Open Access Research Article
POSITION OF MORAL RIGHTS OF PERFORMERS IN INDIA: ARE THEY PROTECTED ENOUGH? BY: ANSHUMAN BISARYA
Published Paper
Article Details
POSITION OF MORAL RIGHTS OF
PERFORMERS IN INDIA: ARE THEY PROTECTED ENOUGH?
SUBMITTED BY: ANSHUMAN BISARYA
ABSTRACT
It is etched in the pages of history
that India has a rich culture and heritage. India’s culture and heritage has
been subject of admiration of many nations and civilizations. One of the
contributors to this rich heritage and culture has been the literary works and
the film/entertainment industry. India is among the highest producers of
literary works around the globe and has a long-standing reputation of
fine-quality and rich literary works. Indian authors and poets have captured
the imaginations of countless people not just in India but around the globe.
Since, both the literary works and
film/entertainment industry has such a wide footprint, the question of
Intellectual Property Rights and its protection for the creators/professionals
inevitably arises.
This paper would be examining one
such aspect of Intellectual Property Rights called ‘the moral rights’ of
performers as categorised and encapsulated in the Indian Copyright Act, 1957.
INTRODUCTION
The origination of moral rights flows
from French Jurisprudence (whereunder moral rights are referred to as droit
moral). It stems from the belief that great artists can become prey to the
copyright industry and hence protection for their creative work and expression
should be afforded some protection so that authors do not get dissuaded from
engaging in literary and creative works. Later, Kant put forth his idea on
moral rights on the aspect of printing of an author’s work without their
consent as unauthorized and thus unlawful. This laid the seed of idea of
author’s right as personality right[1]
which is on some notes similar to today’s moral rights understanding and
protection in relation with right of association of an author/performer with
their work.
As per World Intellectual Property
Rights, another important authority, it defines moral rights of authors as
those rights that can only authors have and can solely exercise in respect of
any artistic work of the said author which includes right to prevent distorted
reproductions of the work.[2]
Moral rights enable authors and performers to take the respective legal steps
to protect and preserve their ‘association’ with their respective work.
Furthermore, moral rights are further
compartmentalized into Right of paternity, Right to Integrity of Work, Right to
Create work, Right of Divulgation, Right to Withdraw work, Right to prevent
excessive criticism, Right against destruction, Right to waive the moral
rights, Right to transmit Moral Right.
In Indian context, performer’s rights
got very late recognition in 1994 and afforded very basic protection. It is
only after 2012 amendment that performer got their moral rights’ recognition
via the introduction of Section 38B into the Act.
As discussed above, in context of
recognition of moral rights in India for both authors and performers, there are
2 moral rights that have been given legal recognition under the Act, namely
Right of paternity and Right of Integrity and paper shall discuss the 2 rights
in performer’s context.
RESEARCH QUESTIONS
1. Is there enough impetus for Indian
Judiciary and Legislature to follow US’s identity test and publicity doctrine?
2. Has Indian Intellectual Property
Rights regime struck a fine balance between commercial and moral rights of performers?
PERFORMER’S MORAL RIGHTS IN INDIA
Performer’s rights are a new
iteration of moral rights. As per WIPO, they are also referred to as related
rights or neighbouring rights. These rights emanate to protect the legal
interests of particular people and entities whose work are in the public domain
but necessarily do not qualify as copyrightable works under some copyright
regimes but contain a certain degree of creativity or technical and
organisation skill for it to be able to justify a claim of copyright-like
property right.[3]
India was not the quickest to adopt
performer’s rights, in fact, in Fortune Films International v Dev Anand[4], performer’s
rights were brought in front of the Indian Judiciary, much to the dismay, the
Supreme Court categorically refused to decide whether in a cinematographic
film, whether there could be different owners of a film because there are
different performers who have played roles in the said motion picture. More
crucially, the Supreme Court answered in the negative to the contention raised
that whether performance of an artist would come under the ambit of work under
the Copyright Act or not. This judgement amply shows the next to nothing
recognition of performer’s rights in Indian context till the 1980s.
Then came the 1994 amendment which
gave recognition to performer’s rights but the protection offered was very
sparse. The amendment brought in sections 2(q) and (qq), section 38 for the
protection of performer’s right. It is important to note that the said
protection was for performer’s rights, moral rights of performers did not come
under the ambit of this protection yet. Performers are defined in section 2(qq)
under the Act included actor, singer, musician, dancer, acrobat, juggler,
conjurer, snake charmer, a person delivering a lecture and a person who makes a
performance.[5]
Performance is defined in section 2(q) in relation to a performer’s right as
any presentation made live by 1 or more performers in any visual or acoustic
medium.[6]
Internationally, moral rights of performers
were recognised in WIPO Performances and Phonograms Treaty (WPPT) and WCT
(often collectively called as Internet Treaties) adopted in 1996. Then by the
2012 amendment which was somewhere in tune with WPPT[7],
moral rights of performer’s were finally given their due recognition in form of
right of paternity and right of integrity. Section 38B was introduced titled
moral rights of the performers. India became part of the Internet Treaties in
2018.[8]
The 2012 Amendment added a proviso which stated that any person whose
performance is ‘incidental’ in the film and in ordinary course of practise of
film industry, such performance is not given any credit shall not be regarded
as performer under section 38(b) of the Act.
Before the advent of 2012 Amendment,
performer’s rights had right to prevent unauthorized non-consented use of their
work but after 2012 amendment, performers were conferred ‘exclusive’ positive
rights.[9]
It is pertinent to note that like
section 57 Amendment post Amar Nath Sehgal which excluded author’s
dissatisfaction in respect of exhibition of their as non-injurious to their
moral rights, section 38B also categorically excludes such dissatisfaction
component on part of performers by way of adding that if any performance for purposes
of editing, for fitting a recording in a stipulated duration or for purely
technical reasons would not be considered as violation of performer’s moral
rights.
One of the leading authorities in
protection of right of paternity in context of performer’s is Neha Bhasin v
Raj Anand[10]
case
The Court observed that the singer’s
voice if being commercially exploited has the right to associate herself and
prevent others from establishing an association and link with her voice. In
this case, the plaintiff, Neha Bhasin, was stated as the backup vocalist rather
than the lead singer, the Court in this case recognised the right of integrity
and association of the singer and stated that such an act is seriously
detrimental to her aspirations as she would be perceived as a backup vocalist
and this inevitably would harm her reputation.
In the Indian context, moral rights
protection was offered very late to performers and more so, very sparse
protection has been offered to them. In US, for instance, the main proponent of
protection of rights of performers is the doctrine/right of publicity which has
deeply embedded itself in the US Jurisprudence. Although, it is crucial to note
that this doctrine protects rights from an economic perspective meaning to
protect the economic rights and prevent economic harm to the performers.[11]
The Doctrine of Publicity talks about
a performer’s rights in relation to their image, identity, likeliness etc and
to prevent economic harm to the said performer by way of an injurious act.
Later, this doctrine got evolved into the identity test. Through this test, a
performer is identified by a trait, routine or style that is unique to them
which curates a distinct and unique identity for a said performer. In Midler
v Ford Motor Co[12]
the US Courts have given performer’s protection in event their voices are
being imitated. There is another case of Bert Lahr v Adell Chemical Co Inc[13] that
is along the same lines as the Midler case.
In Indian context, this doctrine has
gained some traction, in Shivaji Rao Gaikwad (aka Rajnikant) v Varsha
Productions[14]
a film by name of Mai Hoon Rajnikant was to be released, Rajnikant,
the actor in order to prevent undue association in eyes of the public between
the picture and him brought the case in front of the Court. The Madras High
Court accordingly ruled that a film basing the premise on Rajnikant’s image and
name would result in undue association as he does not have any control over his
identity, likeness or persona in the film and put a stay on the release of the said
film.
In Titan Industries Ltd. V M/S Ramkumar
Jewellers[15]
The Delhi High Court observed that
“When the identity of a famous personality is used in advertising without their
permission, the complaint is not that no one should not commercialize their identity
but that the right to control when, where and how their identity is used should
vest with the famous personality. The right to control commercial use of human
identity is the right to publicity.”
Although, there is growing evidence
that Indian Judiciary has followed in the footsteps of US Jurisprudence whilst
also maintaining an independent stand that there not be necessarily only
economic injury that would trigger any remedial action, undue association which
is prejudicial to reputation and harm which would cause undue embarrassment and
association with a work that is under no control of the aggrieved amounts to
violation of their rights, however, critically, it is to be noted that all this
has been dealt under Constitution of India and not the Copyright Act, 1957.
Also, this jurisprudence vis-à-vis protection of an image or identity is in a
nascent stage and no authoritative decision has been laid down by Supreme Court
nor has the legislation come up with anything to address the same.[16]
With the wide outreach of Indian film
and music industry all around the globe, there seems to be sufficient evidence
that should warrant consideration from the Legislature to plug in the gaps and
provide more sufficient and adequate protection to performer’s moral rights
against distortion, mutilation, alteration or undue association of their
persona, likeness, voice, routine, style etc that would be prejudicial to their
honour and reputation.
Additionally, much is left to be
desired for protection of moral rights in performer’s context.
In today’s digital world, it is easy
to imitate a performer’s persona, likeness, voice, distinct traits etc,
parodies for example have come in vogue across many social media platforms and
have become part of amusement of many. However, it also raises a question that
needs to be answered, do parodies which show performers in poor light under the
garb of joke or sarcastic banter also amount to injury of their moral rights as
their distinct identity, persona, routine or style is invariably being shown in
poor light for sake of few laughs and jokes, the interplay of free speech under
Article 19(1) and Article 19(2) and moral rights of performers needs to be
examined. As of now, nothing has emanated from the Judiciary and it leaves with
an open-ended question in the paper for now.
Due to the advent and spread of
social media technology, it is easy to imitate, this particularly leaves
folklore that exists in India exposed and vulnerable to such imitations that
can be passed of as their own creation. This would be a huge blow to India’s
cultural prestige and regional cultural prestige under the current IPR regime,
no protection would be afforded to such important yet ‘unprotected’ folklore.[17]
CONCLUSION AND SUGGESTIONS
While there is no doubt that Indian
Copyright regime has moved with the times, the pace and the integration and
recognition has been not that desirable. From a time when moral rights of
authors was at par with Berne convention to it being curtailed and tapered down
so as to protect commercial interests that may be involved. This may seem like
Indian Intellectual Property Right regime in context of moral rights moving in
tandem with the global stance on moral rights and recognition to be able to
attract investment and new opportunities by providing a more friendly
intellectual property regime that strikes a balance between keeping in mind the
commercial interests and duty and liabilities of parties that maybe involved
and at other hand protecting author’s and performers’ moral rights such as
right of paternity and integrity. Much credit to growth and development of
moral rights’ should be accredited to Indian Judiciary who with their judicial
invention sought out to carve out a distinct jurisprudence and regime which
gave importance to protection of author’s and performers’ creative interests,
reputation and expression and afforded them protection whenever such reputation
or honour was in jeopardy. What could have been a distinct and unique
jurisprudence was curtailed by way of amendments to comply and fall in line
with global stance on moral rights however this does not mean that the scales
should tip in favour of commercial interests as has been the case by way of
amendments and sparse protection being offered to authors’ and performers’
alike. Lack of litigation thereby leading to lack of jurisprudence has acted as
a handicap but the Indian judiciary nonetheless took the challenge well and
came up with global first interpretations on moral rights of author’s and
quickly caught on with performer’s moral rights protection as well. Despite
moral rights of author’s being tapered down, the position seems to be
stabilised and with not many calls from the industry to come up with something
that affords more protection. However, in the context of performer’s moral
rights protection, much is left to be desired. The folklore that is important
part of culture and prestige remains unprotected and vulnerable, rights in
relation with persona, likeness, identity, specific routine etc of performers
needs to be incorporated into the protection ambit.
It is the author’s suggestion that
Indian legislature should consider a fresh and renewed focus on protection of
performer’s right as the Indian film industry in particular has a wide outreach
both nationally and internationally and the current IPR regime does not offer
any authoritative or substantive protection to them. Their primary resort is
Constitution of India under Article 19 and 21 which raises a question as to why
should that be the primary resort to remedy when there already exists a statute
for the same who has afforded protection to some degree in case of undue
association of performer who has no control over the source of undue
association which can cause serious detriment to their honour and reputation in
the public domain. It is the author’s suggestion that protection envisaged
under the current scheme either should be broadened or the Indian legislature
should pave way for sui generis protection net for performer’s moral
rights and protection.
This also presents the Indian
Judiciary or legislation with a unique opportunity, while US doctrine is
triggered only in event of an economic harm, there is already substantial
evidence that in Indian context, reputation and honour also holds a significant
footing that runs parallel and not completely dependent on economic injury
being accrued. This presents Indian legislation and Judiciary with an
opportunity to incorporate the identity test which would afford protection to
author’s right of paternity and integrity which would not be necessarily
triggered in event of economic harm but when there is undue association or
distortion or mutilation of said work or persona that is prejudicial to their
honour and reputation in the public domain.
While there have been hits from
Indian Judiciary, there have been misses from the Indian legislature,
partially, under pressure to fall in line with global position but that should
not leave performers’ rights under protected as that has its own challenges and
risk such as creating a non-lucrative non-incentivised environment. This would
inevitably lead to under creativity which would frustrate the tenets of
Intellectual Property Law. It is the author’s suggestion that Indian
Legislation picks up the baton and comes up with adequate and sufficient
protection to all the players involved.
[1]J.A.L Sterling, The World
Copyright Law (3rd edn. Sweet and Maxwell, 2004) 1594.
[2] World Intellectual Property
Organisation, Understanding Copyright and Related Rights, WIPO https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf
(last visited on 5th February).
[4] Fortune Films International v
Dev Anand AIR 1979 Bom 17.
[5] The Indian Copyright Act, 1957 § 2
cl.(qq), No. 14, Acts of Parliament, 1957 (India).
[6] The Indian Copyright Act, 1957 § 2
cl.(q), No. 14, Acts of Parliament, 1957 (India).
[7] Juhi Senguttuvan & Saushriya
Havelia, Performers Rights in India: A critical analysis of performers and
performance under the Indian Copyright Act 1957 Indian Journal of Law,
Polity and Administration (2019).
[8] Motion Picture Association, India
Joins WIPO Internet Treaties: A Major step forward, Motion Picture
Association,
https://www.mpa-apac.org/2018/07/india-joins-wipo-internet-treaties-a-major-step-forward/#:~:text=On%20July%204%2C%20the%20Indian,Treaty%20(WPPT)%2C%201996.
(last visited on 5th February).
[9] Supra Note 30 at pg. 166.
[10] Neha Bhasin v Raj Anand
MANU/DE/1729/2006.
[12] Midler v Ford Motor Co. 849
F.2d 460 1988.
[13] Bert Lahr v Adell Chemical Co
Inc. 300 F.2d 256 (1st Cir 1962).
[14] Shivaji Rao Gaikwad (aka
Rajnikanth) v Varsha Productions 2015 (62) PTC 351 (Madras).
[15] Titan Industries Ltd. V M/S
Ramkumar Jewellers CS(OS) 2662/2011 (Delhi High Court).
[16] Prakash Sharma and Devesh
Tripathi, Celebrities’ Agony: Locating the Publicity Rights in the existing
IPR framework, Indian Law Institute Law Review, 2019 41
[17] Sanhita Ambast, Protecting
Performer’s Rights: Does India need Law Reform? 13 Journal of Intellectual
Property Rights 574 (2008)
Article Information
POSITION OF MORAL RIGHTS OF PERFORMERS IN INDIA: ARE THEY PROTECTED ENOUGH? BY: ANSHUMAN BISARYA
Authors: ANSHUMAN BISARYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/14
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.