In the last few months we have covered several petitions challenging the constitutionality of the different provisions of the Copyright (Amendment) Act, 2012. The previous posts covered the challenges made by film producers (Bharat Anand & Sir J.V.M. Movies Ltd.), music labels (T-Series, Venus & PPL) and book publishers (IRRO). The last in this series of posts is the pending case of Devender Dev v. Union of India, filed before the Delhi High Court in May this year.
This particular petition has been filed by a group of artists who compose and perform devotional music and Bhojpuri music. Both these genres of music are distinct from the mainstream market which consists of primarily film music.
Most of the issues raised in this petition are similar to the issues raised by the film producers in the Bharat Anand petition. The specific provisions under challenge in this petition are the third & fourth provisos to Section 18 and the second proviso to Section 33 (1). The first set of provisions is the mandatory-royalty-sharing provisions which mandate sharing of royalties with the composer and song writers. The second provision under challenge requires everybody in the music industry to transact their business through a copyright society.
Unlike the previous constitutional challenges which were filed by lobbies always opposed to the amendments, the present petition has been filed by songwriters and composers who are supposed to be benefitting from the amendments. The fact that these songwriters and composers are from the less popular genres of devotional music and Bhojpuri music should serve to further magnify the possible drawbacks of the new law. In their petition, these artists argue that the market for Bhojpuri music and devotional music is very different from film music and that most artists in the former industries depend heavily on assigning away their entire rights for a single advance lump-sum payment rather than depending on future royalties. The petitioners argue that the newly added provisos to Section 18 have disrupted their right to licence their works thereby endangering their right to practice their profession and earn a livelihood under Article 19(1)(g) & Article 21 of the Constitution. To conclude the argument, the petitioners basically want the complete freedom to licence their works without any statutory restrictions.
The challenge to the proviso to Section 33(1) (i.e. the requirement to compulsorily transact business through a copyright society) is based on the fundamental right of citizens to form associations. The petitioners argue that since the Bhojpuri and devotional music industry is relatively small compared to the film music industry, it would have little or no say in determining the distribution scheme for unlogged royalties collected by a copyright society. This would clearly harm the commercial interests of the smaller non-film music industries. The petitioners argue that the fundamental right to create an association includes a right to not be a part of an association and that any provision forcing the unwilling petitioners to join an association is unconstitutional. For reasons that I already discussed in my earlier post, this is a strong challenge and will most likely succeed.