In the traditional copyright regime, performers had no specific rights as those granted to an author or a creator of a work, since they were considered only as intermediaries between the author and the communication of his work to the public and hence not capable of possessing rights like an author or a copyright owner. With the advent of copying technology in the 20th century, the copyright system was at stake, and performers could not protect themselves from exploitation of their works. However, subsequent protection against unauthorized exploitation was granted to performers under ‘neighboring rights’ or ‘related rights’. Only economic rights were granted to them initially under the international agreements, and subsequently, moral rights were granted for the first time at the international level through World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty (WPPT) in 1996. Though the Indian Copyright Act, 1957 recognized the performers’ economic rights in 1994, it did not provide for any moral rights until the Copyright (Amendment) Act, 2012 came into effect. This paper attempts to analyze the development of law relating to the performers’ rights in the Indian copyright regime under the influence of different international agreements, and how far the provisions of the Copyright Amendment Act 2012 in India with respect to performers’ rights have made the Indian Law compatible with different international instruments.

Historically, there was no place for the protection of performers in the intellectual property system. In the traditional copyright regime also, performers had no specific rights as were available to an author or a creator of a work. A performer on the one hand was only considered as an intermediary between the author and the communication of his work to public. Performers were denied protection on the ground that the copyright system protects creators of original work and not those who depend upon the copyrighted work for their rights. It was vehemently pleaded that since performers did nothing of their own in order to create an original work and that their performances were only derivative works, they should not be given any rights as those granted to authors.¹

On the other hand, a performer by virtue of his performance made the work of the author available to the public in the form of a performance. Without the intervention of the performer, the work of the author could not have reached so successfully to the public at large. Also, the theories for justification for copyright system in the form of reward for labor, incentive theory and general public interest theory did support the cause of protection of performers’ rights. It has also been argued that the activities of performers are more artistic and creative than the copyright owners themselves.² As such, performers were subsequently protected under the heading ‘neighboring rights’ or ‘related rights’ or ‘entrepreneurial rights’ and not ‘author’s rights’.³ Initially, performers were masters of exploitation of their own work as their performances were totally dependent on their performing the same. No one could enjoy a performance unless he had paid some remuneration in the form of an entry ticket fee or the like to a theater, etc. In the absence of any copying mechanism, the presence of limited audience in a theater, etc. provided an opportunity to the performer to control the communication of the author’s work through his performance as and when he desired. However, it was only with the advent of copying technology that performances were being enjoyed and exploited in the absence of the actual performer and a need arose for the protection of performers’ rights.⁴ At the international level, performers had to struggle for the recognition of their rights until 1961 when certain rights were given to them in the nature of related rights. Initially, only mere ‘possibility of protecting’⁵ specific economic rights were granted to the performers in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) of 1961 (hereinafter referred as Rome Convention). Subsequently, Agreement on Trade-Related Intellectual Property Rights 1994 (herein after referred as TRIPS) also recognized protection in the form of mere ‘possibility of preventing’ certain economic rights of performers and no moral rights were either granted. It was not until 1996 that protection was granted to performers beyond the concept of mere ‘possibility of preventing’ certain unauthorized acts by recognizing the exclusive rights⁶ of performers in World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty, 1996 (hereinafter referred as WPPT). Also, moral rights were granted to a performer for the first time at the international level under the provisions of WPPT.

Law Review Journal, Protecting, Performers’ Rights, Relevant Law, Indian Copyright Regime, World Intellectual Property Organization (WIPO), Performances and Phonograms Treaty (WPPT) .