Unveiling the Scope of Performer Rights in Copyright Law

When a singer performs a song on stage, they are not simply reproducing notes written by a composer. They bring their own voice, emotion, phrasing, and presence to that music – a creative act entirely distinct from the act of composition. Yet, for decades, Indian copyright law offered no protection to that contribution. The performer walked away with a fee, while producers and distributors reaped the long-term benefits of recordings. This gap, once starkly exposed by a landmark court ruling, has since been addressed through a legal framework that now recognises an expansive range of artists as “performers” deserving specific rights under law.

What does the law mean by “performer”? 🔗

Section 2(qq) of the Copyright Act, 1957 provides the statutory definition of a “performer.” It covers actors, singers, musicians, dancers, acrobats, jugglers, conjurers, snake charmers, persons delivering lectures, and any other person who makes a performance. A “performance” itself is defined under Section 2(q) as any live visual or acoustic presentation made by one or more performers.

The definition is deliberately inclusive. It does not restrict itself to classical or mainstream art forms. Even a street mime or a concert singer on stage qualifies as a “performer” under the law. This breadth reflects a legislative intent to cover the full spectrum of public artistic expression.

One important qualification introduced by the Act concerns incidental performers in films. The proviso to Section 2(qq) states that in a cinematograph film, a person whose performance is casual or incidental in nature and is not acknowledged anywhere – including in the film’s credits – shall not be treated as a performer. This carve-out is largely directed at junior artists or background extras who appear briefly without credit. The exception does not affect their moral rights under Section 38B, but it limits their access to the fuller range of performers’ rights available under Section 38A.

Why performers occupy a unique position in copyright law 🔗

Copyright law has traditionally focused on the creator of an original work – the author, the composer, the lyricist. Performers are different. They do not create the underlying work; they interpret and present it. In this sense, a performer’s relationship to an artistic work is somewhat like that of a translator to a literary text – they add a distinct creative layer that transforms the original into something audiences can experience directly.

An actor does not simply recite lines from a script. A dancer does not merely execute choreographic notation. A musician does not just reproduce written notation. Each brings timing, nuance, physical expression, and interpretive judgment that has no existence in the written work itself. Performers bring the works created by others to the public – their contribution is vital in bridging artistic creation with the audience. This intermediary creative role is precisely what the law now acknowledges and protects.

Non-traditional performers and the inclusive scope of the definition 🔗

One of the more notable features of the Indian definition is its explicit inclusion of performers who operate outside the mainstream entertainment industry. Acrobats, jugglers, conjurers, and snake charmers – art forms with deep roots in Indian folk and street performance traditions – are specifically named in Section 2(qq).

The Indian Copyright Act acknowledges a wider range of performers than what is required by the Rome Convention and TRIPS, explicitly naming acrobats, conjurers, snake charmers, and jugglers alongside the more expected categories of actors, dancers, musicians, and singers. This is a conscious choice to go beyond international minimums and protect forms of performance that are culturally significant in India even if they fall outside conventional entertainment categories.

The inclusion of persons delivering lectures is equally significant. It establishes that a performance need not involve artistic expression in the conventional sense – a structured oral presentation, delivered live to an audience, is sufficient to qualify. Importantly, even a performance recorded in a studio – such as a film song recording – counts as a “live” performance for the purposes of these rights.

How the law arrived here: the road to recognition 🔗

The absence of rights at the outset 🔗

When the Copyright Act was first enacted in 1957, and indeed even during the earlier British-era copyright legislation, performers received no specific statutory protection. Their contribution was treated as a service rendered for payment, not as a creative act generating independent legal rights.

The only reason why the performance of a performer was not protected under the Copyright Act was that it was not a “work” within the definition of Section 2(y) of the Act. Without fitting into the recognised categories of protected “works,” performers had no foothold in the law.

Fortune Films v. Dev Anand (1979): the case that changed the conversation 🔗

The legal gap became most visible in the case of Fortune Films International v. Dev Anand, decided by the Bombay High Court. The central question before the court was whether an actor held any copyright in his own performance within a cinematograph film.

The court held that under the provisions of the Copyright Act, 1957, the copyright in a cine artiste’s performance was not any “work” which was protected, and therefore the Copyright Act did not recognise the performance of an actor as a “work.” The practical consequence was stark: the court ruled that actors had no authority to control how their performance in a film was used – once paid for their work, the producer was free to use it in whichever way they chose.

The ruling was not an endorsement of this outcome but a recognition of the law’s existing limitations. It made plain that the Act, as it stood, was simply not equipped to deal with performers’ rights – and that legislative intervention was necessary.

The 1994 amendment: statutory recognition arrives 🔗

India’s accession to the principles of the Rome Convention of 1961 – the first international instrument to extend related rights protection to performers, record producers, and broadcasters – provided the international impetus for domestic reform. The Rome Convention was drawn up by nations in response to new technologies like tape recorders that made the reproduction of sounds and images easier and cheaper than ever before.

As a result of the Fortune Films judgment, there arose a need to include performer’s rights in the copyright law. The 1994 amendment introduced Sections 38, 39, and 39A into the Act to formally acknowledge and protect these rights. With this amendment, “performer’s right” became a recognised legal category in Indian copyright law for the first time.

Technology as a driver of legal change 🔗

The push for performers’ rights was not driven solely by legal philosophy – technology played an equally decisive role. Before audio and video recording capabilities existed, a performance was inherently ephemeral. Once the curtain came down, the performance ceased to exist. There was no commercial incentive to exploit it separately from the live event.

Recording technologies changed this completely. A singer’s performance could now be captured, replicated in thousands of copies, broadcast on radio, and sold commercially – all without the singer’s involvement or consent, and without any payment beyond the original fee. The performer had no legal mechanism to participate in the ongoing commercial life of their own work.

The WIPO Performances and Phonograms Treaty (WPPT), adopted in Geneva in December 1996, was specifically designed to address the rights of performers and producers of phonograms in the digital environment, dealing with actors, singers, musicians, and similar performers. India formally acceded to the WPPT in September 2018 , reinforcing its commitment to international standards for performer protection in the digital age.

The WPPT was significant because it was the first international treaty to recognise both the moral and economic rights of performers. Alongside the Beijing Treaty on Audiovisual Performances of 2012, it addressed the gaps left by the Rome Convention in the context of digital reproduction and distribution.

The 2012 amendment and moral rights 🔗

The Copyright (Amendment) Act, 2012 further strengthened the legal position of performers. It introduced Section 38B, which confers moral rights on performers – specifically, the right to be identified as the performer and the right to object to any distortion, mutilation, or modification of their performance that would be prejudicial to their reputation.

These moral rights are non-waivable – even if a performer transfers all other rights, Section 38B remains independent of any assignment. A performer retains these rights regardless of any contract to the contrary. The 2012 amendment also clarified the royalty entitlements of performers in cinematograph films, ensuring they cannot be entirely bought out by producers through a single contractual payment.

Duration of protection and key judicial developments 🔗

Performers’ rights in India last for 50 years from the end of the calendar year in which the performance was given. So for a live show held at any point in 2021, protection runs until 31 December 2071.

Courts have further shaped the contours of who qualifies as a performer and what counts as a protected performance. In Neha Bhasin v. Anand Raj Anand, the court held that whether a performance is recorded in a studio or in front of a live audience, both are considered live performances in the first instance – and any unauthorised use without the performer’s consent amounts to infringement of performer’s rights. In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High Court drew a clear distinction between copyright and performer’s rights, establishing that re-recording a song requires the original singer’s permission separately from any copyright clearance.

India’s definition: broader than international standards 🔗

It is worth noting that India’s statutory definition of “performer” goes beyond what is mandated by either the Rome Convention or the TRIPS Agreement. Both international instruments set minimum standards; India’s law has chosen to exceed them. By explicitly naming folk and street performance art forms such as acrobats, snake charmers, and jugglers, the Indian framework acknowledges that performance culture in India is not limited to film, theatre, and concert music.

The Copyright regulations in India widened the scope of the performer’s creativity being protected in a way much broader than the Rome or TRIPS regulations require. This reflects a deliberate legislative choice to protect the diversity of India’s performance traditions – not just those that happen to be commercially lucrative.

What do you think? Given that technologies like AI-generated performances and deepfakes can now replicate a performer’s voice and likeness without their involvement, does the current definition of “performer” under Section 2(qq) adequately capture who needs legal protection – or does it need to evolve further? And should incidental performers in films, currently excluded from full protection, have greater rights than the law presently grants them?

References

1. https://copyright.gov.in/Copyright_Act_1957/chapter_viii.html
2. https://thelegalschool.in/blog/rights-of-performers-under-copyright-law
3. https://indiankanoon.org/doc/1686803/
4. https://en.wikipedia.org/wiki/Rome_Convention_for_the_Protection_of_Performers,_Producers_of_Phonograms_and_Broadcasting_Organisations
5. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_227.pdf