Unmute - Performing Artists and the Law: An unexplored and ignorant landscape of exclusive rights of performers as performers

Performing Artists and the Law: An unexplored and ignorant landscape of exclusive rights of performers as performers
- Somabha Bandopadhay
e-mail: somabhaphd2019@nujs.edu

December 4, 2021

Legality and applicability of rights of and as performers
Performing arts spaces, performers and every stakeholder of art forms, dedicates themselves to the learning, practice and professing of art with utmost sincerity and conviction. Having immersed themselves in this exercise, they often unknowingly, forgo their rights- rights unique to them. These are the double set of rights that they enjoy as performers- their individual rights and their special rights as performers.

Has this come as a shock to you? It is not surprising. In the Indian context, it would be a shocker if a performer is introduced to the bill of performers’ rights. I don’t know how many would believe it. But it is true. Performers have exclusive rights as performers. While some would be happy to learn this, experience reveals that others would be disbelieving, hesitant, uninformed, and clueless. Some would totally ignore the issue, even though it pertains to them in such a major way.

It is in this context that the present article hopes to shed light on the rights that performers have, which are unique to them, and which have been legally established under the law of the land. A conglomeration of few laws of the country when interpreted in unison, as is expected to be done while dealing with subject matters that concerns evolving concepts, nuances and fields of expertise, confer these bundles of rights on to performers.

The most basic of all laws and the mother of all legal documents - the grundnorm of the legal framework, the Constitution of India establishes the Fundamental Rights of human beings- either as persons or as citizens of the nation. Therein lies the essential Right to Freedom within which under Art.19(1)(a), the most debatable provision lays down the Freedom of Speech and Expression, with the “reasonable restrictions”, stated in Art. 19(2), within which lies the creative and artistic freedom of the performing artists. While “reasonable restrictions” under Art.19(2) is a matter of contestation on creative works - the same would be discussed in a subsequent article. This displays the right to express in whichever way an artist wishes to express their ideas - be it through visual or performing arts or any other art forms.

Similarly, when understood in terms of profession and occupation, many opt for and in light of the income generation that it derives, covered essentially in Art. 21, on the Right to life, that includes livelihood, as held by the Supreme Court in the celebrated cases of Olga Tellis vs. Bombay Municipal Corporation or Maneka Gandhi vs. Union of India. This also co-relates to another ancillary fundamental right- to profess the occupation of one’s choice (Art. 19(1)(g)). So, performers then have a right to express themselves and earn a living out of the same which is unrestricted and unabated.

Both these fundamental rights cannot be compromised and as much as the performer has the right to perform, the right to be remunerated for the same also exists. While the general law protects these important rights of performers, which it does for any other person professing any occupation and expressing in any form and has a mode of livelihood, for performers specifically, the Copyright Act, 1957 builds ground.

The general laws (which may be subject-specific like contract laws or penal laws or pay related laws, and so many others), that are then applicable for all other instances, would equally be applicable for performing artists, not by the virtue of being performing artists, but by the virtue of being in a relation, for example, by being employed under a contract to teach, or under a contract of service for being a member of a dance troupe or repertoire, by being an employer, or being a manager, or being responsible for making a safe space for work, by virtue of being organisers, or government officials contracting work, or for playing any other roles - which in common parlance would be applicable to a “more formal sector”, also become equally applicable to performing artists. It is only the attitude with which the performing arts and performing artists are conceived, particularly in India, that either makes or breaks the lives and livelihoods of these artists, by conferring or reaping off their rights - so much so that many times their human rights also get compromised. Accordingly, the various statutes like Indian Contract Act, 1872, Equal Remuneration Act, 1976, Indian Penal Code, 1860, Prevention of Sexual Harassment at Workplace Act, 2013, Protection of Children against Sexual Offences Act, 2012 and Transgender Persons (Protection of Rights) Act, 2019 are applicable to the performers - both young, child, mid-career practitioners and senior artists, depending on the subject matter in issue.

For example, artists are little aware that the law on Sexual Harassment at Workplace - Act of 2013, establishes performing arts spaces as workplaces and hence any instance of sexual harassment, whilst the artist works for the organisation (which could be a dance school, vocational or professional training institute, or entertainment-related organisation, which summarily incorporates the performing artists in various sectors) or during the work makes a visit somewhere for work related reasons, would all be governed by the POSH law. Similarly, a child when sexually abused while learning dance in a dance school, would be governed and protected by the POCSO Act of 2012. In much the same way, an artist who enters into a contract, would be covered by the Indian Contract Act of 1872, as protection against a breach of any kind. But, in all these instances, the laws are equally applicable to individuals in other professions as-is for performing artists.

But special legislations do exist for performing artists. The next section covers these special provisions.

Special laws for performing artists
Among the special laws for performing artists, one of the most important isThe Copyright Act- This special law, applicable to performers, has evolved out of the concept of preserving the labour of creativity by oneself. It does so, by granting a bundle of rights for having created something new, either in the form of written work, dramatic work, musical notations, cinematographic work and other related works. Copyright is thus often known as “a bundle of rights” since it confers protection at various levels and for various purposes and dimensions, while aiming to preserve holistically.

Using the Lockean Labour Theory, ⁱ Copyright aims to preserve the rights of makers or authors of the artistic works or creative works that are grounded on the idea of incentivising labour, creativity and the outcome of the creativity towards ensuring more contribution to the creative spaces. In other words, Copyright ensures that the one who creates is given credit for the hard labour put in to create the artistic work, they must have the right to earn out of the creation and the right not to be exploited, tampered with or replicated and the right to be protected against identity stealing.

For a long time, the artistic work was confined to visual arts, film, music and theatre. But, with the enunciation of the World Intellectual Property Organisation’s (WIPO) Performers and Phonograms Treaty in 1996, the domain of performers, inclusive of dancers, was introduced to the Intellectual Property legal framework under the Copyright law with the conception of Related rights under Copyright law. In furtherance to this, the Indian Copyright Act was amended in 2012 to include this developing jurisprudence since 2002, when the Treaty came into force and India being a member of the World Intellectual Property Organisation (WIPO) and also as a signatory to the Treaty, was bound by it. Thus, Sections 2(q) was bolstered with 2(qq) that was introduced to legally give way for performers’ rights to be subsumed under the Act. Here, the word ‘performers’ expressly included dancers. Along with this, the “bundle of rights” available to all copyright holders, got supplanted to all performers, including dancers, similar to all other authors of creative works.

So, the exclusive rights and moral rights of authors were introduced, through Sections 38A and 38B of the Copyright Act, specifically for the performing artists. Section 38A provides for the exclusive rights to do or authorize the doing of any of the acts in respect of their performances (which are described under Section 2(q)) without prejudice to the rights conferred on them. The proviso to the section also enables performers to be entitled to claim for royalties in case their performances are subjected to commercial use. Similarly, Section 38B grants moral rights to performers in accordance to Art. 5 of the WIPO Performances and Phonographs Treaty, WPPT.

Moral rights have been extended to performers, considering the possibility of alteration of performances and the ‘explanation’ to the section clarifies that editors are free to perform their tasks without the fear of legal consequences which co-relates to another right- the Broadcasters’ right provided under Sections 37, 39 and 39A that regulate how much and how the broadcasting of the performances could be undertaken, with immense legal safeguards, so as to protect the rights of performers much after the performance has been conducted, and especially when the same has been recorded.

While the jurisprudence is still developing on the performers’ rights, the enriched explanations of moral rights, for example, in the Amarnath Sehgal case holds ground for moral rights of performers - to be protected against tampering, obscenity, acknowledgement, identity, protection against damage of performance, distortion and mutilation- even in case of broadcasting. Similarly, the exclusive rights as explained in the recently decided Vempati Ravi Shankar’s wife’s case (though primarily on sound recordings) are the trailblazers for how such rights could be implemented shedding light into the upcoming importance and relevance of enforcement of such rights.

This becomes important all the more considering the massive technological revolution that has made accessibility to content far easier than earlier. With this ease of accessing content, the possibility of derogation and violation of the moral and exclusive rights has become much easier, even without traces of such breach. While it is quintessential to be aware of the prevalence of Section 52 of the Copyright Act, 1957, which assures fair use of otherwise copyrighted materials for the purposes of dissemination of the art form, teaching, training, use with credits, non-commercial use, scholarly discussions, adaptation with acknowledgement, personal use and others, it is also important to note that the threshold of such fair use must be construed well, to avoid legal consequences. Additionally, the Creative Commons is a new space being crafted unanimously by practitioners of the art forms across the world to provide their works free of copyright infringement to be used by others more so that the creative works never suffers from a setback owing to economic hardships. Performing artists can use this space for bettering their scope and opportunities of work.

Interestingly, in 2018, the Indian Cabinet approved accession to the WIPO Copyright Treaty (1996) and the WIPO Performance and Phonograms Treaty (1996), extending itself to the digital platforms as well, which becomes more of a relevant reality in the present times than ever before.

So, each performing artist - whether choreographer, member of dance company, freelance performer, dance teacher, manager, leader of a troupe and all other positions of responsibilities, or any others not listed here, but stakeholder nevertheless, are entitled to the protection of their rights as performers and human beings.

Traditional performers and the Law
These are undoubtedly important developments. But alongside this, through this piece I want to introduce another aligned notion of performers’ rights, the rights of performers practising and professing traditional dance forms. I will expand on it later in a subsequent piece, but for the moment a few points will serve well to introduce this. This issue of the rights of traditional practitioners gets covered within another massive domain of law - Traditional Cultural Expressions. This domain of laws is governed by WIPO once again, under its developing Traditional Knowledge work vertical. The domestic legal framework affirming to the same falls within the Fundamental Rights of professing one’s culture and tradition, under Art. 29 specifically, and also is inspired from Arts. 25, 28 and 30. While these individuals, as performers, and have the same rights as explained earlier as generic rights of performers, which have been explained above, their rights as traditional artists are more nuanced, and the opening of the pandora’s box on that issue, I leave for the subsequent article that I will write later on this subject matter.

References
1.    Constitution of India, 1950
2.    Indian Copyright Act, 1957
3.    WIPO Performers and Phonograms Treaty 1996
4.    National Policy of Intellectual Property Rights 2016
5.    Elizabeth Adeney, The Moral Rights of Authors and Performers (2006)
6.    VK Ahuja on Intellectual Property Rights (2007)
7.    Somabha Bandopadhay on Dancers’ Choreographies: Quest for Legality”, Wisdom Speaks, Volume 2, Issue 1, ISSN: 2456-5121 (2017)
8.    ip-watch.org
9.    pib.gov.in

ⁱThe labor theory is grounded in the Lockean idea of property which states that if you mix your labor with some resource that was commonly and freely available, or expend your labor generally, then you extend some part of yourself to the final product and therefore it should be yours.

Somabha Bandopadhay is a doctoral student and University Junior Research Fellow at The West Bengal National University for Juridical Sciences (WBNUJS) after achieving the highest positions in both LLM from National Law School of India University, Bangalore and BA.LLB from KIIT University, Bhubaneswar. She is a classical Manipuri dance artist. A disciple of Prof. Sruti Bandopadhay, she has been awarded the Centre for Cultural Resources and Training (CCRT) Scholarship, Ministry of Culture, Government of India for 10 years and the Scholarship to Young Artists, Ministry of Culture, Government of India in 2018. She won the first position in the West Bengal Youth Festival 2018 of the Government of West Bengal and was the recipient of the Nalanda Nritya Nipuna Award 2020. She has participated as a solo performer and as a member of the Sruti Performing Troupe at several national and international festivals. She received the Best Volunteer award from National Service Scheme (NSS), Ministry of Sports and Youth Affairs, Government of India in 2018 for her contribution in imparting dance training to tribal students of Odisha. A founding member of Unmute.help, https://narthaki.com/info/unmute/ aims to succeed in bridging the gap between the Arts and the Law having been experienced in both these fields of Arts and Law.

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