Introduction:
Copyright is considered as a registered innovation, which is a fragment of intellectual property under which the original creator has legal rights over his work. This intellectual creation of original work is protected under copyright law. This right protect the original work after its creation, and there is no need for registration for it. But when we analyze the Copyright Act of 1957, we can find that this act does not mention anything about the performer’s rights.
These rights of performers get recognition when the 1994 amendment was passed to the Copyright Act. As per section 2 (qq) of the Copyright Act, word performer includes actor, juggler, acrobat, singer, musician, person giving the lecture, or any person who is performing.[1] And section 38 of this Act mentions the protection of performers’ rights. This ensures that performer right is not exploited and he gets the reward of his creative work.[2] So, in this paper as a researcher, I am going to discuss that what is need or importance of performers right, and important cases related to this right and constitutional basis of this right and in the last conclusion.
Need or Importance of Protecting the Performers Right
When we analyze the different situations of the past, we can find that there are so many issues related to it which give rise to it that there should be the protection of performers right. The mains reason for this is a violation of right due to increasing technology which give rise to broadcasting and recording of the performer’s creation. But when we see the last time, we can find that this right was not there, so Adam Smith gives two reasons for not having performers right.[3]
- Technological Reason: The work which is performed by all the performers is used to succumb the instant of its creation.[4]
- Historical and Social Reason: During the most influential period of the Copyright, all performers are considered nomadic by law. The musicians, opera dancers, players, and opera singers, etc., are the most important examples of unproductive laborers.[5]
But as the development of technology was at the maximum level at the time of the twentieth century, which led to broadcasting and recording of the performance for the public, nationally, and regionally, etc.[6]
According to the Copyright Act in India, all the performers are divided into three different categories:[7]
- The performer who is giving a live performance:[8] These are those performers who perform live in front of the viewers.
- The performer who is in a cinematograph movie or film and does not have credit in the movie:[9] When we analyze the type of performers, we can find that there are some types of performers who work as a supporting cast in the movies or films and considered as an extra in the movie. And to these performers, the Copyright Act does not protect them with one exception of moral rights.
- The performer who is in a cinematograph movie and has credit in the movie:[10] This is a case under which the performer gives his right to any other person by making a written agreement for the commercial use by which the performer get the monetary benefit.
So, by seeing this, we can say that all the acts which are performed by all the stand-up comedians will come under the first point of the different kind of performers. Therefore, Sunil Grover can claim his right over the Guthi character, which is played by him. But in 2013, Viacom 18 has given notice of claiming the Copyright over the Guthi character, which is played in the Comedy Nights with Kapil show.
Rights of Performer under the Copyright Act and Important Cases
As we have discussed how section 2 (q) of the Copyright Act defines performance and section 2 (qq) defines that who is a performer. But we have not discussed all the clause of section 38, because this is a section which is most relevant to the performer right. Because when we read section 38A clause 2, we can find that it says that all the rights of the performer which is mentioned in the section 38A (1) will be enjoyed or relished by the producer of that cinematographic movie or film under which that particular performer is incorporated.[11] The court in the case of Fortune Films International v. Dev Anand, has faced the question under which whether copyright existed in the performer’s performance by the High court of Bombay.[12] So, the court held that protection of copyright would only be available to those film which has cine artist who is not protected under the Copyright law.[13]
But when we see the issue of Guthi, we can find that this issue cannot get resolved by the Copyright Act of 1957. Because it is difficult to find that whether the person who has played the character will have a right over it or the producer who is paying to him and by whose show the character got famous will have a right.
So, when we analyze a similar case, which is held by the High Court of Kerala, that is Malayala Manorama v. V T Thomas.[14] In this case, the publishing house was not able to claim ownership over the character created or formed by the cartoonist because the cartoonist has formed the character before joining the Malayala Manorama.[15] Hence the court said that the cartoonist would have a right over the character, and he can use this character even after leaving the job of Malayala Manorama, and no one can restrict him from doing that.[16] But this case was not addressing the issue of ownership or right of copyright over the character directly. But mentions about one scenario under which a person can claim ownership over the character.
But when we analyze the case of the United States that is Nichols v. Universal Pictures, we can find that this is a case that has mentioned the important test that is a “character delineation test” (which is also known as Nichols Test).[17] This is a test in the United States, which I used to find the Copyrightability of the character. According to this test, we can find whether an actor who is playing the character is evolved in the heads of the viewers or readers, etc.[18] And whether that character is the original one and not copied from anywhere else. And if these kinds of conditions apply, then the person who is performing the character can claim the ownership and copyright over it. But when we analyze this concept with Guthi, we can find that he can claim ownership over the character. But he did not oppose Viacom 18 to claim the copyright.
Constitutional Base for Copyrightability
We can say that public notice which was released by the Viacom 18 infringes Article 19 (1)(g) of the constitution of India because they were restricting the artist or performer from copying the character of Guthi to any further show. Because of this, Viacom 18 is taking a right to the livelihood of any artist who is performing this.
When we analyze the basic idea behind the Copyright law, we can find that it is the law which is developed so that society can get information, and it also incentivizes the right of people.[19] This is because it is an artist who performs a character and infuses his life in it. But there is a producer who claims the copyright over it, even if he is not a producer of that character, but he is a distributor of created work. And this act cannot be considered that it is following the fact of proper allocation of rights because the sweat of the brow doctrine says that the actor or the performer should be the one who would be eligible for getting the copyright other than the producer who has no role in the performance of that character.
Conclusion
As we have analyzed the Copyright Act in India, we can find that this Act has resulted insufficient in protecting the performer’s right. Because the technology change has resulted in a big change in the entertainment market, which gives rise to this big issue, and there is a need to protect it. Like the issue arises that whether a person who is performing the character will have the right of copyright or producer can get copyright of that character. But by analyzing the argument of both the side, we can find that they both have strong backing because the producer is the one who is paying to the actors and making them popular by their show. But there is an actor who is playing the role with her thought and make that particular character successful. But by analyzing the above research paper, I can conclude that the person who is performing the character and there is no role played by the producer for the formation of that character, then the person should have the right to claim the ownership.
References:
[1] The Copyright Act, 1957, Section 2 (qq).
[2] The Copyright Act, 1957, Section 38.
[3] Priyam Bakliwal, Copyrightability of Characters: A Study Considering Proper Allocation of Performers Rights, September, 2018, available at http://www.ijresm.com/Vol_1_2018/Vol1_Iss9_September18/IJRESM_19_69.pdf.
[4] Id.
[5] Id.
[6] Competition and Enterprise Branch Ministry of Economic Development, Performers’ Right A Discussion Paper, available at http://www.med.govt.nz/business/intellectual-property/pdf-docs-library/copyright/performers-rights-discussion-paper-pdf.
[7] Pallavi Verma, Copyrightability of Characters, November 16, 2015, available at https://www.lawctopus.com/academike/copyrightability-characters-study-light-proper-allocation-performers-rights/.
[8] Id.
[9] Id.
[10]Id.
[11] The Copyright Act, 1957, Section 38 (2).
[12] Fortune Films International v. Dev Anand, AIR 1979 Bom 17.
[13] Id.
[14] Malayala Manorama v. V T Thomas, AIR 1989 Ker 49.
[15] Id.
[16] Id.
[17] Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930).
[18] Id.
[19] Supra Note 3.
0 Comments