Indian music artists have found support in Abhay Deol in their fight against exploitative record labels. Abhay Deol is a Bollywood actor known for his offbeat roles. Last week, the actor put up a facebook post asserting his stand against record labels which force artists to assign their royalty rights in contravention of the Copyright Act. It seems despite the amendment to the Copyright Act which provides that the author of a literary or musical work incorporated in a cinematograph film or sound recording shall not assign the right to receive royalties in any form other than as a part of the film or sound recording (Section 18 proviso), record labels have not stopped strong-arming artists into signing such agreements. And apparently, the consequence of not signing the terms is stopping the music release during the crucial run-up to a movie release. Abhay’s upcoming production One by Two was facing a similar fate for his courageous stand. He had expressed fears of the music record- T Series pulling out the on- air promotions also, and he was not getting any radio play either. A cohort of well known artists voiced their support including Ram Sampat, Sona Mohapatra , Amit Trivedi, Vishal and Shekhar, Javed Akhtar and Shankar Ehsaan and Loy(the music composers of One by Two). The fact that such eminent musicians have voiced their support indicates that exploitative practices still persist in Bollywood, in complete disregard of the law.The artists’ fraternity has raised the issue of exploitation by music labels on several occasions. Javed Akhtar’s powerful speech in the Parliament and several protests in solidarity with other artists were quite frequent in the period prior to tabling of the Copyright Amendment Act of 2012.
This issue garnered a lot of attention with Abhay actively pursuing it through facebook posts. T-Series felt compelled to respond and the President Neeraj Kalyan issued an explanation. T-Series stated that Viacom 18 entered into the relevant agreements with composers and lyricists, and those rights were assigned to T-series subsequently. Apparently, Viacom 18 had made express representations that they will share the link agreements with authors and composers to complete the chain of title. They further asserted that these rights had encumbrances and there was no clear chain of title, and T-series being the legally prudent music label it is, did not want to expose Viacom 18 to any potential litigation due to the music release.
Then news surfaced that Viacom 18 sorted out the dispute with both parties involved, and the dispute was the result of a misunderstanding. While an overwhelming amount of support came in from artists demanding removal of an “illegal clause” from their agreements with record labels, Viacom 18 attributed the dispute to a mere misunderstanding and a requirement to provide the relevant link documents.
Later, T-Series decided to relinquish the music rights. A Hindu report offered more clarity on the dispute- T-Series had indeed acquired the rights and insisted on the composers to give up their royalty rights. Now, the music has come back to Viacom 18 who will release the album. Shankar Mahadevan added that this is for the first time in the history of Bolloywood that the authors and composers will be able to collect the royalty by themselves.
T-Series in other news
Meanwhile in 2013, T-Series was embroiled in an investigation by the Competition Commission of India, in furtherance of a complaint filed by HT media regarding unreasonable royalty rates for radio play. The Director General found T-Series to be in breach of Section 4 of the Competition Act i.e. that T-Series had abused its dominant position in the market. Reportedly, T-Series has an estimated 80% marketshare in music rights. T-Series, in addition to Phonographics Performance Limited and Venus has also challenged the constitutionality of two of the compulsory licensing provisions in the Act affected by the Copyright (Amendment) Act, 2012 [S 31(1)(b) and S 31D] in the Delhi HC. S 31(1)(b) set out the regime for the compulsory licensing of works that have been withheld from the public, while S 31D created a statutory licensing regime that allows compliant broadcasters to broadcast any literary and musical works or sound recordings.
Artistes’ Right to Royalty
Provisos to Section 18 of the Copyright Act were one of the most debated and important amendments to the Act. To quickly recapitulate, they stated that the author of a literary or musical work incorporated in a cinematograph film or sound recording shall not assign the right to receive royalties in any form other than as a part of the film or sound recording, with such permissible assignments mandating equal split of royalty. Any agreement in contravention of these provisions shall be deemed to be void and unenforceable as per the third and fourth provisos to this section: “…Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copy right society for collection and distribution and any agreement to contrary shall be void..”.(third proviso). Additionally S 19(9) provides that no assignment of the copyright in any work shall affect the author of the work to claim royalties in case of use of the work in any form.
In fact S 18 was one of the provisions also challenged constitutionally by Film Producers Bharat Anand & Sir JVM Movies Ltd. While a challenge by the production house lobby was expected, recently in December a group of Bhojpuri music artists have also challenged the constitutionality of this section. The petitioners contended that the market for Bhojpuri music and devotional music was 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. Basically, the petitioners wanted complete freedom as regards the terms of licensing their works and argued that the provision is in contravention of the fundamental right ot business and the fundamental right of equality. The Supreme Court had acknowledged the exploitation of artists by producers and music companies as early as 1977 in the case of Indian Performing Rights Society vs. Eastern India Motion Pictures Association. Sharing of royalties by authors and music composers equally with music publishers is a common practice internationally which is supported by the International Confederation of Societies of Authors and Composers (CISAC), Paris. We recently carried a ghost post on the numerous ways in which the copyright act was being circumvented, by taking away rights of the artists by practises such as advance royalties, back-dated agreements and waiver of performer’s royalty rights. This paper is an examination of right to royalty of the artists under the Indian copyright regime.
Prominent artists put their foot down
It seems that this battle has already prompted other artists to demand their rights. Sunidhi Chauhan and Sonu Nigam have put their foot down and refused to sign contracts waiving their royalty rights of their recordings. The music label here again is T-Series, which expressly stated that it will not settle for anything but an unequivocal assignment of the artist’s rights. Sonu Nigam has gone on record to say that “It’s a collective decision by the fraternity to abstain from such illegal contracts.” The movie’s producer is caught in the crossfire and may have to re-dub the recordings.
It seems music labels are in for some severe resistance, with support starting to pour in from the actors lobby also. The issue has attracted a lot of sympathy and support from all quarters. Movie producers are going to have to bear the brunt of non-release of music with prominent Artists refusing to waive their rights.