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Sometime in the next few months, once the Copyright Rules, 2012 is finalized by the Copyright Office, the Registrar of Copyrights will begin the process of registering new copyright societies. Sixteen years ago, when Indian Performing Rights Society (IPRS) was being registered as a copyright society, the Copyright Office committed several blunders during the registration process which inevitably led to the fiasco that followed in the later years. I’ve written about some of these blunders earlier over here and here.
One of these blunders, which had skipped my attention earlier, had to do with the ‘Register of Owners’. Under the old rules, any copyright society applying for registration had to maintain a ‘Register of Owners’ detailing the list of persons who owned the copyright in works being administered by the Copyright Society. Legally speaking it was only people named in this Register who could control the copyright society.
During the registration process in 1996 for IPRS, the registration form required IPRS to submit to the copyright office a list of all owners of the music being administered by IPRS, along with a list of all the works themselves. IPRS never submitted that information. Although one of the junior bureaucrats in the Copyright Office did red-flag the issue, he was unfortunately over-ruled by his superior. We’ve got a copy of the entire file regarding IPRS’s registration available over here. The relevant file noting can be accessed on pages 2 & 6 of this file. In any case I reproduce the pertinent part below.
On the 12th of February, 1996 a ‘special officer’ in the Copyright Office made the following noting “(i) As required vide column 3 of the form II-C, no details of works in which copyright or other rights of the applicant subsist have been given in the instant case. Against the said column, it is simply stated by the applicant that ‘copyright in musical works as envisaged in section 14(a) of the Copyright Act, 1957’. This statement is not relevant. What is required here, is a list of works in which copyright actually subsist.”
A few days later his boss makes the following noting over-ruling him: “6. During the hearing, Shri Tandon explained that the composer-members have copyright over all their compositions and the songwriters have copyright over all their songs. These members include leading lights in Indian film music like Naushad Ali (who incidentally, is the current Chairman of the IPRS), Bappi Lahiri, Anup Jalota, Hemant Kumar, Ilaiya Raja, and M.B. Srinivasan. Shri Tandon said that the list of their works would be voluminous. Since it is well known that these reputed composers and songwriters have a large number of compositions and songs to their credit, it may not be necessary to have on file a list of their works, and we may not insist on that.”
It appears that both Sanjay Tandon and the then ‘under-secretary’ at the Copyright Office were confused between the concepts of authorship and ownership of copyrighted works. Naushad Ali and Bappi Lahiri could have authored thousands of works but it doesn’t follow that these authors naturally owned the copyrights in their works.
As a result IPRS got registered as a copyright society without preparing a list of owners. The result was years of confusion on who owned what rights in IPRS along with the more important question of who could control IPRS.
Preparing the ‘Register of Owners’ for the next round of registrations of copyright societies is going to be significantly more complicated affair. It will raise issues of retrospectively of the Copyright (Amendment) Act, 2012. Will the authors regain ownership of works which they assigned away prior to 2012?
Given that the new copyright regime is aimed at more transparency, the Copyright Office must at the very least get the first step right and ensure that the ‘Register of Owners’ is insisted upon along with the registration application for any copyright society. The Register of Owners along with the application must be publicized and if in case there is a dispute regarding ownership, the copyright office must discount all such works until the Copyright Board can decide the ownership of such works. Let us not have a repeat of the fiasco of IPRS.
Theoretically, the question of ownership in literary and musical works is pretty simple: there is an invariable part to it – the 50% owned by the author(s) and composer(s) of a work (which the new Act makes un-assignable) – and the publisher’s 50% share, the variable part because publishing rights are traded like shares on a stock exchange: today the catalogue is with one publisher, tomorrow with another and so on.
To complicate the matter, when a catalogue changes hands, sometimes the old publisher retains a right to collect royalties due from past exploitations for 6 12, 18 or 24 months, and sometimes not (he loses whatever royalties were due from exploitations prior to the sale but had not yet been paid to him).
As a publisher who handles thousands of catalogues encompassing 2.7 million works, we get daily notices of change in ownership of catalogues and have to update thousands of works.
The future “Register of Owners” will be a database of about 20 million Works that will have update thousands of Works on a daily basis in order to remain accurate.
Nobody is doing it yet.
The existing IPRS management has chosen not update its register of international repertoire but rely on the Singapore-based MIS@Asia system – which is accurate for Singapore but not for India. That database has also its own inherent problems that need to be addressed by the future management of IPRS.
Such complexity does not exist for PPL because a sound recording is always owned 100% by one company – Universal, EMI, Sony, Reliance BIG, etc. – and the ownership changes only when the company is sold – a rare occurrence.
The boss who overruled his ‘special officer’ did perhaps the right thing, he was pragmatic, because addressing the issue would have opened a Pandora’s box which, in those times, might have led to another 1977 judgement. Recent HC judgements in Kochi, Mumbai and Delhi have shown that the concept of joint ownership of rights is till misunderstood.
Let alone the judiciary, even the music industry had a poor understanding of the duality of rights: regularly we still get notices of conflicting claims on local repertoire because the label who made a cover version also registered a claim of ownership over the underlying literary and musical work!
Fortunately the legislator has addressed the issue once and for all, never mind the rearguard battles that some people fantasize to take to the courts.
As far as literary and musical works are concerned, this Register of Owners can only be maintained accurately by IPRS. It would be a good idea if the Society were to put up this Register on its website for anyone to consult.