Saving The Starving Artist

The authors and music composers who are left in the cold in the penumbral area of policy should be given justice by recognizing their rights when their works are used commercially separately from cinematograph film and the legislature should do something to help them.

In keeping with the spirit of the above view of Justice Krishna Iyer, both Houses of the Indian Parliament unanimously passed the Copyright Amendment Bill, 2012, bringing about considerable changes to the Copyright Act, 1957 (“Copyright Act”) in relation to, inter-alia, the rights of artists. The Bill received Presidential assent on June 07, 2012 and the Copyright (Amendment) Act, 2012 came into force on June 21, 2012 (“Amendment Act”).

POSITION BEFORE THE AMENDMENT ACT

The most significant and much debated provision in the Amendment Act is the right granted to authors and music composers in the works they create. Before the Amendment Act came into force, ownership of the copyright in underlying works in a cinematograph film was deemed to belong to the producer of the film, who is considered the owner of the copyright in a cinematograph film, unless there is a contract to the contrary between the authors / composers and the producer. Producers usually entered into contracts with the authors of the underlying works, getting such authors to assign the entire bundle of rights in such underlying works to the producer. As a result, many felt that such authors and composers were left in the lurch as the producers reaped all the benefits of such underlying works while authors and composers did not get what was rightfully due to them. The cases of shehnahi maestro Bismillah Khan and music composer Ravi have been quoted in the media as examples of how talented artists are deprived of their dues due to lack of legislative protection available to such artists, and therefore do not have the means to even pay for housing and medical care.

RIGHTS OF AUTHORS OF UNDERLYING WORKS

The Amendment Act seeks to protect the interest of such artists by including provisions granting certain rights to the authors and music composers of underlying works in a cinematograph film. The authors of underlying works incorporated in a cinematograph film may retain all the rights in their work except to the extent assigned for use in the cinematograph film. The assignment too has been subject to certain safeguards.

The authors of literary and musical works incorporated in cinematograph films, or sound recordings not forming part of the cinematograph film, have the right to receive royalties equal to the royalties received by the assignee of such rights, for utilization of such work in all forms other than communication of the cinematograph film to the public in cinema halls. The author can also assign the right to receive royalties to legal heirs or to a copyright society for collection and distribution. Any agreement that seeks to assign or waive the above right granted to authors of literary and musical works will be considered void.

Further, an assignment is not to be applicable to any medium or mode of exploitation of the work that did not exist or was not in commercial use at the time the assignment is made, unless the assignment specifically refers to such medium or mode of exploitation.

Moreover, an assignment of copyright in any work to make a cinematograph film or sound recording is not to affect the right of the author to claim royalties and consideration in case of utilization of the work in any form other than as part of the cinematograph film in a cinema hall.

RIGHTS OF PERFORMERS

The Amendment Act also grants certain rights to performers. Prior to the Amendment Act coming into force, although performers were granted certain rights, once a performer consented to the incorporation of his performance in a cinematograph film, the rights of the performance were deemed to have been waived.

As an initial matter, the Amendment Act has modified the definition of a performer. Earlier, a “performer” included “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.” The Amendment Act has added a proviso to state that, in a cinematograph film, a person whose performance is casual or incidental in nature and, in the normal course of the practice of the industry, is not acknowledged anywhere including in the credits of the film shall not be treated as a performer except for the purpose of attributing moral rights. Moral rights have been given the nomenclature of ‘Author’s Special Rights’ under the Copyright Act. They include the right to paternity which is the right to claim authorship of the work; and the right to integrity which is the right to restrain or claim damages 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 the honour or reputation of the author.

The Amendment Act provides that the performer would have the right to make a sound recording or a visual recording of the performance and the right to broadcast or communicate the performance to the public except where the performance is already broadcast. Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film, he shall not object to the enjoyment by the film producer of the performer’s right therein unless there is a contract to the contrary. However, the performer is entitled to royalties where his performance is put to commercial use.

MORAL RIGHTS

The Copyright Act recognized certain special rights of the authors of a work. The moral rights of an author include the right to claim authorship of the work and the right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. The Copyright Act stated that the right to restrain or claim damages as above could also be exercised by the legal representatives of the author (but not the right to claim authorship).

The Amendment Act now permits the legal representatives of the author to also exercise the right to claim authorship of the work.

The Amendment Act also grants performers certain moral rights that were not granted to them under the Copyright Act. For example, the performer has the right to claim to be identified as the performer of his performance, except where omission is dictated by the manner of the use of the performance. The performer also has the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.

COVER VERSIONS

Earlier, the Copyright Act provided that cover versions, if made following the conditions prescribed, were an exception to infringement. The Amendment Act has made it a separate right instead, by granting statutory licenses for such recording. Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by, or with the license or consent of, the owner of the right in the work, may do so subject to the conditions provided in the Amendment Act. No cover versions can be made until the expiration of five calendar years after the end of the year in which the first sound recording of the work was made. Royalty shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies are made.

A BOON OR BANE?

There are various aspects with respect to the implementation of the above-mentioned rights of artists that remain unclear. The Amendment Act states that the authors of the underlying works will be entitled to receive royalties equal to the royalties received by the assignee of such rights, for utilization of such work in all forms other than communication of the cinematograph film to the public in cinema halls. However, the Amendment Act does not explicitly state who will be liable to pay the royalty to the authors of the underlying works. There is also lack of clarity on who would be liable to pay performers their royalties. Since the authors of the underlying works will be entitled to receive royalties equal to the royalties received by the assignee of such rights, one may assume that the assignee will be responsible for payment of royalties to the authors of underlying works. The assignee could be the producer of the cinematograph film. Or it can be argued that a broadcaster that is exploiting the cinematograph film is responsible for payment of royalties to the authors of underlying works. Still another option could be that it is the responsibility of copyright societies to collect royalties from the assignee and pay the same to the authors of underlying works. However, due to the lack of an express provision in relation to responsibility for payment of royalty, there is considerable confusion on this aspect of the Amendment Act. Therefore, contracts need to be structured and drafted in a manner that addresses these issues of payment of royalties and the rights and obligations of various parties involved.

There is also lack of clarity in the Amendment Act on how the royalty payable to the authors of underlying works is to be calculated. If there are multiple authors of an underlying work, will the royalty be equally divided between each of the authors and the assignee? Or will the assignee be entitled to 50% of the royalties and all the underlying authors share the remaining 50% of the royalties? Also, when there are music and lyric rights in a song, will the music and lyric rights be treated as separate underlying works, and therefore the music composer separately shares the royalty with the assignee for the music right and the lyricist separately shares the royalty with the assignee for the lyrics? None of these questions have been adequately addressed in the Amendment Act. The calculation of payment of royalty to performers too has not been expressly addressed in the Amendment Act.

Also, the Amendment Act has granted moral rights to performers. However, while the Amendment Act states that the legal representatives of authors of a work can exercise the moral rights, there is no mention in the Amendment Act of the legal representatives of performers being entitled to exercise such moral rights.

The Amendment Act will definitely have an impact on the entertainment industry. Producers may have to share their profits with underlying authors or they will need to pass on the responsibility of payment of royalties to the broadcasters. The agreements between broadcasters and producers and the underlying authors will have to be carefully drafted to address the issues of sharing of royalties between various artists and the assignee.    

The Amendment Act has been a step in the right direction to address the issues faced by the authors of the underlying works and to implement the observation made by Justice Krishna Iyer. However, the Indian legislature will need to frame rules to plug the deficiencies in the Amendment Act regarding the implementation of its various provisions.

Seema Sukumar is a Senior Associate

With J. Sagar Associates, based out of Bangalore. She can be contacted at seema@jsalaw.com.

 

 

By Seema Sukumar

 

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