Journal of Intellectual Property Rights

Vol 9, July 2004, pp 356-370

Neighbouring Rights Protection in India

Sanjay Pandey*
Faculty of Legal Studies, National Law University, NH-65, Nagaur Road
Mandore, Jodhpur 342 004, Rajasthan
Received 15 March 2004

It is not possible to segregate copyright and neighbouring rights so as to provide a separate

legal regime for protection of neighboring rights. International developments in this area of in-
tellectual property have created so much trade interest that World Intellectual Property Organi-
zation (WIPO), and World Trade Organization (WTO) stand together on the issues of protection
and compel the member-countries to bring their domestic laws in conformity with international
commitment that facilitates trade. This shows that neighbouring rights have acquired a status,
from which no relegation is possible now, what is left is to move further and devise stringent le-
gal regime to strengthen these intermediary rights. Both the treaties, WCT and WPPT, particu-
larly deal with the use of copyright protected works, performances and sound recordings in digi-
tal networks, such as the Internet. Authors, performers and phonogram (i.e. record) producers
are granted a broadly worded exclusive right of communication to the public, covering interac-
tive services and delivery on demand. Still a lot needs to be done to cope up with the developing
aspects of neighbouring rights. The world looks ahead to WIPO webcasting treaty in order to
see a bright dawn of the neighbouring rights protection regime. In this paper, an attempt has
been made to highlight and identify protection regime for the neighbouring rights under the
Copyright Act, 1957, in India. The paper also explains the concept of neighbouring rights, its
Indian context and the protection regime, loopholes and remedies.

Keywords: Webcasting, performers’ rights, neighbouring rights, legal regime, trade perspective

In India, the Copyright Act, 1957 (as right and Related Rights has given shape
amended in 1999), the rules made there to the world’s first ‘webcasting treaty’
under and the international copyright or- that reinforces mandates of Rome Con-
der, 1999, govern copyright and vention in widest possible language. The
neighbouring rights. Before disclosing the Copyright Act, 1957, gives the creators of
nice ties of neighbouring rights protection literary, dramatic, musical and artistic
in India, it is pertinent to note that Indian works, cinematograph films and sound
law might require closer scrutiny and re- recordings exclusive rights to reproduce,
looking in the light of recently concluded perform, translate and communicate their
WIPO treaty on broadcasters’ right1..The works to the public. It also gives broad-
WIPO’s Standing Committee on Copy- casting organizations ‘broadcast repro-
_________ duction right’2 and bestows on performers
*Email: advocatepandey@rediffmail.com ‘performer’s right’3. Chapter VIII of the
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 357

Copyright Act elucidates broadcasters’ creator of work and the exploiter of the
and performers’ rights, which is also work. A legal regime is designed only to
called the neighbouring rights. The term ensure the sanctity of the rights that
of ‘protection of performer’s rights has proliferates creation of work. In this
been extended to 50 years through the context, copyright is classified as a
Copyright (Amendment) Act, 1999. The private right regime where the State has a
Act also provides the authors certain minimal role to play.
moral rights like the right to claim au- But looking at the philosophy of
thorship and to restrain or claim damages copyright, which imperatively reveals
in respect of any distortion, mutilation, that protection of intellectual creation
etc. of their works. The Copyright Act against unauthorized exploitation ensures
provides a Copyright Board4 to settle freedom of knowledge creation, it would
copyright disputes, a Copyright office for be correct to state that copyright law has
registration of copyright works, and set- long emphasized that copyright protection
ting up of copyright societies5 to do copy- does not exist for its own sake but rather
right business. to serve the public interest. The
Indian copyright protection regime Constitution of the United States declares
owes a lot to international development in that the purpose of copyright in that
this area. International approach to the country is to promote the progress of
copyright protection provides that authors science and useful arts, by securing for
of literary and artistic works shall enjoy limited time-period to authors and
the exclusive right of authorizing, the inventors, the exclusive right to their
making available to the public of the respective writings and discoveries6.
original and copies of their works through Similarly, the world’s first copyright law,
sale or other transfer of ownership. Thus, the English Statute of Anne (1710) stated
copyright can be defined as a person’s that its purpose was to ‘encourage
exclusive right to authorize certain acts, learning.’
(such as reproduction, publication, public International understanding and
performance, adaptation, etc.) in relation domestic protection developed since
to his or her original work of authorship. Rome Convention of 1961 emphasized
Though the creator of the work owns the the protection of neighbouring rights,
copyright initially, but it might be sold or which are considered ancillary to the
assigned licence on mutually agreed copyright regime.
terms and conditions, in whole or in part,
to a commercial publisher, a filmmaker, a Neighbouring Rights
recording studio or to someone else who In addition to copyright, there are other
could exploit the work commercially. As neighbouring rights that may attach to a
a consequence, copyright often benefits work. Such a protection has been given a
commercial interests more than individual framework through the Rome
authors, however, this depends entirely Convention, 1961, but there are domestic
on the terms of agreement between the legislations speaking specifically on this
358 J INTELLEC PROP RIGHTS, JULY 2004

point. In India, Chapter VIII copyright protection. India is a member-

(Broadcasters’ and Performers’ Right) of state of the following international
Copyright Act, 1957, too provides for the conventions on copyright and
same. The Dutch Neighbouring Rights neighbouring rights:
Act, (Wet op de Naburige Rechten) grants
exclusive exploitation rights to (i) Berne Convention, 1886, for the
performing artists, such as musicians and protection of literary and artistic
actors, recording companies and works since 1 April 1928 (The
broadcasters. Performing artists are also convention concluded in 1886
entitled to moral rights. There is no was revised in 1896, 1908, 1928,
formality that has to be undergone to 1948, 1967, 1971 and was
acquire neighbouring rights. The rights amended in 1979).
are acquired by the act of performing, (ii) Universal Copyright Convention
recording or broadcasting, similarly as (UCC), under the auspices of
copyright exists the moment pen leaves UNESCO, since 20 October 1957
the paper. (The UCC was adopted at Ge-
In Canada, the same is accomplished neva in 1952, came into force
and strengthened through the from 16 September 1955 and was
Neighbouring Rights Collective of revised at Paris in July 1971).
Canada (NRCC). NRCC, established in (iii) Convention for the Protection of
1997, is a collective umbrella that collects Producers of Phonograms
a percentage of advertising revenue (as Against Unauthorized Duplica-
mandated by the Copyright Board), from tion of their Phonograms, since
commercial radio stations across Canada. 12 February 1975 (the convention
It is the body designated by the Copyright was adopted at Geneva in Octo-
Board to administer equitable ber 1971 and came into force
remuneration. from 18 April 1973).
In United States, there is strong (iv) Multilateral Convention for the
movement now to balance competing Avoidance of Double Taxation of
interests of protection and freedom of Copyright Royalties and Addi-
knowledge. The Digital Millennium tional Protocol, since 31 October
Copyright Act, 1998, has provided for the 1983, with some reservations.
most possible stringent protection of (v) WIPO Performances and Phono-
copyright and neighbouring rights7. The grams Treaty, adopted by the
history of neighbouring rights in United Diplomatic Conference on
States is not as old as US copyright 20 December 1996
regime8, but since 19769. neighbouring (vi) WIPO Copyright Treaty, adopted
rights have become a feature of US by the Diplomatic Conference on
copyright protection. 20 December 1996
India has for long accepted the At the international level, related rights
international obligations in regard to are conferred by the International
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 359

Convention for the Protection of check on the trade of pirated information

Performers, Producers of Phonograms material. Secondly, the ownership of an
and Broadcasting Organizations, better intellectual product and the corresponding
known as the Rome Convention. This right to income from that product in much
Convention was adopted in 1961. It is the same way as ownership of something
jointly administered by the United physical entitles one to its benefits. The
Nations Educational, Scientific and third consequence is the fundamental
Cultural Organization (UNESCO), the nature of private property, and is
International Labour Organization (ILO) appropriate to a capitalist economy11.
and WIPO. Copyright and neighbouring This ownership imposes restrictions on
rights now form part of the TRIPS the free availability of the product to
(Trade-Related Aspects of Intellectual others, so that they have to pay the price
Property Rights) Agreement 1994, which demanded by the owner in order to obtain
came into force on 1 January 1995. it. Copyright ownership is important in
The membership of these Conventions determining the level of output of the
and Agreements ensures that Indian copy- good in question, and therefore the extent
right holders get rights in those other of its dissemination. From the
countries which are members of these international perspective, this ownership
treaties. India is a member of WIPO, a determines the gains from cross-border
specialized agency of the United Nations, flows to the concerned countries. Finally,
which deals with copyright and other in- copyright bestows upon the creator of a
tellectual property rights, and plays an work, a moral right to be associated with
important role in all its deliberations. a work (or to remain anonymous) and to
maintain the integrity of a work. Moral
Trade Perspective of Neighbouring Rights rights remain with the author, subject to
There is an international trade waiver, even after the economic rights are
perspective of neighbouring rights as transferred. This pedagogy of logical
well. This is so because after coming into derivation is equally applicable to
force of WTO administered agreements, neighbouring rights.
‘trade and intellectual property’ have
shown a direct nexus and it could be seen Proposed Protection: The 2003 Broadcasters’
that in appropriate cases this nexus might Rights Treaty
show directly or inversely proportionate Neighbouring rights have taken a new
relationship between ‘trade’ and dimension with easy accessibility of
‘intellectual property’. As stated by now, technology to the world at large. In day to
neighbouring rights have been considered day affairs, it could be seen that people
a facet of copyright and legal recognition are indulging in public large-screen
of a copyright has three consequences10. showing of live broadcasts of
Firstly, it establishes a barrier to the free international sports events; showing of
flow of trade (in information), this could unauthorized copies of television
be in the sense when a legal regime puts a programmes to customers in various
360 J INTELLEC PROP RIGHTS, JULY 2004

types of shops, or to the public at fairs or of Broadcasting Organizations, these

exhibitions; sale of unauthorized organizations would enjoy the right to
recordings of broadcast programmes by a authorize or prohibit fixations of
dealer in radio or television equipment to broadcasts, including broadcasts made by
the public; broadcasting or cable wire; the right to authorize or prohibit the
distribution of pre-broadcast satellite reproduction of such fixed broadcasts; the
signals, which carry sports or right to authorize or prohibit the
entertainment programmes; publication in retransmission of broadcasts; the right of
newspapers, magazines and books of still making available to the public of fixed
photos taken from the television screen, broadcasts; the right to authorize or
particularly of broadcasts of news and prohibit the communication to the public
sports programmes, there are numerous of broadcasts, if such communication was
other instances12 that perpetuate 2003 made in places accessible to the public
treaty. All this was not so perceived when against payment of an entrance fee, and
Rome Convention13 was conceptualized. the right to authorize or prohibit the
Forty years ago, the notion of a distribution of fixed broadcasts. The draft
neighbouring right was all but Treaty addresses the issue of signal piracy
revolutionary. Perhaps understandably, by introducing a provision on the
certain authors' representatives were not protection of signals prior to their
really at ease with the prospect of authors broadcasting. Moreover, the draft also
having neighbouring rights on their own provides for provisions on the protection
rights, but, in the light of recent of technological measures and rights
developments, all such notions have management systems. The proposal also
undergone a sea change and the world is takes into account the need to safeguard
moving closer to a new regime of the balance with the rights of other
neighbouring rights. categories of rights holders, and
It is a fact that broadcasters have particularly those who contribute to
enjoyed international protection for their programmes, such as authors, and the
broadcasts since the adoption of the interests of users and the public at large.
Rome Convention, 1961. However, It is to be noted that for any protection
despite huge technological developments regime, it is important that it must not
(FM, stereo, audio and video recorders, liquidate rights as to freedom of
DVD-CD recorders and players, satellite, information and access to knowledge. In
cable, digital and on-demand delivery), the present proposed treaty ‘broadcast’
this protection has not been revised. The has been much more widened and the
WIPO Standing Committee on Copyright rights protected sought to include sounds,
and Related Rights has advanced images or sounds and images, or of the
initiatives to streamline neighbouring representations thereof, with additional
rights regime in the context of terms that address the issue of how the
technological developments. According material is disseminated. Seen on these
to draft WIPO Treaty14 on the Protection terms, it appears that this treaty comes
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 361

closer to engulf even database protection. 3 Distribution of fixations,

This view is substantiated by the US 4 Rebroadcasting (simultaneous),
proposal15 to exclude from the definition 5 Cable retransmission (simultane-
of broadcast transmissions over computer ous),
networks or any transmissions where the 6 Retransmission over the Internet
time and place of reception may be (simultaneous),
individually chosen by members of the 7 Deferred broadcasting/cable/Inter
public. The definition16 of ‘broadcasting’ net transmission based on fixation,
in the WIPO treaty is significant on the 8 Making available of fixed broad-
point that it does include mere casts,
retransmission by cable of broadcasts of a 9 Communication to the public (in
broadcasting organization or the making places accessible to the public
available of fixations of broadcasts as set against entrance fee),
out in Article 717 of the EU proposal to 10 Obligations regarding technologi-
the draft treaty. However, this limitation cal measures of protection and
does not appear in the US definition for rights management information.
webcasting. Instead, there is only a
requirement that the webcaster makes the All these have been proposed by the
material accessible to the public at the WIPO treaty to be included by the
same time. If the threshold is simply member countries in their domestic
making accessible the materials at the statutes. In furtherance thereof some more
same time, then plausibly the entire world suggestions of the member countries have
wide web is covered, including every been added to this list, which includes,
image and sound on the Internet. If text is decryption of encrypted broadcasts, rental
included under images or sounds (or of fixations and making available of
representations thereof), if the treaty does unfixed broadcasts20.
not intend this then it can and should be
clarified. Neighbouring Rights: Indian Context
The proposed broadcasters' treaty at The history of copyright is the history
WIPO seeks to give broadcasters, cable- of the response of law to technological
casters and webcasters ten more developments. Since 1971, when the
additional rights18 (given below) to the Berne Convention was last amended, and
three mentioned in the TRIPS the Rome Convention (International
Agreement19.. But their suitability to Convention for the Protection of
particular member country shall have to Performers, Producers of Phonograms
be analysed with respect to existing legal and Broadcasting Organizations) in 1961,
regime and requirement of the member there have been sweeping technological
country as to the protection of changes. The advent of digital
neighbouring rights. technologies has posed serious challenges
1 Fixation, to the copyright regime. To examine the
2 Reproduction of fixations, impact of the new technologies on
362 J INTELLEC PROP RIGHTS, JULY 2004

copyright and neighbouring rights, the matters such as period of copyright

WIPO had set up two committees of protection (60 years in India). The law
experts on possible (i) Protocol to the was amended in December 1999 to grant
Berne Convention in September 1991 and a 25-year term of protection for
(ii) instrument for protection of the rights (Broadcasters’ right) neighbouring rights.
of performers and producers of It could be seen that just as the concept
phonograms in September 1992. These of copyright had been established in
committees, after exhaustive discussions, response to the advent of printing press
in which India was an active participant, technology, it may also appear that the
drafted basic proposals for three new concept of neighboring rights emerged in
treaties, viz., line with rapid developments in various
information technologies. Even in
(i) Treaty for Protection of Literary countries, where there is no concept of
and Artistic Works, neighbouring rights as such,
(ii) Treaty for Protection of the technological adaptations of copyright
Rights of Performers and Produc- works such as sound recordings and
ers of Phonograms, and broadcasts are granted copyright
(iii) Treaty on sui generis Protection protection with some limitations on the
for Databases. copyright. As it becomes easy and cheap,
with the aid of information technologies
like audio/video recorders and computers,
The conference adopted two treaties, to make mechanical reproductions of
the WIPO Copyright Treaty and WIPO performances by popular performers of
Performances and Phonograms Treaty. In musical or dramatic works, there are also
the area of copyright and neighbouring growing demands for protecting
rights, Indian law has shown a significant performances by performers who add
advance and protection term for these original and creative contribution to the
multiple rights has been enhanced to existing works.
provide wider protection. According to
international commitments, the term of Although Copyright Act, 1957, has
protection for copyrights and right of identified performers right in Section
performers and producers of phonograms 3821, yet moral rights of the performers
is not less than 50 years. In case of are not explicitly incorporated. Moral
broadcasting organizations, the term of right of a performer states that a
protection is at least 20 years. India being performer has the moral right to claim,
a signatory to the Berne Convention has when reasonably practicable, to be
streamlined the Indian copyright laws in identified as the performer of his
order to conform to WTO requirements. performance and to prohibit any
In fact, Indian copyright laws provide for distortion, mutilation, or other
greater protection to copyrights than is modification of his performance that
required under WTO obligations in some would be prejudicial to his reputation22
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 363

Operational Regime of Neighbouring authorize the broadcasting or communi-

Rights cation to the public of their works by
Neighbouring rights (also called wire, rebroadcasting, loud speakers, or
related rights) protect the rights of similar methods and permission to
performers, producers of phonograms broadcast does not include permission to
(sound recordings), and broadcasting record the work broadcast. Similarly,
organizations. Phonograms are sound Berne Convention also provides that
recordings such as audiotapes, records, or authors of literary rights also have the
music CDs. Some of the problems exclusive right to authorize their public
addressed by the TRIPS Agreement recitation, any communication to the
include the unauthorized copying or public of the recitation, and the same
broadcasting of live performances and the rights with respect to translations. It also
unauthorized reproduction of recordings provides that authors of literary or artistic
or of radio and television broadcasts. works enjoy the exclusive right of
Under the TRIPS Agreement, nations authorizing adaptations, arrangements,
must provide a legal protection regime by and other alterations of their works24.
which performers, broadcasters, and It could be seen that in almost all
producers of phonograms can prevent domestic legislation the rights provided
such acts except with their authorization. by copyright apply to authors, related
Inspite of technological advancement, rights, known as neighbouring rights,
there is no dirth of instruments in the concern other categories of owners of
market that can be used efficiently rights, namely, performers, the producers
prejudicing rights of performers and of phonograms and broadcasting
broadcasters. The term neighbouring organizations. Related rights could be
rights furthermore implies that in many more succinctly defined as the rights that
respects the right itself is similar to the belong to the performers, the producers of
author's copyright. This particularly phonograms and broadcasting organiza
concerns the basic individual rights tions in relation to their performances,
granted (such as the right of reproduction phonograms and broadcast respectively25.
or of rebroadcasting), the fact that the Although neighbouring rights flow out
right is limited in time, and the various of copyright regime, still some difference
legal remedies are there in case of could be identified between them. Related
infringement of the rights. rights or neighbouring rights differ from
Berne Convention23 reserves to authors copyright in that they belong to owners
of dramatic works, dramatic-musical regarded as intermediaries in the
works, and musical works, the exclusive production, recording or diffusion of
right to authorize their public perfor- works. The link with copyright is due to
mance or communication to the public, the fact that the three categories of related
and any translations thereof. Berne rights owners are auxiliaries in the
Article 1 ibis provides that authors of intellectual creation process since they
literary works have the exclusive right to lend their assistance to authors in the
364 J INTELLEC PROP RIGHTS, JULY 2004

communication of the latter’s works to still depends upon the scope of licences
the public26. A musician performs a granted by the copyright owner whose
musical work written by a composer; an copyright works are incorporated in the
actor performs a role in a play written by film.
a playwright; producers of phonograms – The concept of neighbouring rights
or more commonly the record industry – originated from analogue technologies28,
record and produce songs and music it faces a substantial change in its scope
written by authors and composers, played in response to rapid developments in digi-
by musicians or sung by performers; tal technologies which consist of com-
broadcasting organizations broadcast puters, digital on-line communications,
works and phonograms on their stations. satellite communications and so on. Since
This basic characteristic of neighbouring digital technologies brought about new
rights as intermediary rights makes them concepts like digital reproduction, on-line
distinct from copyright. transmission, satellite broadcasting, pub-
lic performance connected to computer
Operational Regime in Info-Tech Age network and the like, it is highly uncer-
Overall design of neighbouring rights tain whether these new concepts fit into
in India has a positive correlation with the existing neighbouring rights system or
developing information technology as whether amendments should be made to
well. This implies that neighbouring rights existing copyright statute. A classical
enforcement regime has to be modified case on the need of broadcasters’ right in
keeping in view technological develop- hi-tech era could be illustrated as the
ments. In considering neighbouring rights broadcasting organization's entrepreneu-
in the perspective of information techno- rial efforts can be thwarted not only by
logy developments, it is worth noting that direct use of its broadcast but also by un-
copyright protection for films, sound re- authorized use of a pre-broadcast pro-
cording and allied matters under the In- gramme carrying signal transmitted via a
dian Copyright Act has a peculiar stance terrestrial or satellite telecommunications
in the middle of traditional concept of link and intended only for the broadcaster
copyright and civil law concept of neigh- itself for use in its broadcast. An example
boring right27. Although the Indian Copy- would be a cricket match played in coun-
right Act does not specifically name the try A; the live coverage (picture and in-
rights of film producers as the neighbour- ternational sound) is sent simultaneously
ing rights, it has clearly assimilated the via a communications satellite to the au-
film producers’ rights to the concept of thorized broadcaster in country B; a com-
neighbouring rights. It is to be noted that petitor or cable operator in country B in-
amendments made in 1999 to the Copy- tercepts the satellite signal and uses it
right Act (table on p. 365), has not himself, probably even adding his own
brought very significant changes in the advertising.
fundamental structure that the film pro- Another facet of neighbouring rights
ducers’ exploitation of their own films infringement could be seen in Indian
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 365

Provisions of the Copy- Impact/outcome/infringement etc of neighbouring rights of copyright

right Act, 1957 as
amended in 1999
Owner of neighbouring right may assign rights under the work to any one
provided that in the case of the assignment of copyright in any future work,
Section 18
the assignment shall take effect only when the work comes into existence.

Mode of assignment of neighbouring rights, which requires that no assign-

ment of the copyright in any work shall be valid unless it is in writing signed
Section 19
by the assignor or by his duly authorized agent

The owner of the neighbouring rights in any existing work or the prospective
owner of the neighbouring right in any future work may grant any interest in
the right by licence in writing signed by him or by his duly authorized agent:
Section 30 Provided that in the case of a licence relating to neighbouring right in any
future work, the licence shall take effect only when the work comes into exis-
tence.

This section regulates importation of copies in India of work having

Section 53 neighbouring right/copyright in them.

Civil remedies for infringement of neighbouring rights, e.g. injunction, dam-

Section 55 ages, accounts, etc.

Rights of owner against persons possessing or dealing with infringing copies;

such infringing copies shall be deemed to be property of the owner of
Section 58
neighbouring right.

Power of police to seize infringing copies of the work having neighbouring

rights. Although Section 39A does not make applicable Section 63 of the Act,
but Section 64 requires that the police officer may, if he is satisfied that an
offence under Section 63 in respect of the infringement of copyright in any
Section 64 work has been, is being, or is likely to be, committed, seize without warrant,
all copies of the work, and all plates used for the purpose of making infringing
copies of the work, wherever found, and all copies and plates so seized shall,
as soon as practicable, be produced before a Magistrate.

Punishes possession of plates for the purpose of making infringing copies. It

reads, person who knowingly makes, or has in his possession, any plate for
Section 65 the purpose of making infringing copies of any work in which copyright sub-
sists shall be punishable with imprisonment, which may extend to two years
and shall also be liable to fine.

Disposal of infringing copies or plates used , to be used for purpose of making

Section 66 infringing copies. Such materials to be handed over to the owner of copyright-
neighbouring rights.
366 J INTELLEC PROP RIGHTS, JULY 2004

scenario where CDs are rampantly limitations do exist on the protection

copied. This demands some sort of regime of neighbouring rights, which has
technological evolution for instance to be accepted as an integral part of the
making CDs single user or changing the copyright system. Because such
law in such a way as to devise a fee limitations are recognized in positive as
levying mechanism on CDs. This could users’ legitimate interests in making
be concluded with general propositions certain unauthorized uses of copyrighted
that, with substantial developments in material29. Generally speaking, Chapter
information technologies and rapid VIII of the Copyright Act, 1957
growth of entertainment business in India, encompasses right as well as protection
specific contents and scope of paraphernalia of neighbouring rights in
neighbouring rights under the current India. Section 37 ensures broadcasts
Copyright Act might well be amended reproduction right, however, Section 38
and, also, that copyright protection of defines and explains performer’s right.
underlying works like music and novel Section 39 of the Act identifies those
should not be affected by strengthened instances when an act shall not amount to
protection of neighbouring rights in the infringement of neighbouring rights
course of interpretation of licensing (broadcasters’ and performers’ rights).
agreements between the copyright owners Section 39A30, that came into force on
and neighbouring rights owners vis-à-vis 10.05.1995 by amendment Act of 1994
users of such work. makes applicable other specific
Being aware of the considerable and provisions of the Copyright Act, 1957.
increasing harm that a lack of protection, Before this, it could be pertinently noted
on the one hand, and new piracy practices that Section 53A has not been made
in the digital environment, on the other available to those holding neighbouring
hand, cause to the interests of authors, rights, which creates a presumption that
publishers, performers, producers and in cases of neighbouring rights either
broadcasters, as well as to the cultural there is no possibility of resale or such
professions and related industries as a works have no economic value so that
whole, it is therefore required to have a owners could get something during
look on the entire perspective of resale.
neighbouring rights’ enforcement regime In the realm of neighbouring rights in
in India and evolve a system that protects India, it could be seen that Chapter VIII
neighbouring rights in legally protected has segregated the entire conceptual
copyright regime. framework of neighbouring rights from
the awesome enforcement of Copyright
Protection Regime Act, 1957. This is so because Section
Legal regime cannot protect in 39A has identified provisions of the
absolute sense any rights and this fits for Copyright Act, which are applicable to
copyright-neighbouring rights protection neighbouring rights with suitable
as well. As a sequel to this, some adaptations. An argument might be
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 367

advanced that Section 39A has limited the (copyright, neighbouring rights and
scope of Copyright Act in relation to database protection) of which, two,
neighbouring rights. In this analogy namely, Copyright Treaty and a
Section 63 that elucidates the penal Performances and Phonograms Treaty
provision in relation to copyright have already acquired international
infringement would have been ousted, but compliance status. This shows that
for clause (b) of Section 6331 has become neighbouring rights have acquired a
applicable to infringement of status from which no relegation is
neighbouring rights (broadcasters’ rights). possible now, what is left is to move
Thus, this provides impetus to the further and devise domestic legal regime
argument that Copyright Act, 1957, needs to strengthen these intermediary rights.
to be revisited so as to incorporate Both treaties particularly deal with the
changes injected by the technological use of copyright protected works,
development. performances and sound recordings in
digital networks, such as the Internet.
In order to strengthen the neighbouring Authors, performers and phonogram (i.e.
rights regime in India reference could be record) producers are granted a broadly
had from the recommendations of the worded exclusive right of communication
Committee of Ministers for the Council to the public, covering interactive
of Europe32 These recommendations em- services and delivery on demand. One
phasized the following points, which area that is still open and craves attention
could give impetus to protection regime is to reach an agreement at the
for the neighbouring rights: international level on a proposal to extend
the exclusive right of reproduction to
(a) Recognition of rights
include the temporary storage of a work
(b) Remedies and sanctions
in computer memory. Another area that
(c) Technological measures and
calls for noteworthy attention is the need
rights management
of specific provisions for the
(d) Cooperation between public au-
circumvention of anti-copying devices in
thorities and between such au-
the light of recognition of access to
thorities and rights owners
information as a basic human right.
(e) Cooperation between member
The area of neighbouring rights needs
states and ratification of treaties
enhanced protection under the Indian le-
Conclusion gal regime of copyright and related rights.
Taking reference from the international It is manifest that proposed WIPO treaty
protection regime of copyright and on webcasting would definitely influence
related rights (neighbouring rights) it the Indian legal regime on parameters of
becomes pertinent to state that on the neighbouring rights protection and Indian
international level, the intergovernmental law shall accommodate the changes per-
discussions within the framework of petuated by technological development
WIPO have led to a series of three treaties through passage of time.
368 J INTELLEC PROP RIGHTS, JULY 2004

References former gave his consent; or (iii) made for

1 See wipo.org purposes different from those referred to in
2 Section37 Broadcast reproduction right: (1) Section 39 from a sound recording or visual
Every broadcasting organization shall have a recording which was made in accordance with
special right to be known as broadcast repro- Section 39, or (c) broadcasts the performance
duction right in respect of its broadcasts, (2) except where the broadcast is made from a
The broadcast reproduction right shall subsist sound recording or visual recording other than
until twenty-five years from the beginning of one made in accordance with Section 39, or is
the calendar year next following the year in a re-broadcast by the same broadcasting or-
which the broadcast is made, (3) During the ganisation of an earlier broadcast which did
continuance of a broadcast reproduction right not infringe the performers’ right, or (d)
in relation to any broadcast, any person who, communicates the performance to the public
without the licence of the owner of the right otherwise than by broadcast, except where
does any of the following acts of the broadcast such communication to the public is made
or any substantial part thereof, (a) re- from a sound recording or a visual recording
broadcasts the broadcasts, or (b) causes the or a broadcast, shall, subject to the provisions
broadcast to be heard or seen by the public on of Section 39, be deemed to have infringed
payment of any charges, or (c) makes any the performers’ right. (4) Once a performer
sound recording or visual recording of the has consented to the incorporation of his per-
broadcast, or (d) makes any reproduction of formance in a cinematograph film, the provi-
such sound recording or visual recording sions of sub-sections (1), (2) and (3) shall
where such initial recording was done without have no further application to such perform-
licence or, where it was licensed, for any pur- ance
pose not envisaged by such licence, or (e) 4 Chapter II, Section 11
sells or hires to the public, or offers for such 5 Chapter VII, Sections 33 to 36A
sale or hire, any such sound recording or vis- 6 Article 1 clause 8 of the Constitution of
ual recording referred to in clause (c) or United States
clause (d), shall, subject to the provisions of 7 See Digital Millennium Copyright Act, 1998
Section 39, be deemed to have infringed the 8 First US Copyright Act came into existence in
broadcast reproduction right. 1790, which provided in its objective an Act
3 Section 38 Performers’ right: (1) Where any for the encouragement of learning, by secur-
performer appears or engages in any perform- ing the copies of maps, charts, and books to
ance, he shall have a special right to be known the authors and proprietors of such copies.
as the ‘performers’ right’ in relation to such This Act was modeled on Statute of Anne
performance, (2) The performers’ right shall (UK) and provided a 14 year (+14 yr renewal)
subsist until fifty years from the beginning of period for copyright protection
the calendar year next following the year in 9 By this amendment language in the Act was
which the performance is made, (3) During broadened to anticipate technological devel-
the continuance of a performers’ right in rela- opments– anticipated future Berne Conven-
tion to any performance, any person who, tion adherence (US ratified Berne Convention
without the consent of the performer, does any in 1988– extended to unpublished works– Pre-
of the following acts in respect of the per- empted all prior copyright law– extended term
formance or any substantial part thereof, to life + 50 years (or 75 years for corpora-
namely, (a) makes a sound recording or visual tion)– fair use and first sale codified
recording of the performance, or (b) repro- 10 Supra note 2 at p 964
duces a sound recording or visual recording of 11 See also the socialist approach to copyright
the performance, which sound recording or that prevailed in the erstwhile Soviet Union
visual recording was- (i) made without the and eastern block countries. Paul Goldstein,
performer’s consent; or (ii) made for pur- International Copyright: Principles, Law and
poses different from those for which the per- Practice (Oxford University Press), 2001
 PANDEY: NEIGHBOURING RIGHTS PROTECTION IN INDIA 369

12 Pirated radio station operating in a neighbour- 16 Article 1bis of the treaty (as suggested by the
ing country that retransmission of live or re- EU): For the purposes of this Treaty, broad-
corded broadcasts; commercial sale to the casting means the transmission by wire or
public of CDs, videocassettes or other devices over the air, including by cable or satellite, for
that are unauthorized copies of an entertain- public reception of sounds or of images and
ment or sports programme, in the broad- sounds or of the representations thereof;
caster's country and abroad; cable distribution transmission of encrypted signals is broad-
of complete broadcast programmes in the casting where the means for decrypting are
broadcaster's neighbouring country; sale of provided to the public by the broadcasting or-
records of a music concert derived from an ganisation or with its consent. The mere re-
unauthorized reproduction of the soundtrack transmission by cable of broadcasts of a
of a live television broadcast to the public; broadcasting organization or the making
rental of unauthorized recordings of a televi- available of fixations of broadcasts as set out
sion broadcast by a video club; offering the in Article 7 shall not constitute broadcasting
service of making an unauthorized copy of a 17 Id Article 7: Right of making available of
pre-selected television programme with a fixed broadcasts: Broadcasting organizations
view to the sale thereof in video form; com- shall enjoy the exclusive right to authorize or
mercial use by a business firm of privately- prohibit the making available to the public, by
made copies of a radio broadcast; manufac- wire or wireless means, of fixations of their
ture, importation and distribution of pirate de- broadcasts, in such a way that members of the
coders and/or smart cards specifically de- public may access them from a place and at a
signed to permit unauthorized access to en- time individually chosen by them
crypted television services; distribution of 18 See CRP/SCCR/9/1 Rev, available at
television and radio broadcasts to hotel rooms www.wipo.org
by internal hotel cable services; retransmis-
sion of live broadcasts of entertainment or 19 Article 14 of the TRIPS Agreement, broad-
sports program via the Internet or cable net- casters shall have the right to prohibit the fol-
work, partly ‘framing’ the broadcast images lowing acts when undertaken without their au-
with the pirate's own advertisements; In thea- thorization: the fixation, the reproduction of
tre, video filming of movies and selling them fixations, and the re-broadcasting by wireless
through CDs or cassettes means of broadcasts, as well as the communi-
cation to the public of television broadcasts of
13 Rome Convention for the Protection of Per- the same. Where Members do not grant such
formers, Producers of Phonograms and rights to broadcasting organizations, they shall
Broadcasting Organizations (1961); Article 1 provide owners of copyright in the subject
provides protection granted under this Con- matter of broadcasts with the possibility of
vention shall leave intact and shall in no way preventing the above acts, subject to the pro-
affect the protection of copyright in literary visions of the Berne Convention 1971
and artistic works. Consequently, no provision
20 See: Report of the 9th Session of the Standing
of this Convention may be interpreted as
Committee on Copyright and Related Right,
prejudicing such protection
WIPO at www.wipo.org
14 See for details www.wipo.org, comments were 21 Supra note 6
invited from the member countries by
15 September 2003 and a meeting of the 22 See Article 5 of WIPO Performances and
Standing Committee on Copyright and Re- Phonograms Treaty, adopted by the Diplo-
lated Rights was held on 3-5 November 2003 matic Conference on 20 December 1996
23 Berne Convention Article 11
15 See SCCR/9/4: containing a proposal submit-
ted by the United States of America to WIPO 24 Id Article 12
Standing Committee on Copyright and Re- 25 See WIPO at www.wipo.org
lated Rights, September 2003 26 Supra note 15 at pp 3-11
370 J INTELLEC PROP RIGHTS, JULY 2004

27 Ibid duction right in any broadcast and the per-

28 Development in technology during 1950’s formers’ right in any performance as they ap-
perpetuated coming into existence of Rome ply in relation to copyright in a work: proved
Convention 1961 and at that time the techno- that where copyright or performers’ right sub-
logical upsurge was analogue technique in sists in respect of any work or performance
transmission of data etc that has been broadcast, no licence to repro-
29 Guibault L, Copyright limitations and con- duce such broadcast, shall take effect without
tracts: An analysis of the contractual overri- the consent of the owner of rights or per-
dability of limitations on copyright, The former, as the case may be, or both of them
Hague, London, Boston, Kluwer Law Interna- 31 Supra note 7
tional, 2002, Information Law Series No 9. p 32 Recommendation Rec (2001) 7 of the Commit-
109 tee of Ministers to member states on measures
30 Other provisions applying to broadcast repro- to protect copyright and neighbouring rights
duction right and performers’ right: Sections and combat piracy, especially in the digital
18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, environment (adopted by the Committee of
with any necessary adaptations and modifica- Ministers on 5 September 2001at the 762nd
tions, apply in relation to the broadcast repro- meeting of the Ministers’ Deputies)