By Nishtha Nikhil Gupta
Recently the WIPOs standing committee released a report on the rights of stage directors of theatrical productions. This rejuvenates the debate on directors’ rights and protection accorded to them under the IP regime. This article will analyse the scope of directors’ rights and suggest ways of affording due protection to their efforts and skill, thereby bolstering the Indian copyright regime.
At the outset, it is crucial to bracket the characteristics, nature of “directors”. According heartfulness to this word, it will include both stage directors and film directors. A film director is defined as a person who is in charge of making films and exercises control over actors. A stage director is one who directs a theatrical production. Despite its gravitas and the role they percolate, the Indian Copyright Act (hereinafter, “ICA”) does not afford adequate protection to them.
Performer Rights in Indian Copyright Act
ICA grants the producer of a cinematographic film the exclusive right of authorship under S.17, while not considering a director’s contribution to the film under the definition of work in S.13. Moreover, the requirement of fixation in copyright law brings stage directors out of its purview. With the international stage set for recognising their contributions, it demands the search for a wriggling space within the national copyright regime. This space is afforded by related rights or performers’ rights in India. S.38 mentions that when a performer engages in a performance, he is accorded the special performer’s rights. I argue that directors should be interpreted within the definition of performers. I will justify my stand based on the following arguments.
Formulation of Performers Rights
The Rome Convention was the first international arrangement to recognise performers rights. These rights were introduced to grant protection to those individuals who enabled the communication of the creator’s work to the audiences. For instance, a lyricist cannot in any possible way convey his song to the audience in the absence of a singer. Similarly, a film cannot be conveyed or communicated to the audience in the absence of a director. The producers and scriptwriters can place copyright arsenal at their disposal all they want, but this would be Sisyphean labour in the absence of the services of a director, justifying their protection.
Performers and Performance
This brings me to the next point – the definition of performers and performance rights in the Indian statute. It spouts the requirement of a visual or acoustic performance (component 1) made live by the performer (component 2). While component 1 is obvious in the case of actors and singers, treading this area of directors’ performance becomes murky. The statute requires a “visual or acoustic presentation by the performer”. A peek into the intent of this right would show that these are consequentialist in orientation- it is based on the theory which incentivises the production of expressions and creative forms. Moreover, they were introduced to “benefit performers” who “give life to dramatic works and facilitate their communication.” The interpretation of the word performance, which has been borrowed from Schechner’s theory has been gratuitous -“a transitory activity of an individual, intended to communicate to an audience”. The related rights are, therefore, not to accord protection to the performance, rather to the skill involved in catalysing a piece of work into a form receptive and expressible to the public. S.38A of the Copyright Act prevents the reproduction of the performance without authorisation by the performer, signifying a consequentialist approach. The object being, to prevent unpaid copying and exploitation of the form in which the work is communicated. Directors require skills to convert a script into a motion picture, they are catalysts who transform an idea into a perceptible form and by the transitive property, they should thus qualify as performers. The problem is that we are so fixated on the idea of having a visual or identifiable performer that rights of backcloth performers who perform identical functions or even more are left out in the cold. We consider an actor a performer because we can visually identify them bringing scripts and dialogues into action. But a director, who directs the actors, stage, screenplay and contributes to the fulfilment of the film’s artistic vision is not considered a performer. This is despite the fact that nowhere in the copyright act is the necessity of having a visual or identifiable performer mentioned. I argue that making the distinction between a performer and a performance limpid would provide ease in granting protection to the director’s rights. An analysis of countries with distinct performers rights for directors will substantiate my claim. Russia (Article 1313), Japan (Section 2(1)(iv)) and Belarus (Article 26) identify directors as performers since stagings are considered performances capable of repeated public performance, generating special experience each time they are enacted while also providing the audience with some specificity in the form of the film or play.
After this, let us also analyse what a live performance means. Section 2(q) of the copyright act has been constantly debated in the Indian courts, with parties arguing on the meaning of “live performance.” Its interpretation went through a sea change with the case of Neha Bhasin vs UOI when the court bent over backwards to consider every performance by a performer to be live, whether performed in the studio or before a live audience. The rationale of such a decision was the labour and skill which was employed by the performers to transmit the creator’s work to the recipients. The court pontificated on the necessity to grant incentives to performers beyond stage since even studio recordings involved exertion of skill and labour. Applying this reasoning, a director too can be said to perform live, given that audiences perceive their work either live (in case of stage performance) or through performances recorded in studios (in case of cinematographic films).
In conclusion, performers rights are related rights and not copyrights for a reason. They coat-tail the incentive theory, which aims to reward people for their skill and labour when copyright technicalities do not provide shelter. Therefore, stage and film directors need incentives at par with other performers like actors in order to produce creative dramatic and cinematographic works. Directors perform through other performers and the Indian copyright regime needs to garner the courage to afford them protection against unfair and unauthorised use of their work.
The author is a 4th Year B.A., LL.B.(Hons.) Student at The National Academy of Legal Studies and Research (NALSAR), Hyderabad.