Performers and Broadcasters Rights

Category: Entertainment

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Seminar Paper on IPR Law:

Seminar Paper on IPR Law

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“Copyright is the Cinderella of law. Her rich old sisters, franchises and patents, long crowded her into the chimney– corner. Suddenly the fairy godmother, invention, endowed Her with mathematical and electrical devices as magical as the pumpkin coach and the mice footmen. Now she whirls through the mad mazes of a glamorous ball”.



Intellectual Property Rights:


Forms of IPR:

Forms of IPR Copyright and Related Rights Patents Trade Marks Industrial Designs Geographical Indications Integrated Circuits Trade Secrets

What is a Copyright?:

What is a Copyright? Legal term describing rights given to creators of original Literary work Artistic works Dramatic works Sound recordings Films

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It consists of Bundle of Rights Exclusive rights to authorize use Right to reproduction Distribution Rights Translation and Adaptation Rights Economic and Moral Rights

What is Neighbouring Right?:

What is Neighbouring Right? Neighbouring/Related Right is a term in copyright law, in opposition to the term “authors rights” It is a mere literal translation of the original French droits voisins Derived works and activities

Related and Neighboring Rights:

Related and Neighboring Rights Rights of Performing Artists in their Works Broadcasters of Radio and Television Programmers Producers of Sound Recordings in their Recordings

Term of Protection:

Term of Protection Performers and Producers of Phonograms -less than 50 years Broadcasting Organizations - 25 years



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“ Broadcasting opened a great opportunity of showing performance to a truly mass audience and thus emerged a set of rights which were exclusive to these broadcasters” -CORNISH

What is a Broadcasters Right?:

What is a Broadcasters Right? Neighbouring right associated with original, dramatic, literary work What is protected is inability on the part of other to legally broadcast the work Independent of author’s right

Indian Copyright Act, 1957:

Indian Copyright Act, 1957 Amendment Act 1994 introduced “Broadcasting Reproduction Rights” Sec 37 Broadcasting Reproduction Rights and Infringement Sec 39 Acts not causing Infringement of Broadcasting Rights Sec 52 Exceptions to Infringement

Section 37:

Section 37 Rebroadcasts the Broadcast Causes it to be heard or seen by the public on payment of any charge Makes sound recording or visual recording of the broadcast Makes any reproduction of such sound recording or visual recording of the same where initial recording was done without license or for any purpose not envisaged by the act Sells or hires to the public or offers to the public the same mentioned in cls (c) or (d)

Section 38:

Section 38 Private use of the person or for the purpose of bona fide teaching or research Use of fair dealing excerpts of a broadcast in the reporting of current events or for bona fide research or teaching Such other use which do not constitute infringement

Section 52 :

Section 52 Private use, use by a society for bona fide teaching or research Excerpts in the reporting of the current events, bone fide review, for news paper, magazines For use in judicial proceedings For use of the members of a legislature Use in a certified copy as per law For educational purposes in educational institutions

Other Relevant Sections:

Other Relevant Sections Sec 18 and 19 Sec 30 Sec 55 Sec 58 Sec 64 Sec 65 Sec 66


Television Musical Work Tape Recording of Broadcast Sporting Events

Broadcasters Right and Indian Judiciary:

Broadcasters Right and Indian Judiciary Super Cassettes ltd v. Entertainment Networks (India) ltd (AIR 2004 Del. 326) Video Master v. Nishi Productions (MANU/MH/0093/1997) Gareware Plastics & Polyester ltd v. Telelink(AIR 198 Bom. 331) Secretary, Ministry of Information and Broadcasting, and others V. Cricket Association of Bengal And another (1998) 2 SCC 161

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ESPN v. Global Broadcast News Pvt. And Others MIPR 2008 (3) 0257 A.A. Associates v. Prem Goel AIR 2002 Del. 142 Raj Video Vision v. Sun TV 1994 (2) MLW 158

Broadcasters Right in the U.S.:

Broadcasters Right in the U.S. Constitutional Protection-Art. 1(8) The concept of Fixation Rights of Broadcasters -Right of Reproduction -Right to Sue

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Exceptions to the Right -Private Use (Audio Home Recording Act,1992) Sony Corporation of America v. Universal City Studio -Compulsory Licensing (Copyright Act 1909,1976) -Instructional Broadcasting

Broadcasters Right in the U.K.:

Broadcasters Right in the U.K. The Copyright, Patents and Designs Act, 1988 - Tape Record for Broadcast - Exception of Fair Dealing on sound recording and films - Defense of Incidental Inclusion - Right to Broadcast artistic works on public display - Right against Fraudulent Reception

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Rights under 1990 Act - Statutory License - Criminalization of certain acts EC Directives - The Satellite Broadcasting and Cable Re transmission Directives - Rental Rights and Related Rights Directive (1992) - Home Tapping, Public Redistribution Rights - The Educational Receding Agency

International Protection of Broadcaster’s Right:

International Protection of Broadcaster’s Right European Agreement on the Protection of Television Broadcasts (1960) Brussels Satellite Convention (1974) Rome Convention, 1961 Berne Convention WIPO (World Symposium on Broadcasting, New Communication Technologies and Intellectual Property in 1997) TRIPS Art 14(3)


Suggestions Regulatory Authority Protection against Infringement at the earliest. Prohibiting Unjust Enrichment Educating the Public should be made mandatory by the government




PERFORMERS RIGHT Transitory activity Without the Aid of Technology Form of Communication Entertainment, ritual or education

Justification for Performers Right:

Justification for Performers Right Right over the input of the creator Protection of Economic and Moral Rights Public Good Natural Justice and Equity Right to Life

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Unfixed and Unscripted Unfixed and Scripted Fixed and Scripted Scripted and Fixed It comprises of Economic Rights Moral Rights Non-tangible Rights

Performers Right in India:

Performers Right in India Performer Sec (qq) Performance Sec 2 (q) Performers Right Sec 38 Infringement of Performers Right Sec 38 Acts not constituting Infringement Sec 39

Section 38:

Section 38 Exclusive Right to -Make sound recording or Visual Recording -To reproduce the same -To broadcast the Performance -To communicate the Performance to Public otherwise than by Broadcast

Section 38:

Section 38 Make sound recording or Visual Recording of the Performance Reproduces the same which was - made without performers consent - For purposes for which Performer did not give Consent - Acts not covered by Sec 39 Broadcasts the Performance not as per Sec 39 or Rebroadcast Communication of the Performance to the Public

Section 39:

Section 39 For Private Use, bona fide teaching or research For Reporting Current Events, bona fide Research Other Acts falling under Sec. 52

Applicability of Other Provisions:

Applicability of Other Provisions Sec 18 and19 Sec 30 Sec 55 Sec 58 Sec 64 Sec 65 Sec 66

Rights and Restrictions of Foreign Broadcasting Organizations:

Rights and Restrictions of Foreign Broadcasting Organizations Section 40 A Section 42 A Amendment Act of 1999

Performers Right and Judiciary:

Performers Right and Judiciary Fortunes Film Industries V. Dev Anand (AIR 1979 Bom. 17) Super Cassettes Industries V. Bathla Cassette Industries (107 2003 DLT 91)

Performers Right in U.K.:

Performers Right in U.K. Performer Protection Act, 1925 Performer Protection Act, 1958 Rickless V. United Artists (1987 2 W.L.R. 945) Copyright, Designs and Patents Act, 1988

Performers Right in U.SA.:

Performers Right in U.SA. Law of Torts Right of Publicity Midler V. Ford Motor Corpn. (849 F.2d 460) Lahr V. Adell Chem Co. (300 F 2D 256)

International Measures:

International Measures International Protection for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1996 OR Rome Convention The WIPO Performances and Phonograms Treaty, 1996 OR WPPT The TRIPS


Suggestions Sui generis Protection Demarcation of Performers Rights Independent Intellectual Property Rights Incorporation of Publicity Rights, Moral Rights and Non-tangible Rights Protection against Internet Piracy Adaptation of WPPT


References ICFAI Law Journal, “ Protecting Performers Rights: Does India needs Reform?” , Sanhita Ambast, Vol. 13, Nov. 2008 Intellectual Property Rights: Legal Framework, "Telecasting and Broadcasting Rights of Sporting Events”, Dr. T. Vidyakumari ICFAI Law Journal, “Broadcasters Right under Copyright Law”, Tarun Jain, Vol. 7 2008 P. Narayanan, Intellectual Property Law, 3 rd Edn. 2006 W.R. Cornish, Intellectual Property Law, 3 rd Edn. 2001 MIPR 2008 Nov. Vol. 3 (1998) 2 SCC 161

Electronic Source:

Electronic Source

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