Aamir Khan vs Javed Akhtar: India’s Revolutionary Copyright Provision

The media is abuzz with rumours of a clash between noted lyricist Javed Akhtar and leading cine star Aamir Khan over the recent copyright bill.
It all began with the Hon’ble Minister for Human Resource Development (HRD), Kapil Sibal constituting a committee to review the provisions of the new copyright bill which will soon be introduced in Parliament, with Akhtar and Khan as members. During the very first committee meeting, Khan is rumoured to have remarked that lyricists do not deserve as much protection, as songs are really made popular by actors.

I can’t imagine that the socially sensitive Khan would ever make such a remark; but amidst our quick byte media culture, we’ll have to wait for the actual truth to “out”. As an aside, Khan’s rashee obviously predicts a significant copyright nexus this year, with him already having locked copyright horns with noted author Bhagat over “3 Idiots”, a raging box office hit just under a month back.

Unfortunately, despite all this controversy, no one seems sure of the actual “text” of the provisions in dispute. Given that our mandate is to increase transparency, we’ve procured the actual text for our readers and highlight it below:

Section 19(9) of the proposed bill protects the creators of underlying works in Bollywood flicks (lyric writers, script writers, music composers etc) from ruthless contractual exploitation by stipulating that such creators can demand a share in royalties, if their works are exploited by producers in new “mediums” or “contexts”.

It reads thus:

“No assignment of copyright in any world to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties in case of utilization of the work in any form other than as part of cinematograph film or sound.”

This provision is revolutionary in the sense, that the current Bollywood practice of catch all clauses where lyricists, composers and script writers typically assign away all rights in any medium of exploitation (whether now known or hereinafter invented) will no longer hold good. Rather, if the producer of the film exploits the film in any new medium (eg, the music as a ringtone), the music composer can claim a share in the royalties in that mode of exploitation, notwithstanding an absolute upfront assignment.

Some may argue that this violation of contractual freedom will lead to less moneys being paid upfront by Bollywood production houses to artists. However, if history is anything to go by, this curbing of contractual freedom in favour of “fairness” may not be such a bad move.

The old 1914 Copyright Act (which mirrored the UK copyright act of 1911) had a clause which stated that after 25 years of the death of the author, any right that was assigned could be made to revert to the heirs of the author. Apparently, some producers claimed that this clause prevented them from paying higher sums to poor artists, since the rights could revert after 25 years after the said artists’ death. Therefore, in 1957, this “reversionary” right was deleted. I’m not entirely sure that this deletion did anything to improve the lot of artists, many of whom died in penury.

In any case, the proposed clause in the current copyright Bill does not cause any reversion of rights back to the artist. Rather, it merely provides that any windfall from mediums of exploitation other than the primary one contracted for must be shared with the authors. Seems like a “fair” clause to me. Should India enact such a socially progressive clause, it will not be alone, for European countries such as France and Germany already have similar provisions.

Apparently, the introduction of this clause had much to do with some heavy duty lobbying by Javed Akhtar. And though a “fair” clause, as I’d mentioned earlier, one cannot but take issue with the way in which it was sneaked in, without a public consultation of any sort. This clause was sneaked in only in 2009 and was never part of the 2005 draft that was open for public consultation!

This lack of consultation has come back to sting the government..and one can only guess that counter pressures from the Bollywood lobby have now forced it to constitute this committee.

One can see some broad parallels with the Indian Bayh Dole bill, where owing to the lack of effective public consultation, a Parliamentary Standing Committee, has (perhaps for the first time in Indian legislative history), asked the government to reconsider some of the provisions of the Bill.

Anyway, for those interested, apart from the above provision ensuring that authors get a fair shot at windfalls from new mediums of exploitation, there are other interesting clauses that are likely to impact Bollywood copyrights in significant ways. For one, the author of a movie shall now be both the producer and the director (as opposed to the earlier position, where it was only the producer). The text of the provisions are reproduced below:

“Section 17 (f): in the case of cinematograph film produced on or after the coming into force of this clause, the producer and the principal director shall be treated jointly as the first owner of copyright.

(g) in case of cinematograph film produced before the commencement of clause (f) the principal director shall enjoy the copyright for a period of 10 years after the expiry of the duration of copyright in the cinematograph film subject to the principal director entering into a written agreement with the owner of the copyright in the film during the subsistence of copyright.

Provided further that such an agreement is not needed in case where the owner and principal director on the film is the same person.

Section 18: Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time in the assignment was made, unless the assignment specifically referred to such medium or mode.

Provided further that the author of the literary or musical work included in cinematograph film or sound recording shall not assign the right to receive royalties from the utilization of such work in any other form other than as part of cinematograph film or sound recording except to the legal heirs to a copyright society for collection and distribution and any contract to contrary shall be void.”

We’ll bring you more on other relevant copyright bill provisions in future posts. In particular, the Bill does a pathetic job of carving out an exception in favour of the visually impaired and other disabled groups. To say that the government has paid lip service to their concerns is an understatement. The relevant provisions are utterly shameful and it is as good as not having an exception at all! I’ll save this issue for a future post.


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