Copyright

Indian Copyright Amendments: Making Bollywood Fairer?


The copyright amendment bill is certain to prove the most significant IP development for India this year. We are therefore inviting guest posts from those of you who might be interested in blogging of specific aspects of this bill. Please write and let us know if you are interested and we promise to publish those pieces that are conceptually clear, advance logically coherent arguments and read well overall.

Apart from the PRS website, Prashant informs me that a current version of the bill is up on the Parliament website as well. But the most useful version of the bill is one that was created by Pranesh Prakash of CIS…this combines the parent copyright text with the latest amendments. And Pranesh kindly agreed to share this with all of this: so a round of applause is due.

The Ugly “Disabilities” Provision

The bill is a mixed bag and comes with its cliched set of the good, bad and ugly. If you’ve been following our blog closely, you’d have immediately spotted the “ugly” as the deplorable copyright exception in favour of the disabled. And the sheer lack of transparency and public consultation post 2006.

The “Bad” Extensions and TPM

As for the bad, one would immediately point to copyright term extensions provided for in the bill.

Why on earth do we provide these extensions at the behest of industrial lobbies without any independent economic studies that suggest that unless we grant these, we’re going to see a drying up of our society’s creative juices ! In fact in an earlier post, I’d pointed to Lessig’s classic admonishment that term extensions in many cases were a simple no brainer: they would simply detract from the public domain without adding much!

The “bad” would also include the introduction of technology protection measures (TPM) for the first time into Indian copyright law. Do we have convincing case for introduction of this added layer of protection? The government suggests that it is doing so for helping India comply with the WCT (Wipo Copyright Treaty) and WPPT (WIPO Phonograms and Performances Treaty)–treaties that India is not a signatory to! When there are plenty of treaties that we routinely flout, despite having signed up to them, why are we going out of our way to comply with a treaty that haven’t signed up to?

The Good: Parallel Imports and Bollywood Artists

As for the good, there are plenty.

The parallel import provision (bringing in international exhaustion principles to India by a simple and elegant amendment to the definition of an “infringing copy” in section 2) has been articulated in a very clear manner and needs to be lauded.

The provisions in favour of authors/composers are aimed at injecting some “fairness” into an industry characterised by exploitation of artists and is therefore commendable. The devil will however lie in the details and the modalities of implementation, which are not clear in the bill.

Firstly a simple amendment to section 17 seeks to clarify that lyricists. music composers and script writers will continue to have separate copyrights in their underlying works, despite it being incorporated into a movie. This proviso appears to address the rather uncertain legal position prevailing after a 1977 Supreme Court judgment, which has been interpreted to suggest that underlying rights do not separately exist in favour of works that have been incorporated into a movie.

However, the major changes however to Bollywood sharp practices are sought to be brought in through an amendment to section 18 which reads as under:

“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 when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work.

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

1. The first proviso above appears to be aimed at preventing catch all clauses that ‘assignee” lawyers routinely insert into their contracts: “you hereby agree to assign your rights over this work for exploitation in any medium, whether now known or hereafter invented”. The amended clause now suggests that unless a new medium is specifically envisaged and provided for, no assignment will have effect qua a new medium that comes into being. In other words, unless the assignee knows of the new medium while contracting, how can he/she agree to contract away rights qua that medium? This provision in also in consonance with a 1998 Madras High Court judgment in Raj Video Vision.

It is to be noted that this proviso which effectively prevents the copyright owner from appropriating all windfalls qua new media covers all “copyrighted works” and is not limited to films.

2. The second proviso is the one that applies primarily to Bollywood and has been blogged about earlier here and here. Although this socially progressive amendment is aimed at helping artists, I personally think it should have gone further. For one, there should be a continuing right to royalties in all cases AND NOT MERELY in cases where the lyrics/music are not exploited as part of the complete film/sound recording.

Secondly, I fail to understand the import of the provision when it tries to “save” any assignments in favour of collecting societies. Pray, why should there be an assignment at all in favour of collecting societies? These societies are mere agents for administering rights and collecting royalties and should therefore be treated as mere “licensees”. If at all anything, there needs to be a bar on any assignments to collecting societies. We’ve blogged several times earlier on the sheer high handedness of these societies and their non transparent mode of functioning. The present set of amendments do make some changes in relation to the regulation of these societies and we will bring you a separate post on this.

Thirdly, for this socially progressive provision guaranteeing a right to royalties (notwithstanding an assignment) to work well, one needs to be clear on the modalities. How will “fair” and “appropriate” royalties be worked out? Through the present copyright board that has, thus far, not impressed with its competence in conducting the current compulsory licensing dispute involving radio stations and sound recording giants? As the bill generates more debate and the standing committee (headed by Oscar Fernandez) to which this is most certain to go, examines evidence and submissions from stakeholders, we hope to see some more thinking on this. For it is imperative that well intentioned provisions translate well in practice! The devil truly will be in the details.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

9 comments.

  1. AvatarNandita

    w.r.t. assignments, while looking for Raj Video Vision this morning, I came across this:

    Appellants: Raj Video Vision, a registered partnership firm represented by its Partner, M. Raveendran
    Vs.
    Respondent: S.A. Rajkannu, Proprietor, Sree Amman Creations and SUN TV, represented by its Director.
    O.S.A. No. 228 of 2000
    Decided On: 27.06.2005

    Despite having been interested in the divergent opinions of the Bombay and Madras High Courts on the subject, I’m now beginning to wonder how relevant the 1998 Raj Video Vision judgment is.

    Reply
  2. AvatarShamnad Basheer

    Tks Nandita,

    terrific blog by the way. and i saw your SSRN piece as well–very very lucid….though i have some disagreement with the solution you propose.

    You prefer that everything still be sorted contractually (let only express rights/medium etc be assigned), whereas I see an inherent problem with contracts itself….i.e. the current bollywood power structure, where there is significant contractual asymmetry. What we really need is the right to royalty, irrespective of assignments or transfers.

    In any case, I am going to link to your SSRN piece in a future post, as it is terrific reading and will benefit our readers.

    On Raj Video, assuming the amendment comes through, the issue will hopefully be moot. You’re right–many cases have disagreed with Raj decn in 1998. including delhi 2008 decn. (m/s intl film vs rishiraj) .

    Reply
  3. AvatarShamnad Basheer

    An astute colleague who wishes to remain anonymous writes in relation to India’s introduction of Technology protection measures to supposedly comply with WIPO treaties that India is not signatory to:

    “Again a bad way to publicise your intent. That the amendments proposed were in conformity with the Internet Treaties should never have been stated in so many words. Now we would have our “trading partners” (read EU and US) would be breathing down our necks (and to mix my idioms also breathing fire and brimstone) to join the treaties is a foregone conclusion.

    This would lend so much credibility to those doubtful treaties.

    The intent possibly was to make these amendments a test of the efficacy of the provisions and if they did not suit our conditions we could always scale back. We have now cooked our goose by first making this point in the official government release after the Cabinet approval and now doing the unthinkable by including this in the bill explanatory memorandum. This is plain bad drafting, totally immature.”

    Reply
  4. AvatarShamnad Basheer

    The same colleague who wishes to remain anonymous also comments in relation to the Bollywood provision:

    “I believe the amendment is poorly drafted and based on suggestions of a small coterie of renowned authors/composers who have already created a market for themselves.

    The amendments presume that the entire community of authors/composers is a homogenous whole, which is not true anywhere human beings form a collective.

    This kind of tinkering with the law should have been attempted only after some bit of economic analysis as well as wider consultations with the community of authors and composers also explaining to them the possibility that taking away the incentive from their publishers/producers would most likely harm them in the long run

    Further, I do not understand how the authors would now manage these rights. Monetising these rights on paper is one thing and actually generating revenue totally another. I do not see authors having the financial clout to create an effective monitoring mechanism to enforce these rights against violators. For once, I would agree with the established commercial interests that enforcing these rights will be beyond the authors capabilities.

    I think there was room for more debate on the issue and this set of amendments should not have been attempted in a non-transparent manner, based upon vague consultations with a select few.

    Reply
  5. AvatarNandita

    Dear Shamnad,

    Thank you. That’s very kind of you.

    I completely agree with you about there being an inherent problem with such contracts vis-à-vis prevailing power structures.

    The primary reason I prefer contracts though is because they still give parties freedom – as fragile as that “freedom” may be.

    Secondly, I’m not convinced in my own mind that if legislators were to step in, they would solve the problem of potential parties having unequal bargaining power. I say this not because of the “Oh! But this is India” sentiment one often hears but because across the world, I don’t believe it has always been possible to justify amendments to copyright law on the basis of their being intricately associated with either public good or the good of the “underprivileged”. (I’m thinking of Mickey Mouse in the US, and Peter Pan in the UK.)

    Finally, — there is a finally! –- I still remember the horror (to me, anyway) of studying labour law. While the details are now vague, what I remember is having to go through a hundred diligently crafted provisions only to find that the sum total payable (whether by way of compensation or otherwise) would often be a grand total of something in the neighbourhood of ten rupees. To avoid this, I think legislators would have to specify percentages / ratios / proportions unless they planned to take into account inflation.

    The bottom line, as you’ve said, is that the devil would lie in the details. 🙂

    Reply
  6. AvatarShamnad Basheer

    Thanks again Nandita,

    I guess most of this would turn on the assumption that bollywood producers have continuously exploited music composers and lyricists. If this is indeed true (I have only anecdotal evidence on this, but have every reason to believe that there is considerably power asymmetry between the parties), then hoping for a “freedom to contract” remedy may not help us. After all, copyright regimes have time and again limited the scope fo the freedom to contract. Many regimes prevent teh right to waive moral rights–as contravening public policy. Similarly, if an industry can show rampant exploitation, having protectionist clauses (and besides, this is not that drastic: all it prevents are mere lumpsum payments to the exclusion of continuing royalties)…. may be simply reflective of countervailing public policy.

    As for labour law, I think stipulations like minimum wages etc have helped to some extent… At least at NUJS with our housekeeping and other staff, we’ve been able to negotiate a better deal only because of minimum wages. Freedom to contract wouldn’t have worked well here…since our uni is always interested in cutting costs—particularly after pay commission pressures and poor people are desperate for work here in any capacity and will sign up to anything….

    Reply
  7. AvatarAnonymous

    I totally agree that the devil would lie in the details. Having gone through the Bill, I guess I have a few comments:

    The addition of Section 31 D primarily catering to the radio fiasco going on shall be helpful for the industry but it needs to be ensure that the Copyright Board is geared up to dispose off the request so made in a timely fashion. There has to be some pressure on the Board as well. Additionally, mentioning that the owners of the rights shall have the right to inspect records uncalled for. This would unnecessarily result in intervention by parties which is uncalled for as the owners already have specific provision under the Act.

    Under Section 52 (1) c, there has been a provision where the person responsible shall be requiring an order from competent court within 14 days. I guess this provision facilitates litigation and would be contrary to the good faith policy on which some of the service providers work.

    Reply
  8. AvatarNandita

    I truly wish I could disagree with you and state with absolute certainty something along the lines of:
    The “freedom to contract” in this context is not proof of contractual freedom including within its scope the “freedom to allow oneself to be bulldozed”. Routinely.

    What concerns me though is that the restrictions proposed in the Bill may not really help. I love the idea of provisions which would protect lyricists and composers, but I somehow get the feeling that it is debatable whether the proposed amendments are concrete expressions of that idea or are merely placebos.

    If it’s the latter case, I’d prefer not to have to see something ostensibly helpful but actually infructuous (or worse) enshrined in the law. And considering that preference, I’m afraid I have nothing to fall back on but the “freedom” to contract.

    Anyway!

    Thank you for sharing your experience using labour law to help others get a better deal. I was very pleased to read it. — My own encounters with labour law have been diametrically opposite. As is obvious, they did not leave me even marginally disillusioned. 🙂

    Reply
  9. Avatarmnbvcxzaq1

    seems a gud discussion was going on here. tho i seem to b a lil late, yet i wud like to give vent to my views on nandita’s ‘freedom to contract’. a quick n short view: historically, india has been home to all sorts of (n sizable)’disadvantaged groups’ (from almost all considerations – social, political, religious, economic, educational, power-structure related, professionally, vocationally). on the other hand, there have been deeply entrenched vested interests n power groups. under these circumstances, talking of ‘freedom to contract’ does not seem to be an effective proposition for india.
    -aditya kant

    Reply

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