Copyright

The challenge by Bhojpuri musicians to the Copyright (Amendment) Act, 2012


IndianConstitution_19705In 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.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP). He has recently been appointed as an Assistant Professor at NALSAR, Hyderabad, starting September 1, 2017.

5 comments.

  1. anushree rauta

    Interestingly, neither the Music Composers Association of India nor the Film Writers Association have intervened in this matter till now. Considering that the petitioners to this petition are all members of IPRS and the challenge to the S.33 (1) proviso, it is surprising why IPRS has not sought intervention. Seems like IPRS would have to tread over a lot of issues in its upcoming AGM on 30th Dec.

    Reply
  2. Anonymous

    The fundamental unanimous objective in Parliament of the Amendments were that authors / composers can assign rights but not right to royalty. If an composer wants the right to license and not join a copyright society, it will create a situation were composer has to license separately, author separately and owner of the works separately and will lead to chaos. The right to property is not a fundamental right, and if a set of rights does exist if it is created by the Parliament then the Parliament has full right to also put reasonable restrictions on rights.
    This author what is his reason to challenge he is to receive consideration plus royalty, he can also take a lumpsum in as advance royalty which the owner can recover then why this challenge.
    It more than meets the eye???.

    Reply
  3. Achille Forler

    When the slave waxes eloquent about his chains then you know that the Stockholm syndrome has set in.

    This challenge “will most likely succeed” if the Courts continue to talk of IP with analogies like milk shake or river sediments, and consider authors as hired labourers. But here are two reasons as to why it shouldn’t succeed:

    1. Copyright protection is granted to ensure that creators receive a “fair and equitable remuneration” for their endeavours. This protection lasts for the lifetime of the author + 60 years. It has been shown that it is impossible to build an economic model to determine the value of a copyright over such a long period and that royalties is the only “fair and equitable” economic remuneration model.

    2. This and the other challenges to the Amendments raise fundamental questions about the copyright regime: lump sum vs royalties, freedom of contract vs unwaivable rights, statutory/compulsory licensing vs freedom of business, collective licensing, etc. I believe most, if not all, of these questions have never really been debated. They will pose a colossal challenge to the Supreme Court (where they will all land up) but will give the opportunity to the SC to clarify some fundamental concepts of IP that are only implicit in the Act. I can see some hot research themes for sharp young minds here.

    Alternatively, we can have a 1977 redux which would send the copyright industries into a tail spin for another generation or two.

    Reply
  4. anushree rauta

    Beg to differ with you on the fate of this petition Mr. Forler. When it comes to the Article 21 argument, writ courts in India have vehemently protected the fundamental right to livelihood. Prashant’s conclusive remark on the authors’ petition likely to succeed (vis a vis the other petitions) could be correct for the following reasons:
    i) The livelihood of authors of cinematograph films in India (as against the West) depends upon producers engaging them for developing works for their films. With the cut throat competition in the film industry especially for authors who are not well established or who are new in the film industry or for non Bollywood authors, the chance of being quickly replaced by other authors is not rare. The livelihood of authors of underlying works in cinematograph films therefore is dependent on getting opportunity to work with a producer. In order to get an opportunity to work with certain producers, many authors would willingly comply with the terms and conditions offered by the Producers.
    ii) the authors and producers should have the ability to negotiate and enter into a contract which is mutually acceptable and beneficial in terms of royalties, nature of contract i.e. contract of service or contract for service or on a commissioned basis and assignment on all modes and mediums of exploitation whether present or future. Prior to the Amendment, the agreements by way of ‘contract for service’ were usually entered by established / successful authors who could negotiate on their terms and conditions due to their commanding position. Whereas small and upcoming authors would mostly enter into arrangements of contract of service/ commissioned works where Producer would be the first owner of the Copyright and pay the authors a lump sum amount for the work and give an opportunity and platform to new and upcoming authors. The authors thus had the freedom to enter into a contract of service/ contract for service with the producer of a cinematograph film on mutually negotiable terms and conditions.
    iii) the object of the Amendment Act was to benefit the authors by entitling them with royalty rights for commercial exploitation of their works. Payment of royalties is dependent on several factors like exploitation of the work on different modes and mediums, collection and payment by the copyright societies, etc. It is practically impossible for the authors to themselves collect royalties for exploitation of their works and hence they need to depend on copyright societies to collect royalties. Upcoming authors in need of funds would definitely find it beneficial to receive a lump sum fee for his work rather than deferred and uncertain payment in the form of royalties.

    The Amendment suffers from several lacunas and seeks to benefit only established authors in the industry and not new and upcoming authors. The Amendment is just a camouflage appearing to benefit the authors. The Amendment could achieve its objective only if each sector in the cycle is willing to bear the financial deficit in its accounts, which is not likely to happen. The following article might be of interest to you.
    http://articles.timesofindia.indiatimes.com/2013-11-29/news-and-interviews/44547467_1_royalty-music-fraternity-indian-performing-rights-society

    Reply
  5. Kamal

    An indian local channel broadcaster invites a artist for an evening broadcast and request him to sing a song as per his/her choice, the artist sings a song of famous singer in the show. Lateron the boradcaster is sued by the singer referring to copyright violation. Are there any strong points in support of the broadcaster as per the Indian copyright law?

    Reply

Leave a Reply

Your email address will not be published.