Recognizing the Lost Performers: A deep look at Performers’ Rights In India.

Recognizing the Lost Performers: A deep look at Performers’ Rights In India.

This piece has been authored by Chirag Motwani, 3rd Year Student at Hidayatullah National Law University, Raipur

The inter-relation of Law and Society has been established since long Law and society have a symbiotic connection in which each shape and influences the other in fundamental ways. Laws serve as a framework for preserving order and resolving problems in society, but they also reflect cultural values, conventions, and goals. In turn, societal dynamics, cultural transformations, and changing demands frequently influence the development and adaption of laws. This delicate interaction ensures that laws stay relevant and responsive to communities’ evolving needs, while also providing the stability and structure required for communal cohesiveness.One Such area of law has been Intellectual Property Rights (IPR). The IPR law in India has evolved due to the changing dynamics of the society and has been subject to many changes. A peculiar branch of IPR with which the piece is concerned is the Copyright Law. The Copyright Law aims to protect the IPR of persons in consonance of the subject-matters of original literary, dramatic, musical and artistic work, cinematograph films and sound recording.

The watershed moment pertaining to the copyright law came in 2012. This came in a form of amendment that modified the obsolete copyright law with the blooming desires of the society. One such modification came in the form of “Performer Rights”. A general understanding in the Indian copyright law can be as, performers’ rights are the legal protections afforded to persons or organizations who perform artistic or creative works, such as actors, singers, dancers, and others. These rights seek to protect artists’ interests and economic well-being by guaranteeing them exclusive rights to their performances. The piece aims to analyze the Performers’ Rights as provided under the amendment act and to analyze the efficacy of such modification and suggests a possible path for the effective enforcement of copyright law in India pertaining to Performers’ Rights.

Exposing the controversy surrounding the Performers’ Rights

The landmark amendment of 1995 came as a beacon against the Anglo-Saxon approach of IPR. The amendment made a departure from the droit d’ auteur approach. The approach aims at protection of author’s work from a personal point of view. The departure was important as the approach did nor focus upon a commercial point of view. The amendment for the first time provided for the performers’ rights. The act in Section 2(qq) provides, “Performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.” Prima-facie the definition covers other performers as well by the rule of ejusdem generis. The needed classes to be under the ambit of the rights granted of the performers’ the proviso to the section excludes. The proviso excludes such performers who according to the norm of industrial practice are considered as incidental performers. ,Provided that in a cinematograph film a person whose performance is casual or incidental in nature and in the normal course of the practice in the industry, is not acknowledged anywhere in the credits of the film shall not be treated as a performer except for the purpose of clause (b) of Section 38B”.

The concerned class in the piece are the background performers/ stuntmen/dubbing artists in the entertainment industry. The proviso takes their rights into limbo. It has been time and again expressed that the “Industry Standards” in the entertainment industry are purely incidental and in the usual course of the practice in the industry. (While the performers have been considered as purely incidental in many cases, the underlying issue that has been bought into forefront is the lack of recognition to these artists. Whether they are the stuntmen or dubbing artists, the need of addressing such classes that have been excluded by the proviso is the need of the hour (For reference, see here, here and here). This piece argues that the proviso’s interpretation has resulted in the exclusion of background performers, which contradicts the Amendment’s (2012) intention to support their interests as performers by aiming to exclude such performers who are deemed to be “extras. The piece also explores the genesis of the provision and its effects on India and aims to provide certain solutions.

Traversing the rights of “Background Performers”: An Insight to the development

One of the early developments in the granting of the rights to these background artists/ dubbing artists/ stuntmen (now referred in the piece as affected class) is the Rome Convention. Before the Rome Convention, the affected class were deemed to be workers. They were thought of as people who would satisfy the requirements of the employer by the virtue of their skill. However, as time passed, a sense of recognition to the contributions made by such affected class was recognized as the need of the hour and due to such reasons in consonance with the need of a legislation governing the same, the Rome Convention came into existence. The convention was the law that made the first action of bringing the performer class under the ambit of IPR. [Editor6] The convention provides, “Performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works.” The convention through such definition had a wide scope of interpretation. The guide to the convention also aids the wide scope that the performers have and also aims to recognize the “extras” as under the ambit and have a scope for the protection of their rights as well albeit a very wide interpretation is followed while enforcing the rights of them (For reference, see here).

Further, The WIPO discussions on the protection of audio-visual performers occurred on two platforms: the A Committee of Experts on A Protocol Concerning Audio-visual Performances [“APCE”] and the subsequent Standing Committee on Copyright and Related Rights [“SCCR”]. India in the second session of SCCR made suggestions concerning the possible application of the performers’ rights. The definition of performers that India provided was, “Performers are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore but does not include performers whose performances are casual or incidental in nature such as extras.” This is akin to the current definition of performers under the copyright act. In accordance with this, India stated that it had a significant interest in its vital film industry, and that the practices of relationships between performers and producers needed to be studied; these ties were built on mutual trust rather than written papers. As a result, the delegation believed it was vital to maintain the existing balance when awarding new, significant rights. The 227th Parliamentary Standing Committee on Human Resource Development Report on the Copyright (Amendment) Bill, 2010 submitted to the Rajya Sabha, suggested the insertion of this proviso. But curiously, no debate or discussion was done over this inclusion either in the Rajya Sabha or the Lok Sabha. The conclusion was that this proviso sailed into the Act in 2012 without any deliberation about the consequences it would have on scores of performers in India.

Lessons to learn from the path to recognition of the rights of performers

While in India the rights of such affected class in the entertainment industry have been hampered by the inclusion of the proviso to section 2(qq), some of the earlier international treaties have posed a different side as well. The WIPO Performances and Phonograms Treaty, 1996 (WPPT) poses an interesting case. The WPPT in its definition of performer did not leave a scope for exclusion of the extras. The definition was as follows, Performer are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;”.  WPPT had one of the most inclusive definitions of performers and aimed for the holistic protection of their rights as compared to many other legislations/ treaties. Moreover, during the course of discussions pertaining to performers rights in, APCE, some member states posed a holistic definition of performers’ and did not exclude the extras during the process. One such member state was China. China referred to their definition in the Implementation Regulations of the Copyright Law of the People’s Republic of China, 1991 which did not specially exclude any class of performer. Another interesting case was posed by France. According to Dr. Lewinski, in France, extra performers can be excluded from protection (depending on the importance of the performance) (For reference, see here). This was a unique addition as on one hand definitions of performer did not exclude extras but on the other hand due to the industry standards and practices they were excluded such as the definition provided by USA. But a new addition of referring the importance of performance on a case to by case basis was suggested by France as highlighted above. While India had an understanding of moving away from the rights of the extras the introduction of the proviso had a cascading effect of removal of rights for background performers’ altogether that goes against the understanding of the motive of IPR in the Indian regime.

Way forward and conclusion

While the removal of the proviso to section 2(qq) seems to be an easy bet, it would have the most effective outcome. This is the simplest of the three solutions. This is because performances and works are built on the idea of uniqueness. If a person meets the criteria for having performed a performance under the Act, it indicates that his performance is sufficiently original and hence deserving of protection. Extras who make no distinguishing contribution, such as persons in a throng, are readily eliminated from the definition of a ‘performer’. This method is the most appropriate of the three since it is based on intellectual property and its grounds.

Defining extras and including them in the proviso would have its own set of negative consequences. This method is more industry-focused and has minimal bearing on intellectual property considerations. Given how the Indian film business functions, relying on the industry for interpretation might have disastrous consequences. It substantially benefits producers. The Indian delegation informed the SCCR that relationships in the Indian film business are built on mutual trust rather than formal commitments. The author believes that this trust is imposed rather than voluntary. Listing out the extras would be a temporary solution, but it may be quite useful. There is currently little to no research in India that seeks to classify actors based on their contributions to cinematograph films. Simply stating that a performance will be casual if it is judged so in the usual course of industry practice leaves the question open. Instead, the Copyright Office can launch an in-depth investigation into the classes of actors involved in cinematographic films. It can then proceed to compile a list of these performers. This list can help both performers and producers grasp the breadth of the provision.

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