Chapter 8: Rights of Broadcasting Organisation and of Performers
Simple Meaning: This chapter creates two special sets of rights that are separate from the author’s copyright. These are often called “Neighbouring Rights” or “Related Rights.”
Broadcast Reproduction Right: This protects the signal of a broadcaster (like a TV or radio channel).
Performer’s Right: This protects the performance of an actor, singer, musician, etc.
Section 37: Broadcast Reproduction Right
Simple Meaning: This section gives TV and Radio channels a special right to protect their broadcast from being copied and re-used without their permission.
Section 37(1): The Right Exists
The Rule: Every broadcasting organisation has a “broadcast reproduction right” in its broadcasts.
Practical Example: When a TV channel like ‘Star Sports’ broadcasts a live cricket match, Star Sports owns the copyright in the film of the match (as the producer), but it also owns this separate “broadcast reproduction right” in the signal it is sending out.
Section 37(2): Term (Duration)
The Rule: This special right lasts for 25 years.
How it’s Calculated: The 25-year clock starts on January 1st of the year after the broadcast is made.
Practical Example: A broadcast is made on June 15, 2024. The 25-year clock starts on January 1, 2025, and ends on December 31, 2049.
Section 37(3): What is Infringement?
Simple Meaning: During that 25-year period, anyone who does the following without a licence from the broadcaster is infringing this right:
(a) Re-broadcast the broadcast:
Practical Example: A local cable operator captures the ‘Sony TV’ signal and re-transmits it on their own “local channel” without paying Sony. This is a direct infringement.
(b) Cause the broadcast to be heard/seen on payment:
Practical Example: A community hall or a restaurant puts up a big screen to show a “Pay-Per-View” boxing match broadcast, and charges an entry fee to watch it.
(c) Make any sound or visual recording of the broadcast:
Practical Example: You record a live F1 race from the TV broadcast onto a hard drive.
(d) Make a reproduction of such a recording:
Practical Example: You take the recording you made in (c) and make 100 DVD copies to sell.
(e) Sell or rent any such recording:
Practical Example: You sell the 100 DVD copies you made.
Section 38: Performer’s Right
Simple Meaning: This section gives “performers” (actors, singers, musicians, dancers, etc.) a special right to protect their live performances.
Section 38(1): The Right Exists
The Rule: When a performer (as defined in Sec 2(qq)) appears in a performance, they get a “performer’s right” in that performance.
Section 38(2): Term (Duration)
The Rule: This right lasts for 50 years.
How it’s Calculated: The 50-year clock starts on January 1st of the year after the performance is made.
Practical Example: A singer performs a live concert on October 10, 2024. Her “performer’s right” for that specific performance starts on January 1, 2025, and ends on December 31, 2074.
Section 38(3) & 38(4): OMITTED
Simple Meaning: These sub-sections, which used to list the performer’s rights, were Omitted (deleted) by the 2012 amendment. They were replaced by the much stronger and more detailed Section 38A.
Section 38A: Exclusive Right of Performers
Simple Meaning: This is the most important section for performers, introduced in 2012. It defines what the “performer’s right” actually is. It is an exclusive right (a monopoly) to do or authorize certain acts.
Section 38A(1): The “Bundle of Rights”
Simple Meaning: A performer has the exclusive right to do or authorize:
(a) Making a sound or visual recording of the performance. This right itself includes a bundle:
(i) Reproduction: Making copies of that recording (e.g., printing DVDs, copying MP3s).
(ii) Issuing Copies: Selling or renting those copies.
(iii) Communication to Public: Broadcasting or streaming the recording (e.g., putting a video of the performance on YouTube).
(iv) Selling or Renting: (This is a bit repetitive, but reinforces the commercial rights).
(b) Broadcasting or communicating the live performance to the public (unless it’s already a broadcast).
Practical Example: A musician is performing live at a café.
Right (a): You cannot record her performance (on video or audio) without her permission.
Right (b): A radio station cannot just plug into the café’s sound system and broadcast her performance live without her permission.
Section 38A(2): The “Film” Exception (Very Important!)
Simple Meaning: This section clarifies what happens when a performer agrees to be in a film.
The Rule: Once a performer has consented in writing to “incorporation of his performance in a cinematograph film,” they lose their right (under 38A(1)) to object to the producer exploiting that performance as part of that film.
Practical Example: An actor signs a contract to be in a Yash Raj Films movie. He cannot later use his “performer’s right” to stop YRF from showing the movie in theaters, selling it to Netflix, or releasing it on DVD. His consent to be in the film automatically includes consent for the film to be used normally.
Proviso to Section 38A(2): The Royalties (CRITICAL!)
Simple Meaning:BUT… This is a non-waivable right. Even after consenting to be in the film, the performer shall be entitled to royalties for any commercial use of their performance (e.g., when the film is shown on TV, streamed on an app, or its songs are played on the radio). This right to royalties cannot be signed away in a contract (except to heirs or a copyright society).
Section 38B: Moral Rights of the Performer
Simple Meaning: This is just like the “Author’s Special Rights” (Section 57). Even if a performer assigns their rights away, they always keep their “moral rights.”
The Rule: A performer has the right:
(a) To claim to be identified as the performer (The “Right of Attribution” or “Credit”).
Exception: Unless the “manner of use” makes it impossible (e.g., you can’t list the name of every single musician in a 100-person orchestra every time the music is played).
(b) To restrain or claim damages for any distortion, mutilation, or modification of their performance that would be “prejudicial to his reputation” (The “Right of Integrity”).
Practical Example: A singer’s performance is used, but it’s “auto-tuned” so badly that it makes her sound terrible. This is “prejudicial to her reputation,” and she can sue to stop it, even if she sold the rights to the recording.
Explanation (What is NOT prejudicial): The law clarifies that simple editing, cutting a performance for time, or technical modifications are not considered “prejudicial.”
Section 39: Acts not infringing broadcast reproduction right or performer’s right
Simple Meaning: This is the “fair use” or “exceptions” list for these new rights. These acts are NOT considered infringement.
The Exceptions:
(a) Private Use / Education: Making a recording solely for the private use of the person making it, or for “bona fide teaching or research.”
Practical Example: You “TiVo” or DVR a live TV broadcast to watch it for yourself later. This is legal “private use.”
(b) Fair Dealing (Criticism/Review/News): Using excerpts of a performance or broadcast in a way that is “consistent with fair dealing” for:
Reporting of current events.
“Bona fide review, teaching or research.”
Practical Example: A movie critic’s TV show includes a 15-second clip of an actor’s performance from a new film. This is a classic “review” and is not infringement.
(c) Other Section 52 Exceptions: Any other act that is already an exception under Section 52 of the Act (the main copyright exceptions list) also applies here.
Section 39A: Certain provisions to apply in case of broadcast reproduction right and performer’s rights
Simple Meaning: This is a “connector” section. It says that many of the main rules about copyright (like assignment, licensing, societies, and penalties) also apply to these new “neighbouring rights.”
…all apply to Broadcast and Performer’s rights as if they were “copyright.”
Practical Implication: This is huge. It means:
A performer can “assign” their rights, but it must be in writing (Section 19).
Performers and Broadcasters can form their own Copyright Societies to collect royalties (Section 33).
A broadcaster can sue an infringer for damages (Section 55).
A performer can have an infringer arrested for “knowingly infringing” their performer’s right (Section 63).
Proviso (No Infringing Broadcasts): This right does not exist if the broadcast or performance is itself an infringement of an underlying copyright (e.g., a TV channel broadcasts a pirated movie).
Section 39A(2): Separate Rights
The Rule: This confirms, once again, that these rights are separate. The performer’s right does not affect the author’s copyright in the song being sung. The broadcaster’s right does not affect the producer’s copyright in the movie being shown. All rights co-exist.
