Artificial Intelligence, Digital Replication of Performances, and Constitutional Protection of Performers' Rights in India

Abstract

This paper suggests a protection of the performance, but not the performer, under Indian law. The Copyright Act, 1957 organises Chapter VIII around a live acoustic or visual presentation, and it grants performers economic and moral rights that attach to that presentation. Generative artificial intelligence inverts this architecture: it extracts and monetises the identity of the performer while generating expression the performer never produced. The paper develops a four-mode taxonomy of AI-enabled replication - reproduction, transformation, simulation and fabrication - and demonstrates a replication gradient along which statutory coverage collapses precisely as the performer's aggregate harm intensifiesIt then compares six legal regimes with the four modes and illustrates that only one of the legal regimes has been in the position of simulating and fabricating, namely a judge-made personality right without a statutory definition.. Analysing forty judgments and orders delivered between 1978 and 2026, the paper identifies four structural defects in that judicial substitute: it gates relief behind celebrity, it operates almost entirely at the interim stage, it supplies injunctions where the performer needs remuneration, and it rests on constitutional reasoning the legislature has never ratified. The paper reads Article 21 as imposing a positive obligation to legislate protection for performative identity, and Article 19(1)(a) as setting the ceiling on that protection, producing a double-proportionality standard. Building on the second proviso to Section 18(1), which withholds unforeseen modes of exploitation from historic assignments, the paper proposes a statutory digital replication right, a five-factor test, draft amendments to the Copyright Act, and a collective licensing architecture accessible to non-celebrity performers.