted the injunction to the territories specified in the original agreement, conditional on the payment of the agreed-upon dues to the performer, Dev Anand. In doing so, it emphasised that the written agreement between the parties is the primary document governing their rights.[38]
The Dev Anand decision illustrates a scenario where, despite an agreed clause for the transfer of intellectual property rights, specifically copyright, from the performer to the producers, the Court questioned the legal recognition of such a right. It could not categorise an actor’s performance as a ‘work’ eligible for copyright within the existing statutory framework, thereby avoiding the issue of its creative value as a separate property right.
One could argue that performers now have ‘neighbouring rights’ that did not exist at the time. However, these neighbouring rights, being distinct from copyright, do not offer the same value and protection. In fact, it is argued here that the legal status of audiovisual performers has not seen substantial change since the Dev Anand case. For example, under the current performers’ rights laws in the Indian Copyright Act, once an audiovisual performer consents in writing to the recording and incorporation of their performance in a cinematographic film, they relinquish any further rights to that performance.[39] Thus, the intertwined nature of contract law with performers’ rights, as seen in the past, continues to dominate and shape industry practices in favour of production companies.
The economic rights of performers in India have been a matter of dispute, especially with regard to royalties, since the amendments made in 2012. This issue gained attention in 2016 with the Indian Singers' Rights Association (now known as the Indian Singers' and Musicians' Rights Association), a copyright collecting organisation. They began legal proceedings against restaurants and bars that used sound recordings without paying the corresponding royalties.[40] While Phonographic Performance Limited (PPL), representing music labels, had already been issuing licenses and collecting royalties from commercial establishments, ISRA argued that singers, as performers, should also receive royalties when their performances are commercially used.[41]
ISRA’s argument was based on the 2012 amendments to the Copyright Act, specifically s 38A.[42] They argued that the proviso to s 38A states that a ‘performer shall be entitled for royalties in case of making of the performances for commercial use’. This, when interpreted alongside the definition of ‘for commercial use’ in Rule 68, implies that singers are entitled to royalties for studio-recorded performances. ISRA maintained that the Copyright Act upholds the economic rights of performers, including singers, and that any commercial use of these recordings should result in compensation for the performers. They also emphasised that this right can only be assigned to legal heirs or to a collecting society, with any other form of assignment being void.[43] Thus, arguing for a similar right to copyright.
In response to ISRA’s argument, the Delhi High Court, in the 2016 suits filed against a restaurant and a lounge, delivered ex parte decisions, noting the following:
The Court is satisfied that the Plaintiff has been able to prove the infringement by the Defendant of the R3 of the members of the Plaintiff Society in the performances as recorded in the CDs prepared by the Plaintiff’s Investigator. The playing of songs by the Defendant in its restaurant without payment of royalty to the Plaintiff is a violation of the R3 of the performers who are members of the Plaintiff. The exploitation of the performances of the members of the Plaintiff by the Defendant by playing the said performances in its bar and restaurant without obtaining the Performer’s Rights Clearance Certificate thus constitutes an infringement of the R3 of the members of the Plaintiff Society.[44]
Immediately, after the ex parte injunctions were granted, music labels, which were not named as defendants in the original lawsuits, filed an appeal. They argued that they were affected parties, as ISRA was essentially seeking to enforce rights that they believed belonged to them.[45] The music labels approached the Court, asserting that they retained full rights to the songs in their collection, including all elements of a song, such as the performance.[46] Subsequently in 2016, the court allowed the music labels to intervene and instructed them to produce their agreements with the singers to help clarify the legal issues involved. Since then, the issue of a performer’s right to royalties for public communication of recorded songs has remained mired in ambiguity in Indian courts.
A key point of contention that emerged is the nature of these performances, specifically whether the rights apply only to ‘live performances’ or also extend to ‘non-live’ studio recordings. ISRA has consistently argued that any performance, as long as it originates from a ‘flesh and blood’ effort rather than a mechanical or fixed rendition, deserves protection.[47] They draw support from the 2006 Delhi High Court decision in Neha Bhasin v Anand Raj Anand, which stated that ‘every performance has to be live in the first instance whether it is before an audience or in a studio.’[48]
Conversely, music labels have opposed this interpretation, contending that it contradicts the definition of ‘performance’ under s 2(q) of the Act, which they argue is limited to live performances only.[49] They assert that in 1994, the legislature deliberately amended the definition of ‘performance’ to encapsulate the concept of a ‘live’ performance.[50] This amendment, along with the introduction of the term ‘sound recording,’ was intended to clearly distinguish rights between live performances and sound recordings, the latter inherently being non-live activities.
The ambiguity in the law led to further litigation, exemplified by the 2020 lawsuit against Dharma Productions.[51] Here, the Delhi High Court’s decision to admit yet another suit to the list of pending cases on the issue, suggested a possible re-evaluation of performers’ rights.[52] However, a definitive judicial clarification remains elusive in light of a recent industry agreement negotiated between ISRA and the Indian Music Industry.[53] Formally announced in April 2023, this currently confidential settlement aims to ensure that all singers affiliated with ISRA receive appropriate royalties from music labels across India.[54] As such, even though the industry-wide consensus has led to the withdrawal of the pending cases, the issues previously brought before the Indian courts remain unresolved. This situation reflects a complex interplay between statutory law, judicial interpretation, and industry practices, all of which continue to affect performers’ rights in India.
III Performers’ Rights in Australia
The evolution of performers’ rights in Australian copyright law, began with the Copyright Amendment Act of 1989.[55] This Act introduced Part XIA into the Copyright Act 1968, aligning with the minimum rights and protections for performers as required by the Rome Convention. This alignment followed the recommendations of the Copyright Law Review Committee (CLRC) in its 1987 report.[56]
However, post-1989, there was a noticeable inactivity in the Australian Parliament regarding performers’ rights, especially following the adoption of TRIPS and WPPT. This inaction was perceived as reluctance by successive governments to conform to international standards for performers’ rights under Australian law.[57] Despite recommendations for change from various government advisory bodies, no amendments were made to the Australian copyright laws concerning performers’ rights until the 2004 Australia–United States Free Trade Agreement (AUSFTA). This agreement was implemented through the United States Free Trade Agreement Implementation (Customs Tariff) Act 2004 (‘Implementation Act’). As such, Part IV of the Australian Copyright Act 1968 outlines the updated framework for copyright protection for ‘subject matter other than works’ which includes sound recordings, broadcasts, published editions, and films.[58]
The Act defines the owner of the physical medium where a sound recording is stored (excluding live performances) as its ‘maker’.[59] In the context of live performances, the ‘maker’ of a recording is defined as the individual or entity who owns the initial recording at the time of its production.[60] This definition also includes any performers involved in the performance.[61]
However, if a performer owns the initial recording and participated in the performance, they are not entitled to double rights or shares.[62] This provision prevents the accumulation of multiple benefits from both ownership and performance.[63] When multiple parties own the copyright of a sound recording of a live performance, they share the rights equally.[64] This approach to copyright ownership, particularly for live performances, was not always standard. Before 2005, the copyright typically belonged to the record company or the individual/entity that made the recording.[65] However, the passage of the Implementation Act marked a significant shift in ownership rights. Thus, in the current framework, both the record company, financing the recording, and the performers, regardless of their financial contribution to the production, are acknowledged as joint copyright holders.[66]
There are exceptions, however. If a performer records a song under an employment contract,[67] or if the recording is commissioned,[68] the rights may transfer to the employer or commissioner, respectively. In essence, while singers typically own the copyright for non-commissioned sound recordings, contracts can modify this ownership.[69] Additionally, the Act extends performers’ rights exclusively to sound recordings of live performances.
Scholars have highlighted the complexities inherent in this distinction, emphasising that the method and timing of a recording’s creation are critical in determining the applicable rights.[70] For instance, recordings that are ‘remixed’ or that combine multiple live performances would not be covered under this protection.[71] This underscores the challenges in differentiating among various types of sound recordings under the Act, based on their method of creation.
Besides the aforementioned, Australian copyright law provides performers with limited reproduction rights over their previously recorded or filmed performances, while also allowing them to prohibit the unauthorised use of their live performances.[72] The Act specifies three particular scenarios as unauthorised use.[73] First, making a copy of a recording when one should reasonably know it is unauthorised; second, copying what is known to be an exempt recording when the copy itself is not exempt; and third, using an authorised sound recording for a soundtrack when it should be reasonably known that such use was not approved.
When it comes to adapting, arranging, and transcribing original works, performers’ rights hinge on the ‘substantial part’ test.[74] This test implies that if a new creation does not contain a significant portion of the original work and stands as an independent piece, it does not infringe upon the copyright of the original.[75] This test of substantiality, when applied in the context of performers can significantly limit performers’ reproduction rights. In Australia, the issue of performers’ rights has not been extensively addressed by the courts. While some domestic copyright cases shed light on aspects such as the right to reproduction, broader insights are often drawn from cases in the UK and the US.
In Australia, in the case of CBS Records Australia v Gross,[76] Guy Gross and Collette collaborated to record a tape of original songs they co-wrote and a cover version of ‘Ring My Bell’ by Anita Ward, a song copyrighted by CBS.[77] Soon after, Collette shared a copy of this tape, including their rendition of ‘Ring My Bell’ with CBS and secured a contract with CBS to perform the song.[78] This later became a hit on the Australian singles chart.[79] Guy brought an action against CBS under the Copyright Act,[80] claiming that cover version was an original arrangement of the Ward version, that he had copyright over this new version, and that CBS had violated this copyright.[81] However, the court ruled in favour CBS Records, establishing that for an arranged work to have its own copyright, it must be distinct enough to be identified as a new original work.[82] This decision indicates that while performers in Australia have a reproduction right, the scope of this right is often delineated by the ‘substantial part’ test.
The distinction between authorship and performance in collaborative musical creation was further tackled in the Hadley v Kemp[83] case by the UK courts. This case arose when members of the band Spandau Ballet took legal action against Gary Kemp, another member, seeking a share in the copyright of some songs. A core dispute was over the song ‘True’, in which Gary Kemp, the main songwriter, wrote its lyrics, chords, and basic melody. The song contained a notable 16-bar saxophone solo, which accounted for about 9% of the song, by band member Steven Norman. While Norman crafted this solo based on the chords provided by Kemp, the main question was whether this contribution qualified him as a joint or co-author of the song. The court concluded that Norman’s saxophone solo did not make a ‘significant and original contribution’ to the overall composition. They decided that while the other musicians’ inputs shaped the song’s performance and interpretation, it didn’t contribute to its foundational creation and composition. Park J established that the primary elements of the song, including its melody, chords, rhythm, and structure, were already conceived in Kemp’s mind before he introduced it to the band. As a result, the court ruled that such a performance could not be copyrighted.
Much like Australia and the UK, the US Courts have adopted a similar position. In the case of Aalmuhammed v Lee,[84] the US Court of Appeals for the Ninth Circuit examined the definition of ‘work’ for the purposes of joint authorship in the movie Malcolm X. In this case, the court revisited the problem of defining ‘a copyrightable work’. While doing so, the court referred to the Supreme Court’s decision in Feist Publications, Inc., v Rural Telephone Service Co.,[85]which stated that, for a work to be copyrightable, ‘some minimal level of creativity’ or ‘originality’ is required. However, the US Court of Appeals in the Aalmuhammed Case went on to interrogate this decision. The court held that, if this is to be accepted as the test for what amounts to a ‘copyrightable work’, the meaning of the term ‘work’ would be ‘too broad’, as ‘everyone from the producer and director to casting director, costumer, hairstylist, and “best boy” gets listed in the movie credits because all of their creative contributions really do matter’.[86]
This position was reiterated in the Garcia case[87], in which the US court re-emphasised the fact that granting Garcia copyright of her performance would result in breaking the definition of ‘work’ into too many pieces, therefore making the exploitation of the film impossible.[88] In said case, an actress called Cindy Lee Garcia recorded her performance for a film entitled ‘Desert Warrior’. The movie was put on hold and the director used the recorded performance to produce an anti-Islamic film. The actress had no knowledge of this new film and did not approve of her performance being used in it. Garcia’s dialogue was dubbed to fit the film’s context. In 2012, shortly after the trailer of the movie was uploaded onto YouTube, it led to religious outrage across the Middle East. Following the outrage, an Egyptian cleric issued a fatwa calling upon Muslims in America to kill anyone associated with the making of the film. Upon receiving death threats Garcia sent Google several takedown notices asserting, among other things, that she had the right to control her likeness and that the broadcasting of the film infringed her copyright of her ‘audiovisual dramatic performance’. Google refused to remove the film and Garcia sued Google in 2012.
Garcia’s copyright entitlements to her performance and right to publicity, among other things, were rejected by the Los Angeles Superior Court, the US Federal Court, and a US District Court. A divided panel in the US Court of Appeals for the Ninth Circuit finally partially reversed the decision in 2015.
McKeown J. remarked that this case is a plea for personal protection ‘juxtaposed with the limits of copyright law and fundamental principles of free speech’.[89] With regard to Garcia’s copyright claim for her five-second performance, the appellate court analysed whether or not the facts and law favoured her position. The Court discussed, at length, who constitutes an ‘author’ under copyright law. It distinguished that, under the current statutory scheme, performances are not defined as a ‘work of authorship’; instead, it’s only audiovisual work, such as the motion film or a script, that falls within the definition of ‘works of authorship’. As Garcia had no claims to the film or the script, her copyright claim to her recorded performance did not seem to satisfy statutory standards.
It also referred to Garcia’s application to register her ‘performance’ as a copyrightable work with the US Copyright Office. The US Copyright Office rejected Garcia’s application on the premise that ‘longstanding practices do not allow a copyright claim by an individual actor or actress in her or her performance contained within a motion picture’.[90]
The judge’s panel was divided on the legitimacy of Garcia’s copyright claim over her performance. While Circuit Judge Watford firmly rejected Garcia’s claim, citing established laws and practices and aligning with the US Copyright Office’s stance, Circuit Judge Kozinski disagreed.
Kozinski J argued that Garcia’s performance fulfilled all criteria for copyright protection. He stated that it addressed a copyrightable subject, was original, and was fixed when recorded.[91] According to his understanding of foundational copyright principles, a work merely needs to be an ‘original work of authorship’ exhibiting a ‘minimal degree of creativity’.[92] He expanded that a work becomes ‘fixed’ when it achieves a certain permanence, allowing it to be reproduced or shared beyond a fleeting moment. In such cases, the contributors or ‘authors’ automatically gain copyright interest.[93] He further contended that if a performance is not recognised as a ‘work’ in copyright terms, then nobody, including producers or directors, can claim copyright over it. This would mean that unless a work is finalised, it remains without copyright ownership.[94] Despite the differing opinions, the Court of Appeal only overturned the decision concerning Google’s obligation to remove the video, while dismissing Garcia’s copyright claim over her performance.
The highlighted cases underscore the intricate and nuanced nature of performers’ rights, particularly concerning reproduction rights and the concept of authorship in the realm of copyright law. These cases illustrate a crucial point: while performers may invest considerable effort, talent, and resources into their adaptations or arrangements of existing works, they are only afforded copyright protection when their contributions are discernibly distinct, creatively substantial, and original in relation to the original source material.[95]
Furthermore, such contributions must align with the established categories of work recognised by copyright law. This stipulation is particularly significant when considering performer’s rights. For instance, a singer’s performance, regardless of its distinctiveness and memorability, does not automatically confer the same rights as those granted to the author of the lyrics or the composer of the music. This distinction is vital in understanding the scope and limitations of performers’ rights in relation to the broader framework of copyright law. This underscores the legal perspective that a performer’s effort and the impact of their performance are not necessarily viewed as original or creatively distinct in relation to pre-existing copyrighted material.
The journey of performers’ rights in copyright law, particularly in India and Australia along with other common law countries, show a complex tapestry of legislative intent, judicial interpretations, and practical challenges. Drawing from the intricate landscape of cases like Dev Anand, Hadley v Kemp, CBS Records Australia v Gross and Garcia, it is evident that judges handling matters of authorship, tend to adopt a traditional perspective when interpreting the notions of ‘author’, ‘works’, and the level of originality and creativity needed for copyright subsistence. This complexity becomes even more pronounced when viewed through the lens of Indian and Australian copyright laws. Despite international recognition and provisions within both the Indian and Australian Copyright Acts,[96] aiming to protect performers’ rights, an evident gap remains between the rights of authors and performers.
In India, the lack of clarity on the distribution of royalties under the Copyright Act and a gamut of interpretational errors in defining and applying the scope of a performance has left the performers at the whims of industry practices. The responsibility of providing clarity seems to oscillate between the judiciary and the legislature. For instance, when the Parliamentary Committee Report on the Copyright Amendment Bill in 2010 examined the addition of ss 38A and 38B to the Act, it noted concerns by the Association of Radio Operators of India.[97] The association argued that playing recorded songs should not be seen as equivalent to a live performance. Reacting to these submissions, the Committee then stated that since the issue was under judicial review, any adjustments to the Act would need to reflect the courts’ decisions.[98]
As the task of interpretation was handed over to the judiciary, the 2012 provisions were incorporated. Unfortunately, Indian courts have consistently failed to offer clear interpretations and applications of the 2012 amendments, as evidenced by the earlier-discussed ISRA saga. At present, while certain issues are temporarily resolved through industry-wide agreements, these solutions are inherently limited. For instance, it only applies to singers and excludes other performers like actors. Furthermore, performers must register as members with the collecting society to be eligible.[99]
On the other hand, when it comes to performers’ reproduction rights for instance, under Australian Copyright Act, the law prerequisites the performance to be live. As Weatherall points out, by confining performers’ rights to instances where the recording captures a ‘live performance’ – that is, a recording made during the actual performance – Australia adopts a restrictive stance in relation to remixes.[100]
Ironically, amendments aimed at clarifying performers’ rights legislation have resulted in increased confusion. This lack of clarity is primarily evident in the interpretation and implementation of the law, especially regarding the rights of performers in recorded performances. The ambiguity in legal provisions fails to establish a clear distinction between different aspects of performers’ rights, consequently opening doors to exploitation. That can take various forms, often perpetrated by those in positions of power within the industry, such as producers, recording companies, and broadcasters.[101] This issue disproportionately affects lesser-known or emerging artists who may lack the resources or knowledge to effectively assert their rights.
Moreover, the confusion in the law can lead to contractual agreements that are not in the best interests of the performers. These contracts might exploit legislative ambiguities, binding performers to unfavourable terms. The lack of clear legal guidelines also hampers performers’ ability to assert rightful claims or challenge exploitative practices in court, as the legal outcomes of such actions are uncertain because of the ambiguous state of law. This is particularly problematic in countries like India, with its massive entertainment sector, where such ambiguities perpetuate a status quo that is often disadvantageous to performers.
The article thus, suggests that the amendments intended to clarify the law have not achieved their expected outcomes. Instead, they have shaped a legal landscape where performers’ rights can be, and often are, exploited by more powerful industry players who can navigate or manipulate these legal ambiguities. Given that the entertainment industry relies heavily on the talents of its performers, recognising and protecting their contributions, especially against unwarranted exploitation, is an ongoing global challenge. WIPO’s statement highlights this issue, illustrating the disparity in rights across various mediums and the vulnerabilities performers often face.[102] From the lack of entitlement to payments for performances on certain mediums, the inability to assert moral rights, to the potential harm digital technologies can inflict on an actor’s reputation, the multifaceted challenges faced by performers are vast. Consequently, broadening the scope of co-authorship for performers in copyright law is crucial for enhancing the performers’ rights regime.
* PhD Candidate, Swinburne Law School, Swinburne University of Technology; Lecturer in Law, College of Business, Law and Governance, James Cook University. This paper is derived from the PhD thesis and research project entitled R[1]Copyright Law and Performers’ Rights in the Entertainment Industry: A Case Study Analysis of India and Australia,’ submitted by the author and currently under examination at Swinburne Law School, Swinburne University of Technology. Any opinions expressed are those of the author and do not represent the views of these departments/organisations.
1 ‘In introducing this large and complex subject, it is essential to acknowledge that an important aspect of the administration of performers’ rights, and a key difference from that of authors’ rights, lies in the importance not only of copyright legislation but also in different kinds of national labour law which set the conditions by which performers can bargain collectively on the basis of their rights.’ Katherine M Sand, Study on Audiovisual Performers’ Contracts and Remuneration Practices in Mexico, The United Kingdom and The United States of America (No AVP/IM/03/3A, World Intellectual Property Organization, 8 April 2003) 2.
[2] Dr Mihály Ficsor, ‘Glossary of Copyright and Related Rights Terms’ in Guide to the Copyright and Related Rights Treaties Administered by WIPO (WIPO Publications, 2004) 307 <https://www.wipo.int/publications/en/details.jsp?id=361> (‘Glossary of Copyright and Related Rights Terms’).
[3] International Bureau of WIPO, Basic Notions of Copyright and Neighboring Rights (WIPO/INDIP/RT/98/1 Rev., World Intellectual Property Organization, 13 July 1998) <https://www.wipo.int/edocs/mdocs/tk/en/wipo_indip_rt_98/wipo_indip_rt_98_2_add.html>.
[4] Ibid.
[5] Ibid.
[6] International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, opened for signature 26 October 1961, 496 UNTS 43 (entered into force 18 May 1964).
[7] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade Related Aspects of Intellectual Property Rights’) art 15(1).
[8] Paul Goldstein and P Bernt Hugenholtz, International Copyright: Principles, Law, and Practice (Oxford University Press, Incorporated, 3rd ed, 2012) 11 <http://ebookcentral.proquest.com/lib/swin/detail.action?docID=5746844> .
[9] See Kathy Bowrey, Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author (Taylor & Francis Group, 2020) 25 <http://ebookcentral.proquest.com/lib/swin/detail.action?docID=6367397> (‘Copyright, Creativity, Big Media and Cultural Value’); Report of the Royal Commission on Copyright (C. 2036, 1878).
[10] Gowri Nanayakkara, ‘The International Emergence of the Performers’ Rights Regime’ in Gowri Nanayakkara (ed), Performers’ Rights in Sri Lanka: Singers’ Melancholia (Springer Singapore, 2019) 57, 72 <https://doi.org/10.1007/978-981-13-6668-0_3> (Argentina, Belgium, Brazil, Chile, Denmark, the German Federal Republic, France, Great Britain, the Holy See, India, Iceland, Italy, Yugoslavia, Cambodia, Mexico, Austria, Sweden, and Spain).
[11] Eugen Ulmer, ‘The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations’ (1962) (10) Bulletin Copyright Society of the USA 90; Nanayakkara (n 10) 72.
[12] The Copyright Act, 1957 (India).
[13] The Copyright Amendment Act 1994 (India).
[14] Zakir Thomas, ‘Overview of Changes to the Indian Copyright Law’ (2012) 17 Journal of Intellectual Property Rights 324, 324.
[15] WIPO Performances and Phonograms Treaty, opened for signature 20 December 1996, 2186 UNTS 203 (entered into force 20 May, 2002).
[16] The Copyright Act, 1957 (n 12) Ins. by act 27 of 2012, s. 27, (w.e.f. 21-6-2012).
[17] S Sivakumar and Lisa P Lukose, ‘COPYRIGHT AMENDMENT ACT, 2012: A REVISIT’ (2013) 55(2) Journal of the Indian Law Institute 149, 166 (‘COPYRIGHT AMENDMENT ACT, 2012’).
[18] The Copyright Act, 1957 (n 12) s 38B.
[19] Ibid s 39A(1).
[20] See s 13 of The Copyright Act, 1957 (n 12).
[21] Ibid.
[22] Fortune Films International v Dev Anand (1978) 80 BOMLR 263.
[23] The Indian Singers Rights Association v Dharma Productions Pvt Ltd [2020] Indian Kanoon High Court of Delhi CS(COMM) 562.
[24] The case is often cited as a precedent. Most recently it was cited in an order passed by a district court in India in a copyright infringement case. See, for example, Dinesh Kumar vs Shankar Ram [2023] Bangalore District Court Com. OS No 430.
[25] Fortune Films International v Dev Anand. (n 22).
[26] Ibid [6].
[27] Ibid [9].
[28] The Court noted, ‘... the matter appears to be res integra and is required to be decided in accordance with the statutory provisions.’ Ibid [23].
[29] ‘This appeal is from the order of Gadgil J dated 3rd January 1978 made on the plaintiff’s Notice of Motion, dated 15th December 1977. By the said order the learned single Judge confirmed the ad-interim injunction already granted...’’ Ibid [1].
[30] Ibid [12A].
[31] Ibid.
[32] As per the unamended Copyright Act, 1957 (n 12).
[33] Fortune Films International v Dev Anand. (n 22) [14].
[34] Ibid [23].
[35] Ibid [17].
[36] Ibid [25].
[37] Ibid [23].
[38] Ibid [30]-[38].
[39] The Copyright Act, 1957 (n 12) s 38A (2).
[40] The Indian Singers Rights Association v Night Fever Club & Lounge [2016] High Court of Delhi, India CS (OS) 3958/2014; The Indian Singers Rights Association v Chapter 25 Bar & Restaurant [2016] Delhi High Court CS (OS) 2068/2015.
[41] Saregama India Limited v The Indian Singers Rights Association [2017] Delhi High Court (Division Bench) RFA(OS)(Comm) Nos.16/2017, 17/2017 & Nos. 18/2017, [4].
[42] Ibid [5].
[43] Ibid [6].
[44] The Indian Singers Rights Association v Chapter 25 Bar & Restaurant (n 40) [16].
[45] Saregama India Limited v The Indian Singers Rights Association (n 41).
[46] Ibid [8].
[47] ‘Guest Interview: In Conversation with Mr Sanjay Tandon, Co-Founder and CEO, ISRA’ (Anushree Rauta, 14 February 2018) <https://iprmentlaw.com/2018/02/14/guest-interview-in-conversation-with-mr-sanjay-tandon-co-founder-and-ceo-isra/>.
[48] Neha Bhasin v Anand Raj Anand [2006] DLT 196.
[49] ‘Guest Interview: Ankit Relan- IT, Media & Entertainment Attorney, Partner- Mason & Associates’ (Anushree Rauta, 11 March 2018) <https://iprmentlaw.com/2018/03/11/guest-interview-ankit-relan-it-media-entertainment-attorney-mason-associates/>.
[50] Ibid.
[51] The Indian Singers Rights Association vs Dharma Productions Pvt Ltd (n 23).
[52] Ibid [7]-[8].
[53] ‘Historic Agreement between ISRA and the Indian Music Industry’, Anand and Anand Updates (4 May 2023) <http://updates.anandandanand.com/historic-agreement-between-isra-and-the-indian-music-industry/> .
[54] Ibid.
[55] Copyright Amendment Act 1989 (Cth).
[56] Copyright Law Review Committee, Report on Performers’ Protection (May 1987) https://www8.austlii.edu.au/cgi-bin/viewdoc/au/other/clrc/1987/5.html.
[57] Brad Sherman and Lionel Bently, ‘Performers Rights: Options for Reform’ (Canberra Department of Communication & Arts, 1996), 14.
[58] The Copyright Act 1968 (Cth) Part IV (ss 84-113C).
[60] Various entities can be considered the makers of a recording, including record producers, companies involved in recording, and sound engineers. See Alex Solo, ‘The Role of Copyright in an Age of Online Music Distribution’ (2014) 19 Media and Arts Law Review 169, 172.
[61] The Copyright Act 1968 (Cth) (n 58) s 22(3A).
[62] Ibid s 22(3A)(b).
[63] Kevin Lindgren and Rothnie Warwick, Copyright & Designs (LexisNexis Australia, 2020) [20.141].
[64] The Copyright Act 1968 (Cth) (n 58) s 97(2A).
[65] Kanchana Kariyawasam and Rangika Palliyaarachchi, ‘The Song Would Be Nothing without Someone to Sing It: Copyright and Performers’ Rights in Music’ (2021) 35(3) International Review of Law, Computers & Technology 222, 226 (‘The Song Would Be Nothing without Someone to Sing It’).
[66] Ibid. See Kimberlee G Weatherall, ‘“Pretend-y Rights”: On the Insanely Complicated New Regime for Performers’ Rights in Australia, and How Australian Performers Lost Out’ in Fiona Macmillan and Kathy Bowrey (eds), New Directions in Copyright Law (Edward Elgar, 2006) 171, 11.
[67] The Copyright Act 1968 (Cth) (n 58) s 22(3B).
[69] ‘Performers’ Rights’, Arts Law Centre of Australia (2016) <https://www.artslaw.com.au/information-sheet/performers-rights/>.
[70] The Copyright Act 1968 (Cth) (n 58) s 22 (7).
[71] Weatherall (n 66) 9.
[72] Mark J Davison, Ann L Monotti and Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 2008) 345 <http://ebookcentral.proquest.com/lib/swin/detail.action?docID=534731> .
[73] The Copyright Act 1968 (Cth) (n 58) s 248G(2)(a)(b)(c).
[74] Kariyawasam and Palliyaarachchi (n 65) 235.
[75] The Copyright Act 1968 (Cth) (n 58) ss 10(1), 14(1).
[76] CBS Records Australia v Gross [1989] 15 IPR 385.
[77] Ibid [3].
[78] Ibid [4].
[79] Wikipedia (online at 10 September 2023) ‘Collette Roberts’.
[80] The Copyright Act 1968 (Cth) (n 58).
[81] CBS Records Australia v Gross (n 76) [5].
[82] Ibid [22].
[83] Hadley v Kemp [1999] EMLR 589.
[84] Aalmuhammed v Lee [2000] USCA9 66; 202 F 3d 1227 (2000).
[85] Feist Publications, Inc., v Rural Telephone Service Co., [1991] USSC 50; 499 US 340 (1991).
[86] Aalmuhammed v Lee (n 84) 1227, 1233.
[87] Garcia v Google, Inc 786 F 3d 733 (9th Circuit 2015).
[88] Ibid 733, 742.
[89] Ibid 736.
[90] Ibid 741.
[91] Ibid 749.
[92] Ibid.
[93] Ibid.
[94] Ibid 750.
[95] Macmillan & Co Ltd v Cooper [1924] 40 TLR 186, 188–190.
[96] The Copyright Act, 1957 (n 12); The Copyright Act 1968 (Cth) (n 58).
[97] Department-Related Parliamentary Standing Committee on Human Resource Development, Two Hundred Twenty-Seventh Report on The Copyright (Amendment) Bill, 2010 (No 227, Parliament of India, Rajya Sabha, 2010) <https://prsindia.org/files/bills_acts/bills_parliament/2010/SCR_Copyright_Bill_2010.pdf>.
[98] Ibid 50.
[99] Ivan L Pitt, ‘Superstar Effects on Royalty Income in a Performing Rights Organization’ (2010) 34(3) Journal of Cultural Economics 219.
[100] Weatherall (n 66) 9–10.
[101] See Katherine Sand, WIPO Review of Contractual Considerations in the Audiovisual Sector (World Intellectual Property Organization, 2013) <https://www.wipo.int/edocs/pubdocs/en/copyright/1034/wipo_pub_1034.pdf>.
[102] ‘A musician who records a sound-only CD may be paid whenever that CD is sold or broadcast in a country that is party to the WIPO phonograms treaty, but the same performance on a music video does not carry the same entitlement to payment. An actor in a film or TV series sold abroad has no legal right to payment for foreign broadcasts or DVD sales. Any payment for use of the film or TV series that may be made under national laws often goes in its entirety to the producer. Once authorization has been given for filming a performance, actors in most countries have no control over how that performance is used. In particular, they may not be able to assert “moral rights” that ensure attribution and respect for the integrity of their performance. Digital technologies make it easy to manipulate video images and may do so in ways that can harm an actor’s reputation. Actors who provide “movements” for computer-generated characters using motion-capture technology (as used, for example, in The Adventures of Tintin movie [2011] directed by Stephen Spielberg) also often have no legal say in use of their work.’ ‘Performers’ Rights – Background Brief’ <https://www.wipo.int/pressroom/en/briefs/performers.html>.
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