In what must be a first for Copyright Law in India, film producers across the country have announced a one day strike, on the 6th of January, 2011, during which they shall carry out protest marches in New Delhi against the proposed amendments, to the Copyright Act, 1957, which not only promise greater royalties to composers and lyricists but also bar assignments of copyrights to producers. In addition to the strike, the Film Federation of India, the mother body of all film associations, has banned its members from working with noted lyricist Javed Akhtar.
Javed Akhtar, one of the most sought after lyricists in Bollywood, is widely credited as the one man lobby pushing for the amendments, to the Copyright Act, which aim at correcting some rather inequitable historical anomalies. An interview with Mr. Akhtar is available here on the CNN-IBN website as also the DNA website. An editorial from the Indian Express supporting the amendments is also available here. Image from here.
There are already rumblings on constitutionality of the proposed amendments especially the bar on assignments. Lawyers for the producers claim that the amendments violate the freedom to contract under Article 19(1)(g) of the Constitution. Apart from the fundamental right arguments there is also the Article 300A, property right argument which requires Parliamentary legislation to conform to a reasonable standard while regulating property rights. However this is a constitutional right and not a fundamental right. Nevertheless the State will have to establish an overwhelming reason to justify a complete bar on assignments of copyright. It is one thing to regulate royalties but it is a completely different game when barring assignments of any sort. To draw a crude analogy to tangible property, it is reasonable for Parliament to regulate rents payable by a tenant for the use of a house but it is a completely different proposition for Parliament to state that the owner of the house cannot sell it.
Presuming that these amendments get through we still have to ask ourselves how they will play out in reality. It is all well to have statutes prescribing strong rights for lyricists and composers but will these same people be able to enforce their rights before the Copyright Board or the District Courts? If India’s experience with social justice legislations, such as minimum wage legislations, is anything to go by it is but obvious that well-meaning legislations such as the one under discussion need to be complemented by a strong collective bargaining power. Unfortunately the entertainment sector in India seems to lack a tradition of collective bargaining. Contrast this with the strong unions in the U.S. and Europe. For example the famous ‘Writers Strike’ in 2007-2008 carried on for more than 4 months by the Writers Guild which consists of script writers etc. for Hollywood. The strike caused major losses and drove the industry to a stand-still but at the end of it the Writers Guild did manage to win substantial benefits for its members. Even in countries like France and Germany, the key to justice, has been the strong collective bargaining tradition by artists and performers who provide their members the means to negotiate equitable contracts.
The lyricists and composers in India will therefore need to organize themselves to protect themselves. Javed Akhtar may have pulled of a miracle by getting the present amendments through but let’s face it, there is only so much one man can do.
ONE – If you read the reccomendations of the Standing Committee, there is NO bar on assignment pitched by the Ctte, what is suggested be “restricted” is the assignment or waiver, by the author, of his/her right to claim a royalty. There is a perfectly reasonable basis to this and that is the inability of the author to reserve rights to himself/ herself or negotiate his /her contracts against the film producers.
TWO – Restrictions are perfectly within the scope of the State ability under Article 19 to temper the so called freedom to trade (and by the extension – to freely contract).
THREE – It has been recognised for very long that the ability to contract freely may be restricted in certain situations.
FOUR- The call for a ban is precisely the reason why authors must be protected- how can you expect authors to contract freely, if the price for fighting for your rights is to be banned from the Industry?
LASTLY – You are correct that only collective action will assist authors to regain some ability to be able to negotiate their way in and / or out of contractual relationships. In order that this collective loghic appeals to all authors, the proposed amendments are critical to provide momentume to a real author based movement in India.
K.MUTHU SELVAM
One by one the personal view on the copyright bill especially regarding the right of creator (composer, singer, writers,(Script-Dialog-story writer))are coming out. We have to wait for getting support from the real benefitters before the reel benefitters go on token strike. As an initial move Mr.K.Bhagyaraj,a tamil movie Director,Script writer, dialog writer,music composer cum producer has vociferously supported his views in favour of equal right for their fellows. Every body is waiting for the views from Mr.Kamala Haasan. Because always his views are prospective and futuristic in nature. When,nearly 15 years back,tamil film industry went to street protesting against the CAble Television, he was the only person said ‘who we are to protest or prevent scientific development and its benefit reach people directly’.
K.Muthu Selvam
An anonymous commentator well versed with Indian copyright law sends in the following comments:
Dear Prashant
Apropos your comment on how it will work out in practice, three issues need attention:
Unlike the Directors who got additional rights as authors on a platter and were not able to present their case before the PSC, the writers have been at it for a long time and recognise their intent with some degree of clarity. Hence, I am confident that they will work out something and break free of the bondage they have been subject to. Of course, this would also mean the end of the close-knit working relationship that the film community revelled in while making some truly great movies in the past – stories abound of how Raj Kapoor would spend time getting the lyrics and scores right with his friends Shailendra and Shankar-Jaikishen duo, or of Dev Anand going to SD Burman to seek his blessings before engaging RD Burman for his movie Hare Rama Hare Krishna. All this has changed and will change even further with more formal contractual relationships. We have to wait and watch to see if Indian movies lose their soul. Not for a moment do I suggest that the old system was necessarily better because without contractual control, it had lost its ability to ensure enforcement of rights and was always susceptible to greed getting the better of good sense. In any case, why should the financial onus of maintaining a ‘family-like atmosphere’ devolve on the lyricist-composer-author community alone?
The preponderance of black money is major factor in film-making. As a result, the transparent payouts to the lyricist-composer community would increase marginally the dependence on black funds for viability of film-making. This argument has been given by some film-makers under their breath since it cannot be acknowledged. To that extent, some bit of house-cleaning would be carried out. Not a very welcome development for a community that has been notorious for its ‘black’ arts.
There is a period of adjustment before all the social legislations start to stabilise towards their avowed intent. Minimum Wages Act, Payment of Wages Act, Workmen’s Compensation Act, etc. are all cases in point whereby it the social intent took a long time to be achieved even partially. Let us see how it pans out in the present case.
Just a few observations on the present imbroglio.
Best wishes for the New Year