Section 38B of the Copyright Act, 1957 - Moral Rights of the Performer
Section 38B of the Copyright Act, 1957 protects the personal or moral interests of a performer in a performance. These rights exist independently of an assignment, whether the performer has assigned the relevant economic right wholly or partly.
What does Section 38B provide?
Right to be identified: A performer has the right to claim identification as the performer of the performance, except where omission of the credit is dictated by the manner in which the performance is used.
Right to protect reputation: A performer may restrain, or claim damages for, distortion, mutilation or another modification of the performance when that treatment would be prejudicial to the performer's reputation.
Technical editing does not automatically prejudice reputation
The Explanation to Section 38B clarifies that merely removing part of a performance for editing, fitting a recording within a limited duration, or making another modification required purely for technical reasons is not, by itself, treated as prejudicial to the performer's reputation.
Meaning of performer and performance
Section 2(qq) of the Act defines a performer broadly to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or another person who makes a performance. The proviso dealing with a casual or incidental performance in a cinematograph film contains a specific exception connected with Section 38B(b).
Section 2(q) defines performance, for the purpose of performer's right, as a visual or acoustic presentation made live by one or more performers.
Section 38B and assignment of performer's rights
The important feature of Section 38B is that the moral rights remain with the performer independently of assignment. Therefore, transfer of economic or exploitation rights does not, merely by itself, extinguish the performer's statutory right to identification or the protection against prejudicial distortion, mutilation or modification.
Relationship with other performer-right provisions
Section 38B should be read with the surrounding provisions governing performers and broadcasts. Section 38 recognizes the performer's right, while Section 38A deals with the exclusive rights of performers. Section 39 specifies acts that do not infringe broadcast reproduction right or performer's right, and Section 39A applies specified provisions of the Act to broadcast reproduction rights and performers' rights with necessary adaptations and modifications.
When was Section 38B introduced?
Section 38B was inserted by Section 27 of the Copyright (Amendment) Act, 2012 and took effect on 21 June 2012. The 2012 amendments substantially strengthened the statutory framework for performers, including their economic and moral rights.
Official text and resources
For the authoritative statutory text and current administrative resources, see the Copyright Act, 1957 published by the Copyright Office and the Copyright Office, Government of India. The official portal also provides the Copyright Rules, forms, notices and online copyright services.
Related provisions
This page is a general legal information resource. For a dispute involving performer credits, modification of a performance, licensing or damages, the applicable agreements and facts should also be examined.