Copyright

(Copy)Righting a Bollywood Wrong


We’d blogged earlier on the government move to amend the copyright act to inter-alia redress a historical injustice and compensate Bollywood artists more justly for their creative endeavours.

As many of you may be aware, most such artists (mainly music composers, lyricists and script writers) have been at the receiving end of unjust contracts from film producers and sound recording companies who’ve taken away all their rights for a lowly lumpsum.

The Indian Express carried an editorial of mine on this issue today. I reproduce it below:

Sold for a Song

“Bhagwaan teri duniyaa mein insaan nahin hai”

Shakeel Badayuni’s memorable words set to a melancholy tune by Ghulam Mohammed (the music director of Pakeezah) — holds a foreshadowing of Ghulamji’s fate.

He died in penury, despite his works minting lakhs (in those days) for the film producer who commercialised and marketed his art. He was not alone in this predicament; the wife of the legendary music director Khemchand Prakash was found begging on the streets of Mumbai soon after his unfortunate demise.

The word “inequity” could not have found a better situational fit than this — to this day, Bollywood artists (music composers, lyricists and scriptwriters, whose works are incorporated into films ) are forced to sign away entire copyrights to film producers for a measly lumpsum, even as their works reap crores at the box office.

Sample this clause, extracted from one of the Bollywood contracts:

“the Lyricist expressly acknowledges and agrees that the Producer shall be considered the first author and owner of the Lyrics… without condition.. of any kind, and free and clear of any and all claims for royalty… The Lyricist irrevocably and unconditionally waives all rights in respect of the Lyrics to which he is now or in the future entitled to under the Copyright Act.”

Not content with snatching away all economic rights to future returns, this legal parchment goes on to strip creative minds of their very right to claim authorship. Little wonder then that the government is now attempting to redress this injustice through a set of statutory amendments to the copyright act.

Should these amendments come into force, artists would be considered as authors/first owners of their works and would, notwithstanding any assignment, retain the right to receive royalties from the commercial exploitation of their works. Even someone with no knowledge of copyright basics is likely to agree that this sounds just and fair.

And yet, if the proceedings of a recent parliamentary committee tasked with examining the desirability of these amendments are anything to go by, one finds that film producers are up in arms. They have threatened to shut down Bollywood. More worryingly, it has been hinted that artists may not get credit for their works in future.

India’s proposal to amend the copyright act to ensure better returns to artists is not without international precedent. Not only do European countries such as Germany and Austria prohibit copyright assignments by authors, they also stipulate that, notwithstanding contractual arrangements to the contrary, authors are to be “equitably” remunerated for the commercial exploitation of their works by third parties.

However, laudable as the present set of Indian amendments is, they do not go far enough. First, the amendments provide for a right to royalty only when the underlying works (lyrics and music compositions) are exploited separately from the film or sound recording. In line with international practice, a right to remuneration ought to accrue on every exploitation of the underlying work, whether as part of the film or sound recording or separately.

This is best done by simply prohibiting any assignment or exclusive licensing by the authors of such works in favour of any third party, except to their legal heirs and collecting societies. Such a bar would ensure that the author continues to retain ownership of her works that have been incorporated into a movie and can claim continuing royalties for its exploitation.

Secondly, as it stands now, the right to royalty applies only to lyrics and musical compositions. It should extend to all underlying works that are incorporated into a film, including the script, which may be treated as literary/dramatic work.

Thirdly, the amendments aim to incentivise authors to join collecting societies by stipulating that authors can assign their “right to royalty” to a collecting society. Such societies are likely to strengthen the negotiating power of authors to ensure fair returns for the exploitation of their creative genius. However, there is no need for an author to assign away her rights to such a collecting society. A mere license to administer such rights in favour of the society would suffice.

In short, if the real mischief sought to be remedied by the government is the contractual exploitation of artists, it should simply prohibit them from assigning away any of their copyrights. The concept of a separate “right to royalty”, as crafted under the present set of amendments, is jurisprudentially and practically problematic and needs to be done away with.

Although such a bar on assignment is likely to impact the freedom of contract, it is imperative from the vantage point of social justice. An excellent parallel is the Minimum Wages Act, where even if a destitute labourer wishes, she cannot contract to perform the labour at rates below statutorily prescribed levels. In a similar manner, authors too should be divested of their right to sign away rights for a measly lump-sum amount. Only such a revolutionary change in our copyright regime can help infuse some “insaniyat” into an industry given to rampant exploitation.

ps: image from here.

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. AvatarAnonymous

    I do find your post largely persuasive and concur with most of your thoughts ….but was wondering whether you had forgotten to consider the nature of Indian music industry when you made the suggestion that we need a provision wider than one which provides
    “a right to royalty only when the underlying works (lyrics and music compositions) are exploited separately from the film or sound recording “

    I understand that the international practice also supports your arguments and so would a very pro-author approach ….however one can’t forget that we do need money to promote the work…and especially considering the business model of music Industry we have..do you think we have reached that stage where we can crave that great independence from the industry that promotes music ( iam only referring to rights in synchronised music) …it is a fact that we rarely have ‘Justin Bieber Phenomenon’…Indian public love their ‘bollywood music’ and our music labels too promote this kind more than individual artist albums….

    Reply
  2. AvatarAnonymous

    1. While Ghulam Mohammed and Khemchand Prakash might have died in penury, one would think that Naushad, Khayyam, A. R. Rahman, Ilaiyaraja etc. have managed to do quite well. You might respond that not every music composer is a A. R. Rahman. True, but then not every composer is Ghulam Mohammed either. Where does that leave us?

    You cannot frame laws on the basis of anecdotal evidence. We need statistical evidence which would give us the broad picture. Unfortunately, you do not supply such evidence.

    2. You think it is “right” and “fair” that music composers get a share of the profits that a movie makes. Fine, but would any music composer agree to share in the losses that a movie makes? You simply ignore the fact that movie making is a very risky business. The producer (or whoever finances the movie) might make a lot of money on her investment or she might make a loss. Indeed, most movies, in Bollywood, Mollywood, Tollywood or for that matter, Hollywood are flops and lose money. Your talk of movies “reaping crores at the box office” applies only to a small fraction of all movies made.

    The composer, according to the usual contract, gets paid a fixed amount for every movie. This means no share of the profits but also no share of the losses. If you don’t like this, then change the law to have the composers sharing the losses also. You cannot demand a “right” to the profits without accepting responsibility for the losses.

    3. It does not follow that just because the composer gets paid a fixed amount, that she is signing away all money that the movie might make. I would think that some, if not all, are smart enough to incorporate future earnings into their signing fee.

    4. Most disturbingly, your post seems to think of the composers and lyricists as helpless guys needing the government’s protection. This is taking a very paternalistic view indeed. It might be noted that our licence-permit raj arose precisely from such paternalistic attitudes: the attitude that people don’t know what is good for them and thus have to be protected by the government. You’ll have to excuse me but I tend to be very sceptical of arguments that rely on paternalism.

    5. There still might a case for changing the copyright law but I find your case unconvincing.

    Reply
  3. AvatarShamnad Basheer

    Dear Anon 1,

    Thanks for your insightful question. Why do you think we’re not ready for a system where moneys made from any exploitation of the work is shared. And not just a separate exploitation of the work? In any case, Nikhil Krishnamurthy has very persuasively pointed out that this “separate exploitation” clause is highly problematic…as it leaves the author with really too litte.

    Reply
  4. AvatarShamnad Basheer

    Dear Anon 2,

    I guess you are not persuaded, since this effectively boils down to a difference in ideology. Perhaps you trust the markets and the sanctity of contracts better than I do. And perhaps you have faith in the equality of contracting parties and their bargaining positions. Having been a citizen of this country for a good number of years and experienced some of its highly inequitable social structures, I simply don’t.

    As for empirical evidence, you make a very valid point. What I failed to mention in the article is a letter signed by about 30 leading artists (including AR Rahman whom you interestingly mention in your
    comment) sent to the standing committee, testifying that they are all at the receiving end of extremely unfair contracts where they are forced to sign away rights for low lumpsums. If the big artists don’t have enough negotiating power, imagine the plight of the small artists.

    Paternalistic? Well, again, its not so much paternalistic, as an issue of social justice. Even otherwise, the fact that artists’ themselves want to have a lesser freedom of contract here (since this freedom effectively converts to bondage) should caution you to the fact that the state is not substituting its wisdom for those of artists’ but remedying a grossly unfair situation. So its not really paternalisitic. Even if it were, whats wrong? You would also argue for the repeal of the minimum wages legislation on teh grounds that its paternalistic?

    So what is unfair about all of this, you might ask?

    The fact that the very creator gets a highly disproportionate return when compared with someone who merely packages, markets and commercialises. Again a difference in ideology, I guess. But personally, I think there is something wrong with the system when the very creator makes much much less than those who market his wares..And when the free market makes this happen, I think the state ought to step in. And for folks like you who have unceasing faith in the free market, the sub prime crisis should serve as a fair reminder that states should intrude into markets, once in a while 🙂

    So will artists’ share in the losses? Why should they? if a business goes bust, do we ask employees to share in losses? Every business is a risk. And yet we have a minimum wage scheme that cannot be derogated from?

    We’re simply asking those who market to substract their costs (marketing costs etc) and pay a part of the remaining profits to artists’? Of course, while determining what amount of profits need to be ploughed back to artists’, one can factor in the “risk” element that a producer undertakes and perhaps a higher portion of the profits that ensue from the commercialisation ought to vest with the producer.

    There are several ways in which this can me made to work. And we can come up with creative solutions. But to think that the situation is hunky dory and doesn’t need change, that we live in an equal world and artists’ should remain content with market forces that dictate measly lump sums is problematic, at least to me….

    Reply
  5. AvatarLatha R Nair

    Shamnad – Very well-written. I couldn’t agree more with you. Being a copyright lawyer, I often witness how authors quietly agree to contractual clauses that are far too oppressive. Contoversies like ‘Chetan Bhagat – 3 Idiots’ rarely come out in the open as authors would like to keep good relationships for the sake of future flow of work. All of us know what Chetan Bhagat said in the end. The fact remains that but for the storyline of 5 Point Someone, 3 Idiots would not have been a success…. Might is right is what seems to rule the Indian film industry in these matters and the amendments are, therefore, in the right direction.

    Reply
  6. AvatarShamnad Basheer

    I’m sorry if took offence re: the
    “ideology” point. I personally don’t think anyone needs to be apologetic about a free market ideology…and a belief in a society that is largely equal and in the sanctity of contractual freedoms. Responding to your points:

    I don’t think you’ve appreciated the structure of this industry well enough. This is not just about films doing well or flopping. This is really about the “music”. Folks with some knowledge of the industry will tell you that bollywood producers take these rights and assign them to recording giants. Who then exploit them across various channels and media. Its a share of these proceeds that artists’ are really demanding. Of course with independent artists such as Ravi Shankar and Shubha Mudgal, the equation is a lot clearer–since the contract (again divesting them of their ownership) is between the artists’ and the sound recording companies directly.

    You’ll be surprised to know that even these artistic giants often have to sign away everything for sums that most fair people would qualify as disproportionate. In any case, the representation sent in by these artists’ claim disproportionate.

    I agree its subjective. And perhaps someone like me would think that a song where the composer gets 30,000, but which goes on to make 30 lakhs or even 3 crores at the music box office is disproportionate. Perhaps someone like you may think that artists should be entitled to only that much, since thats’ what they bargained for. Bad karma, as some would say!

    So how do we figure out what is a fair allocation here? Leave it again to contracts! But this time, the contract is between the collecting society (who represent the interests of artists’) and the sound recording company. Two giants talking to each other–the possibility of arriving at a fair rate is greater, don’t you think. Once again, do familiarise yourself a bit more with the current structure of amendments and you’ll find that collecting societies have a large role to play within the proposed scheme. Something that you’ve completely missed in your arguments.

    Lastly, sorry to hear that your sister happens to be a pseudo JNU intellectual who teaches one thing and practices another. But for every “pseudo”, we have some true blooded folks as well. In fact, JNU students and some professors forced the administration to give labourers their minimum wages….you’ll again be surprised to find that these were contract labourers (informal, you might call them) and not regular employees. so you need to revisit your flawed legal understanding that minimum wages have no application for informal workers.

    I myself spearheaded a campaign (with the help of some really driven students) at NUJS to ensure that our contract labourers received minimum wages–and we were successful. The short point is that those who love to jab at the legislation will keep screaming that it doesn’t work…those who want to use it to further social justice will effectively use this “tool”.

    The “tool” exists in the form of a law. And it is precisely this “tool” that we want to offer to artists’ as well. Lets give it to them first…if there are infirmities in its implementation, we can correct it later. But why put the cart before the horse and kill this noble idea at this stage?

    Reply
  7. AvatarShamnad Basheer

    Mr Jagdish Sagar, who has now become one of the most astute copyright commentators on our blog responds to the piece as under:

    “You rightly point out some of the limitations of the proposed amendments, but I’d like to add that, as lawyers, we need to look very closely at the actual draft.

    Firstly, if we are (as we should be) concerned about authors, why limit our concern to one particular group, the authors of songs (lyrics and tunes) that are used in films. What about other authors? Surely, popular music isn’t the only culturally important kind of work?

    On the amendments to the law on assignment: what happens if the work has been assigned before it was included in a film?

    Again, the amendments to section 18 apply to all literary works (but not to dramatic works like the filmscript, as you point out). What about a novel that is included in a film after it has been written? By the amendments to section 18, the novelist won’t be able to assign publishing rights in his novel to anyone else but a copyright society (or his own legal heirs, whatever that means) once he allows his novel to be included in a film. What copyright society, anywhere in the world, handles this kind of business or is competent to do so?

    The one problem the draftsman appears to have had in mind is no doubt a genuine one: it is possible for the authors of a hit song to have been paid a once-and-for-all sum for their rights, while the film producer and music companies continue to make large amounts of money from it for years to come. In such a situation (which is not necessarily typical of most cases) the assignment agreement has become onerous; there is a remedy in section 19A (inserted by the 1994 amendments) but it has never been availed of–perhaps because the Copyright Board has yet to make the impact, as a source of quick and cheap justice for authors, that was intended for it. (The Board has never even fixed the rates under section 53A, which could have helped the authors of artistic works.)

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  8. AvatarShamnad Basheer

    Mr Sagar also adds:

    “Further, the draft does not define “royalty”; nor is the “right to receive royalty” one of the copyright owner’s rights enumerated in section 14: it is a contractual right and varies with each contract. We know about the problems and disputes on royalty reporting that arise in other media; do we need to multiply them? I feel it could well turn out that film producers (with access to good legal advice) might actually succeed in reducing their royalty costs as a result of the present proposed amendments. The problem is, really, the uncertainty being created.

    Again, look again at the proposed amendment of section 33. No doubt there are issues about protecting authors’ rights in copyright societies. The Bill purports to exclude all persons except authors from membership of a copyright society (itself a questionable idea) but in fact (look at it carefully) as drafted it merely puts authors under the restriction that they they can only function as licensing groups through registered copyright societies, while removing the existing bar on others from doing so. (This is quite apart from the question whether excluding so many copyright owners–assignees and heirs– from copyright societies would not be the death of collective administration.)

    Further, when the amendments have put performers’ rights on par with sound recording producers’ rights (in order to join WPPT–a progressive step) they now seek to exclude performers from the membership of copyright societies. How will performers benefit from their new rights if they are debarred from collective administration?

    It is true that Germany, notably, does not allow assignment of copyright. But how does their whole system work? It can’t be the confusion the present Bill might create. The whole structure and philosophy of copyright in the civil law countries is different, and ties in with their civil law which is also different from countries like ours with a common law background. Does citing Germany answer any of the questions that arise when we consider the implications of the present Bill to amend the law in India?

    More so when we consider that India is unique in the structure of its film and music industry: this may or may not be a good thing, but it has to be dealt with.

    In sum: simplistic solutions won’t solve real problems. Nor does leaving anyone affected out of the discussion. There needs to be a lot of public brainstorming about such issues before they go into legislation.”

    Reply

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