Actors don’t have copyright in their work. Their right is categorised under “performer’s rights”. The whole payment system for actors remain mostly unregulated in India. While the world grooves to oscar winner “Natu Natu” from India and more filmmakers from huge Indian entertainment industry show a desire for international recognition, when it comes to recognising a system of royalty income for the actors, Indian film and television industry has nothing in common to United States and has shied away from discussing this issue.
Reformative changes brought in Indian Copyright Law, with respect to actors haven’t seen much of day light. While the top stars have a say in finalising the terms of contract on remuneration, profit sharing etc in a movie, the remaining chunk of actors have no say in the matter. In December 2021 actor Ravi Kishan made headlines by proposing Royalty income for actors in lok sabha. The Indian television industry often has voiced complaints against no regulation of working hours and payments on time, let alone the royalty system. Although the covid pandemic lockdown period also witnessed demand of royalty for reruns of programs on television.
In general actors have no copyright in their performances, provided the contract states otherwise. The Supreme Court in 1979, in the famous copyright dispute involving actor Dev Anand (Fortune Films International v. Dev Anand [AIR 1979 Bom 17) gave the verdict against any right of an actor in the case of a film.
Performers rights:
“Performers rights” were introduced in India by the way of The Copyright (Amendment) Act 1994, an attempt at filling a lacunae in law by incorporating certain rights to “performers” which were not available earlier. Actor is included in the definition of “performer”. According to the definition of a “performer” under section 2(qq) of Indian Copyright Act, a “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. Provided that in a cinematograph film a person whose performance is casual or incidental in nature and in the normal course of the practice of the industry , is not acknowledged anywhere including the credits of the film shall not be treated as a performer
International Treaty:
If we look at international aspect of this law, 3 vital international treaties addressing performers rights have been,
i) The Rome Convention of 1961
ii) WIPO Performers and Phonograms Treaty 1996
iii) Beijing Treaty on Audio Visual Performance 2012.
In respect of the rights of actor, the 2012 Beijing Treaty is most important , as it deals with intellectual property rights of a performer in audiovisual performances,thus including the performances of actors in different media. This treaty came into force on April 28, 2020 updating the rights in view of the new digital era.
The Preamble of this treaty states that it aims to develop and maintain the protection of the rights of performers in their audiovisual performances in a manner as effective and uniform as possible.
Actors are granted economic as well as moral rights, moral rights include claim to be identified as the performer of his performances, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations
Article 12 of Beijing Treaty lays that that once a performer has consented to fixation of his or her performance in an audiovisual fixation, the exclusive rights of authorization shall be owned or exercised by or transferred to the producer of such audiovisual fixation, subject to any contract to the contrary between the performer and the producer of the audiovisual fixation as determined by the national law.
Further such consent or contract should be:
a)in writing and
b)signed by both parties to the contract or by their duly authorized representatives and
most importantly independent of the transfer of exclusive rights described above, national laws or individual, collective or other agreements may provide the performer with the right to receive royalties or equitable remuneration for any use of the performance,
The term of protection:
The term of protection to be granted to performers under this Treaty is until the end of a period of 50 years computed from the end of the year in which the performance was fixed.
The corresponding section under the Indian Copyright Act 1957 can be found in Section 38, 38A and 38B.
Cinematograph is a collaborative effort, in which the producer, director, actor, musician and others contribute in the process of acheiving the final product i.e a film. In India, if an actor is not successful enough to demand terms and conditions in his/her favour, trend is to deny them the rights in their work specifically since no system exists for royalty income.
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