2010 comes to an end, and I recline on my armchair in hometown Trivandrum and think of the year gone by. It has been an interesting year, with seesaw changes in my professional life. On the minuses, what niggers me most is the inability to finish off my book on “Injunctions in IPR”, a work in progress now for the last 2 years. Like an engine that splutters at the last leg, im stuck on the designs chapter. So, that’s at the top of my resolutions for 2011.
On the plus side, the highpoint was appearing before the Standing Committee headed by Oscar Fernandes, M.P., that examined the Copyright Amendment Bill, 2010 and finally came out with its report at the fag end of this year. Boy, what an insight it has given me into the way policy is created and legal frameworks are sought to be overhauled.Different matter whether we need such an overhaul!!
The Committee Report is certainly voluminous and does consider the views of various stakeholders. It is however inconsistent and the inconsistency is revealed in the first few pages of the 118-page report. There were two important proposals when it came to vesting of rights with the authors of the work, if one were to quickly look back at the Amendment Bill. The first, to make the principal director and the producer joint owners of the copyright in a cinematograph film, and the second, to make the music director / lyricist joint owners of the sound recording along with the producer.
The report rejects the first and approves the second, applying patently inconsistent reasons. The premise is the same for both proposals – to vest rights with the creator as much as with the investor. Then how is it that the investor gets the entire rights for the cinematograph film except for the musical and literary works?
The reasons for the rejection and the approval definitely require closer scrutiny. The rejection of the principal director’s claims at p. 12 of the Report reveals the following reasons:
(i) the absence of an international or treaty practise to such effect;
(ii) the producer being the “kingpin who invests substantive money, raises finance through institution, utilizes persons/expertise and brings out a product i.e film”, he should be given the right to exploit the work;
(iii) the ‘principal director’ being an undefined person and an ambiguously used term, should not be given the opportunity to take the partnership in a cinematograph film along with the producer without any liabiity/responsibility being assigned to the principal director;
(iv) as a matter of fact, “directors are earning a huge fee without any pressure whatsoever”;
(v) “even in Hollywood, fee is allowed and certain profit is shared under a system/agreement whereunder no equal partnership between the director and the producer is there. Such a system can exist in Indian cinema also”;
(vi) “the producer may not engage directors and may become director, script writer etc. himself”. (Why is it that I cant stop laughing when I read this part of the report? Maybe I imagine a Dawoodbhai writing scripts....);
(vii) “the proposed amendment to include principal director as author of a cinematograph film along with producer may create confusion and lead to uncalled for situations instead of serving the purpose intended for. The Committee's opinion rests on the premise that there is a system existing presently whereunder producers and directors are free to negotiate on their own terms and conditions”.
The reasons to say that a musical or literary work can only be assigned to the extent such work is used as part of the cinematograph film for communication to the public in a cinema hall (and as a corollary, all other rights of utilisation of the work are still vested with the music composer or lyricist at equal royalty sharing basis with the producer) are set out at pp. 26-28 and at p.33. The reasons are:
(i) Justice Krishna Iyer’s concurring judgment given in 1977, in a footnote, mentions that the interests of music composers and lyricists should be preserved in cases where the works are used separately from the cinematograph film, and the Amendment is only a late affirmation of this policy shift;
(ii) authors/composers are paid fee for creation of their works and not upfront guaranteed royalties.
Based on these reasons, the Committee has even made the scope and intent of the amendment clearer by adding new provisos instead of the ones found in the Bill. The meaning of these provisos shall be dealt with in another post.
My point is that when it comes to sound recordings, the Committee has surprisingly not been concerned with the producer being the kingpin, or no liability / responsibility being shared by the music composer or lyricist. The Committee has ignored the payment of lumpsum amounts – a fact that they considered material while rejecting the principal director’s claims – and taken the view that the music composers and lyricists are entitled to even more royalties.
The Committee fails to note that not all directors are paid hefty lumpsum payments. The ratio is the same, or pretty much the same, when it comes to well-paid directors on the one hand and well-paid music composers and lyricists on the other. Then, how is it that the conclusion could be different on the ownership rights of either parties?
The international practise argument that the Committee uses conveniently to jettison the claims of principal directors finds no mention when it comes to the structure of the music industry. The music industry abroad does not have a particular genre called film music. Every kind of use of the music is licensed by the copyright society in which the music composer and his publisher are members, including the synchronisation rights for use of the music in a film, the reproduction rights for release of the song by a recording label, and the broadcasting rights for communicating the song to the public.
In India, on the other hand, the audio rights are purchased for hefty sums at huge risk by the recording label, from the producer. From that day onwards, the recording label is involved in a business tussle to first break even, and then recover some profit from the acquisition of the work. The general industry standard in this regard is that for every 10 acquisitions, 7 to 8 fail and 2 to 3 succeed in the marketplace. The music composer and the lyricist who take their lumpsum fee do not have to worry about this. So also the principal director since all losses have to be borne by the producer of the film. Then, why one set of norms for the principal director and another for the music composer / lyricist?
The Committee owes a better answer than the reasons reflected in its report. To my eyes, this is a clear violation of Article 14. The Committee has either failed to note the significance of the creative role played by the director in cutting the cinematograph film as we see it, or inflated the significance of the music composer or lyricist in making the sound recording a hit.