Protection of performers' rights

PERFORMERS specially singers and musicians should be happy to hear that their rights have been duly protected by the New Intellectual Property Act No. 36 of 2003.

The earlier Legislation Intellectual Property Act No. 52 of 1979 did not contain specific provisions for the protection of Performers' Rights. In the New Act, the Term Performers is defined as follows.

"Performers means singers, musicians and other persons who sing, deliver, declaim, play in or otherwise perform literary of artistic works or expressions of folklove".

Singers and musicians who sing or play melodies created by others, are termed as performers. In Sri Lanka most of the popular singers fall into this category.

Performers do not enjoy copyright protection as they're merely instrumental in relaying somebody else's creations.

In the recent past the question of the ownership of a song was highly debated among composers, lyric writers and singers.

Most of the singers claimed that they also have equal rights, along with composers and lyricists. Yet it is a globally accepted fact that a singer does not have copyright for a song, sung by him as there is no creation involved.

In our region (South Asian) a song is identified with a singer. Most of the songs get popularity due to the personality of a popular singer, notwithstanding, a melody and lyrics.

In the chapter two of the present legislation, provisions have been introduced to safeguard the rights of a performer, under the title of Related Rights.

The performers are only entitled to Related Rights or Neighbouring Rights, since they do not create original work.

Section 17 of the Chapter II reads as follows.

Sect. 17 (1) Subject to the Provisions of Section 21, a Rights to carry out or to authorise any of the following acts:-

(a) the broadcasting or other communication to the public of his performance or a substantial part thereof, except where the broadcasting, or the other communication.

(i) is made from a fixation of the performance, other than a fixation made in terms of Section 21: or

(ii) is a re-broadcasting, made or authorized by the organization initially broadcasting the performance or substantial part thereof;

(b) the fixation of his unfixed performance or substantial part thereof;

(c) the reproduction of a fixation of his performance or substantial part thereof.

(2) Once the performer has authorized the incorporation of his performance in a audio-visual fixation, the provisions of subsection

(i) shall have no further application.

(3) Nothing in this Section shall be construed to deprive performers of the right to enter into contracts in respect of their performances or terms and conditions more favourable to them.

(4) The right under this section shall be protected from the moment the performance taken place until the end of the fiftieth calender year following the year in which the performance takes place.

Section 18, 20, deal with the rights of sound Recorders and Broadcasting Organization, Section 21, deals with limitation of the right of a performer which reads as follows.

21. Section 17,18,19 and 20 shall not apply where the acts referred to in those sections are related to -

(a) the use by a physical person exclusively for his own personal purposes;

(b) using short excerpts for reporting current events of the extent justified by the purpose of providing current information;

(c) use solely for the purpose of face to face teaching activities for scientific research;

(d) cases, where under copyright, a work can be used without the authorization of the owner of copyright.

Enforcement of rights and disputes resolution are described in the section 22.

The owner of rights is entitled to get an injunction and claim damage for the infringement.

Also Court has the jurisdiction to grant injunctions, to order the impounding of copies being sold or to order for a payment of damages.

The Director General of the National Intellectual Property Office of Sri Lanka has the power to hold an inquiry with regard to infringement and give a decision binding the parties. Any party aggrieved by the decision of the Director General may make an appeal to the Court.

It is evident that under the New Legislation exploitation of original singers and musicians is prohibited, for a period of 15 years. Performers should get together and join a collective society in order to safeguard their rights.

- Rajendra Jayasundara Bandara

(Attorney-at-Law)