A note on rights of a performer and the audience

In law, rights of the creator are recognized and protected. These rights take

precedence over custom, audience and social requirements. In IPR, size of the

creator or the violator is of no significance II.

INTRODUCTION The Copyright Act, 1957 defines 'performer' as an actor,

singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person

delivering a lecture or any other person who makes a performance.

Performance, in relation to performer’s rights means any visual or acoustic

presentation made live by one or more performers.

III.

RIGHTS OF A PERFORMER Where any performer appears or engages in any

performance, he has a special right known as the “performer’s right” in relation

to such performance. A performer's right includes his consenting for sound

recording or visual recording of the performance and for reproduction of such

recording. Whoever records a live performance without the performer's

consent might be liable for infringement of such performer's rights.

IV.

TESTS FOLLOWED BY COURTS In Garware Plastics and Polyester Ltd. and Ors.

etc. vs. Telelink and Others, the Bombay High Court followed the below

criteria:

AUDIENCE TEST: The character of the audience - whether it could be

considered as private or public is the first test to decide whether the

performanceis a private performance or performance to thepublic.

RELATIONSHIP TEST - is the relationship between the owner of the copyright

and the audience. If the audience may be described as the "owner's public",

then in performing before that audience, he would be exercising the legal right

conferred upon him. Any one who, without his consent, performs the work

before that audiencewould be infringing his copyright.

VALUE TEST: The impact of the performance on the value of copyright or the

loss of profit which would otherwise have accrued to the owner of the

copyright ifthe same audience had watched the performance on payment.

V.

LEEWAY The Copyright Act, 1957, while recognizing the special rights of a

performer, has also envisaged a leeway where certain recordings would not

amount to violation of performer's right. A performer's right is not deemed as

infringed if such recording is for private use or solely for bonafide purposes of

a review, reporting of current events, teaching or research. The use of

recording such live performance has to be consistent with fair dealing of such

artistic or musical works.

VI.

A performer has the right to refuse his performance to be recorded. Even

when the performer consents for recording his performance, the Performer

can stipulate/restrict the purpose for which the consent is given, e.g. for non-

commercial private use only. Performer's or show organizers can print the

terms and conditions in the ticket issued to attending audience/ at the

Auditorium that 'no camera, audio-visual recordings are permitted during the

show' with 'All Rights of Admission' reserved b y the Performer/ event

Organizer. Such printed terms would become binding contract between the

performer/ event organizer and the audience. Any violation of such terms

would amount to breach of contract and violation of rights.

VII.

FUTURE In India, performers rights are not recognized as per the

internationally accepted principles. India is yet to sign the WIPO Performances

and Phonograms Treaty (WPPT), 1996, that grants three kinds of rights to

performers, apart from recognizing moral rights, in respect of their unfixed

(live) performances viz., (i) the right of broadcasting (except in the case of

rebroadcasting); (ii) the right of communication to the public (except where

the performance is a broadcast performance), and the right of fixation i.e., the

right to determine embodiment of sounds, or of the representations thereof,

from which they can be perceived, reproduced or communicated through a

device. A Bill to amend the Copyright Act, 1957, incorporating these

internationally recognised principles and rights is pending promulgation

before the Parliament for the last couple of years. With the amendment, the

performers will have better economic and enforceable rights in respect of their

performances which would be valid for fifty years since the performance.

VIII.

CONCLUSION To conclude, copyright is a bundle of rights which includes

economic rights and moral rights of a performer or an artist. A simple thumb

rule regarding such performances is 'whatever can be exploited, has to be

protected'. No doubt a symbiotic relationship exists between a performer and

the audience. But, it has to be borne in mind that what the audience pays for is

only an 'entry pass' for listening and seeing the performance at a convenient

place or seat within the venue and not for recording or commercial

exploitation of a performance. Recording such live

performances without consent of the performer or the event organizer though

might amount to violation of rights of the performer and/or the event

organizer, such live performances can be recorded by the audience solely for

the purposes of private use, research, teaching and reporting current events.

Such fair dealing may not transgress rights of the performer and/or the event

organizer.