Dost Dost Na Raha: Bollywood’s disillusionment with IP

Within the entertainment industry, IP has historically served a two-fold purpose. In its most visible sense, it has been the backbone of content monetisation methods around the world. In fact, IP protection has been extended not only in the form of copyright for the finished works, but through trademarks for entertainment franchises seen as brands in their own right. In this post, I will also be discussing a second, more subtle interaction between IP law and the entertainment industry. IP has additionally been used to protect content that is creative, but requires further processing before dissemination. Thus, for example, screenplays and theatrical scripts are copyrighted by their writers not to give themselves a large post-dated royalty cheque, but to ensure (in theory, at least) that their work is not stolen and made into a blockbuster, leaving them in a lurch.

The rhetoric employed by industry associations and guilds (such as the RIAA and the MPAA) has depended heavily on emphasizing how copyright protection is essential to staying in business, and how badly piracy hurts them. By refusing to even engage with the possibility of non-IP alternatives for content monetisation, the industry has been able to steadfastly push for stronger copyright laws whose violation prompts the imposition of ever stronger penalties. Thus, the industry has historically presupposed the link between content restriction and content monetisation – a link that has been rendered increasingly tenuous by the advent of the internet and with it, the increasing difficulty (impossibility?) of restricting the free flow of content.

After decades of blindly spewing the narrative of copyright-protected distribution being the only economically viable form of disseminating creative work, it appears that the industry is slowly waking up to alternative business models. The mainstreaming of non-restrictive distribution forms has accelerated dramatically, with more and more artists experimenting with newer models over the last year. The most interesting example of such models involves the “freemium” format, in which creators make a part of their content available for free, while charging consumers for “add-ons”. The BitTorrent protocol, infamous in the eyes of the MPAA and the RIAA for its role in facilitating piracy, has arguably led this paradigm shift with its Bundle model. Numerous artists have released content on the platform, with some of them reaping rich rewards in the process – Thom Yorke, for example, is reported to have earned upwards of $20 million in revenue from his latest album, released as a Bundle.

In India, such conversations have been slow in coming. However, this is not to say that nobody in the industry questioned the dogmatic paramountcy accorded to IP-based monetisation models. In 2012, filmmaker Shekhar Kapur passionately rejected the industry’s blind infatuation with IP when he co-founded Qyuki, a sort of incubator for collaborative creative work that could be monetised in a variety of ways. Kapur seems to have understood the manner in which traditional distribution models accord intermediaries undue importance as gatekeepers to content, and appears to offer a viable alternative through his venture. Of course, it remains to be seen how successful his model is in converting content into cash, but the fact is that simply by providing an alternative to the traditional distribution model, Kapur has brought in something invaluable to the Indian entertainment market.

More recently, another big voice in the Indian film industry has spoken out against Bollywood’s passion for IP. This time, it’s the writer Devashish Makhija, who tells us a story of how rejecting copyright made him more prolific in his writing. Makhija seems to find copyright fundamentally incompatible with large collaborative works such as movies, in which individual content creators rarely get to control the manner in which the finished work is disseminated. Further, it’s interesting to note the difference between his rejection of copyright and Shekhar Kapur’s. While Kapur’s main grouse with copyright is that it misallocates the benefits arising from creative content (primarily to intermediaries such as record labels and production houses), Makhija’s problem with copyright is that at its core, it does not account for the dynamics of the film industry. He points out that while copyrights prevent the stealing of scripts wholesale, that’s not how ideas are usually misappropriated in the film industry. In his own words, “…when someone steals your work, they don’t steal it in its entirety. They steal the potent seed idea. How far are you going to go to prove that the seed idea was yours?”

In a nutshell, these two figures have highlighted two key failings of copyright law today. First, while copyright-driven distribution has always been dominant, it has failed to take into account the rise of the internet, P2P, and the rampant nature of piracy. Second, copyright law has prevented the theft of near-finished works such as screenplays, but is powerless to stop the theft of raw ideas – the screenwriter’s primary fear. What, then, is the solution?

Kapur has found a way to circumvent production houses and record labels through his incubator model, while Yorke has been able to reach out to untapped markets through the medium of the BitTorrent Bundle. Makhija, however, has resolved his problem internally – by resigning himself to the prevalence of idea theft in the industry. In his words, “But for a moment if you take away ‘profit’ from the equation, the other big parameter left that we can earn is – satisfaction. And that can’t be stolen from us, by anybody. So what I might have lost in monetary terms, I more than made up by the satisfaction of being able to keep churning out stories consistently for almost a decade now.”

Additionally, Makhija has experimented with different media – when he saw that collaborative efforts such as screenplays were unwieldy in terms of asserting an individual creator’s moral rights, he started writing short stories and novels, in which the written word was the “final form”, as opposed to the first stage of an audio-visual product.

The stances of these individuals provide a perfect illustration of Sunil Abraham’s spectrum of openness. Kapur’s platform, along with BitTorrent’s Bundles, allows individual artists to determine where they want to locate their work on the spectrum. Thus, while Yorke released some of his songs on the Bundle as proprietary work, he also released stems that could be used to re-mix and redistribute his work. Other artists have released content for free and allowed downloaders to freely redistribute their work, putting themselves on the right side. Makhija’s position, however, is at the bare minimum end of the spectrum – he’s fighting for the most basic moral right of attribution to the content he has created.

All in all, it’s extremely interesting to trace the relationship between Bollywood and IP – what began as a DDLJ-esque infatuation is turning out to be the kind of disillusionment that Kangana Ranaut felt towards her fiancé in Queen.

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Balaji Subramanian

Balaji Subramanian

Balaji is a third year student at NALSAR, Hyderabad. He is currently an editor of the Indian Journal of Intellectual Property Law. He is fascinated by technology law and IP law, and is an active member of NALSAR's Technology Law Forum. When he isn't doing law school things, he wanders the country looking for quizzes to participate in. He can be emailed at [email protected]

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