Section 38A of the Copyright Act, 1957 - Exclusive Right of Performers

Section 38A protects the exclusive economic rights of performers in India. It identifies the acts that a performer may do or authorise in relation to a performance and also preserves a statutory entitlement to royalties when a performance incorporated in a cinematograph film is commercially used.

Current legal context: Section 38A forms part of the Copyright Act, 1957 and should be read with Section 38 on performers' rights, Section 38B on moral rights of performers, and Section 39 on acts that do not infringe performers' rights.

Meaning and scope of Section 38A

A performer's right is distinct from the copyright that may subsist in an underlying literary, dramatic, musical or other work. Section 38A operates without prejudice to authors' rights and grants the performer control over specified exploitation of the performance or any substantial part of it.

For the Act generally, the expression "performer" is defined in Section 2(qq) and includes persons such as actors, singers, musicians, dancers, acrobats, jugglers, conjurers, snake charmers and persons delivering lectures, as well as other persons who make a performance.

Section 38A - Exclusive right of performers

(1) Without prejudice to the rights conferred on authors, the performer's right is an exclusive right, subject to the provisions of the Act, to do or authorise the doing of specified acts in respect of the performance or any substantial part of it, including:

making a sound recording or visual recording of the performance, including:
1. reproduction in any material form, including storage by electronic or other means;
2. issuance of copies in any material form, including storage by electronic or other means;
3. communication of the recording to the public; and
4. sale, commercial rental, or offering a copy or recording for sale or commercial rental.
broadcasting or communicating the performance to the public, except where the performance is already broadcast.

(2) Where a performer has, by written agreement, consented to incorporation of the performance in a cinematograph film, the performer cannot, in the absence of a contract to the contrary, object to the producer's enjoyment of the performer's right in that film.

Royalty proviso: The performer remains entitled to royalties where the performance is used commercially, notwithstanding the rule stated in sub-section (2).

Rights protected under Section 38A

Recording right: control over making sound or visual recordings of the performance.
Reproduction right: control over reproduction and electronic or other storage of the recorded performance.
Distribution right: control over issuing copies of the recording.
Communication right: control over communication of the recorded performance to the public.
Commercial rental and sale right: control over sale, offering for sale and commercial rental of copies or recordings.
Broadcast right: control over broadcasting or communicating the performance to the public, subject to the statutory exception for an already broadcast performance.
Royalty right in films: a performer who has consented in writing to incorporation of the performance in a cinematograph film retains the statutory entitlement to royalties for commercial use, subject to the Act.

Written consent for a cinematograph film

Sub-section (2) deals specifically with a performance incorporated in a cinematograph film. Once the performer gives written consent for such incorporation, the producer may enjoy the performer's right in that film unless the contract provides otherwise. The proviso is important because it separately protects the performer's entitlement to royalties for commercial use of the performance.

Related provisions

Section 38 establishes the performer's right and its term. Section 38B deals with the performer's moral rights, while Section 39 identifies specified acts that do not amount to infringement of broadcast reproduction rights or performers' rights. Section 39A applies certain other provisions of the Act to these rights.

Official legal resources

For the authoritative statutory text and current Copyright Office materials, see the Copyright Act, 1957 published by the Copyright Office and the Copyright Office, Government of India. Users should verify the latest statutory text, rules and notifications before relying on any provision for legal proceedings or transactions.

This page is an informational explanation of Section 38A and is not a substitute for the official statutory text or case-specific legal advice.