Comprehensive Rights of Performers in the Digital Age

When a singer performs live on stage, or a musician’s voice is streamed on millions of phones, who owns that moment? Who controls whether it gets recorded, broadcast, or sold? These are not abstract questions – they go to the heart of performers’ rights. Historically, performers were the weakest link in the entertainment chain: they created the experience but often had little legal say over how it was used. That changed significantly with the WIPO Performances and Phonograms Treaty (WPPT), adopted in Geneva on 20 December 1996, and with India’s subsequent domestic reforms. Today, performers – from actors and singers to dancers and musicians – hold a bundle of rights that put them on par with authors of literary and artistic works.

Who is a “performer” under the law? 🔗

Before understanding what rights performers hold, it helps to know who qualifies. Section 2(qq) of the Copyright Act, 1957 defines a “performer” broadly – it includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, lecturers, and anyone else engaged in a performance. This wide definition ensures that the law does not privilege only mainstream entertainers but covers the full range of live artistic expression.

India’s journey toward recognising performer rights was shaped by a landmark court ruling. In the 1979 case of Fortune Films International v. Dev Anand, the Bombay High Court held that performers had no copyright protection under the existing law. That verdict exposed a major gap. It took a copyright amendment in 1994 – and a further significant amendment in 2012 – to formally bring performers within the protective fold of the Copyright Act through Sections 38, 38A, and 38B.

The international framework: from Rome to the WPPT 🔗

The international story of performers’ rights begins with the Rome Convention of 1961, which was the first treaty to acknowledge that performers had rights against unauthorised broadcasts or recordings of their performances. However, the Rome Convention’s protections were limited, and once a performer consented to an initial recording, they lost most control over subsequent uses.

The digital revolution upended this framework. The internet made it trivially easy to reproduce, distribute, and stream performances globally without any payment or permission. To address this, WIPO adopted the WPPT in 1996, which came into force on 20 May 2002. The WPPT is sometimes called an “internet treaty” because it was specifically designed to protect performers and phonogram producers in the digital environment. As of 2023, it has 112 contracting parties.

India acceded to both the WPPT and the WIPO Copyright Treaty on 25 September 2018, with both treaties entering into force in India on 25 December 2018. This was a deliberate policy step aligned with India’s National Intellectual Property Rights Policy of 2016, which aimed to extend copyright protection to digital and online platforms.

Economic rights of performers under the WPPT 🔗

The WPPT grants performers a set of exclusive economic rights over their performances. These rights differ depending on whether the performance is live (unfixed) or has been fixed – that is, recorded onto a phonogram such as a CD, digital file, or streaming track.

Rights over live (unfixed) performances 🔗

For live performances that have not yet been recorded, the WPPT grants performers the right to authorise or prohibit broadcasting (except in the case of rebroadcasting), communication to the public, and the fixation (that is, the initial recording) of the performance. In practical terms, this means a musician performing on stage controls who can record that concert and who can broadcast it live.

Rights over fixed performances (phonograms) 🔗

Once a performance has been fixed in a phonogram, performers gain four core exclusive rights:

• Right of reproduction: The right to authorise direct or indirect reproduction of the recorded performance. This covers everything from pressing CDs to copying digital audio files.
• Right of distribution: The right to authorise making the original or copies of the fixed performance available to the public through sale or other transfer of ownership.
• Right of rental: The right to authorise commercial rental of the recorded performance to the public – for example, renting out a CD or a digital licence.
• Right of making available: The right to authorise making the performance available online, by wire or wireless means, so that anyone can access it at a time and place of their choosing. This is the WPPT’s direct answer to streaming platforms and on-demand services.

These four rights collectively ensure that a singer who records a track retains control over how that recording is reproduced, sold, rented, and streamed – bringing performers’ rights substantively in line with the rights of authors in literary and artistic works.

How India’s Copyright Act implements these rights 🔗

India’s domestic law reflects these international standards through Sections 38 and 38A of the Copyright Act, 1957, particularly after the 2012 amendment.

Section 38 grants every performer a “special right” – the performer’s right – in any live performance, and this right subsists for 50 years from the beginning of the calendar year following the year in which the performance was made. This protection term aligns with the WPPT’s minimum standard.

Section 38A spells out the economic rights. It gives performers exclusive control over recording, reproduction, broadcasting, and selling their performances. Critically, it contains an important proviso for the film industry: if a performer consents in writing to include their performance in a cinematograph film, the producer can use that performance within the film – but the performer is still entitled to royalties whenever that performance is used for any commercial purpose. This was a major shift from pre-2012 practice, where performers were typically paid a one-time fee and had no further claim.

Exceptions to performers’ economic rights 🔗

Like copyright, performers’ rights are not absolute. Certain uses are permitted without the performer’s consent under Section 38A read with Section 52 of the Act. These include reproduction for personal use, educational or research purposes, fair dealing for reporting or review, and use for purposes of judicial proceedings. These exceptions mirror the balance struck in copyright law between creators’ rights and the public interest.

Moral rights of performers 🔗

Beyond economic rights, the WPPT recognised for the first time in an international treaty that performers also have moral rights. Article 5 of the WPPT provides that independently of a performer’s economic rights – and even after those rights have been transferred – the performer retains two moral rights in relation to live aural performances and performances fixed in phonograms.

India incorporated these moral rights into domestic law through Section 38B of the Copyright Act, inserted by the 2012 amendment:

• Right of attribution (paternity): The performer has the right to be identified as the performer of their performance. A singer can insist on being credited by name wherever their performance is used. Attribution may be omitted only when the manner of use makes it impractical – for example, a background performer in a crowd scene.
• Right of integrity: The performer has the right to prevent any distortion, mutilation, or other modification of their performance that would be prejudicial to their reputation. If a dancer’s performance is edited to make them appear ridiculous or offensive, they can object and seek damages. The Act clarifies that routine technical edits or shortening of the performance do not amount to prejudicial modification.

Crucially, moral rights cannot be waived or assigned. Even if a performer sells all their economic rights to a production house, they retain the right to be credited and to protect the integrity of their performance. This parallels the moral rights of authors under Section 57 of the Copyright Act and underscores the principle that creators remain connected to their work even after its commercial exploitation.

Equitable remuneration for broadcasting and public communication 🔗

One of the WPPT’s most significant provisions is Article 15, which establishes the right to a single equitable remuneration for the direct or indirect use of commercially published phonograms for broadcasting or any communication to the public. This means that when a radio station plays a recorded song, or when a restaurant streams music, both the performer and the phonogram producer are entitled to payment – not just the record label.

This is a shared right. Article 15(2) of the WPPT allows contracting states to decide in national legislation whether the remuneration is claimed by the performer, the phonogram producer, or both. States can also negotiate how the single payment is split between the performer and the producer when there is no individual agreement between them. This provision directly addresses a longstanding grievance in the music industry – that record companies collected broadcast royalties without necessarily sharing them with the actual performers.

The WPPT also clarifies that phonograms made available online on demand – that is, accessible by users at any time and from any location – are treated as being “published for commercial purposes,” making them subject to the remuneration right under Article 15. This extension to the digital context was deliberate: it ensures that streaming revenue triggers the same remuneration obligations as traditional radio play.

The Beijing Treaty and audiovisual performers 🔗

One limitation of the WPPT is that its economic rights for performers apply only to performances fixed in phonograms (purely audio recordings). Performers in audiovisual works – actors in films, television series, and music videos – were not covered to the same extent. The Beijing Treaty on Audiovisual Performances, adopted by WIPO in 2012, filled this gap. It extended protections similar to the WPPT to performers in films and other audiovisual works, including moral rights and economic rights for reproduction, distribution, rental, and online availability. India has signed but not yet ratified the Beijing Treaty, meaning full domestic implementation for audiovisual performers remains pending.

Remedies for infringement 🔗

A right without a remedy is meaningless. Under Sections 55 and 63-70 of the Copyright Act, performers whose rights are infringed can seek both civil and criminal remedies. Civil remedies include temporary or permanent injunctions, damages, and accounts of profits. Criminal remedies can result in imprisonment of six months to three years, or fines ranging from ₹50,000 to ₹2,00,000, or both. Courts can also grant an Anton Piller Order, allowing the aggrieved party to enter and inspect premises where infringing material may be stored. The Supreme Court in Super Cassettes Industries v. Bathla Cassette Industries confirmed that copyright and performers’ rights are distinct – meaning re-recording a song without the original singer’s permission is a separate infringement of the performer’s right.

Gaps and the road ahead 🔗

Despite meaningful progress, India’s framework for performers’ rights has notable gaps. The rights under Sections 38 and 38A are still considered narrower than what the WPPT and EU Directive 2001/29/EC contemplate, particularly for audiovisual performers. More pressingly, the rise of deepfakes, AI voice cloning, and digital replicas means a performer’s likeness or voice can be reproduced and commercialised without consent – and there is currently no statutory framework in India to address algorithmic impersonation. As the entertainment industry continues to evolve at pace, the adequacy of existing protections will face growing scrutiny.

What do you think? With streaming platforms and AI tools now able to replicate a performer’s voice or likeness without their involvement, do existing performers’ rights laws go far enough to protect artists in the digital age? And should India move faster to ratify the Beijing Treaty so that actors in films enjoy the same level of protection as recording artists under the WPPT?

References

1. https://www.wipo.int/treaties/en/ip/wppt/
2. https://indiankanoon.org/doc/1667421/
3. https://www.maheshwariandco.com/blog/performers-rights-in-indian-copyright-law/
4. https://www.wipo.int/pressroom/en/briefs/performers.html
5. https://www.algindia.com/india-is-now-a-party-to-the-wipo-copyright-treaty-and-wipo-performers-and-phonograms-treaty/
6. https://en.wikipedia.org/wiki/WIPO_Performances_and_Phonograms_Treaty
7. https://thelegalschool.in/blog/rights-of-performers-under-copyright-law
8. https://www.wipo.int/wipolex/en/text/295578
9. https://www.jetir.org/papers/JETIR2403852.pdf
10. https://ijlsss.com/light-camera-legal-rights-re-imaging-performer-and-celebrity-rights-under-the-copyright-law/