Foreign Broadcasters and Performers

In one line

Chapter VIII does not travel by itself, so there is a separate power to extend the broadcast reproduction right and the performer's right to other countries, and a separate paragraph of the Order that uses it.

In the wording a student can write in an exam: section 40A of the Copyright Act, 1957 empowers the Central Government, where it is satisfied that a foreign country other than a treaty or convention partner has made or undertaken to make provisions for the protection there of the rights of broadcasting organisations and performers as available under the Act, to direct by order published in the Official Gazette that the provisions of Chapter VIII shall apply to broadcasting organisations headquartered in, or broadcasts transmitted from, that country and to performances that took place there, as if they were Indian.

Why a separate section was needed

Because section 40 does not reach Chapter VIII. It speaks of works, of authors and of publication, and a broadcast is not a work and a performer is not an author.

Because Chapter VIII arrived later. The broadcast reproduction right and the performer's right came in 1994; section 40 dates from 1957.

And because the treaty position is different. India is a party to the Geneva Phonograms Convention and, since 2018, to the WIPO Performances and Phonograms Treaty, but is not a party to the Rome Convention or to the Beijing Treaty. So the international framework for Chapter VIII rights is thinner than for works.

Section 40A was inserted by the Copyright (Amendment) Act, 1994, along with Chapter VIII itself.

The provision

Section 40A(1), the condition. Where the Central Government is satisfied that a foreign country, other than one with which India has a treaty or which is a party to a convention relating to the rights of broadcasting organisations and performers to which India is also a party, has made or undertaken to make such provisions as appear expedient for the protection there of the rights of broadcasting organisations and performers as available under the Act, it may direct that Chapter VIII shall apply:

(a) to a broadcasting organisation whose headquarters is situated in the country to which the order relates, or where the broadcast was transmitted from a transmitter situated there, as if the headquarters were in India or the broadcast were made from India;

(b) to performances that took place in that country, as if they took place in India;

(c) to performances incorporated in a sound recording published in that country, as if it were published in India;

(d) to performances not fixed on a sound recording, broadcast by a broadcasting organisation headquartered in that country or from a transmitter situated there, as if the headquarters were in India or the broadcast were made from India.