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 One among the important functions of the Chair is to provide expert advice on IP issues as part of the Chair’s technical support to the Ministry of HRD. In this regard, the Chair has provided an internal position paper on the Draft Text of the WIPO Treaty on the Protection of Audiovisual Performances (submitted in April 2011). The student team at MHRD were involved in drafting the paper.
One among the important functions of the Chair is to provide expert advice on IP issues as part of the Chair’s technical support to the Ministry of HRD. In this regard, the Chair has provided an internal position paper on the Draft Text of the WIPO Treaty on the Protection of Audiovisual Performances (submitted in April 2011). The student team at MHRD were involved in drafting the paper.

Abstract:

The position paper was papered to assist the Ministry of HRD, Government of India in its response to the comments on the Draft Text of the WIPO Treaty on the Protection of Audiovisual Performances [hereinafter: draft WIPO text] submitted by India in the 21st Session of SCCR (2010) in document SCCR/21/5. The Government of India has submitted two comments on the draft WIPO Treaty on Protection of Audiovisual Performances (SCCR/19/9), which are as below:

  1. In Article 2: “Definition” of the draft text, with a view to make the definition of ‘Performer’ inclusive and broad, the following amendment is suggested:

    “performers” [are] includes, actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore or otherwise engage in performance”.

  2. Regarding Article 12, i.e. ‘Transfer of Rights’, India is of the view that Performers’ Rights should not be automatically transferred to Producers under any presumptive clause. The Rights could be made transferable by way of Contracts/Equitable Remuneration and Contractual terms should be determined by the legislation of the Contracting Parties. There should be restrictions on assignment of rights as given in section 19 of the Indian Copyright Act.

In this regard, the Indian position may need adequate support from other WIPO member countries. The italicised text in the Indian comments in relation to Article 2 reflects the concern regarding the possibility of including traditional art performances largely in the context of the Indian subcontinent and South-East Asia. Since the definition in the WIPO draft is exclusive and provides an exhaustive list of who can be treated as a ‘performers’, the Indian submission endeavours to make the definition inclusive by incorporating “includes” to replace “are” and by incorporating “or otherwise engage in performance”.  It also reflects the Indian position laid down in the Copyright Act, 1957, which provides for an inclusive definition and also allowing “any other person who makes a performance” to be considered as a ‘performer’. The comments by the Government of India to the draft WIPO text is thus largely in line with the legal position under the Copyright Act, 1957. However, the Amendment proposed in the Copyright (Amendment) Bill, 2010 under clause (qq) regarding the definition of ‘performer’ provides for a proviso that in a cinematograph a person whose performance is casual or incidental in nature and, in the normal course of practice in the industry, is not acknowledged anywhere including in the credits of the film shall not be treated as a performer except for the purposed of clause (b) of section 38B dealing with moral right to integrity of his performance. Interestingly, India has not suggested any limitation on this issue of limiting the definition of ‘performer’ by clause (qq) in the Copyright (Amendment) Bill, 2010 in its comments on the draft WIPO text.

On the issue of transfer of rights, although India has not suggested any specific textual wording in its comments on the draft WIPO text, its position is largely in line with section 19 of the Copyright Act, 1957 and the amendments proposed under the Copyright (Amendment) Bill, 2010. As explained in the WIPO document SCCR/19/9 three positions are largely followed in different jurisdiction across the world. In the USA, for example, under the work made for hire doctrine in its application to audiovisual works, where a work is specially ordered or commissioned by a producer for use as a contribution as a part of a film or other audiovisual work and the parties agree in writing that the work is to be considered a work made for hire, all of the rights comprised in the copyright vest with the producer as a matter of law and the producer is considered the sole author of the work.  In this case there it is not necessary to have an agreement concerning transfer or assignment of rights from the creator to the producer. In cases of employment context, such rights shall automatically vest with the producer during the course of employment. In some other countries, a “presumption of transfer” under the rule that creators themselves are also the original owners of rights is followed. However, this comes with a presumption that when they contribute to a cinematographic production, they transfer their rights to the producer (such a presumption may be rebuttable or irrebuttable). In other countries there is no specific regulation of the transfer of rights from the performer to the producer and the matter is left to the contractual freedom of the parties involved. India, in its comments to the WIPO text has suggested that ‘Performers’ Rights should not be automatically transferred to Producers under any presumptive clause. The Rights could be made transferable by way of Contracts/Equitable Remuneration and Contractual terms should be determined by the legislation of the Contracting Parties. Thus Indian position reflects a proposition that performers have the first ownership in their performances and further contracts and equitable remuneration principles should govern the mode and extent of transfer. Further, India suggests that there should be restrictions on assignment of rights as given in section 19 of the Indian Copyright Act.

 The position paper provides a comparative analysis of positions of various countries on the issue of scope of definition of the term ‘performer/s’ and in relation to the issue of transfer of rights. Domestic legislation of US, EU directive, South East Asia, China, Japan, Latin America, African and Arab countries have been examined. Further, any position paper submitted by such countries on these two issues is also taken into consideration for drawing remarks.

As part of technical support, Mr. Yogesh Pai is invited to regular meetings to discuss issues pending in the Standing Committee of Copyrights and Related Rights (SCCR) of World Intellectual Property Organisation (WIPO) held under the chairmanship of Secretary, Department of Higher Education, Ministry of Human Resource Development, New Delhi.

 
 
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