Neighbouring Rights

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Introduction

It is well settled principle that the person who has applied his labor over the work should get the right of ownership over that work; this is one of the methods to justify the intellectual property. For the purpose of this project and before moving ahead we need to understand the justifications required to justify the intellectual property. One of the theories in the intellectual property is the lock-labor theory, which says that each and every person has right over his labor and the person responsible to exercise his mental/physical labor will get the ownership over that work.[1] With keeping this view of labor and fruit in mind the authors have tried to delve with the meaning and importance of the neighbouring rights which can help in easy understanding of the neighbouring rights. There is another name for neighbouring rights that is the related rights and the concept and idea of neighbouring rights primarily emerged due to advancement in technology which basically emerged in the second half of nineteenth century. Earlier these rights were not recognized but however in 1961 the recognition of these rights took place in the Rome Convention.[2] WIPO formed two committees of experts in order to observe the influence of new technology on the neighbouring rights and copyrights, both the committees were consisted of experts and they suggested some recommendation in the field of protecting the neighbouring as well as copyrighted work.[3] Committee were of view that the rights of performer’s, broadcaster’s should not be subrogated rather we should adhere to some rules and regulations where we can protect the interest of these certain kind of persons. In this project author has dealt strictly with the neighbouring rights and rights associated with the neighbouring rights. In each of the aspect such as performers’ rights, broadcasting rights and producers rights of phonograms author has thrown light in reference to modern technological area and tried to show the impact of such rights on the entertainment industry as well as on the economy of the country. In this project authors have discussed all three kind of rights that more or less are subject matter of neighbouring rights.

Research methodology

I. Neighbouring rights

These are the rights which got the recognition at the international regime in 1961 by the Rome Convention. The main purpose of these rights is to protect the interest of certain kind of persons, who are responsible to disseminate/spread the work of author to public. Related rights are also known as neighbouring rights and primarily cover the three kinds of rights: performer’s artist rights in their performances, producer’s rights of phonograms and the last being the broadcasting organisation’s rights in their television and radio programmes.[4] The representation of neighbouring can be shown herein below. Copyright (Draw the table) Though the international committees prescribes the term of protection of rights of performers, copyright holders and phonograms rights holders should not be less than fifty years and whereas in the case of broadcasting rights the protection term should not be less than twenty years. India being a signatory to Berne convention, therefore in order to bring India’s law in level to Berne convention India streamlined the copyright laws so as to fulfill the requirements of WTO. Although Indian Law provides the greater term of protection of copyrights than as prerequisite under the WTO obligations in a matter such as copyright protection (Indian law provides for protection of copyright is “life + 60 years”). Therefore in 1991 the Indian Legislation amended the law in order to grant protection to broadcaster’s rights for 25 years.[5]

II. Reasons for recognizing neighbouring rights

At this juncture it is imperative for us to know that what triggers in recognizing the neighbouring rights, so we need to understand that when the human intellect work in created and the purpose of this work is to disseminate it to public and to the customers as large as possible and this work practically not possible to be done by author himself therefore for this purpose he often requires intermediaries and mediators whose professional skills and capabilities provides the work that forms of appearance that are apt to make them reachable to a wide public, therefore all those persons who make use of artistic, library, musical work or dramatic works so as to make them publically accessible or reachable to others necessitates their own protection against the illegal and unauthorized use of their contributions in the course of communicating the work to public. The persons discussed above are essentially the record producers, performing artists and broadcasters. The creative intervention of performers in order to give life to the dramatic, musical works, motion pictures and choreographic works is primarily responsible for the recognition of rights of performers. It is essential to understand the reason for the recognition of rights for all three categories of person than only we can understand the reasons for the recognition of neighbouring rights. If we look over the work of producers of phonograms such as they put their money, input their creativity and organizational resources so as to make the recorded sounds accessible to the wide public in the form of commercial phonograms gives the base for the recognition of their rights.[6] Further the role of broadcasters in making the “work accessible to the public and in lieu of their justified interest in controlling the transmissions and retransmissions of their broadcasts justifies the reason for the recognition of their rights”.[7] The question why these person’s rights are referred to as neighbouring rights is because of the reason that they have developed and flourished in parallel with copyright. With the enhancement in the technology and advancement of technology not only necessitate the protection of dramatic, artistic, literary and musical work but also to bring mechanism for the protection of rights of those intermediaries who are associated for the dissemination of work to public. At this stage we need to understand each and every right such as performer’s rights, broadcasting rights etc. in detail for the better understanding of this project.

Chapter II

I. Performer’s right

The recognition of these rights occurred only after in shift to modern era where the advancement of technology took place, get back to that time where the people did not had the tools to record their performances so that time nobody was concerned about their performances. Once they uttered something or performed something their exact performance died forever. The preservation and reproduction of sound in the exact way as took place in the original act became possible with the help of advancement in technology, “till the time phonographic record enabled it possible for the reproduction and preservation of sound till than all audio were fugitive and transitory. It is only in this modern era where actor, preacher, singer, conductor etc. have any interest in the reproduction of their acts.”[8] The performers essentially work as an intermediary or play the role of intermediary for the dissemination of the work to the public. Till the first half of the nineteenth century, the rights of performers were not recognized despite the fact that they exercise their art, sufficient skills and labor in order to make the work of author reachable to public. As soon as the concept of sound recording, video recording came into picture the whole paradigm with respect to performers, who worked under this paradigm for centuries got changed. Earlier people had no other way but of personal appearance so as to enjoy the performers performance. As every coin has two faces the same is the case with the technology, we understand that, sound, video recording devices are responsible for the materialization of fugitive work into the permanent one but at the same time the inventions made it possible to record the performances of performer and to commercially exploit the right of performer even without taking his prior consent.[9]

II. Protection of performers rights in India

In the leading case of Fortune Film International v Dev Anand[10] the issue arose is that whether the copyright exists in the performance of the performer. There were arguments form both the sides with respect to their claim; the producers contended that the performers performance is not a work within the ambit of this Act whereas the artiste contented that performers performance comes within the ambit of “dramatic work” and “artistic work” as prescribed in sections 2(b) and 2(c) of the Act. Court in its judgment referring to the contentions of the parties stated that artiste performance in the cinematograph film cannot be equated or cannot be kept at par with the drawing, a photograph, sculpture or a painting and thus doesn’t within the meaning of artistic work. Therefore it can be understood by this leading case that there were no rights available to the performers by the Copyright Act 1957 till the coming of 1994 amendment.[11] After following the Uruguay Round of Multilateral Trade Negotiation, the Indian parliament brought the Copyright (2nd amendment) Act in 1994 in order to bring the existing copyright Act of 1957 in connation with the provisions of TRIPs.[12] One of the purpose to bring the amendment is to encompass the protection to the performance of the performers by providing the special right called as the “performers right”. The 2nd amendment Act of 1994 brought the change in the definition of performance in relation to right of performer’s.[13] This amendment also inserted the definition of performer which says that[14]. Section 38 and Section 39 of Act also deals with the rights of performer. The restrictions are imposed upon the rights of performers by Section 38(4) which states that once the consent of the performer is taken with respect to incorporation of his performance, skills in the cinematograph film, than rights contend under the provisions of sub-sections of section 38 will not have any application as far as the rights of performer is concerned. Thus it can be concluded by the above mentioned restriction imposed upon the performers rights that instead of bringing the change and recognizing the performers right the performance of the actors still remains same as it were prior to the 1994 amendment.

III. Judicial Pronouncements with respect to performers right in India

At this point we need to do the case study of some prominent judicial decisions with respect to protection of performer’s rights in India, than only we can come to the conclusion that whether the law governing the performers rights in our country are sufficient so as to protect the interest of performers. Aneesh Pradhan v. Banyan Tree Events Pvt. Ltd In this case the concert held in 1997 where the plaintiff was one of the associated table player. In 2000 the released of the CDs and tapes of that concert occurred by the Defendants. The primary contention of the plaintiff was that his prior consent was not taken by the defendants before releasing the CDs and recording the performance therefore asked for the injunction. The Court granted the injunction and restrained the defendants from selling, marketing and manufacturing the cassettes. Therefore makes it clear that not taking the prior consent of performer before recording and making available that work to public can hold the person liable for the infringement of performer’s right.[15] These rights generally subsist for fifty years but if the performer has consented to incorporate his work in the movie, drama than this protection ceases away. Once the performance of the performer is fixed than the performer cannot enjoy the economic rights available to him. As the law propounded in Dev Anand’s case was before the 2nd amendment of 1994 came into existence therefore this case as of now doesn’t hold the much importance. Super Cassettes Industries v Bathla Cassette Industries[16] This case was decided in the year 2003 where we had both the section i.e. section 38 and section 39 in our Copyright Act. In this case the court made a distinction as to the copyright law on one hand and the neighbouring rights on another side. The court stated that the there is a distinction between the performers rights and the neighbouring rights and musical work recording of any kind without the authorization of performer will infringe the performer’s right. Neha Bhasin vs. Anand Raj Anand and Anr[17] This case concerns the lady singer, Neha Basin who alleged that defendants have used her voice for three versions of song in the movie “Aryan”. Further she alleges that she was depicted as a backup vocalist in the songs and the main role was shown of the defendants thus claims for the infringement of the performer’s right and therefore asked for injunction. Issue arose in the case was that can you hold liable defendants for the infringement of right of performer. The Court delivered in the judgment in the favor of Neha Basin by stating the beautiful lines.[18]After giving heed to all the evidences produced the court finally stated that there is clear recognition of the Neha’s voice in all the versions of songs therefore she must be depicted as the lead singer and this granted the interim injunction.

IV. Whether there is need to reform the existing laws

After going through the provisions governing the performer’s right in India, the authors are of the view that the ambit of laws is not well sufficient so as to cover the rights of performers. This chapter essentially deals with the performer’s right in India and the research of the author shows that there is inadequacy in the laws governing the performer’s right. The reason for the failure of the law is that while protecting the rights of performer we need to look the copyright law at the first instance which in itself is not capable to protect the rights of performer. The fundamental principle of the copyright law is to protect the original work of the author and the original idea of the author and this idea alone is not protected until or unless it if fixed in tangible form. Although the protection of copyright law extends to the economic rights of the performer but it is failed in protecting the moral rights of the performer. Under the provisions of WPPT, Certain rights are given to the performers called as “moral rights” but there is absence of these rights under the current provision of copyright act. Therefore there is need to bring those provisions of WPPT in our system.[19] While comparing our legal framework with respect to U.S.A. we find that our governing laws as compared to U.S.A. are weak thought the protection so provided by the US is similar as given under our laws except the US has the principle mechanism of tort law. US also doesn’t have any special legislation to protect the neighbouring rights but there, the rights are protected by the doctrine propounded by the American Courts i.e. doctrine of right of publicity a tortious doctrine with respect to infringement of performers rights. This is something which makes the distinction between the Indian Law and US law.
[1] Robert L. Ostegard, Jr, “Intellectual Property: A Universal Human Right”, The John Hopkins University Press, Vol 21, 1999. Available at: http://www.jstor.org/stable/762740 [2] Benedict Atkinson, Brian Fitzgerald, “A Short history of Copyright”, Springer. [3] (Committee of Experts on a Possible Protocol to the Berne Convention in September 1991 and the Committee of Experts on a Possible Instrument for Protection of the Rights of Performers and Producers of Phonograms in September 1992). [4] “Understanding Copyright and Related Rights” , World Intellectual Property Organisation, available at: http://www.wipo.int/edocs/pubdocs/en/intproperty/909/wipo_pub_909.pdf [5] Sanjay Pandey, “Theory of Neighbouring Rights” Feb 5, 2005. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=838724 [6] Dr. V.K. Ahuj, “Law of Copyright and Neighbouring rights: National and International Perspectives”, Lexis Nexis. [7] Sanjay Tandon, “Neighbouring Rights”, law of copyright: from Gutenberg’s Invention to Internet, 2001. [8]“Performers’ rights in India and beyond:A critical analysis of the lawson the protection of the performers’rights”, DRT SARFAESI- Advocated & Lawyers, Jan 4, 2012. Available at: http://drt.co.in/2012/01/04/performers-rights-in-india-and-beyond-a-critical-analysis-of-the-laws-on-the-protection-of-the-performers-rights/ [9] Performers’ rights in India and beyond:A critical analysis of the lawson the protection ofthe performers’rights”, DRT SARFAESI- Advocated & Lawyers, Jan 4, 2012. Available at: http://drt.co.in/2012/01/04/performers-rights-in-india-and-beyond-a-critical-analysis-of-the-laws-on-the-protection-of-the-performers-rights/ [10] Fortune Film International v Dev Anand, AIR 1979 Bom 17. [11] Fortune Film International v Dev Anand, AIR 1979 Bom 17. [12] Dr. V.K. Ahuj, “Law of Copyright and Neighbouring rights: National and International Perspectives”, Lexis Nexis. [13] 2(q) of Copyright Act 1957 says, “Any visual or acoustic presentation made live by one or more performer”. [14] 2(qq) of Copyright Act 1957 says, “Performer to include an actor, singer musician , dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.” [15] “overview of the performers right in India, Law essay”, UK Essays, Available at: http://www.ukessays.com/essays/law/overview-of-performers-rights-in-india-law-essay.php [16]Super Cassettes Industries v Bathla Cassette Industries, 107 (2003) DLT 91. [17] Neha Bhasin vs. Anand Raj Anand and Anr, 2006 (132) DLT 196. [18] “It is essentially the reproduction of the performance through sound or visual recordings without the permission of the performer that is prohibited. Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed. So, as regards the performers’ rights, the plaintiff definitely has a serious triable case”. [19] Performers’ rights in India and beyond:A critical analysis of the lawson the protection ofthe performers’rights”, DRT SARFAESI- Advocated & Lawyers, Jan 4, 2012. Available at: http://drt.co.in/2012/01/04/performers-rights-in-india-and-beyond-a-critical-analysis-of-the-laws-on-the-protection-of-the-performers-rights/.
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