Copyright

CISAC Global Collections Report – 2019


CISAC is the International Confederation of Societies of Authors and Composers. Its stated objective is to ‘protect the rights and promote the interests of creators across all regions of the world and artistic fields; music, audiovisual, drama, literature and visual arts’. It aims to ‘foster a legislative environment that supports the cultural and creative industries, thereby contributing to both cultural diversity and economic growth worldwide’. [For more details, please click here.] According to Wikipedia, it is the world’s largest international network of authors’ societies.

It released its report recently. Its report on India (pages 50 and 51) is interesting. It states that the collections in India have gone up in the last two years. It talks about IPRS (which is re-admitted to CISAC membership in 2018). The report notes that the growing collections is largely driven by audio and video streaming (which is due to growing mobile usage). It notes that ‘the mobile phone is the content gateway device for consumers in India’.

I am reproducing some of the parts of the Report (with respect to India):

“The legal environment for creators in India has been improving. In 2012, the Copyright Act, 1957 was amended by the Indian legislature, granting unique and unprecedented rights to lyricists and music composers allowing them to claim an ‘equal share of royalty’ for the utilization of musical compositions and lyrics in ‘any form’.

This right is inalienable and in the past year has significantly benefitted songwriters in India. IPRS, the sole authors society in India, is now empowered to solely act as a CMO on behalf of authors. IPRS administers the performing right and the mechanical right in India.

Music publishing has largely been controlled by the recorded music business in India with master rights and publishing rights licensing generally being held and conducted by a single entity. IPRS has emerged as an exception to this general rule in India, with most Indian and international music publishing business joining IPRS.

IPRS was re-registered by the Indian Government in late 2017 and was able to enforce the [Indian] Copyright Act, 1957. [For SpicyIP post, click here.] It was re-admitted to CISAC in December 2018, having restructured its constitution, among other changes, to its policies.

Legal and policy challenges

The Indian music sector continues to face challenges arising from legislative change proposals relating to a potential inclusion of music streaming under rules that support the existing statutory licensing provision. This would complicate the licensing terrain in India particularly where music streaming has assumed critical proportions from a revenue perspective. The Indian government is currently deliberating on industry feedback on the proposed changes. This is further complicated by a continuing reluctance of various platforms, particularly private FM Radio, to pay publishing royalties. IPRS has instituted litigations against various users including telecom service provider Vodafone in the past year.”

Comments

The Report is an interesting read. It gives one side of the spectrum. The influence of EU Copyright Directive (2019/790) is evident from the Report. A detailed review of the Directive is beyond the scope of this post. However, it can be stated that the Directive goes a long way in ensuring that the creators are acknowledged, compensated and protected for their work. There are some justifiable criticisms of this Directive as well. Whatever be the arguments for and against the Directive, it is definitely a piece of legislation worth an in-depth analysis for designing a more equitable copyright law framework.

At this juncture, it is important to appreciate the fundamental distinctions between ‘authors’ rights’ in civil and common law systems. In a civil law system (continental tradition), authors’ rights are recognized as human rights. It recognizes the personal relationship between the creator and the creation. Accordingly, it places a strong emphasis on moral rights (which cannot be transferred). It even tries to protect commercial interests of creators. On the contrary, in Anglo-American system (common law system), copyright is regarded as a legal instrument for promotion of creation of works and making them available to the society. It is influenced by Utilitarian theory than by Natural Law theory as in the case of civil law system. Accordingly, moral rights are narrower. The real intellectual creators may not enjoy authorship or original ownership of copyright. Also, statutory protection of commercial interests is either non-existent or at a bare minimum. [For more, please click here.]

Jurisprudentially speaking, India, by and large, follows common law system (India does provide for moral rights). The EU Directive is a classic exposition of civil law system. I am not arguing for or against either system. There are valid justifications and criticisms regarding both the systems. While deliberating for a better copyright system, it augurs well to start at the fundamentals.

Please feel free to write to me or Pankhuri if there is any interesting development / policy initiative with regard to authors’ rights.

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Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

4 comments.

  1. AvatarAchille Forler

    Thanks for showing this Report in the Indian context. However, since the 1994 amendments and more in 2012, Parliament introduced a number of civil law (Continental, as opposed to Anglo-Saxon) clauses that offer statutory protection to authors: 18(1), 19(7), 33(1), “Special Rights” become “Moral rights”, etc. Nevertheless, lawyers and judges, trained in common law (nowadays American law) continue to read the Act through their lense, creating confusion.

    The Centre for Innovation, Intellectual Property and Competition (CIIPC) of the National Law University, Delhi, had an excellent seminar last year on this subject “Back to Basics: The Role of Property in the IP System”.

    For a comprehensive approach to the subject of copyright, besides property, we should also study the creative work that generates this property. From the shaping of the work to the organization of activities in markets and professions, creative activity is completely riddled by uncertainty. The proof: the markets manage the search for profitable originality by overproduction. What role, if any, should copyright law play to ensure fairness in this situation of overproduction capacity (which, by definition, weakens the producers of works)?

    Reply
    1. Mathews P. GeorgeMathews P. George Post author

      I agree with you on the first point. Quite a good number of continental law provisions (and rightly so, in my opinion). But fundamentally, how do u see the Indian system? Opinion may vary from person to person. EU Directive is a good read. Broadly speaking, I think, its high time we deliberate and study more about civil law system so as to appreciate various nuances, issues etc from a better vantage point.

      On the second point, can you please elaborate further? It does sound quite interesting.

      Reply
      1. AvatarAchille Forler

        Mathews,

        Thanks for your lucid post!

        Legislators do take into account the context in which works take shape: refer to Mrs Sushma Swaraj’s speech in Parliament describing the poverty in which some authors, or their heirs, live: https://www.youtube.com/watch?v=cR_dQjewAYo

        The Act contains already several limitations to assignments, whose purpose is to protect the authors. In doing so, the Act implicitly recognizes the asymmetry in their negotiating power. These limitations were introduced on account of the complaints by creators, not as a result of scholarly studies of the context in which creators operate. The field of study is wide: creation in an economy of overproduction; the inequalities of success and their explanations in the social sciences; the social conditions of cultural exceptions; employment conditions in the performing arts; cultural policies and the economy…

        It is reductive and misleading to study the property aspect of copyright by ignoring the context. The 1977 SC judgment is a good example: are creators just hired laborers? Did the Court ignore the principle of uncertainty that is the core of copyright (both in civil and common laws)?

        How can one understand or justify the ‘droit de suite’ (resale right) without a knowledge of the economic context in which painters work? Shamnad made it amply clear over the years that the studies of intellectual property rights in pharmaceuticals cannot be disconnected from their context. For copyrights too, the property aspect is intimately linked to the economics of creativity. To remove friction in the system and allow the creative industries to flourish, government, legislators, judges, lawyers, executives, and the creators themselves must have a clear understanding of the context.

        A good starting point: “The Economics of Creativity” by Pierre-Michel Menger

        Reply
        1. Mathews P. GeorgeMathews P. George Post author

          Thanks for the response. I agree with your point on providing the requisite guidance / inputs for lawmakers, policy makers etc. As of now, India lacks a robust mechanism in this regard. Niti Ayog (which replaced Planning Commission of India) has inherent limitations. The reforms which you mentioned with regard to Copyright Act were not easy at all!! It is the function of struggles, sensitisation, patience (very important) etc etc. But is that how it should be? Is this ecosystem to be dictated by a ‘lottery’ (some succeed, many perish types)?

          I am particularly curious about the Natural Law theory of Civil Law System. It does offer some interesting inputs. [At the same time, while the rights of authors should be protected, there should be sufficient safeguards to ensure that copyright societies do not venture into anti-competitive behaviour.] As the CISAC report rightly suggests, India is becoming an important market and therefore, this area deserves a lot more scholarship.

          Reply

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