In November 2013, the copyright notice given by Viacom18 for ‘Gutthi’- a character created in Comedy Nights with Kapil prompted me to think that it is justified that an actor to protect a character played by him on a one show as one infuse life in it and the copyright over it is demanded by the producers who are not creators of the work but distributors of the work.
Copyright is the part of intellectual property which gives exclusive legal right to the original creator of the work. The copyright law protects the intellectual creations in works that are original. It protects the work as soon as it was created and even no registeration formalities are required.
According to the Oxford English Dictionary, copyright is “The exclusive right given by law for certain term of years to an author, composer etc (or his assignee) to print, publish and sell copies of his original work”. The Copyright Act, 1957 was silent on the “performers” rights. Under Section 2 of the Act
“Performer” includes “an acrobat, musician, singer, actor, juggler, snake charmer, a person delievering lecture or any other peson who makes a performance”. Section 38 of the Act gave protection to actors, musicians, jugglers, dancers etc under the head of ‘Performers Rights’. This ensured that the rights are not exploited and the creative efforts of the person who does the work are rewarded.
The law in India which governs the Performers Right are weak as when compared to the laws in prevailing in UK and USA. In England, the performer act was passed in 1925. The performers right in England is on equal footing as of India. In England the performers are given economical rights. The inadequacies in English legal systems are with primarily with respect to unprotected moral rights and non tangible rights. As in the Indian system this is primarily because England uses a system of copyright to protect performer interest. Thus, the legal system of UK & USA are stronger as compared to that of India. The right of publicity is a useful judicial innovation; its applicability is limited only in a country like India, where the judicial system has not developed a jurisprudence of Publicity rights.
NEED FOR PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
The need for protection of of performers’ right arose with the passage of time. The fundamental reason was the technological development that enabled recording & broadcasting of the performers’ right. But earlier these rights were not there and according to Adam Smith, there could be mainly two reasons for not recognizing the performers’ rights.
1) Social and Historical Reasons- During the formative period of copyright, the actors were
regarded as “vagrants” by law. The players, buffoons, musicians, opera-singers, opera dancers, etc. were the classical examples of ‘unproductive labor’.
2) Historical and Technological Reasons- The work of all the performers used to perish in
the instant of its production.
However, the development of technology in the late nineteenth and early twentieth century enabled performances to be recorded and broadcasted to the public locally, regionally, nationally and eventually internationally.
The Copyright Act divides the performers into three categories:
Performers giving live performances- The performer when he performs in the front of the audience (live) or engages in any performance he has right over that performance.
Performers in a cinematograph film with credits in the film- The performer when he gives his rights to the person with any written agreement to make it a part of any commercial use, the performer shall be entitle to have royalties or some monetary benefit.
Performers in a cinematograph film without credits in the film- There are many performers in supporting cast which are generally called as a “extras” in any play, film etc.
The Copyright Act till now doesn’t give any protection to such people except moral rights which is probably prejudicial to their recognition. The acts of stand-up comedians might be included beneath the first category. For this reason, we will thoroughly say that Sunil Grover has a proper over the individual- ‘Gutthi’- created by using him.
PERFORMERS’ RIGHTS BELOW SEC-38A OF COPYRIGHT ACT
Sec-2(q) of the Act defines ‘performance’ as “any mode of visible or acoustic presentation, which includes such a type of presentation through the exhibition of a cinematograph film, or through radio-diffusion, or by means of using a document, or by way of every other method and, on the subject of a lecture, includes the transport of such lecture.”
Sec 2 of the Act defines a ‘performer’ as an actor, singer, musician,” “an an actor, singer, musician, dancer, acrobat, juggler, conjuer, snake charmer, some one delievering lecture or another individual who makes a overall performance” Charter 38 A clause 2 of the The Copyright Act, 1957 is applicable in this regard in reality that the performers’ rights unique in s. 38A (1) are loved by way of the manufacturers of a cinematographic film once an artist’s performance is included within the movie.
Charter38A (2) of The Copyright Act, 1957 makes it clear that the performers’ rights designated in S. 38A (1) are loved through the manufacturers of a cinematographic film once an artist’s performance is integrated in the movie.
This function becomes additionally emphasized in Fortune films international v. Dev Anand. In this situation, the query whether or not copyright subsisted within the overall performance of a performer changed into determined with the aid of the Bombay high court. The court held that copyright safety is to be had handiest to film which includes the soundtrack, the cine artists who act in the film are not covered through copyright regulation for his or her acting.
However, the instantaneous case of ‘Gutthi’ involves an issue unanticipated by using the 1957 Act-whether or not the proper replica the character in a next distinctive show in which the person is played with the aid of the actor who had initially performed the man or woman, is a proper of the actor. The ‘person delineation test’ (popularly known as Nichols check), laid down in Nichols v. widely wide-spread pictures is a yardstick to decide copyright potential of a character in USA. The test is to see whether a person is adequately evolved inside the thoughts of the reader/viewer so that it will warrant legal protection, i.e., the individual need to be distinct and ought to no longer be a stock character v(regular charecters along with ‘female round the corner’, ‘irritated young guy’ and many others).
It could be contended that the general public observe issued through Viacom18 violates Article 19(1) (g) of the Indian constitution; due to the fact, in restraining the artist from replicating Gutthi on some other display, Viacom18 is interfering with the artist’s proper to livelihood. A performer adds his personal flavor to the already existing/ created person thereby creating a distinct man or woman- so in impact the performer and the author grow to be one and the same- can this type of declare be made under the law.
The primary aim behind copyright regulation is that the society should get facts and the primary purpose of IPR regulation is to incentives the proper humans so that the general public benefits from the advent of facts. This isn’t in compliance with the concept of proper allocation of rights. The ‘sweat of the brow’ doctrine needs that the actor who has created the person need to be getting copyright over his work.
Sunil Grover had himself created the man or woman of Gutthi (evidenced via the truth that he had performed Gutthi on an in advance show ‘Comedy Circus’).[ this means that the manufacturers did now not play a function in the introduction of the individual and therefore, would maximum probable now not be capable of claim ownership over Gutthi. A performer adds his very own taste to the already current/ created individual thereby creating a wonderful man or woman- so in impact the performer and the writer turn out to be one and the equal. the sort of declare may also defeat the rights of producers over the character created by way of an actor.
On the other hand, when production homes input into agreements with artists, all rights inclusive of IPR inside the programmed in addition to the characters portrayed within the programmed commonly vest with the broadcaster. The person “Gutthi” has end up a household name due to its affiliation with the display “Comedy Nights with Kapil”. It has received singular association within the minds of the public no longer simply due to the artiste however majorly because of the programmer. it could no longer be appropriate to country that the public be aware given with the aid of Viacom could possibly violate article19 (1) (g). Artists are paid an inexpensive quantity of charges for the assignment of rights/waiver of rights taken by way of them. Big quantities of money are invested by broadcasters for those indicates. in the event the channel comes to a decision to merchandise the characters of the display, it’d fall inside the realm of trademark regulation. But, inside the absence of agreement to the contrary, it would indeed be exciting to recognize the legalities of individual rights in India.