The reason for this sorry state of affairs is simple, most music companies insist that the artists ‘assign’ all rights to the music companies for a single, one time renumeration with no say in future earnings. Since all assignments deeds are required by statute to be in writing it is not like these artists do not know what they are getting into. The real problem over here is most likely the weak bargaining capacity of the artist vis-a-vis the music company. As an artist becomes more popular his bargaining power vis-a-vis the music company increases and the terms of the assignment deed will ultimately balance out. For example A.R. Rahman in 2009 definitely has much more bargaining power than he would have 15 years ago. Unfortunately not every artist reaches the stature of A.R Rahman.
Should music composers and lyricists be left to the mercy of the market forces OR is it time for the law to ensure some modicum of justice to those not capable of bargaining from a position of strength? Countries like France and Germany offer several interesting lessons on how to address this imbalance in bargaining positions.
The first solution is rather simple and involves collective bargaining by a society of artists of performers. Such societies will provide artists and performers with standard form contracts that protect their rights in the face of any unreasonable demands from the producers or music companies. Given the collective bargaining power of such societies such contracts will in all probability be more equitable than any contract that an artist may try to enter into on his own. There however may be freelance artists or performers who may not be a part of a collective bargaining society. These freelance artists or performers are protected by some truly revolutionary clauses in German copyright law.
(Click here for an interesting article on the German law)
The second solution provided by the aforementioned revolutionary clauses in German copyright law can be found in the relatively recent 2002 legislation titled German Copyright Contract law. German law provides for atleast two provisions: (i) an equitable renumeration provision & (ii) a ‘best -seller provision’.
(i)The equitable renumeration provision starts of with stating the obvious i.e. the artist is entitled to an equitable renumeration contractually agreed upon. However if in case the renumeration agreed upon is not equitable the German statute requires the negotiations to be handled through mediation. For its part equitable renumeration is determined according to the prevalent fair business practices depending on the length, timing as well as all other circumstances.
(ii)The second revolutionary provision is the ‘best-seller’ provision. This provision provides the author/artist with the right to demand an equitable share of the profits if in case these profits are grossly disproportionate to the initial renumeration made to the author. Such a provision is not all that alien to the Indian Copyright Act. Section 53A of the Copyright Act provides for a statutory renumeration right to the artist or his heirs in cases of resale of certain works.
The above discussed provisions of German Law are revolutionary for the simple reason that is in a way these clauses run contrary to the fundamental principle of a free market economy – the freedom to contract. However the same requirements of social justice that drive minimum wages legislation also justify the presence of similar clauses in copyright law.