Copyright

Guest Post: Waxing Lyrical on Royalties – Update


We are pleased to bring to our readers another interesting guest post by Mr. Nikhil Krishnamurthy, Senior Partner of Krishnamurthy & Co. Previous posts on the same topic can be found here and here.

WAXING LYRICAL ON ROYALTIES – UPDATE

As a follow-up to my post here analysing various proposed amendments seeking to introduce author-centric provisions into the Copyright Act 1957, I am providing below the actual text of the said provisions as contained in the Copyright (Amendment) Bill, 2010.

The analysis contained in my earlier post does not change materially.

Second Proviso to Proposed Section 17 (g)

“(g) in case of cinematograph film produced before the commencement of the Copyright (Amendment) Act, 2010, the principal director shall enjoy the copyright for a period of ten 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 that an agreement referred to in this clause shall not be necessary in case where the owner and principal director are the same person;

Provided further that in case of any work incorporated in a cinematograph work nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13;”

Second Proviso proposed to Section 18 (3)

“(3) In this section, the expression “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

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.”


Proposed Section 19 (8) and (9)

“(8) The assignment of copyright in any work contrary to that of the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.

(9) No assignment of the copyright in any work to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties or any other consideration payable in case of utilisation of the work in any form other than as part of the cinematograph film or sound recording.”

As one will see, Section 19 (9) in fact contemplates the assignment of copyright by the author, to another, for the purpose of making cinematograph films and sound recordings, and this therefore does not address the grievance of the author-composers.

Keeping in mind some of the stated objectives of the Bill (“namely, 3 (viii) to give independent rights to authors of literary and musical works in cinematograph films, (ix) clarify that the authors would have rights to receive royalties and the benefits enjoyed through the copyright societies, (x) ensure that the authors of the works, in particular, author of the songs included in the cinematograph films or sound recordings, receive royalty for the commercial exploitation of such works”), the provisions ought to have properly clarified the issue of first ownership of copyright in music and lyrics composed for films and sound recordings, and generally prohibited, in such cases, assignments for lump-sums and maybe those that are for the entire term of copyright.

In my view, it is the issue of first ownership rather than a prohibition on assignment that is most critical since if a producer of a film or recording can validly claim first ownership of copyright in a work incorporated in a film or sound recording, then the question of assignment or prohibition thereof will not even arise as an author cannot assign what he does not himself own.

Interestingly, as I anticipated, I am given to understand that the agreements between Producers and author-composers has already started seeing focused changes in terms of specifying first ownership of copyright. I provide below some of the relevant clauses that have been brought to my attention in this regard.


“RIGHTS AND ASSIGNMENT:

The Lyricist hereby agree that the Lyrics shall constitute a work specially ordered by the Producer, and accordingly the Lyricist expressly acknowledges and agrees that the Producer shall be considered the first author (???) and owner of the Lyrics for all purposes and the owner of all Lyrics Rights, without condition, restriction or limitation of any kind, and free and clear of any and all claims for royalty or other compensation, except as specifically set forth herein. Accordingly, and without limitation of the foregoing, the Producer shall be entitled to copyright the Lyrics in its own name, and, as proprietor of such copyright, to renew said copyright in its own name. The Lyricist irrevocably and unconditionally waive all rights in respect of the Lyrics to which he is now or in the future be entitled to under the Copyright Act, 1957 (“Act”).

In the event the Lyricist still retain any of the Lyrics Rights and/or any other rights under any law, the Lyricist hereby irrevocably and exclusively grant, convey and assign to the Producer all Lyrics Rights and any part thereof in perpetuity and the Producer shall have the exclusive right to adapt, change, revise, remix, delete from, add to and/or rearrange material or any part thereof submitted by the Lyricist hereunder, and to combine the same with other material to any extent, abridge, broadcast, record, communicate, exploit and / or use the Music in any manner, including the right to assign, license, convey or grant the rights in the Lyrics and Songs to any third parties. The Lyricist hereby specifically waives his “moral rights” of authors as the said term is commonly understood throughout the world and waives his rights pursuant to Section 19(4) of the Act. The Lyricist hereby agrees and undertakes that he has no right, title and/or interest in the Songs.

The Lyricist agrees to execute the necessary documents to enable the Producer to protect or perfect the Rights granted under this Agreement at the request and expense of the Producer.”

In a related matter involving a song from the film Laawaris which has been reused in Housefull, Sajid Nadiadwala, the affected producer who has been ordered to remove the song from his film by the Kolkata High Court, had a very interesting and refreshing response, even though he is on the losing end. He reportedly states “As for Punit and Amit Mehra [the sons of Prakash Mehra, director and lyricist for Laawaris], I’m actually grateful to them for opening up a very large issue, much bigger than the song in my film. Who is the copyright owner of a song? So far, we presumed it was the music company. But now it seems that isn’t the case. I think copyright laws need to be revised.”

I would go so far as to say he deserves a big round of applause [and a quick settlement with the owners of copyright so that he can proceed unhindered with the theatrical distribution of his film].

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