Performers' Rights and Broadcast Reproduction Rights (Sections 37–39A)

Sections 37 to 39A of the Copyright Act, 1957 create a parallel scheme of protection for two stakeholders who are not authors but who add identifiable economic value to a copyrighted performance — the broadcasting organisation and the performer. The category in international copyright doctrine is the "neighbouring" or "related" right: it sits next to copyright proper, draws its protection from a different rationale, and runs on a separate term. Chapter VIII of the Act is the Indian implementation of that international category.

The 2012 Amendment did to performers' rights what the 1994 Amendment had done to broadcasting organisations. It moved the chapter from a thin recognition of negative rights to a substantive recognition of economic and moral entitlements, and brought Indian law into compliance with the WIPO Performances and Phonograms Treaty, 1996 (WPPT) and Article 14 of the TRIPS Agreement. The student approaching this chapter must therefore hold three time-frames simultaneously: the original 1957 Act (which had neither right); the 1994 Amendment (which created Sections 37 to 39A in their original form); and the 2012 Amendment (which substantially rewrote Sections 38, 38A and 38B to add the modern performer's right).

Statutory anchor and scheme

Chapter VIII has the following structure:

1. Section 37 — broadcast reproduction right; the exclusive right of the broadcasting organisation in respect of its broadcast for 25 years.
2. Section 38 — performer's right; the exclusive right of the performer in respect of his performance for 50 years.
3. Section 38A — exclusive rights of performers; the bundle of acts the performer alone may authorise.
4. Section 38B — moral rights of the performer; the right to be identified and the right against derogatory treatment.
5. Section 39 — acts not infringing the broadcast reproduction right or performer's right; the fair-use exceptions for these neighbouring rights.
6. Section 39A — application of certain provisions of the Act (such as those on assignment, civil and criminal remedies) to the neighbouring rights.

Section 37 — the broadcast reproduction right

Section 37(1) declares that every broadcasting organisation shall have a special right known as the "broadcast reproduction right" in respect of its broadcasts. The right subsists for twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. The expression "broadcast" is defined in Section 2(dd) and means communication to the public by any means of wireless diffusion (whether in any one or more of the forms of signs, sounds or visual images), or by wire, and includes a re-broadcast.

Sub-section (3) lists the acts that constitute infringement of the broadcast reproduction right when done without the licence of the owner: re-broadcasting the broadcast, causing the broadcast to be heard or seen by the public on payment of any charges, making any sound or visual recording of the broadcast, making any reproduction of such recording, and selling or hiring or offering for sale or hire any such recording. The provision is exhaustive — the broadcaster's right is over the precisely listed acts, not over the underlying content (which is governed by ordinary copyright in the literary, musical or cinematographic work).

The architecture is therefore double-layered. A live football telecast contains, conceptually, two distinct rights: the cinematograph-film copyright in the recording (where one is made), and the Section 37 broadcast reproduction right in the live signal itself. Pirate downstream re-broadcast may infringe both. The doctrinal separation matters because the proprietor of each right may be different — the production company versus the broadcaster — and the respective terms differ — sixty years for the cinematograph film versus twenty-five for the broadcast reproduction right.

Section 38 — performer's right

Section 38(1), as substantively rewritten by the 2012 Amendment, declares that where any performer appears or engages in any performance, he shall have a special right known as the "performer's right" in respect of such performance. The right subsists for fifty years from the beginning of the calendar year next following the year in which the performance is made.

The definition of "performer" in Section 2(qq) is wide and was further expanded by the 2012 Amendment. It includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. The 2012 proviso, however, excludes from the definition — for the purposes of the cinematograph film — those performers whose performance is casual or incidental in the normal course of the practice of the industry, and whose names are not acknowledged in the credits of the film. The proviso is the legislative compromise: principal performers (the lead actor, the playback singer) get the full Section 38 protection; the chorus dancer in the background does not.

Section 38A — exclusive rights of performers

Section 38A, inserted in 2012, lists the exclusive acts that the performer alone may authorise. They include making a sound or visual recording of the performance, reproducing the recording, issuing copies to the public, communicating it to the public, selling or commercial-rental of the recording, and broadcasting or communicating to the public the performance otherwise than where such performance is already broadcast. The bundle is the performer's analogue of the Section 14 author's bundle: the structural choice in 2012 was to give the performer a copyright-style exclusive-rights bundle rather than the older negative right against unauthorised fixation alone.

The proviso to Section 38A(2) is critical for the film industry. Once the performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film, he is deemed to have assigned to the producer of the film the rights mentioned in Section 38A in respect of that performance. There are two carve-outs: first, the performer is entitled to receive royalties in case of making of the performances for commercial use; second, the performer's moral rights under Section 38B survive the deemed assignment. The structure mirrors the 2012 changes to authorship and ownership under Sections 17 to 19A, where the underlying author of literary and musical works in films retains a non-waivable royalty right. The economics also intersect with the assignment and licence regime under Sections 18 to 32B, which determines how the deemed assignment may be modulated by individual contract.

Section 38B — moral rights of the performer

Section 38B grants the performer two moral rights: the right to be identified as the performer of his performance, except where omission is dictated by the manner of the use of the performance; and the right to restrain or claim damages in respect of any distortion, mutilation or other alteration of his performance that would be prejudicial to his reputation. The provision is the parallel of Section 57's moral right of the author — paternity (right of attribution) and integrity (right against derogatory treatment) — applied to the performance.

The integrity right has a useful caveat. Section 38B's Explanation states that mere removal of any portion of a performance for the purpose of editing, or to fit the recording within a limited duration, or any other alteration required for purely technical reasons shall not be deemed to be prejudicial to the performer's reputation. The exception protects routine editorial work. What it does not protect is dubbing the performer's voice with words he never spoke, or splicing the performance into a context that distorts its meaning — that goes to the performer's reputation and remains actionable.

Section 39 — fair-use exceptions to the neighbouring rights

Section 39 lists the acts that do not infringe the broadcast reproduction right or the performer's right. They include: a sound recording or visual recording made for private use; a sound recording or visual recording for bona fide teaching or research; the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; and any other act with any necessary adaptations and alterations which would not constitute an infringement of copyright under Section 52 fair dealing.

The drafting is economical. Rather than re-list every Section 52 fair-dealing exception as it would apply to performers and broadcasters, Section 39 incorporates Section 52 by reference, with the necessary alterations. In effect, every fair-dealing exception in copyright proper has its parallel in the neighbouring rights regime. The student needs to remember only that the substance of the exceptions is the same; the framing is just adjusted to fit the performance / broadcast setting.

Section 39A — application of provisions of the Act

Section 39A is the bridging provision. It applies, with the necessary adaptations and alterations, the provisions of the Act dealing with assignment of copyright (Section 18), the rights of the assignee (Section 19), the disputes-with-assignee mechanism (Section 19A), the registration framework, the civil remedies for infringement (Sections 55 to 62), the offences and penalties (Sections 63 to 70), and the importation of infringing copies (Section 53), to the broadcast reproduction right and the performer's right. The result is that a performer or broadcaster who suffers infringement of his Section 37 or Section 38 right has access to the same remedial toolkit — injunction, damages, accounts, criminal complaint, customs interdiction — as the author of a copyright work.

International benchmarks — Rome 1961, WPPT 1996, TRIPS

The neighbouring-rights category is a creature of international copyright law. The Rome Convention, 1961 — the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations — was the first multilateral instrument to create the category. Article 7 of Rome confers on performers the right to prevent unauthorised broadcasting and fixation of their live performance; Article 13 protects broadcasting organisations against the listed acts of re-broadcasting, fixation and reproduction, on a minimum twenty-year term. India is not a party to Rome.

The WIPO Performances and Phonograms Treaty, 1996 (WPPT) updated the Rome scheme for the digital environment. Article 5 of WPPT created the moral rights of the performer — the right to be identified and the right against derogatory treatment — in language that Section 38B of the Indian Act tracks closely. Article 6 to 10 of WPPT created the bundle of economic rights — broadcasting and communication of unfixed performances, fixation, reproduction, distribution, rental, making available — that Section 38A of the Indian Act tracks. India acceded to WPPT in 2018; the 2012 Amendment had already brought domestic law into substantial WPPT-compliance.

Article 14 of the TRIPS Agreement, 1994, made these neighbouring-rights protections part of the WTO acquis. TRIPS requires WTO members to grant performers the right to prevent unauthorised fixation, reproduction and broadcasting of their live performance for at least fifty years; phonogram producers a reproduction right for at least fifty years; and broadcasting organisations a right to prohibit fixation, reproduction and re-broadcast for at least twenty years. The Indian terms (50 years for performers, 25 years for broadcasters) meet or exceed these floors. The 2012 Amendment is, in this sense, India's TRIPS-and-WPPT compliance package for the neighbouring rights.

Section 39 unpacked — the fair-use parallels

Section 39 lists four categories of acts that do not infringe the broadcast reproduction right or performer's right. The first is private use — a student making a sound or visual recording for purely personal study or research. The second is bona fide teaching or research — a recording made for use in a classroom or for academic enquiry. The third is reporting of current events — a news organisation that uses an excerpt of a performance or broadcast in a current-affairs report, provided the excerpt is no more than is reasonably required for the report. The fourth is the catch-all: any other act that, with necessary adjustments, would not constitute an infringement of copyright under Section 52.

The fourth limb is the operational provision. Because Section 52 enumerates a substantial list of fair-dealing exceptions — judicial proceedings, legislative reporting, religious ceremonies, educational use, library copying, archival reproduction, computer-software back-up — incorporating them by reference into Section 39 saves a parallel enumeration. The audit, when applying Section 39, must therefore look to Section 52 jurisprudence for substance, with whatever adjustments the performance / broadcast setting requires.

Distinguish — copyright, broadcast reproduction right, performer's right

The three rights coexist in respect of the same content. A live concert can carry copyright in the underlying musical and literary work (with the composer and lyricist), the performer's right in the live performance itself (with each performer), and the broadcast reproduction right in the broadcast of the concert (with the broadcasting organisation). Each is independent. Each runs for a different term. Each is enforceable against different acts. A single infringer who pirates the broadcast and re-distributes it on the internet may find himself sued under Section 51 by the composer, under Section 38A by the performer, and under Section 37 by the broadcaster, all in the same proceeding.

A second distinction the question paper likes: the performer's economic rights under Section 38A may be deemed assigned to the producer once the performer consents to the incorporation of his performance in a cinematograph film, but the moral rights under Section 38B do not pass — they remain with the performer for life. Similarly, the underlying-author's royalty for non-theatrical exploitation is non-waivable under the parallel Sections 18 and 19. The 2012 architecture is, in essence, a careful separation of waivable and non-waivable elements.

Section 38A's deemed assignment — the proviso analysed

Section 38A's first proviso has produced more student confusion than any other part of Chapter VIII, and is worth a careful pass. The text says that once the performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film, he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer's right in the same film. The second proviso, however, preserves the performer's right to receive royalties in case of making of the performances for commercial use.

Three rules emerge. First, the deemed assignment is contractual in trigger — there must be a written agreement consenting to incorporation in a cinematograph film, not just an informal participation. Second, the deemed assignment is partial — only the rights necessary for the producer's enjoyment of the performance in the film pass; the performer keeps the residue. Third, the royalty for commercial use is not waivable: any clause in the agreement purporting to extinguish it is void as against public policy of the 2012 Amendment. The provision tracks the parallel non-waivable royalty introduced for underlying authors in Sections 18 and 19 of the Act.

Performers' societies — Section 36A's institutional layer

The economic value of Section 38A is realisable in practice only through collective management. A film actor cannot police every commercial that uses an unlicensed clip from his earlier film; a playback singer cannot pursue every restaurant that plays a recording of his song without the additional Section 38A licence. The 2012 Amendment therefore inserted Section 36A in Chapter VII, extending the copyright-society regime mutatis mutandis to performers' societies. The Indian Singers Rights Association (ISRA) is the leading example. Its tariffs and registration history have been the subject of litigation in Indian Singers Rights Association v. Chapter 25 Bar and Restaurant 2016 (68) PTC 49 (Del) and successor cases.

The performer's moral rights — paternity and integrity

Section 38B's two-part moral right deserves a closer look. The right of paternity (sub-clause (a)) is the right of the performer to be identified as the performer of his performance. The right of integrity (sub-clause (b)) is the right to restrain or claim damages in respect of any distortion, mutilation or other alteration of the performance that would be prejudicial to the performer's reputation. Both rights survive any deemed assignment under Section 38A and run for the life of the performer.

The carving-out of routine editorial work — by the Explanation to Section 38B — keeps the integrity right within sensible bounds. Mere length-cutting, technical re-mastering or format conversion does not engage the right. What does engage it is treatment of the performance that changes its character or context to the performer's reputational detriment: dubbing the performer's voice with offensive content he never spoke, splicing an actor's dramatic scene into a different work in a way that misrepresents his role, or re-cutting a singer's vocal track to convey a meaning she never sang. Each of these has been treated in the case law as the kind of derogatory treatment that Section 38B's integrity right was designed to reach.

Major cases

The leading case on Section 38 in the post-2012 setting is Super Cassettes Industries Ltd. v. Bathla Cassette Industries 2003 (27) PTC 280 (Del), which dealt with the older form of the performer's right but anticipated the bundle approach the 2012 Amendment formalised. Phoolan Devi v. Shekhar Kapur 1995 PTC (15) 46 (Del), although decided as a privacy / defamation case, has been read as an early Indian recognition of the integrity element that Section 38B would later formalise. On broadcasting, ESPN Star Sports v. Global Broadcast News Ltd. 2008 (37) PTC 392 (Del), and the Star India v. Piyush Agarwal line of cases on cricket-broadcast piracy, are the practical workhorses. They confirm that re-transmission of a live broadcast on a different platform without licence is infringement under Section 51 read with Section 37, and that the broadcaster has a quia timet remedy.

Exam angle — points the question paper returns to

Five propositions cover the bulk of the examinable terrain. One: the broadcast reproduction right runs for 25 years (Section 37), the performer's right for 50 years (Section 38) — different from the 60-year-from-publication term for cinematograph films and sound recordings. Two: the performer's exclusive economic rights under Section 38A may be deemed assigned to the film producer on consent to incorporation, but Section 38B moral rights survive the deemed assignment. Three: Section 38A includes a non-waivable royalty right for commercial use of the performance. Four: Section 39 fair-use exceptions track Section 52 mutatis mutandis. Five: Section 39A applies the assignment, civil-remedies and criminal-remedies machinery of the Act to the neighbouring rights.

For context, read this chapter alongside the institutional machinery for collective management — copyright societies under Sections 33 to 36A, especially Section 36A which extends the chapter to performers' societies — and alongside the bundle of exclusive rights under Section 14 against which the performer's and broadcaster's rights are most usefully contrasted. The registration provisions under Sections 44 to 50A apply to the neighbouring rights only by way of Section 39A's mutatis mutandis reference.

Frequently asked questions

What is the difference between copyright and a broadcast reproduction right?

Copyright protects the underlying literary, musical, artistic, cinematograph or sound-recording work and confers the bundle of exclusive rights in Section 14. The broadcast reproduction right under Section 37 protects the broadcast itself — the signal carrying the content — irrespective of whether the underlying content is in copyright. The two rights coexist over the same telecast: the producer holds the cinematograph-film copyright (60-year term), and the broadcaster holds the broadcast reproduction right (25-year term). Each is independently enforceable against the listed acts of unauthorised use.

What rights does a performer have under the Copyright Act, 1957?

Section 38 confers a performer's right for fifty years. Section 38A, inserted in 2012, gives the performer the exclusive rights to make a sound or visual recording of the performance, to reproduce it, to issue copies to the public, to communicate it to the public, and to sell, rent or broadcast it. Section 38B grants the performer moral rights — the right to be identified as the performer and the right against distortion or mutilation prejudicial to reputation. The economic rights may be deemed assigned to a film producer on consent to incorporation in a cinematograph film, subject to a non-waivable royalty for commercial use; the moral rights survive.

Are casual performers in a film entitled to the Section 38 performer's right?

No. The proviso to Section 2(qq), inserted by the 2012 Amendment, excludes from the definition of performer — for the purposes of a cinematograph film — those performers whose performance is casual or incidental in the normal course of the practice of the industry, and whose names are not acknowledged in the credits of the film. The intent is to limit Section 38 protection to identifiable principal performers (the lead actor, the playback singer) and to exclude background and crowd performers whose individual contribution is not commercially identifiable.

What is the term of the performer's right and the broadcast reproduction right?

Section 37(2) sets the broadcast reproduction right at twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. Section 38(2) sets the performer's right at fifty years from the beginning of the calendar year next following the year in which the performance is made. Both terms are different from the term of copyright in cinematograph films and sound recordings (sixty years from the year of publication) and from the term of copyright in literary, dramatic, musical and artistic works (life of the author plus sixty years).

What does Section 39A of the Copyright Act do?

Section 39A applies, with the necessary adaptations and alterations, the provisions of the Act on assignment of copyright (Section 18), the rights of the assignee (Section 19), the disputes-with-assignee mechanism (Section 19A), the registration framework, the civil remedies for infringement (Sections 55 to 62), the offences and penalties (Sections 63 to 70), and importation of infringing copies (Section 53), to the broadcast reproduction right and the performer's right. The effect is that the entire enforcement and assignment machinery of the Act is available to the neighbouring rights, without separate provisions having to be enacted for them.