THE EVOLUTION AND SCOPE OF NEIGHBOURING RIGHTS: A COMPARATIVE STUDY OF INTERNATIONAL AND INDIAN LEGAL FRAMEWORK By- Sheheen Marakkar, Karun Roy & Gowri Parvathy R
Authored By- Sheheen Marakkar, Karun Roy &
Gowri Parvathy R
INTRODUCTION
Neighbouring rights, also known as
rights neighbouring to copyright, were created for three categories of people
who are not technically authors: performing artists, producers of phonograms,
and those involved in radio and television broadcasting.
The history of copyright historical
development reflects the development of technology. Copyright developed as the
means by which 'works', i.e., materials deserving copyright protection, reach
the public. At the beginning it was the invention of the printing press which
gave copyright its progress. The protection of printed material against
unauthorised reproduction was the main concern of copyright and the right to
prevent such reproduction, that is the reproduction right, was the basic and
the main right, it was followed by the translation right in literary works[1]. Until the second half
of the 19th century the printing press was the sole technology involved in
taking literary works of all kinds to their public. In the case of dramatic and
musical works the main route of the work to its public was live performance and
in the case of artistic works, was exhibition. In the second half of the 19th
century technology created photography, sound recording and silent films and in
the 20th century, films with sound tracks, radio and television. These
creations entirely transformed the whole scene of the copyright.
The Berne Convention as at its
inception did not therefore extend to these entrepreneurial efforts which is
the neighbouring rights. Efforts in this context means performances, phonogram
and broadcast. If you look into these neighbouring rights, it is all products
of teamwork while the copyright system was meant to incentivise individual
creativity. But over time, it gained
recognition both internationally and in national legislation. there has been a
breakdown of this assumption even within the internal discipline of copyright,
leading to these efforts, and rights connected therewith, gaining acceptance
and recognition both internationally and in the Indian legislation.
TO ROME CONVENTION
Prior to Rome convention into some
national legislations included neighbouring rights. Italian law, one of the
first to recognise these new rights in 1941, called them, diritti conessi
(connected rights), German law verwandle schutzrechte, (related rights) French
law droit voisins (neighbouring rights). In English Law the term
"neigbouring rights" is now most commonly used. The Indian law does
not use term "neigbouring rights".
In International law the first move
towards neighbouring rights was made in 1928 by the Rome Revision Conference of
Berne Convention when Conference, although refusing to grant a copyright to
performers, as had been suggested, expressed a voeu at the end of the
Conference that members of the Berne Convention should "consider the
possibility of measures intended to safeguard the rights of performers".
It was envisaged that a Convention or later two Conventions (one for Performers
and Producers of Phonograms and one for Broadcasting Organisation) should be
"annexed to the revised Berne Convention".
The first copyright owners were
'printers', in modern terminology publishers, of books who combined artistic
skills and judgement with technical skills and made the initial investment.
They were individuals in the 17th and 18th centuries but in the 19th century
many became companies. Thus, the copyright resided in the company. When
broadcasting was invented 'copyright' legislations had no difficulty in
granting a copyright to the broadcasting organisations which were responsible
for creating and disseminating the programmes.
Copyright is given for work while
Neighbouring rights on the other hand, does not constitute works because they
presuppose a pre-existing work. It means
that it develops from a work which is already there. Performers are usually
only protected if they perform works. Phonograms are nearly always recordings
of work (birdsong or sound effect being the unimportant and rare exceptions).
Broadcasts consist largely of performances of works (the broadcasting of
sporting or public events being some of the notable exceptions). In copyright,
works are being protected but in neighbouring rights the beneficiaries are
protected.
The scope of copyrights is, also by
definition, wider than the scope of neighbouring rights, which encompasses only
three categories of rights: the reproduction rights, the public performance
rights and the broadcasting rights. The term of neighbouring rights is, again
by definition, almost invariably shorter than that of other copyright, as 50
years from the death of the author is always longer than 20 or 30 or even 50
years.
As to ownership, invariably it is a
company or corporation in the case of phonogram producers and broadcasting
organisations. It is usually an individual or a group of individuals
(orchestra, chorus, pop group) in the case of performers although some
orchestras have formed companies for business purposes.
In the case of author's rights, the
scope of the right is a large bundle of rights which comprises apart from the
basic reproduction right, inter alia the translation right, the performance
right, the broadcasting right and the film rights. The scope of these new
rights, whether they are classed as copyright or neighbouring rights, is
confined to the reproduction right, the performance right and the broadcasting
right. Throughout the history of copyright, the duration of the right has
always been 'at the heart of the policy argument''[2].
The statutory term represents the compromise between the interests of the
rightsowner and the public interest in the widest possible access to all works.
For published works, most countries have now accepted the '50 years after the
death of the author' term of the Berne Convention for works not published in
the author's lifetime the period is usually 50 years from the end of the year
in which the work was first 'published'. It is the latter type of term, i.e., a
number of years from publications, that has become the rule for neighbouring
rights. In the case of phonograms and broadcasts where the original right owner
is not a physical person this is the only logical solution. The minimum term
under the Rome Convention is 20 years[3].' Under national laws
the term varies from 25 years in the Nordic countries and Germany[4],' 50 years in the U.K.
and India to 75 years in the United States[5].''
In the case of performers, the
starting point of the term is in most national laws the time when the
performance took place or when the performance was fixed. As performers, unlike
producers of phonograms or broadcasting organisations, are physical persons
with a natural lifespan, such a term, if it is as short as 20 years, leads to
abnormal situations. When the performer who has made a recording in his
twenties or thirties reaches his forties or fifties his new and protected
recording may have to compete in market with his own earlier recording which
are already in the public domain. Thus, the rights in the new materials are
always of shorter duration by definition and sometimes much shorter.
Performers have the right to prevent
fixation (recording), broadcasting and communication to the public of their
live performances without their consent, and the right to prevent reproduction
of fixations of their performances under certain circumstances. The rights in
respect of broadcasting and communication to the public may be in the form of
equitable remuneration rather than a right to prevent. Due to the personal
nature of their creations, some national laws also grant performers moral
rights, which may be exercised to prevent unauthorized use of their name and
image, or modifications of their performances that present them in an
unfavourable light. When the Beijing Treaty enters into force, these rights
will extend to performers in relation to their audio-visual performances.
The classical definition in
international law is actors, singers, musicians, dancers, and other persons who
act, sing, deliver, declaim, play in, or otherwise perform literary or artistic
works"[6]. The definition is
wide in that it includes performances of works in the public domain, but narrow
in that it excludes all those who don't perform works, e.g., variety artists,
acrobats, sports persons or extras on stage or in films.
It is rather paradoxical that
although of all neighbouring rights owners - performers are closest to
derivative authors such a translator of literary works or adaptors of musical
scores who receive full authors rights are in many jurisdictions and in
international law the weakest.
There seems to be two reasons for the
weakness of the performers position in law. The first is historical and social.
Actors or 'strolling players' were regarded as vagrants by the law during the
formative period of copyright. Adam Smith, (Scottish economist and philosopher)
in his work gave players, buffoons, musicians, opera-singers, opera - dancers
as classical examples of unproductive labour [7]. Modern times have
removed this social stigma and from the bottom of the social scale star
performers have gone to the top and some have become the idols of modern
society.
The second reason is historical and
technological. Adam Smith goes on to say: "The work of all of them
perishes in the instant of its production". This was perfectly correct in
his days. This reason was, however, removed with the invention of records -
films, radio and television, from the time when performances could be fixed and
the fixations both reproduced in large numbers and performed to large
audiences, thus involving the two basic rights in the copyright bundle, the
reproduction right and the performance right, the second reason too had been
removed.
Minimum protection for performers[8] by the Convention
includes the possibility of preventing the broadcasting and the communication
to the public, the fixation of their unfixed performance, the reproduction of a
fixation of their performance. The reproduction of a fixation of the
performance, without the consent of the performer must satisfy the following
conditions.
(i) If the original fixation itself
was made without their consent.
(ii) If the reproduction is made for
purposes different from those for which the performers gave their consent.
(iii) If the original fixation was
made in accordance with the exception, and the reproduction is made for
purposes different from those referred to in those provisions.
Article 14 of Agreement on
Trade-Related Aspects of Intellectual Property Rights deals with the rights of
performers. In respect of a fixation of their performance on a phonogram,
performers shall have the possibility of preventing the following acts when
undertaken without their authorization: the fixation of their unfixed
performance and the reproduction of such fixation. Performers shall prevent the
following acts when undertaken without their authorization: the broadcasting by
wireless means and the communication to the public of their live performance.
The term of the protection available under TRIPS to performers and producers of
phonograms shall last at least until the end of a period of 50 years computed
from the end of the calendar year in which the fixation was made or the
performance took place.
The WIPO Performances and Phonograms
Treaty (WPPT) deals with the rights of two kinds of beneficiaries, namely,
performers (actors, singers, musicians, etc.) and producers of phonograms
(persons or legal entities that take the initiative and have the responsibility
for the fixation of sounds).
The Treaty grants
performers economic rights in their performances fixed in
phonograms (not in audio-visual fixations, such as motion
pictures): (i) the right of reproduction[9] (ii) the
right of distribution[10] (iii) the
right of rental[11]
and (iv) the right of making available[12].
The Treaty grants performers of
unfixed (live) performances, the right of broadcasting (except in the case
of rebroadcasting), the right of communication to the public (except where
the performance is a broadcast performance) and the right of fixation. The
Treaty also grants performers moral rights, that is, the right to claim to
be identified as the performer and the right to object to any distortion,
mutilation or other modification that would be prejudicial to the performer's
reputation.
In the early days, a phonogram was no
little more than a recording of sounds, a kind of facsimile reproduction of a
performance of musical or literary works, or both, involving only technical
skills. But gradually advancing technology made record production an act form
which probably demands as much creativity as any other derivative work.
Phonograms were first included in the list of 'work' in the United Kingdom in
1909; other common law countries such as India and Australia followed.
Rome Convention specifies “phonogram”
to be exclusively aural fixation of sounds of a performance or of other sounds.[13] Also, “producer of
phonograms” means the person who, or the legal entity which, first fixes the
sounds of a performance or other sounds[14].
The term of protection to be granted under the Convention shall last at least
until the end of a period of twenty years computed from the end of the year in
which the fixation was made for phonograms incorporated therein. Producers of
phonograms enjoy the three basic rights in the 'bundle of rights' granted to
right owners: the reproduction right, the public performance right, and the
broadcasting right.
The Phonograms or Geneva Convention
provides for the obligation of each Contracting State to protect a producer of
phonograms who is a national of another Contracting State against the making
of duplicates without that producer's consent; against the importation of
such duplicates, where the making or importation is for the purpose
of distribution to the public; and against the distribution of such
duplicates to the public. Protection may be provided under copyright
law, sui generis (related rights) law, unfair competition law or
penal law. Protection must last for at least 20 years from the date of first
fixation or the first publication of the phonogram[15].
WIPO is responsible, jointly with the ILO and UNESCO, for the administration of
this Convention. The Convention does not provide for the institution of a
Union, governing body or budget.
Article 14 of Agreement on
Trade-Related Aspects of Intellectual Property Rights deals with Producers of
Phonograms. Producers of phonograms shall enjoy the right to authorize or
prohibit the direct or indirect reproduction of their phonograms. Rental rights
of phonogram are provided under TRIPS. The term of the protection available
under this Agreement to performers and producers of phonograms shall last at
least until the end of a period of 50 years computed from the end of the
calendar year in which the fixation was made or the performance took place.
In order to understand the relative
dearth of private international law relating to broadcasting organisations, one
must look at the nature of broadcasting organisations and the history of their
international relations. Among the beneficiaries of the Rome Convention,
performers are private individuals and phonogram producers are private or
public companies whereas broadcasting organisations are either departments of
state (usually in authoritarian countries), public law corporations with a
charter (mainly in Western Europe), or commercial organisations (mainly in
North and South America) which need a licence from the government in order to
be able to operate. Thus, their dependence on the government or their proximity
to the government and also their influence on the government is far greater
than that of either authors or publishers among the copyright owners or of the
other two neighbouring right owners. They perform a public service and their
task is cultural and artistic as well as being a leading agency of news and
current affairs. It is, thus, not surprising that the international problems
being encountered by broadcasting organisations with regard to their rights
tended to be dealt with either at the diplomatic level or by public
international law, whereas copyright is, in its essence, the exercise of a
private right. Thus, in the early days of broadcasting (sound broadcasting) in
the 1930s and 1940s the interest of broadcasting organisations in solutions
based on copyright was not of very great importance to them. The Rome Act, of
the Berne Convention 1928 had established the broadcasting right of copyright
owners ‘jure conventionis’ and broadcasting organisations regarded themselves
primarily as users of copyright material. At the Brussels Revision Conference
of the Berne Convention in 1948 the broadcasters played the role of the largest
user achieving a compulsory licence and other user benefits. Immediately,
thereafter, and in the 1950s, broadcasters represented by the EBU (European
Broadcasting Union[16]) actively participated
in the preparatory work for the Rome Convention. This period did, however, also
see the advent of television which made broadcasting organisations the largest
single user of copyright of all kinds (news, literature, drama, music etc.)
Generally speaking, broadcasting
organisations have following rights:
(i) An absolute right to 'authorise
or prohibit the rebroadcasting of their broadcasts’[17].
This can be said to be the basic broadcasting right, the equivalent to the
reproduction right of copyright owners. Rebroadcasting in the strict sense[18] means the
simultaneous relay of the programme. Deferred broadcasting must by definition
imply the fixing of the broadcast first so that, if done without the consent of
the original broadcasting organisation, the infringement already takes place at
the time of fixation and before the fixation is rebroadcast.
(ii) Broadcasting organisations have
an absolute right to authorise or prohibit the fixation of their broadcast[19]. The right is the equivalent of a recording
right but usually takes the form of a reproduction right as a copy of the first
fixation is made and sent to the other broadcasting organisations under a
contract between the two broadcasting organisations (either against payment or
by way of programme exchange agreement).
(iii) Broadcasting organisations have
an absolute right to 'authorise or prohibit the communication to the public of
their television broadcast’[20]. This right is the
equivalent of a public performance right and may be subject to a compulsory
licence. The right is, however, restricted to the public performance of
television broadcasts as opposed to sound broadcasts and exercisable only if
the communication to the public is made in places accessible to the public
against the payment of entrance fee, public places which install television
sets, e.g., hotels.
The Brussels or Satellites Convention
provides for the obligation of each Contracting State to take adequate measures
to prevent the unauthorized distribution on or from its territory of any
programme-carrying signal transmitted by satellite. A distribution is
considered unauthorized if it has not been authorized by the organization that
decided on the programme's content. The obligation exists in respect of
organizations that are nationals of a Contracting State.
The provisions of this Convention are
not applicable, however, where the distribution of signals is made from a
direct broadcasting satellite[21]. The Convention
permits certain limitations on protection. The distribution of
programme-carrying signals by non-authorized persons is permitted if the
signals carry short excerpts containing reports of current events or, as
quotations, short excerpts of the programme carried by the emitted signals or,
in the case of developing countries, if the programme carried by the emitted
signals is distributed solely for the purposes of teaching, including adult
teaching or scientific research. The Convention does not establish a term of
protection, leaving the matter to domestic legislation. The Convention does not
provide for the institution of a Union, governing body or budget.
India has not ratified the Rome Convention
yet and is a member to the WIPO Performance and Phonograms Treaty,1996. India’s
regime of protection for performer’s rights has closely mirrored the treaties
in vogue. Prior to the 2012 amendment, Indian copyright law guaranteed the
minimum rights provided for by the Rome convention, by way of the 1994
amendment that introduced performer’s rights to Indian law for the first time[22]. Post the 2012
amendment, this protection broadly conforms to the provisions of the WPPT in so
far as performer’s rights are concerned.
Starting with definitions, the
Copyright Act, 1957, defines a 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.”[23]Performance is
defined, in turn, as “any visual or acoustic presentation made live by one or
more performers.”[24] These definitions did
not create much controversy till the 2012 amendment inserted a proviso after
the definition of “performer” that reads: Provided that in a cinematograph film
a person whose performance is casual or incidental in nature and, in the normal
course of the practice of the industry, is not acknowledged anywhere including
in the credits of the film shall not be treated as a performer except for the
purpose of clause (b) of section 38B Prior to this proviso, studio singers and
actors in cinematograph films were not considered “performers” because their
presentation was not made live but confined to a studio. However, this proviso
makes it appear as though actors in a cinematograph film are performers in
general, except where their performance is casual or incidental in nature. This
has led to considerable industry unrest recently because singers in films have
started demanding a share of the royalties flowing from the different uses made
of the sound recordings /songs in the film. No conclusive view can be expressed
on this issue till it is adjudicated by courts. The only judicial observation -
it cannot be termed more than just an observation because the case was decided
on a separate footing - supports the case of singers.
In Neha Bhasin v. Anand Raj Anand[25], the Single Judge of
the Delhi High Court has observed that every performance has to be live in the
first instance whether it is beforean audience or in a studio. Therefore, if
any such performance was recorded and thereafter exploited without the
permission of the performer, the performer’s right would be infringed.
Turning to the duration of the
rights, the 2012 amendment has brought us in conformity with the WPPT by
doubling the term of protection from twenty-five to fifty years, starting from
the beginning of the calendar year following the year in which the performance
is made. Prior to this Amendment, the coverage of the rights was also narrow,
akin to that in the Rome convention, and did not extend to the distribution of
copies of the performance, either by way of sale or commercial rental[26]. The moral rights of
integrity and attribution have been introduced, in line with the WPPT, vide
Section 38B.
Section 38(4) as it stood before the
amendment also provided that a performer's rights ceased to exist the moment
the performance was incorporated as part of a cinematograph film with the
performer’s consent. This provision has now been repealed, and the 2012
amendment makes it clear, vide Sec. 38A(2), that the performer’s consent only
bars him from objecting to the enjoyment by the producer of the film of the
performer's right in the same film. The proviso to Sec. 38A(2) adds that the
performer shall, in any event, be entitled to royalties in case of making of
the performances for commercial use, a right akin to the equitable remuneration
right introduced by the WPPT. Finally, Section 39(c), a provision that has been
in force since 1994, makes it clear that performer’s rights (and broadcast
reproduction rights) shall not be infringed by any act of the kind that would
qualify as a fair dealing exception to the exclusivity of copyright, provided
for in Section 52.
Phonograms were never considered a
neighbouring right in India, and the Indian Copyright Act, 1957, right from its
enactment, included both sound recordings and cinematograph films within the
category of works entitled to copyright protection.
Distinct from performer’s rights,
broadcast reproduction rights existed even prior to 1994. 1994, however, marked
a watershed in the recognition of such rights because the statutory language
was modified to suit the needs of private broadcasting organisations that had
entered the television and radio broadcasting sector post liberalisation. Prior
to the ‘94 amendment, the law was worded largely to accommodate the interests
of the Government and Doordarshan, the only broadcasting authority till the
early to mid-90s. It is interesting though to briefly trace the evolution of
the broadcast reproduction right from 1957 to the present.
In 1957, the Act did not define
“broadcast”, using instead the expression “radio diffusion”, defined in Sec.
2(v) as including “communication to the public by any means of wireless
diffusion whether in the form of sounds or visual images or both.” This
definition was restrictive because it did not cover communication by means of
wire. However, one could possibly contend that even such communication would
make use of some form of wireless diffusion. In 1983, the Act was amended to
remove “radio-diffusion” and define “broadcast”, thus fully substituting the
former term with the latter. Section 2(dd) was inserted, defining “broadcast”
as communication to the public (i) by any means of wireless diffusion, whether
in any one or more of the forms of signs, sounds or visual images, or (ii) by
wire, and including re-broadcasts too within its scope. The next major
amendment came in ‘94, when the term “broadcasting authority” was replaced with
“broadcasting organisation”, and the special broadcast reproduction rights were
extended to every such organisation. This amendment also enhanced the scope of
the right by including within it the right to reproduce recordings of the
broadcast, and the right to sell or hire such recordings or their reproductions
to the public or to offer to do so. The 2012 amendment makes only a nominal
change, substituting the term “hire” with “commercial rental.” Because this
expression is defined in Section 2(fa) to exclude the rental of a lawfully
acquired copy for non-profit purposes by a non-profit library or a non-profit
educational institution, the object of the substitution is to facilitate
greater public access to broadcasts. The duration of the right remains at
twenty-five years.
Section 37 provided for the
substantive right, and classified “broadcast reproduction right” as a special
right arising on occasions where a programme was broadcast by radio-diffusion
by the Government or any other broadcasting authority. The duration of this
right was twenty-five years from the beginning of the calendar year following
the year of first broadcast of such programme, and the right extended to
restraining (i) rebroadcasts of the programme, (ii) communication of the same
to the public, and (iii) recordings of the broadcast. It is thus seen that the
Indian enactment stole a march on the Rome Convention by a full four years in
guaranteeing broadcast reproduction rights.
Any unauthorised interference with,
or alteration of, the broadcast will violate the broadcast reproduction right.
It can, thus, be said by way of
conclusion that neighbouring right are now firmly recognised and they are
certainly going to stay. Some countries have in fact treated neighbouring
rights at par with copyright.
Neighbouring rights is that India
today has a very robust regime, on paper, for protecting the rights of
performers and broadcasters. The major concern is that of enforcement, which in
turn is heavily dependent on awareness. The 2012 amendment considerably
enhanced the scope of performer’s rights but it does not seem to have made any
significant on-the-ground impact. Similarly, the rampant cable piracy all
around makes us rethink whether broadcast reproduction rights are, after all,
that instrumental in rewarding the entrepreneurial efforts taken by
broadcasters. We will have to give some more time to study the working of these
provisions to arrive at a definitive conclusion on their efficacy, and in the
interim, hope that they improve the lot of performers and broadcasters for the
better.
[1] STEWART, STEVEN, INTERNATIONAL COPYRIGHT AND
NEIGHBOURING RIGHTS, Butterworth (London) Second ed. p. 185
[2] CORNISH, W.R, INTELLECTUAL PROPERTY RIGHTS, (1981)
Sweet & Maxwell (London) p. 340.
[3] Rome Convention, Article 14
[4] Denmark: Copyright 1960, Articles 45 and 47; Germany.
Copyright
Act
1965, Article 82.
[5] Copyright Law 1976, Section
302-305.
[6] Article 3(a), Rome Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organisations (1961).
[7] SMITH, ADAM, THE WEALTH OF NATIONS Book II, Chill,
quoted by Edward Thompson, 'Twenty Years of the Rome Convention'(1981) Copyright
274.
[8] Article 7, Rome Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
[13] Article 3 (b), Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organisations (1961).
[14] Article 3 (c), Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organisations (1961).
[15] Article 4, Geneva Convention for the
Protection of Producers of Phonograms Against Unauthorized Duplication of their
Phonograms (1971)
[16] The OIR (Organisation International Radio) was
founded in 1946. In 1950 the EBU was founded by 23 European Broadcasting
Organisations. The OIR moved to Prague and changed its name to OIRT
(International Radio and Television Organisation) Covering Eastern Europe.
[17] Article 13 (1) Rome Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
[18] Article 3 (g) Rome Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
[19] Article 13 (b) Rome Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
[20] Article 13 (d) Rome Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (1961).
[21] Article 3, Brussels Convention Relating to the
Distribution of Programme-Carrying Signals Transmitted by Satellite (1974).
[22] As explained by the Delhi High Court recently in Akuate
Internet Services v. Star India Pvt. Ltd.,
MIPR 2013 (3) 1, it was in the wake of ‘livelihood threatening
technological changes’ that the law
intervened
in 1994 to recognise performer’s rights and broadcast reproduction rights.
[23] Sec. 2(qq) The Copyright Act,
1957.
[24] Sec. 2(q) The Copyright Act, 1957.
[25] 2006 (32) PTC 779 (Del).
[26] The 2012 amendment has expressly conferred this right
on the performer, vide Section 38A(a)(ii)
and
(iv).