Neighbouring rights (also called "related rights") protect persons who do not create original works but play essential roles in communicating works to the public. They protect performers (actors, singers, musicians), broadcasting organisations, and producers of sound recordings. These rights are distinct from and exist alongside the copyright in the underlying work.
Why: A composer creates a song (copyright), but the singer brings it to life through performance (neighbouring right). Without separate protection for performers and broadcasters, they could be exploited despite their essential contribution to making works accessible to the public.
Legal Framework
| Right holder | Indian provision | International instrument |
|---|---|---|
| Performers | S.38, S.38A | WPPT 1996, Rome Convention 1961, Beijing Treaty 2012 |
| Broadcasting organisations | S.37 | Rome Convention Art. 13, TRIPS Art. 14.3 |
| Producers of sound recordings | S.13(1)(c), S.14(e) | WPPT, Rome Convention Art. 10 |
Performers' Rights (S.38-38A)
Who is a "performer" (S.2(qq))
A performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or any other person who makes a performance.
Rights conferred (S.38, as amended 2012)
| Right | Scope |
|---|---|
| Reproduction right | Make sound/visual recording of performance |
| Distribution right | Issue copies to public |
| Communication to public | Communicate performance to public |
| Commercial rental right | Rent copies of sound/visual recording |
| Making available right | Make performance available online (on-demand) |
Moral rights of performers (S.38B, inserted 2012)
| Right | Content |
|---|---|
| Right of attribution | Claim to be identified as performer (except where omission is dictated by manner of use) |
| Right of integrity | Object to distortion, mutilation, or modification that is prejudicial to performer's reputation |
Duration
50 years from the year following the year of performance (S.38(4), as amended). If performance is fixed in a sound recording published during this period, the term is 50 years from publication.
Key conditions
- Performance must be in India or performer must be Indian citizen/resident (S.38(1))
- Rights exist independently of copyright in the underlying work
- Once performer consents to incorporation in a cinematograph film, they cannot object to enjoyment of performers' rights in that film (S.38A)
Why (2012 expansion): Before 2012, performers had limited "broadcast reproduction right" (S.38 old). The 2012 amendment gave full economic rights + moral rights to performers, aligning India with the WPPT/Beijing Treaty and recognising performers as creative contributors, not mere conduits.
Broadcasting Organisations' Rights (S.37)
What is protected
The broadcast itself (not the underlying work). A broadcast is the communication to the public by any means of wireless diffusion, whether in sound or visual.
Rights conferred (S.37(1))
| Right | What it covers |
|---|---|
| Re-broadcast | No person shall re-broadcast without licence |
| Fixation | No person shall make sound/visual recording of broadcast |
| Reproduction | No person shall make copies of such recording |
| Communication to public | No person shall communicate the broadcast by loudspeaker or similar device in a place where admission is charged |
| Making available | No person shall make the broadcast available on-demand |
Duration
25 years from the year following the year in which the broadcast is made (S.37(2)).
Exception (S.39)
Fair dealing exceptions apply: broadcast may be recorded for private use, for teaching, for reporting current events, or for bonafide research.
Distinctions: Copyright vs. Neighbouring Rights
| Parameter | Copyright (in work) | Performers' Right | Broadcasters' Right |
|---|---|---|---|
| What is protected | Original expression (literary/dramatic/musical/artistic) | Live performance | Broadcast signal |
| Who holds it | Author/creator | Performer (actor, singer, musician) | Broadcasting organisation |
| Duration | Life + 60 years | 50 years from performance | 25 years from broadcast |
| Moral rights | Yes (S.57) | Yes (S.38B, post-2012) | No |
| Registration | Not required | Not required | Not required |
| Relationship | Primary right | Parasitic (needs underlying work) but independent | Parasitic but independent |
| Assignment | Fully assignable (S.18) | Performer's rights assignable | Broadcast right belongs to organisation |
Illustrations: Who Gets What From One Song
Imagine Arijit Singh sings a song composed by Pritam, with lyrics by Irshad Kamil, for a film produced by Dharma Productions. The song is released in theatres, then streams on Spotify.
| Person | Right | What they own | Duration |
|---|---|---|---|
| Pritam (composer) | Copyright in musical work | The melody, chord progression, arrangement | Life + 60 years |
| Irshad Kamil (lyricist) | Copyright in literary work | The specific words/lyrics | Life + 60 years |
| Dharma (producer) | Copyright in sound recording + film | The fixed recorded version; the film incorporating it | 60 years from publication |
| Arijit Singh (performer) | Performer's right (S.38) | His specific vocal performance | 50 years from performance |
When the song streams on Spotify:
- Dharma earns from the sound recording rights (they own the master)
- Pritam and Irshad Kamil are entitled to royalties for non-theatrical use (2012 amendment, even after assignment to Dharma)
- Arijit Singh is entitled to performer's royalties (2012 amendment, S.38)
- The radio station that plays it needs a statutory licence (S.31D) pays prescribed royalty without needing individual negotiation
Key insight: One song = at least 4 independent rights held by different people. A Spotify stream triggers obligations to ALL of them. This is why collective management societies (IPRS, PPL, ISRA) exist individual licensing would be impossible.
Recall Check
- Name the three categories of neighbouring rights holders in Indian copyright law.
- How did the 2012 Amendment expand performers' rights beyond the pre-existing broadcast reproduction right?
- What is the duration of broadcasters' rights versus performers' rights?
Key Cases
Super Cassettes Industries v. Music Broadcast (2012) Super Cassettes v Music Broadcast 2012
Issue: Whether the Copyright Board could grant an interim compulsory licence under S.31 pending final decision.
Rule: S.31 permits a compulsory licence only after hearing and a final decision on the complaint; there is no power to grant an interim compulsory licence.
Held: Supreme Court held the Copyright Board has no power to grant an interim compulsory licence under S.31.
Fortune Films v. Dev Anand (1979) Fortune Films v Dev Anand 1979
Issue: Whether an actor had copyright in his performance in a film so as to control its exploitation.
Rule: Under the Copyright Act 1957 as it then stood, a performance was not a "work"; performers had no copyright in their performance.
Held: The actor had no copyright in his performance. The gap was later filled by performers' rights (S.38) introduced in 1994; S.38A followed in 2012.
Flashcards
What are neighbouring rights?
Rights that protect performers, broadcasting organisations, and sound recording producers who disseminate works to the public but do not create the original works themselves.
What is the duration of performers' rights in India?
50 years from the year following the year of performance (S.38(4)).
What moral rights do performers have under S.38B?
Right of attribution (to be identified as performer) and right of integrity (to object to distortion/modification prejudicial to reputation).
What is the duration of broadcasters' rights?
25 years from the year following the year of broadcast (S.37(2)).
What does S.38A provide regarding performers in films?
Once a performer consents to incorporation of performance in a cinematograph film, they cannot object to the film producer's exercise of performers' rights in relation to that film (but retain royalty rights under 2012 amendment for non-theatrical use).
What is statutory licensing under S.31D?
Any broadcasting organisation may broadcast a published sound recording by paying royalties at the prescribed rate without needing individual negotiation with the copyright owner.
Name the international treaty protecting performers and phonogram producers.
WIPO Performances and Phonograms Treaty (WPPT), 1996.
Exam Scenario
Singer X performs a song composed by Y for a film produced by Z. The film is released in cinemas. Three years later, a streaming platform streams the film. A radio station broadcasts the song.
Advise on: (a) The separate rights of X (performer), Y (composer), and Z (producer) in the song as used in the film. (b) Whether X is entitled to royalties from the streaming platform under S.38 read with the 2012 Amendment. (c) Whether the radio station needs separate licences from Y (composer), Z (producer), and X (performer), or can it rely on statutory licensing under S.31D. (d) The duration of X's performers' rights versus Y's copyright in the musical composition.