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Concept of Neighbouring Rights Under IPR

INTRODUCTION

Copyright protects and covers all creations that are a product of the creative human mind, irrespective of their form or merit and the audience that it was destined for. This form of protection is immediate and requires no formal procedure is always required as long as the work is original.

Neighbouring rights, also known as rights neighbouring to/related to copyright form three categories of people who are not technically authors of the work so creates and are performing artists, producers of phonograms, and those that are involved in television, radio and broadcasting. Printing, broadcasting, recording, performing, translating or adaptation can be reproduced by their respective authors. Authors further own the right to financially exploit their work and prohibit unlawful uses of the same by others.[1]

It is impossible to segregate Copyright and neighbouring rights and also to provide a separate legal regime for protection of neighbouring rights. On an international level, the interest in Intellectual Property Rights has gradually increased, so much so that WIPO, and WTO stand together, as of today, on issues of protection and compel the member nations to bring their domestic laws in accordance with international commitment which get in lucrative trade. This clearly indicates that neighbouring rights are slowly gaining a legal identity of their own and are only moving further towards stringent legal regime to strengthen these intermediary rights.[2]

TYPES OF NEIGHBOURING RIGHTS

As previously mentioned, neighbouring rights have three categories. They are performer’s right, recording rights and broadcasting rights.

Performers Rights are particularly designed to protect performers like the musicians and actors, in their performances against unauthorised recording (rendering them illegal) or live transmission of their live performances and to guarantee adequate control over and remuneration for the exploitation of recordings of their performances.Consent is required from all performers that are involved irrespective of their position, principal, lead or a supporting cast. Once such a consent is given, it cannot be withdrawn. By law, where a sound recording of a performance has been made with the consent of a performer, the performer’s consent is further required for any communication to the public, copying or issuing of that sound recording to public. Such rights can be enforced by the representatives of the performer after his/her death.

Broadcasting, has proven to be most efficient and the quickest way to disseminate information to the public at large. ‘Broadcasting Rights’ are those rights which have been duly conferred to broadcasting organizations such as the television, radio or other telecasting programmes known as ‘rights of broadcasting organizations. A live performance by a singer is the original performance and a person from the audience records it and puts the audio on internet. Does this amount to broadcaster’s reproduction rights? If yes, it will give great rights to broadcasting organisations to censor information under the pretext of protecting copyright in the work.

As the producer of an event, the owner of the Copyright is the also the owner of all the rights and revenue that are the output of organisation, creation and development of the event. This obviously includes media and broadcasting rights related thereto. Only the Copyright owner has the right to grant to others, the right to broadcast, communicate, make available and/or authorize the transmission, communication, broadcasting or making available to the public, the event so produced.[3]

INTERNATIONAL TREATIES PROTECTING NEIGHBOURING RIGHTS

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, famously known as the Rome Convention is one of the most prominent conventions at the international level. It was adopted in 1961. It is jointly managed and directed by the United Nations Educational, Scientific and Cultural Organization, (UNESCO), the International Labour Organization (ILO) and WIPO.

Copyright, along with neighbouring rights form a part of the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, 1994, which came into force on 1 January 1995. A membership of this Convention ensures that copyright holders in the respective member nations get recognition of their rights within the territory of other member nations.

India has accepted many international obligations with the intention of protecting copyrights. India is a member state of the following conventions:

  1. Berne Convention, 1886 for the protection of Literary and Artistic Works since 1 April 1928
  2. Universal Copyright Convention (UCC), under the auspices of UNESCO, since 20 October, 1957
  3. Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, since 12 February 1975
  4. Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties and Additional Protocol, since 31 October 1983
  5. WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference on December 20, 1996
  6. WIPO Copyright Treaty, adopted by the Diplomatic Conference on December 20, 1996

NEIGHBOURING RIGHTS IN OTHER NATIONS

The Dutch Neighbouring Rights Act, (Wet op de Naburige Rechten) grants private and exclusive exploitation rights to performing artists, like musicians and actors, broadcasters and recording companies. Under this Act, performing artists entitled to moral rights too and no formality has to be undergone to acquire neighbouring rightsas neighbouring rights are acquired through either performing, recording or broadcasting.

In Canada, there exists the Neighbouring Rights Collective of Canada (NRCC) which was established in the year 1997. This body is designated by the Copyright Board in order to administer reasonable compensation. It is a collective umbrella which collects a proportionof advertising revenue from commercial radio stations that lay across Canada.[4]

The recognition of Neighbouring Rights in the United States does not go as back in the history as the Copyright regime but ever since 1976, neighbouring rights have become a significant feature of Copyright protection. Strong movement to balance competing interests and freedom to share information has been in existence in the United States of America for sometime now. A rigorous protection of Copyright and neighbouring rights is governed by The Digital Millennium Copyright Act, 1998.[5]

In Japan too, there have been recent developments and the duration of neighbouring rights expires posts fifty years from the year when the publishing was made or when the first fixation of sounds was made. In case, there has not been any publishing within a period of fifty years, following the first fixation of sounds, for phonograms. Protection of neighbouring rights starts on the following date, and expires at the end of a period of fifty years from the beginning of the year following the date (except Phonograms). In February 1996, the Japanese government announced that it will amend its Copyright Law with the inetion of extending neighbouring rights to fifty years in case of sound recording.

NEIGHBOURING RIGHTS IN THE INFO-TECH REGIME

It is very undefined whether recent concepts fit into existing neighbouring right system or whether there should be made amendments to existing copyright statute. The broadcasting organization’s entrepreneurship efforts is one of the most classical cases on the needs of broadcaster’s rights. An example would be a cricket match played in a country and the live coverage of that is sent instantaneously via a communications satellite to the authorized broadcaster in another country; a third-party cable operator in the second country intercepts the satellite signal and uses it himself, probably even adding his own advertising.[6]

Analogue technologies are the origin of the concept of neighbouring rights and it faces a substantial change it its scope due to rapid developments in information technology. This clearly implies that neighbouring eights enforcement has to become modified in accordance with technological developments. Specific innards and scope of neighbouring rights under the current Copyright regime in India well be amended with rapid growth of entertainment business in India and substantial developments in information technologies

CONCLUSION

It is to be noted that for any protection regime, it is important that it must not liquidate rights as to freedom of information and access to knowledge. In the present proposed treaty ‘broadcast’ has been much more widened and the rights protected sought to include sounds, images or sounds and images, or of the representations thereof, with additional terms that address the issue of how the material is disseminated.[7]

Till now, because of WIPO, authors, performers and phonogram producers are granted a broadly worded exclusive right of communication covering all possible aspects of neighbouring rights.Studying the international regime in comparison with the national regime, clearly indicates that the area of neighbouring rights in India requires enhanced protection within the existing framework of copyright and relates rights. It is assumed that the WIPO treaty on webcasting will lead to a better influence on the existing Indian laws and would expand the narrow parameters of neighbouring rights that currently exist in India.[8]

 


[1]Archive.india.gov.in. (2019). Business Portal of India : Legal Aspects : Laws relating to Intellectual Property Rights (IPRs) : India and Intellectual Property Right (IPR). [online] Available at: https://archive.india.gov.in/business/legal_aspects/india_ipr.php [Accessed 1 Jul. 2019].

[2]Ministry of Business, I. (2019). Moral and performers' rights. [online] Intellectual Property Office of New Zealand. Available at: https://www.iponz.govt.nz/about-ip/copyright/moral-rights-and-performers-rights/#jumpto-performers__2019-rights1[Accessed 1 Jul. 2019].

[3]Guibault, D. (2019). The Nature And Scope Of Limitations And Exceptions To Copyright And Neighbouring Rights With Regard To General Interest Missions For The Transmission Of Knowledge: Prospects For Their Adaptation To The Digital Environment.

[4]Supasiripongchai, N. (2014). The Protection of Performer’s Rights under the Copyright Law in Thailand: The Proposed Reform in the Light of the Prospective Free Trade Agreements with the United States and European Union. Intellectual Properties Rights: Open Access, 2(4), pp.12-16.

[5]Diversity of Cultural Expressions. (2019). Intellectual property rights, and the Copyright and Neighbouring Right Protection Act, No. 6. [online] Available at: https://en.unesco.org/creativity/policy-monitoring-platform/intellectual-property-rights [Accessed 1 Jul. 2019].

[6]Wipo.int. (2019). WIPO - World Intellectual Property Organization. [online] Available at: https://www.wipo.int/ [Accessed 1 Jul. 2019].

[7]Niscair.res.in. (2019). Neighbouring Rights Protection in India. [online] Available at: https://www.niscair.res.in/sciencecommunication/ResearchJournals/rejour/jipr/Fulltextsearch/2004/July%202004/JIPR-vol%209-July%202004-pp%20356-370.htm[Accessed 1 Jul. 2019].

[8]Pandey, D. (2004). Theory of Neighboring Rights. [online] pp.3-8. Available at: Pandey, Sanjay Kumar, Theory of Neighbouring Rights (February 5, 2005). Available at SSRN: https://ssrn.com/abstract=838724 or http://dx.doi.org/10.2139/ssrn.838724[Accessed 1 Jul. 2019].

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Submitted by Purnima Mathur

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