CHAPTER III

SALIENT FEATURES OF COPYRIGHT

AMENDMENT ACT, 2012

The C opyright Act, 1957 has been am ended six times, since its
inception, in the years 1983,1984,1992,1994,1999 and 2012. The recent
amendm ent to the Copyright Act, 1957 was introduced by way of the
Copyright (Amendment) Bill, 2010. The Bill was referred to the Standing
Committee on H um an Resource Development after its introduction in
Rajya Sabha in 2010. The Bill as revised by the Standing Committee was
passed by both the Houses in 2012. The Bill received the Presidential
assent on June 7, 2012 and came into force on June 21, 2012.^

Brief History
To address the revolutionary challenges posed by ICT (Information
Communications Technology) and digitalisation, the Copyright Act
was amended in 1994 and to make the Indian copyright law compatible
with TRIPS regime, the Act was again am ended in 1999. Meanwhile,
another significant development took place in the global copyright
scenario: the 'internet treaties' w ere adopted by WIPO. The then
existing treaties on copyright such as Beme Convention, 1883 date
back more than a quarter of a century. Hence, to adequately address
the challenges of the new digital technologies, new standards and
clarifications were indeed needed in the global copyright law. The WCT
(WIPO C opyright Treaty) and W PPT (WIPO Perform ances and
Phonograms Treaty) were concluded updating and im proving the
protection of the already existing copyright and related rights treaties.
The new treaties thus became milestones in the w orld copyright law
history by m odernizing the international system of copyright and
related rights in the digital age.
India has not yet ratified the Internet Treaties - WCT and WPPT -,
albeit the 2012 am endm ent Act tries to harm onise the Indian copyright
1 Vide S.O. 1393(E), dated June 20, 2012, published in the Gazette o f India.
Salient Features o f Copyright Amendment Act, 2012 31

law with the internet treaties. In fact, the amendm ents go much beyond
the in te rn e t tre a tie s a d d ressin g th e challenges r d e v a n t to the
dissemination of protected material over the Internet as evidenced
from various am ended provisions.

Major Amendments
Commercial rental
Though the international copyright treaties do not themselves grant
rights, they require the m em ber countries, to grant certain rights
specified on a non-discrim inatory basis. Each national law creates
rights for authors and creators. In India, section 14 of the Copyright
Act talks about the economic right of authors. By following the m andate
of article 11 of TRIPS Agreement, article 7 of WCT and article 9 of
WPPT w hich pro v id e for commercial rental rights for co m puter
programmes and cinematograph films, in India, the 1994 Copyright
Am endm ent Act introduced in section 14 the right of hire. However,
keeping in view the possibility of interpreting the term 'hire' to include
non-com m ercial h ire and len d in g by libraries and ,e d u catio n al
institutions, the term 'hire' in section 14(b) for computer program was
replaced w ith the term 'commercial rental' by virtue of am endm ent in
the year 2012 .^
The 20J.2 am endm ent has incorporated the definition of the term
'commercial rental' under section 2 (fa) as follows, by stating w hat does
not constitute commercial rental;
'Commercial rental' does not include the rental, lease or lending
of a lawfully acquired copy of a com puter programme, sound
recording, visual recording or cinem atograph film for non­
profit purposes by a non-profit library or non-profit educational
institution;

Explanation- For the purposes of this clause, a 'non-profit

library or non-profit educational institution' means a library or
e d u ca tio n a l in s titu tio n w hich receives g ra n ts from th e
G overnm ent or exem pted from paym ent of tax u n d er the
Income Tax Act, 1961.
Right to commercial rental is incorporated under sections 14(d)(ii)
and 14(e)(ii) for cinematograph film and sound recording respectively.

2 Zakir Thomas, “Overview of Changes to the Indian Copyright Law” 17(4) JIPR 326 (2012).
32 Broadcasting Reproduction Right in India

The same right has been conferred on broadcasting organisation during

the continuance of a broadcast reproduction right in relation to any
b ro a d c a st u n d e r sec tio n 37(3)(e). By in c o rp o ra tin g th e term
'commercial rental', the Am endm ent aims at distinguishing between
rental of copyrighted works with profit motive and non-profit motive,
thereby facilitating free flow of knowledge and art for educational
and social purposes.

The right to store

The am endm ents have m ade som e changes in the erstw hile
Copyright Act to address technological issues like 'storing'. This right
is included in respect of artistic works, cinem atographic films and
sound recording.
Section 14 (c) dealing w ith the exclusive rights of the author in
artistic works has been am ended to include 'the storing of it in any
m edium by electronic or other means.®
As far as cinem atograph films and sound recording are concerned
the defirution of 'cinem atograph films' under section 2 (f) has been
amended and it now reads as 'any w ork of visual recording on any
medium...'^ However, definition of 'visual recording' has been inserted
by the amendment under section 2 (xxa) which reads as, '...the recording
in any medium, by any m ethod including the storing of it by any
electronic means, of moving images or of the representations thereof,
from which they can be perceived, reproduced or communicated by
any method.'
Section 14(d) re la tin g to the exclusive rig h ts in resp ect of
cinematograph film, has been amended to include storing of a copy of
the film in any m edium by electronic or other means.^ Similarly, section
14(e) relating to the exclusive rights in respect of sound recording, has
been amended to include storing of it in any m edium by electronic or
other means.^
The rig h t to store the w ork assum es im p o rtan ce in dig ital
environment due to the special nature of transmission of digitalized
works over the internet where transient copies gets created at multiple

3 S. 14(c)(1).
4 The words “on any medium produced through a process from which a moving image may
be produced by any means” have been omitted by the Amendment Act, 2012.
5 S. 14(d)(i)(B).
6 S. 14 (e)(i).
Salient Features o f Copyright Amendment Act, 2012 33

locations. The w o rd s'an y m edium by electronic or other means' have

been in tro d u c e d c o n sid e rin g th e p o s sib ility of e v o lu tio n of
technologies. Hence, this am endm ent even takes care of technological
developments that may take place in future.
Subsequent to the decision on Warner Bros. Entertainment Inc. v.
Santosh V.G/ the application of the doctrine of exhaustion was limited
to literary, musical, dram atic and artistic works. By virtue of the
decision in Warner Bros., the doctrine of exhaustion had no applicability
to cinematographic films and to sound recordings. In Warner Bros, the
H igh Court of Delhi was confronted w ith the question w hether a
cinematograph film, in which copyright subsisted in India, once pu t
in the market by the owner of the copyright was subject to the doctrine
of exhaustion. The court observed thus:
Section 14(l)(d) provides that the copyright owner has, in case
of cinematographic films, the exclusive right to sell or give on
hire or offer for sale or hire, any copy of the film, regardless of
w hether such copy has been sold or given on hire on earlier
occasion. The copyright owner therefore continues to be entitled
to exercise rights in a particular copy of the film regardless of
w hether it has been sold previously-in express contrast to
literary works, which are "already in circulation.
However, w ith the 2012 am endm ent the position is now changed.
The am endm ent uses the term 'commercial rental' instead of the term
'h ire ' appearing in section 14(d)(ii) and 14(e)(ii) w hich relate to
cinematograph film and sound recording respectively.® Further, the
words, 'regardless of w hether such copy has been sold or given on
hire on earlier occasions' as used under sections 14(d)(ii) and 14(e)(ii)
prior to am endm ent is omitted by the 2012 am endm ent m aking the
doctrine of exhaustion applicable to cinem atograph films and sound
recordings.

Extension o f copyright duration for photographs

The term of copyright protection in a photograph is made at par
with the artistic work, i.e., until 60 years after the death of the author
by omitting the jvord 'other than a photograph' in section 22 and by

7 2 MIPR 175 Del (2009).

8 S. 14(d)(ii) confer the right to sell or give on commercial rental or offer for sale or for such
rental, any copy o f the film. S. 14(e)(ii) confers the right to sell or give on commercial
rental or offer for sale or for such rental, any copy o f the film.
34 Broadcasting Reproduction Right in India

deleting section 25 which provided a term of sixty years from the

beginning of the calendar year next following the year in which the
work is first published. After the new am endm ents section 22 reads as
under:
Term of copyright in published literary, dramatic, musical and
artistic w orks: Except as otherw ise herein after provided,
copyright shall subsist in any literary, dramatic, musical or
arhstic work published within the lifetime of the author until
sixty years from the beginning of the calendar year next
following the year in which the author dies.
Explanation: In this section the reference to the author shall, in
the case of a w ork of joint authorship, be construed as a
reference to the author who dies last.

First owner in respect o f a work incorporated in a cinematograph film

Section 17 provides for first ow ner of copyright. A com bined
reading of sections 17(b) and 17(c) clarifies that in case of commissioned
c in em ato g rap h w ork, the com m issioning p a rty and in case of
employer-employee relationship, the employer are considered to be
the first owners of the work. The 2012 A m endm ent has inserted a new
p roviso statin g that: "(I)n case of any w ork in c o rp o ra te d in a
cinematograph work, nothing contained in clauses (b) and (c) shall
affect the right of the author in the work referred to in clause (a) of sub
section (1) of section 13."
Hence the general provisions in section 17 (a) have no applicability
in relation to the rights of the authors of literary, musical, dramatic
and artistic works, which have been incorporated in cinematograph
film and the respective authors will continue to be considered as the
first ovmers of the said works even after the incorporation of such
work in a cinematographic films.

Assignment
U n d er section 18 of the C o p y rig h t A ct w hich p ro v id es for
assignment of copyright, three provisos have been inserted by virtue
of 2012 A m endm ent to safeguard the author from new m odes of
exploitation which may arise in the future by way of technological
advancem ents and w hich w ere not contem plated at the tim e of
assignment. The provisos read thus:
Provided further that no such assignment shall be applied to
Salient Features o f Copyright Amendment Act, 2012 35

any m edium or mode of exploitation of the work which did

not exist or was not in Commercial use at the time w hen the
assignm ent w as m ade, unless the assignm ent specifically
referred to such m edium or mode of exploitation of the work;
Provided also that the author of the literary or musical work
included in a cinematograph film shall not assign or waive the
right to receive royalties to be shared on an equal basis w ith
the assignee of copyright for the utilization of such work in
any form other than for the communication to the public of the
work along w ith the cinematograph film in a cinema hall, except
to the legal heirs of the authors or to a copyright society for
collection and distribution and any agreem ent to contrary shall
be void:
Provided also that the author of the literary or musical work
included in the sound recording b u t not forming part of any
cinematograph film shall not assignor waive the right^to receive
royalties to be shared on an equal basis w ith the assignee of
copyright for any utilization of such work except to the legal
heirs of the authors or to a collecting society for collection and
distribution and any assignment to the contrary shall be void.
Hence, subsequent to the 2012 am endm ent, no assignment will be
applied to any m edium or mode of exploitation of the work which did
not exist or was not in commeicial use at the time w hen the assignment
was made, unless the assignment specifically referred to such m edium
or mode of exploitation of the work. Further, the author of the literary
or musical work included in a cinem atograph film will not assign or
waive the right to receive royalties to be shared on an equal basis w ith
the assignee of copyright for the utilisation of such work in any form
other than for the communication to the public of the work along w ith
the cinematograph film in a cinema hall. Moreover, the author of the
literary or musical w ork included in the sound recording b u t not
forming part of any cinematograph film will not assign or waive the
right to receive royalties to be shared on an equal basis w ith the
assignee of copyright for any utilisation of such work except to the
legal heirs of the authors or to a collecting society for collection and
distribution and any assignment to the contrary shall be void.
Under section 19 of the Act which relates to the mode of assignment,
certain changes have been incorporated. Section 19(3) h as b een
amended to provide that the assignment of copyright in any work
shall specify the am ount of royalty and any other consideration
36 Broadcasting Reproduction Right in India

payable. Further three sub-sections, i. e., 19 (8), 19 (9) and 19 (10) have
been inserted. Section 19(8) provides that the assignment of copyright
in any work contrary to the terms and conditions of the rights already
assigned to a copyright society in which the author of the work is a
m ember shall be void. Section 19(9) and section 19(10) provide that no
assignment of copyright in any work to make a cinematograph film or
sound recording (which does not form part of a cinematograph film)
shall affect the right of the author to claim an equal share of the royalties
a n d c o n sid e ra tio n p a y ab le fo r an y u tiliz a tio n of su ch w ork,
respectively.

Relinquishment
Amendments are m ade in the m anner by which the author can
relinquish his copyright. U nder section 21, after the amendment, the
author of a work can even relinquish all or any of the rights in the
copyright in the work by way of a simple public notice. Prior to the
amendment, the author could relinquish his copyright only by giving
notice to the Registrar of Copyrights.

Licenses
Section 30, prior to the recent A m endm ent required licenses to be
in writing and signed. 2012 Am endm ent has simplified the procedure
by requiring copyright licenses to be only in writing.
Further, by am ending section 31 compulsory licensing has been
made a applicable to foreign works as well. N ow compulsory licenses
apply to all works, w hether Indian or not w ith an object of making
foreign works capable of being licensed compulsorily in case it is
published elsewhere b u t w ithheld in India. The A m endm ent also
widened the scope of section 31A to provide for compulsory license in
the case of published work. Before A m endm ent the section applied
only to unpublished work. The am endm ent enables the Copyright
Board to grant compulsory licenses to more than one person provided
the Board is of the opinion that the person is qualified to do so.
The Amendment has introduced the statutory licenses. Section 31C
has been inserted by virtue of the 2012 am endm ent to provide for
statutory licenses for cover versions. In the pre-amendm ent regime,
the right to make cover versions was treated as a part of fair dealing
under section 52(l)(j). However, time period after which a cover version
can be m ade has increased from two years to five years Under section
31A, any person desirous of m aking a cover version, being a sound
Salient Features o f Copyright Amendment Act, 2012 37

recording in respect of any literary, dram atic or mus;ical w ork w ith

the licence or consent of the owner of the right in the work can do so.
Conditions for making cover versions are stipulated in the Act itself.
All cover versions need to state that they are cover versions. The
amendm ent confers no right to alter the original song. Only note-for-
note and w ord-for-w ord covers are allow ed by the am endm ent.
Alterations are allowed if it is technically necessary for the purpose of
making of the sound recording. Sound recording in the cover version
must be in the same medium. Prior notice of the intention to make the
sound recordings m ust be given to the owner. Advance copies of all
covers or labels with which the sound recording are to be sold to be
provided or royalties to be paid in advance. One royalty in respect of
such sound recordings shall be paid for a m inim um of fifty thousand
copies of each work during each year.
Section 31D has been inserted to provide for statutory license for
broadcasting of literary and musical works and sound recordings. Any
broadcasting organization, desirous to communicate published w ork
to the public by way of broadcast (by way of television l?roadcast or
radio) or a performance of any published musical/ lyrical work and
sound recording, can do so by giving prior notice of this intention to
the ow ners. The notice m ust specify the du ratio n and territorial
coverage of the broadcast. The broadcasting organisation has to pay
royalties to the owners of such rights for each work at the rate and
maimer fixed by the Copyright Board. The rates fixed for television
broadcasting shall be different than that fixed for radio broadcasting.
In fixing the m anner and the rate of royalty, the Copyright Board m ay
require the broadcasting organization to pay an advance to the owners
of rights.® No fresh alteration to any literary or musical work, which is
not technically necessary for the purpose of broadcasting, other than,
shortening the w ork for convenience of broadcast, shall be m ade
without the consent of the owners of rights. The names of the author
and the principal perform er will have to be announced w ith the
b ro a d c a st (except in case of the b ro a d c a s tin g o rg a n is a tio n
communicating a work by way of the performance).

Special provisions for persons with disabilities

By way of 2012amendm ents, sections 52(l)(zb) and 31B are inserted
which carve out exceptions and limitations for persons with disabilities.

9 S. 31D (4).
10 S. 3 ID (6).
38 Broadcasting Reproduction Right in India

Section 52(l)(zb) allows the adaptation, reproduction, issue of

copies or communication to the public of any work in any accessible
format by any person to facilitate access to persons w ith disabilities to
the copyrighted w ork w ithout any paym ent of compensation to the
copyright holder, and any orgaruzation” working for the benefit of
persons w ith disabilities to do so as long as it is done on a non-profit
basis and w ith reasonable steps being taken to prevent entry of
reproductions of the copyrighted w ork into ordinary channels of
business.
U nder section 31B of the Act, any person working for the benefit
of persons with disability on a profit basis may apply to the Copyright
Board for a compulsory license to publish any work in which copyright
subsists for the benefit of such persons. Such application is required
to be disposed of expeditiously and an endeavour is required to be
m ade to dispose it of w ithin 2 months. After conducting an inquiry
including inquiry into the credentials and good faith of the applicant
and after hearing the owner of rights, the Copyright Board may pass
the order for compulsory license, if it is satisfied that a compulsory
license needs to be issued to make the work available to the people
suffering from disabilities. The com pulsory license issued should
specify the means and format of publication, the period during which
it may be exercised and, in the case of issue of copies, the num ber of
copies that m ay be issued. The C opyright Board may specify the
num ber of copies that may be published w ithout paym ent of royalty
and m ay fix the rate of royalty for the remaining copies. A further
application and consequent order may be made to extend the period
and allow the issue of more copies.

Extension of fair dealing provisions

The Act before the 2012 Amendment, dealt with fair dealing rights
w ith regard to 'literary, dramatic, musical or artistic w orks' under
section 52(l)(a). Now it covers all works (except computer programe),
in effect covering sound recordings and video as well. This will help

11 S. 52(l)(zb) Explanation- ...’’any organization” includes an organization registered under

section 12 A o f the Income-tax Act, 1961..and working for the benefit o f persons with
disability or recognised under Chapter X o f the Persons with Disabilities (Equal
Opportunities, Protection or Rights and Full Participation) Act, 1995 or receiving grants
from the government for facilitating access to persons with disabilities or an educational
institution or library or archives recognised by the Government.
Salient Features o f Copyright Amendment Act, 2012 39

make personal copies of songs and films, to make copies for research,
to use film clips in classrooms, etc. Fair dealing exception under section
52(l)(a) has been extended to the reporting of current events, including
the reporting of a lecture delivered in public. Earlier, fair dealing
exception was limited for (i) private use, including research, and (ii)
criticism or review, w hether of that work or of any other work. Further,
it has been clarified that the storing of any work in any electronic
m edium for the purposes m entioned in this clause, including the
incidental storage of any com puter program m e which is not itself an
infringing copy, does not constitute infringement.

Insertion of certain acts which would not amount to infringement

Following new exceptions have been inserted in Section 52 that
are in co n so n an ce w ith re c e n t an d o n -g o in g te c h n o lo g ica l
advancements:
• The transient and incidental storage of a work or performance
purely in the technical process of electronic' transmission or
communication to the public.^^
• the transient and incidental storage of a work or performance
for th e p u rp o se of p ro v id in g elec tro n ic links, access or
integration, where such links, access or integration has not been
expressly prohibited by the right holder, unless the person
responsible is aware or has reasonable grotmds for believing
that such storage is of an infririging copy: Provided that if the
person responsible for the storage of a copy, on a complaint
from which any person has been prevented, he require such
person to produce an order w ithin fourteen days from the
competent court for the continued prevention of such storage.^^
• the storing of a work in any m edium by electronic m eans By^a
non commercial public library, for preservation if the library\
already possesses a n o n d ig ital icopy of the work.^^ This
provision is a step forward to foster an Indian Internet Archive,
or help spread the idea of the O pen Library or Digital Library
in India
• the m ak in g of a th re e d im e n s io n a l object fro m a tw o
dimensional artistic work, such as a technical drawing, for the

12 S. 52(l)(b).
13 S.52(l)(c).
14 S. 52(l)(n).
40 Broadcasting Reproduction Right in India

purposes of industrial application of any purely functional part

of a useful device.’^
• the importation of copies of any literary or artistic work, such,
as labels, com pany logos or p ro m o tio n al or explanatory
material, that is purely incidental to other goods or products
being im ported lawfully.'®
(For discussion on Border Measures, Protection of Technological
Measure sand Digital Rights M anagement Information refer the next
chapter)

Copyright society
Chapter VII of the copyright Act providing for copyright societies
has been substituted in the year 1994. Various amendm ents have been
carried out in section 33, 34 and 35 of the Act dealing with registration
and functioning of copyright societies. The newly inserted proviso to
section 33 states that tiie business of issuing or granting licenses in
respect of literary, dramatic, musical and artistic works incorporated
in a cinematograph film or sound recordings shall be carried out only
th ro u g h a registered copyright society.'^ The existing copyright
societies will be deemed to be treated as copyright society under the
new am endm ent b u t they need to reregister w ithin a period of one
year from the date of commencement of the Copyright (Amendment)
Act, 2012.'® The period of registration will be for a initial term of five
years which can be renewed.'^ The central government can suspend
the registration of a copyright society inter alia in the interest of authors
and owners of copyright.^°
C opy rig h t Societies are req u ired to have governing bodies
consisting of equal num ber of authors and owners of work for the
purpose of administration of the society. All members of the Copyright
Society shall enjoy equal m embership rights and there shall be no
discrim ination betw een authors and ow ners in the distribution of
royalties.^' Amendment in this regard has been made to protect the
interest of the authors.

15 S. 52(l)(w).
16 S. 52(l)(zc).
17 S. 33 (1) Proviso 2.
18 S. 33 (3A) Proviso 2.
19 S. 3(3A).
20 S. 33(5).
21 S. 35.
Salient Features o f Copyright Amendment Act, 2012 41

Section 33A has been inserted by the 2012 am endm ent providing
for tariff scheme by copyright societies. Every copyright society has to
publish its tariff scheme and any person w ho is aggrieved by such
scheme has the right to appeal to the Copyright Board. The Copyright
Board after holding an enquiry, has the power to make orders to remove
any unreasonable element, anom aly or inconsistency in the tariff
scheme.^ However, the aggrieved person has to pay all his dues to the
copyright society before making an appeal to the Copyright Board.
Further, the C opyright Board may after hearing the parties fix an
interim tariff and direct the aggrieved parties to make the paym ent
accordingly pending disposal of the appeal.

Special rights o f authors

Section 57 of the Act as am ended in 1994 recognises special rights
of the authors. Two rights are conferred to the, authors under section
57: (i) Right to claim authorship of the work; and (ii) right against
distortion - Right to restrain or claim dam ages in respect of any
distortion, mutilation, modification or other act in relation to the said
work if such distortion, mutilation, modification or other act would
be prejudicial to his honour or reputation.
The said section also provided that such moral rights (except the
right to claim authorship) could be exercised by legal representatives
of the author. Further, Right against Distortion was available only
before the expiration of the term of copyright.
However, pursuant to the 2012 am endm ent, the right to claim
authorship and the right against distortion can now be exercised by
legal representatives of the authors. Prior to 2012 amendment, the legal
representatives h ad no right to claim authorship. U nder the 201'2,
amendm ent, the right against distortion is available even after the
expiry of the term of copyright. Earlier the right against distortion
had limited scope only in respect of distortions took place during the
existence of copyright. This b ar is removied by v irtu e of 2012
am endm ent Act.

Rights of performers
The am endm ent Act m odified the definition of 'p erfo rm er' in
section 2 (qq) by inserting a proviso;

22 S. 33 (2).
42 Broadcasting Reproduction Right in India

P ro v id ed th a t in a cin em ato g rap h film a p erso n w hose

performance is casual or incidental in nature and, in the normal
course of the practice of the industry, is not acknowledged
anjrwhere including in the credits of the film shall not be treated
as performer except for the purpose of clause (b) of section 38B.
Hence, in a cinematograph film a person whose performance is
casual or incidental in nature and if he is not acknowledged in the
credits of the film, then he shall not be treated as a performer except
for the purpose of attributing moral rights.
Prior to 2012 amendment, the perform er's right was articulated as
a negative right. The performers had the right to prevent third parties
from m aking use of the perform ance w ithout due consent of the
performer. The am endm ent grants exclusive positive rights to -the
performers; Right to do or authorize for doing any of the following
acts in respect of the perform ance or any substantial part thereof,
namely;
to m ake a sou n d recording or a visu al reco rd in g of the
performance, including-
a) reproduction of it in any material form including the storing
of it in any m edium by electronic or other means;
b) issuance of copies of it to the public not being copies already
in circulation;
c) communication of it to the public;
d) selling or giving it on commercial rental or offer for sale or
for commercial rental any copy of the recording;
e) to broadcast or communicate the performance to the public
except where the performance is already broadcast.^
The definition of the term 'comm unication to the public' under
sectio n 2(ff) h a s b e en a m e n d e d to in c lu d e w ith in its am b it
'performance' by any performer and extending 'communication to the
public', 'sim ultaneously or at places and times chosen individually'.
Once a perform er has, by w ritten agreement, consented to the
incorporation of his performance in a cinem atograph film he shall not,
in the absence of any contract to the contrary, object to the enjoyment
by the producer of the film of the perform er's right in the same film.

23 S .3 8 A (I)(b ).
Salient Features o f Copyright Amendment Act, 2012 43

However, the perform er shall be entitled for royalties in case of making

of the performances for commercial use.^^
The am endm ent introduced the moral rights for the performers
by virtue of section 38B, which provides as follows;
The perform er of a performance shall, independently of his right
after assignment, either wholly or partially of his right, have the right-
a. to claim to be identified as the perform er of his performance
except where omission is dictated by the m anner of the use of
the performance; and
b. to restrain or claim dam ages in respect of any distortion,
m utilation or other modification of his performance that w ould
be prejudicial to his reputation.
Further explanation to section 38 B clarifies that mere removal of
any portion of a performance for the purpose of editing, or to fit the
recording within a limited duration, or any other modification required
for purely technical reasons shall not be deemed to be prejudicial to
the perform er's reputation.
However, this section casts two doubts: (i) are the perform ers
entitled for moral rights in respect of their performance only after
assignment of their rights? and (ii) w hy the legal representatives of
the performers are not allowed to exercise the right to claim moral
rights just like the legal representatives of the authors?

24 S.38A (2).