INTELLECTUAL PROPERTY LAW

SEMESTER VIII

A RESEARCH PAPER ON:

Evaluation of Performance Rights in India vis-a-vis Voice Actors

SUBMITTED TO:

Dr. Twinkle Maheshwary

Professor,

Principles of Intellectual Property Law,

NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Name: Prakshal Bhargatiya

Roll No.: A018

BA LLB (Hons) Division A

(2019-24)
Table of Contents
Introduction..............................................................................................................................2
Research Problem....................................................................................................................3
Research Question....................................................................................................................3
Research Methodology.............................................................................................................3
A voice actor is a performer, right?........................................................................................4
Do Voice Actors All Perform?.................................................................................................5
What Is a Buyout's Legal Validity?........................................................................................6
Conclusion.................................................................................................................................7
Way Forward............................................................................................................................8
Introduction
The entertainment industry in India has seen tremendous growth over the years, with a
multitude of platforms and mediums emerging for content creators to showcase their work.
Among these, voice acting has emerged as a thriving industry, with a growing demand for
skilled voice actors in various fields such as animation, dubbing, audiobooks, and more.
However, the predicament of voice actors in India remains a complex issue, with many
performers facing significant challenges in terms of their rights and remuneration1.

One of the primary challenges faced by voice actors in India is the lack of recognition and
protection of their rights. Unlike other countries, India does not have a dedicated guild or
union for voice actors, leaving them vulnerable to exploitation and unfair treatment by
producers and studios. Many voice actors have reported instances of being paid low wages,
being denied credit for their work, and facing discrimination based on gender, language, or
ethnicity2.

Another major issue faced by voice actors is the lack of standardized pay scales and
contracts. Unlike in other industries, where contracts and pay scales are standardized, voice
actors in India often have to negotiate their contracts on a case-by-case basis, with little to no
guarantee of fair pay or working conditions. This lack of transparency and consistency can
lead to a situation where some performers are paid significantly less than others, leading to an
unfair and inequitable system3.

Additionally, the rise of digital platforms and streaming services has led to a shift in the way
content is produced and distributed, leading to further challenges for voice actors. Many
digital platforms use non-union actors and provide little to no job security or benefits, leading
to a precarious and unstable work environment for performers. Furthermore, the rise of
artificial intelligence and text-to-speech technologies may pose a threat to the future of voice
acting, as more and more producers may opt for cheaper and more efficient alternatives.

1
Roy R, “Performers Rights in India under the Copyright Act, 1957 Vis-a-Vis International Instruments: A
Critical Analysis” (JETIR) <https://www.jetir.org/view?paper=JETIR2012159> accessed March 16, 2023
2
“What Are the Rights of Performers under Indian Copyright Law?” (Legal Service India - Law, Lawyers and
Legal Resources) <https://www.legalserviceindia.com/legal/article-5440-what-are-the-rights-of-performers-
under-indian-copyright-law-.html> accessed March 16, 2023
3
Khurana KA, “Analyzing the Significance of Performer's Rights under Copyright Law - Copyright - India”
(Analyzing The Significance Of Performer's Rights Under Copyright Law - Copyright - IndiaSeptember 16,
2021) <https://www.mondaq.com/india/copyright/1111986/analyzing-the-significance-of-performers-rights-
under-copyright-law> accessed March 16, 2023
Research Problem
This life of secrecy has a high price. These talented people receive the respect they deserve
and are paid a pittance while the public's attention is on an apparition. Even though movies
may gross billions of dollars at the box office and star performers' salary levels may increase,
these people must be content with the pitiful compensation for their work. Commercial
commercials are made on large costs, but the voice that appeals to the audience is given
appalling treatment. Voice-over buyouts are used and reused throughout numerous
advertisements and media. This group of great artists needs support and recognition for their
talent. This page aims to draw attention to their problems, create a forum for debate on law
and policy, and open doors for potential fixes.

Research Question
1. A voice actor is a performer, right?

2. Do Voice Actors All Perform?

3. How Are Voice Actor Royalties Determined?

4. What Is a Buyout's Legal Validity?

Research Methodology
Keeping in mind the nature of the topic and subsequent research questions, the researcher

used the method of a secondary research. The researcher took the help of various articles

available at large on the Internet, books written by various renowned authors, on the basis of

that an article was written.

A voice actor is a performer, right?
A performer is not defined by the Act. It merely describes what a performance is and
potential performers. So, anyone who presents a live visual or auditory performance might be
considered a performer. There is no additional qualification provided by the Act. A juggler
who juggles and an actress who acts both have the right to seek performers' compensation for
their acts4. The High Court of Delhi made it plain that live presentations in a studio also count
as performances in Neha Bhasin v. Anand Raj Anand5. There does not necessarily need to be
an audience. A voice actor who performs in a studio is, therefore, also a performer.
Explanation 3 to Rule 68(4) of The Copyright Rules, 2013 (the "Rules") also states this.

As a performance is not fixed like an artistic work as defined by the Act, it cannot be
duplicated. It is outside the purview of this article to conduct a thorough study of the fixation
requirement, which is controversial in and of itself. But I'll focus on a few essential
characteristics of fixation. A practical definition of fixing is provided by the US Copyright
Statute's Section 101, which states that its embodiment must be sufficiently stable and
permanent6.

The Legislation does not give such assistance. Article 2(2) of the Berne Convention for the
Protection of Literary and Artistic Works, 1886, which does not define the term itself, allows
Member States to choose whether or not to obligate fixation. So, it is obviously not evident to
assume that a country's legislation will necessitate fixation in order for the copyright to
remain in a work if it does not do so.

We can state that while an unfixed performance can definitely exercise Section 38A rights, an
author of an unfixed work cannot exercise copyright under Section 14 of the Act. The phrase
"to create a sound recording/visual recording" in Section 38A(1) of the Act makes this quite
obvious. Although the performer had this privilege, fixation helped the performer become
well-known. Financial considerations for artists did not become significant until the
development of the technical tools for manipulating performances. The voice actor is a
performer who can use his performer's rights by lending his voice in the recording studio.

4
Ihalainen J, “That Sounds Good - Do You Have IP Rights in Your Own Voice?” (That Sounds Good - Do You
Have IP Rights in Your Own Voice?) <https://www.ipiustitia.com/2018/01/that-sounds-good-do-you-have-ip-
rights.html> accessed March 16, 2023
5
Neha Bhasin v. Anand Raj Anand, (2006) 32 PTC 779.
6
Bloomsbury.com, “International Protection of Performers Rights” (Bloomsbury)
<https://www.bloomsbury.com/us/international-protection-of-performers-rights-9781841132853/>
accessed March 16, 2023
Do Voice Actors All Perform?
The caveat to Clause 2(qq) makes it clear that a person would not be deemed a performer if
his participation was seen as casual in the cinematograph film industry. A group of young
artists is present among voice actors7.

There is sufficient rationale for not placing these individuals under the performer's domain
with respect to cinematograph films because there is no skill necessary in creating these
noises and nothing distinctive about the performance. Hence, the standard procedure in the
industry is to classify a performance as "casual" based on the standard of originality. There is
nothing that prevents extras, minor players, and the like from receiving protection under
Section 2 just as the UK Copyright, Designs, and Patents Act 1988.8

How Are Voice Actor Royalties Determined?

Being a performer, the producer is not allowed to deny the performer an equitable share in the
commercial use of the performance, which includes the exploitation of performers' rights
through reproduction, issue of copies or distribution, communication to the public including
broadcasting, and commercial rental of the cinematograph film, under Section 38A. The rules
are pretty clear regarding this in Rule 68. The application of the equitable share to Section
38A(1) and the proviso to Section 38A is made clear in Rule 68(4). (2).

According to Section 39A(1) of the Act, the performer's right is subject to the laws on
licencing, assignments, and copyright societies with the relevant changes and adaptations.
Rule 68(3) of the Rules, which applies to Performer's Society and extends Chapter XI of the
Rules dealing to Copyright Society, takes into account this connection.

The Amendment introduces an equitable royalty clause in Section 18 and Section s19 of the
Act which deal with assigns. Licenses are subject to fair royalty under Section 30A's
provisions for licencing. Via Section 39A(1), the \ssame can be extended to performers.
Explanation (1) of Rule 68(4) explains this in detail.

Voice actors have been attempting to uphold their rights through the business system for far
too long. The associations can only do so much for them

7
- AV and others, “Performer's Rights under Copyright Law ” (iPleadersApril 29, 2021)
<https://blog.ipleaders.in/performers-rights-under-copyright-law/> accessed March 16, 2023
8
“Traditional Knowledge Laws: United Kingdom” (Copyright, Designs and Patents Act 1988 (Chapter 48)
<https://www.wipo.int/tk/en/databases/tklaws/articles/article_0095.html> accessed March 16, 2023
What Is a Buyout's Legal Validity?
Oral agreements are not permitted by the Act, and the following details are crucial:

(a) Any contracts relating to performer rights must be in writing:

Along with Sections 19 and 30 of the Act, read Section 39A.

(b) A written agreement that refuses to pay successive royalties is illegal because the Act and
the Regulations require equal royalty payments:

Explanation 1 to Rule 68(4) of the Regulations, Proviso to Section 38A(2), Section 39A(1)
read with Sections 18(1), 19(9), and 19(10) of the Act, and Section 30A of the Act.

(c) The duration of use, royalty amount, terms for modification, extension, and termination,
as well as the territorial scope of use and the medium of use, must all be specified in the
agreement: Read Sections 19 and 30A of the Act together with Section 39A(1).

(d) The agreement will not grant the producer any rights to utilise new exploitation channels
or platforms that were not yet in existence when the agreement was executed. Clause 18(1) of
the Act's second proviso read with Section 39A(1).
Conclusion
Performance rights refer to the exclusive right of performers to control the use of their
performances. In India, the Copyright Act, 1957 grants performers certain rights, including
the right to prevent others from recording, broadcasting, or communicating their
performances to the public without their consent.

However, when it comes to performance rights specifically for voice actors, the situation is
not clear-cut. In India, voice actors may not have the same level of protection as other
performers, such as actors, musicians, and dancers. This is because the Copyright Act, 1957
defines "performer" as a person who "delivers" a performance, which may not include voice
actors who provide only their voice for a performance.

Furthermore, there is currently no specific legislation or case law that specifically addresses
the performance rights of voice actors in India. As a result, the extent to which voice actors
can protect their performances under Indian copyright law is uncertain.

In conclusion, while the Copyright Act, 1957 provides some level of protection to performers
in India, the rights of voice actors may not be as clearly defined or protected. As such, it may
be necessary for voice actors and their representatives to advocate for stronger protections for
their performances under Indian copyright law.

Indeed, a producer takes a chance when producing his product. This precise economic
justification enables him to enjoy copyright protection.

Nonetheless, the Act also safeguards the rights of additional intellectual property creators.
Asking a voice actor to choose between a flat sum payment and a portion of the royalties is
unreasonable and goes against the protection India offers its artists.

Voice actor associations must inform their local populations.

The issue of a voice actor making personal agreements that go against the community's wider
goals and purposes should stop happening. The advantages of being a member of a society
should be understood by voice actors.

It acknowledges the talent of voice actors as well as their right to make money off of their
labour. They must collaborate to create a plan that benefits them both in accordance with the
Act's guarantee of performers' rights. Also, it would be beneficial if the Indian government
acknowledged their extraordinary achievements and established the National Film Award in
their honour.

In closing, I make a plea through this essay to academics, legal professionals, law students,
and other professionals to develop solutions to the problems raised and create more literature
on this subject in order to maintain the focus.

Way Forward
Section 2(qq) of the Act should be amended to read "Voice Actor."

Any type of performer may be included in Section 2(qq) of the Act due to its inclusive nature.
But, putting a focus on them can help dispel the fundamental misunderstanding about their
participation in a situation when such a sizable group of artists is ignored and kept in the
background. If the phrase "voice actor" is used specifically in the provision, it will be of great
assistance.

In Section 38 of the Act, add the word "Originality"

As was previously said, performances themselves cannot be reproduced; only their recordings
can. Nonetheless, some performances might not pass the test for uniqueness because they
lack the necessary finesse or imagination. If the word "originality" be added to Section 38,
the clause would become more understandable. This will also justify the proviso to Clause
2(qq).