Chapter VIII of The Copyright Act, 1957 i.e. rights of broadcasting organisation and of performers in section 37 deals with Broadcast reproduction right and in section 38 with Performer’s right. The Copyright Act, 1957 is principally understood as a statute that protects authors, composers, writers, painters and filmmakers who create original works Yet creative industries have never run on authorship alone. Between the moment a musical composition leaves the pen of a composer and the moment it reaches a listener, an entire ecosystem of human talent intervenes: the vocalist who interprets the melody, the instrumentalist who gives it texture and presence, the actor who breathes life into a dramatic script, the dancer who translates choreography into performance. These performers are not authors in the traditional copyright sense they do not create the underlying work but their contributions are economically significant, artistically irreplaceable and legally deserving of protection. Similarly, broadcasting organisations invest substantial resources in assembling, transmitting and distributing content to the public and that investment warrants legal recognition independent of the copyright in the individual works being broadcast. These are the neighbouring rights and in India they find their statutory home in Sections 38 to 40A of the Copyright Act, 1957, as substantially amended by the Copyright Amendment Act, 2012.
The neighbouring rights framework in India has a relatively compressed legislative history compared to the authorial copyright regime, but its importance to the creative economy has grown exponentially with the proliferation of digital platforms, streaming services and the fragmentation of content delivery across media. A film actor’s image and voice are streamed across Netflix and Amazon simultaneously; a classical musician’s live concert recording circulates on YouTube without attribution or payment; a radio broadcaster’s signal is re-transmitted by an internet aggregator without authorization. Each of these scenarios engages the neighbouring rights framework and understanding how Sections 38 to 40A operate together with the significant amendments introduced in 2012is essential for performers, producers, broadcasters and the lawyers who advise them.
The international architecture for neighbouring rights is established principally by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 and by the WIPO Performances and Phonograms Treaty (WPPT), 1996. India is not a signatory to the Rome Convention, but the 2012 amendments to the Copyright Act were significantly shaped by India’s obligations under the WPPT and by the broader alignment of Indian copyright law with WIPO treaty standards. The WPPT, to which India acceded, establishes minimum standards for the economic and moral rights of performers in their audio performances and for the economic rights of phonogram producers standards that are now substantially reflected in the post-2012 text of the Copyright Act, 1957.
The Statutory Definition of Performer and Performance
Section 2(qq) of the Copyright Act, 1957 defines a “performer” to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. The breadth of this definition is deliberate: it encompasses the full range of live interpretive activity that characterizes the performing arts, from the classical vocalist to the stand-up comedian, from the Bharatanatyam dancer to the street acrobat. Section 2(q) defines a “performance” in relation to performer’s rights as any visual or acoustic presentation made live by one or more performers. The live character of the performance is central to the definition it is the unrepeatable, embodied act of performance that the law seeks to protect and the rights that attach to it are rights in that specific act and in any fixation or broadcast of it.
Performer’s Rights Under Section 38: The Economic Rights Framework
Section 38 of the Copyright Act, 1957 confers on performers a performer’s right in their performance. Prior to the 2012 amendment, this right was relatively circumscribed, amounting essentially to a right to consent to the fixation, reproduction, broadcasting or communication to the public of a live performance. The Copyright Amendment Act, 2012 substantially expanded the content of performer’s rights by introducing Section 38A, which grants performers a set of exclusive economic rights that are exercisable independently of any assignment and that endure for a term of fifty years from the beginning of the calendar year next following the year in which the performance was made, as provided under Section 38(2).
Section 38A(1) provides that without prejudice to the rights conferred on authors, a performer shall, in relation to a performance, have the right to make a sound recording or visual recording of the performance, to reproduce a sound recording or visual recording of the performance, to broadcast the performance, to communicate the performance to the public otherwise than by broadcast and to sell or give on hire any copy of a sound recording or visual recording of the performance. These are exclusive rights they vest in the performer and may not be exercised by any other person without the performer’s authorisation. The right to communicate the performance to the public by way of streaming, download or on-demand access is therefore squarely within the performer’s exclusive domain, a provision of considerable commercial significance in the era of digital distribution.
Section 38A(2) introduces a qualification of fundamental importance: once a performer has consented to the incorporation of the performance in a cinematograph film, the performer shall not, in the absence of any contract to the contrary, object to the producer of the film from exercising the copyright in the film. This provision reflects the practical reality of film production, where the collective nature of the enterprise and the producer’s investment justify a transfer of control over the film as a whole but it does not extinguish the performer’s right to receive royalties for uses of the film beyond its primary commercial exploitation, as the royalty provisions introduced by the 2012 amendments make clear.
Moral Rights of Performers Under Section 38B
One of the most significant innovations of the Copyright Amendment Act, 2012 was the introduction of moral rights for performers. Section 38B confers on every performer, independently of economic rights and even after their transfer, the right to claim to be identified as the performer of a performance and the right to restrain or claim damages in respect of any distortion, mutilation or other modification of the performance that would be prejudicial to the performer’s reputation. These rights are inalienable they cannot be assigned away by contract and they persist for the term of the performer’s right. The provision aligns India’s performer protection regime with the standards of the WPPT and with the moral rights framework for authors established under Section 57 of the Act.
The practical implications of Section 38B are considerable. A film producer who digitally alters a performer’s voice, modifies a recorded performance through post-production processing or credits a performance to a different artist may face a claim under Section 38B. In the digital environment, where AI-driven voice cloning, deep fake technology and automated audio processing make unauthorized modification technically straightforward and commercially tempting, the moral rights of performers have acquired a relevance that far exceeds what the 2012 legislature could have anticipated.
The Royalty Entitlement and the Relationship with Assignment
Perhaps the most commercially significant aspect of the post-2012 performer’s rights regime is the entitlement to royalties that persists notwithstanding assignment. Section 38A(1), read with the proviso, establishes that where a performer has assigned the right in a performance to a producer, the performer shall nonetheless be entitled to receive a share of royalties for the commercial exploitation of that performance. This provision mirrors the author’s royalty entitlement under Sections 19(9) and 19(10) introduced by the same 2012 amendment parallel that is not coincidental, reflecting the legislature’s overarching policy of ensuring that the fruits of creative labour flow back to the individuals who supply it, rather than being entirely appropriated by the commercial entities that package and distribute it.
The Delhi High Court’s engagement with performer’s rights in the context of film and music industry disputes has been extensive. In proceedings where film producers have sought to exploit a performer’s image, voice or recorded performance in new media or advertising contexts without payment, the performer’s right framework has provided an independent cause of action. The recognition by Indian courts that a performer’s right is a distinct intellectual property right not merely a contractual entitlement derived from the performer’s engagement agreement has been a significant development in the practical enforcement of neighbouring rights.
Broadcasting Reproduction Rights Under Section 37
While the performer’s rights framework addresses the interests of individuals who give performances, Section 37 of the Copyright Act, 1957 addresses the interests of broadcasting organisations the entities that invest in the transmission and communication of content to the public. Section 37(1) provides that every broadcasting organisation shall have a special right, called the “broadcast reproduction right,” in respect of its broadcasts. Section 37(3) specifies that this right entitles the broadcasting organisation to prohibit any person from re-broadcasting the broadcast, causing the broadcast to be heard or seen by the public on payment of any charges, making any sound recording or visual recording of the broadcast, making any reproduction of such sound recording or visual recording where such initial recording was done without licence or where it was made for purposes other than private use and selling or hiring to the public any such recording.
The broadcast reproduction right is a sui generis right it is not a copyright in the content broadcast, but a right in the act of broadcasting itself, protecting the broadcaster’s investment in the infrastructure and programming of transmission. A television network that produces and broadcasts a live sporting event does not necessarily own copyright in the underlying athletic performances sporting events are generally not copyright-protected works in India but it does own the broadcast reproduction right in its transmission of those events and any person who captures and re-transmits that transmission without authorization infringes the broadcast reproduction right under Section 37.
The term of the broadcast reproduction right is twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made, as provided under Section 37(2). This term is shorter than the general copyright term, reflecting the transient commercial value of most broadcasts and the industry norms around content exploitation.
The Interface Between Broadcast Reproduction Rights and Copyright in Broadcast Content
The broadcast reproduction right operates alongside, but independently of, the copyright in any works communicated through the broadcast. A broadcaster who transmits a film owns the broadcast reproduction right in that transmission but does not thereby acquire any copyright in the film itself. Conversely, the film producer who owns copyright in the cinematograph film does not thereby acquire any right to prohibit unauthorized retransmission of the broadcast that right belongs to the broadcasting organisation. This layering of rights is a structural feature of the neighbouring rights framework and is the source of considerable practical complexity in the Indian broadcasting industry, particularly in disputes involving cable retransmission, DTH distribution and internet streaming.
The Delhi High Court addressed a significant dimension of this interface in Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd., 2003 (27) PTC 457 (Bom), where the Bombay High Court examined the scope of a broadcaster’s rights in its television programming and the extent to which those rights could be asserted against parties who had reproduced or re-transmitted broadcast content. The court’s analysis of the relationship between the copyright in the underlying works and the broadcast reproduction right in the transmission clarified that these are parallel and non-overlapping entitlements principle that has governed subsequent disputes in the broadcasting sector.
Section 31D and Statutory Licensing for Broadcasting Organisations
The interface between broadcasting rights and the collective licensing framework established under Sections 33 to 36A acquires a further dimension through Section 31D of the Copyright Act, 1957, introduced by the 2012 amendment. Section 31D entitles any broadcasting organisation desirous of communicating to the public by way of broadcast any literary or musical work and any sound recording that has already been published to do so upon payment of royalties fixed by the Copyright Board, subject to the conditions prescribed. This provision was designed to address the persistent tension between music rights holders whether administering through IPRS and PPL or individually and radio and television broadcasters, who had repeatedly found themselves unable to obtain licences on commercially viable terms.
The limitation of Section 31D to broadcasting organisations and the exclusion of on-demand digital streaming services from its scope, as confirmed by the Bombay High Court in Tips Industries Ltd. v. Wynk Music Ltd., 2019 SCC Online Bom 13446 has created a regulatory asymmetry in the Indian music market. Traditional broadcasters operate under a statutory licensing regime that constrains the royalty demands of rights holders; streaming platforms must negotiate voluntary licences in an environment where rights holders retain full pricing power. The implications of this asymmetry for the development of the Indian streaming market and for the commercial leverage of copyright societies and music labels are among the live policy questions in Indian copyright law.
Conclusion
The neighbouring rights framework under Sections 37 to 38B of the Copyright Act, 1957, as reformed by the Copyright Amendment Act, 2012, represents a mature and increasingly important dimension of Indian copyright protection one that speaks directly to the interests of the creative professionals, broadcasters and digital platforms that drive the commercial cultural economy. The expansion of performer’s economic rights under Section 38A, the introduction of performer’s moral rights under Section 38B and the consolidation of broadcast reproduction rights under Section 37 together constitute a framework that is substantially aligned with India’s obligations under the WPPT and with the international standard of neighbouring rights protection.
Yet significant challenges remain. The moral rights of performers under Section 38B are yet to be fully tested in Indian courts and the proliferation of AI-driven content manipulation makes their enforcement an urgent practical concern. The exclusion of streaming platforms from the Section 31D statutory licensing regime leaves a large and growing segment of the market outside the regulatory structure that governs broadcasting, creating incentives for litigation rather than voluntary licensing. And the fundamental question of how performer’s rights interact with rights in AI-generated and AI-modified performances where the very identity of the “performer” within the meaning of Section 2(qq) may be in question remains entirely open. The neighbouring rights framework was built for a world of human performance and analogue broadcast; its adequacy for the digital and algorithmic era will define the next chapter of its development in Indian copyright jurisprudence.
References
- Copyright Act, 1957Legislative Department, Ministry of Law and Justice: https://legislative.gov.in/sites/default/files/A1957-14.pdf
- Copyright Amendment Act, 2012Legislative Department: https://legislative.gov.in/sites/default/files/A2012-27.pdf
- Copyright Rules, 2013Copyright Office, Ministry of Education: https://copyright.gov.in/Documents/CopyrightRules2013.pdf
- Copyright Office, India Official Portal: https://copyright.gov.in
- WIPO Performances and Phonograms Treaty (WPPT), 1996WIPO: https://www.wipo.int/treaties/en/ip/wppt/
- Rome Convention, 1961WIPO: https://www.wipo.int/treaties/en/ip/rome/
- TRIPS Agreement, Articles 14WTO: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
- Supreme Court of India Judgments Portal: https://main.sci.gov.in
- Delhi High Court Official Portal: https://delhihighcourt.nic.in
- Bombay High Court Official Portal: https://bombayhighcourt.nic.in
- Department for Promotion of Industry and Internal Trade (DPIIT)IP India: https://dpiit.gov.in
- WIPO Guide to the WPPT: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_489.pdf
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