Rights are the essence of the life of a human being. To lead a joyful life, rights play a crucial role. These rights, considering their nature, are broadly of three types:
- Natural; rights provided by nature
- Moral; based on morality
- Legal; provided by law
Utmost important legal rights provided in India are fundamental rights that are provided by the Indian Constitution. As the name ‘Fundamental rights’ itself suggests that these rights are core rights. Amongst the fundamental rights, Article 21 is the soul of all rights. Article 21 provides protection for life and personal liberty. As per this Article, “no person shall be deprived of his personal liberty except according to procedure established by law”. Article 21 over time, has expanded its horizons to a great level and in its present form has become a very broad concept. Intellectual Property Rights also referred to as IPR, are legal rights that are generally intangible in nature. These rights are created, by man, for man. These rights in their nature consist of commercial value. As per WIPO Intellectual Property means “creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” These rights had to be protected because they were seen as property. Various conventions like Paris Convention and Bern Convention bestowed protections for these rights.
India has codified the laws for Intellectual Property and various acts such as Trade Marks Act, Patents Act, and Copyright Act bestow shelter to these rights.
Personality Rights as what can be derived from its name, suggests that these are the rights related to persona. These rights can be understood as the rights of an individual which are exclusive and attributable to persona. These rights are considered property, and thus are shielded by Indian laws and judiciary. Though, these rights are not specifically codified, but, are greatly recognized and respected.
ROLE OF AMENDMENTS
The Amendment of 1994 to the Copyright Act played a very important role in providing rights to performers. Before the amendment, rights were not secured for the performers. With the amendment old Section 38 was substituted with a new one. As per this section, performer rights meant: Where any performer appears in any performance, he shall have a special right to be known as the performer’s right in relation to such performance and Section 2(qq) Performer includes “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance”.
With the implementation of the amendment, a performer’s right to his performance was secured from infringement for 25 years. Now, whosoever, without the consent of the performer, did anything like making a sound recording or visual recording or reproducing such performance was deemed to have infringed the performer’s rights. The consent of the performer acquired great power with the implementation of the amendment.
Copyright Act in its present form defines Performer’s rights under Section 38 and under which the right shall now subsist for 50 years w.e.f. 15.01.2000.
Now, with effect from 21.6.2012, a very favorable and beneficial provision for performers has been added by which, in addition to exclusive rights, the performers are also provided with moral rights. As a matter of fact, a provision for royalties, in case the performance of the performer is being used for commercial purposes, is also provided.
These provisions have provided a sense of security to the mind and souls of performers that their performance will not be misused in any sense as well as they will get due credit for what is theirs.
ROLE OF JUDICIAL PRONOUNCEMENTS
Icc Development v Arvee Enterprises described these rights as “The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc.”
Titan Industries v Rajkumar Jewellers a celebrated judicial pronouncement on trademark infringement in India have discussed the concept of Celebrity in the case. As per this case, Celebrity refers to “A celebrity is defined as a famous or a well-known person. A celebrity is merely a person who many people talk about or know about.”
Shivaji Rao Gaikwad v Varsha productions, in this case, the renowned actor Rajnikanth argued that the defendant had misappropriated his persona, name, etc., even though there is no resemblance.
In a recent case, generally known as the Selmon Bhoi case, the Bombay civil court granted the relief in nature of temporary restraint in favor of renowned actor Salman Khan and against Parody studios private limited. Parody studios made a game “Selmon Bhoi” on the famous hit-and-run case of Salman Khan, without his consent. The game allegedly infringed on the actor’s right to privacy as well as personality rights. Justice KM Jaiswal observed “When the plaintiff has not given any consent for installing, preparing and running such game which is very similar to his identity and the case which was against him, certainly his right to privacy is being deprived and is also tarnishing his image”
Amitabh Bachchan v Rajat Nagi a recent judgment provided relief of ex-parte injunction in favor of Amitabh Bachchan. As per the facts of this case, a fake lottery and online scam were being run in the name of the famous show KBC and Amitabh Bachchan, thus infringing his personality rights.
From A.K Gopalan Case to the Aadhar Judgment right to life and personal liberty has seen a drastic and magnificent development. These developments have added to the beauty of Article 21. The “Performer Rights” as provided by the Copyright Act, “celebrity rights” and “publicity rights” as provided by various judicial pronouncements, can under no circumstances, be read in isolation. These rights, as far as possible, shall always be read in conjunction with Article 21. These rights can be understood as a by-product of Article 21.
“No person shall be deprived of his life or personal liberty except according to a procedure established by law. The scope of the right to life and liberty has developed into a multidimensional and very broad concept. Whatever a human brain can think of personal liberty, judicial pronouncements in India have by far been inculcated in Article 21 of the Constitution of India.
Author(s) Name: Aseem Bhakher (Department of Laws, Panjab University, Chandigarh)