The Copyright (Amendment) Act' 2012

The Copyright Act, 1957 has its roots in Article 20 of the Berne Convention for the Protection of Literary and Artistic Works. Copyright has been defined by the popular online encyclopaedia Wikipedia as a form of intellectual property that gives the author of an original work the exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time, the work is said to enter the public domain. The Copyright Act, 1957 extends protection to the original creators of all works, literary, dramatic, musical or artistic in India. The act came into effect in 1957 and from thereon, it has been amended five times i.e., in 1983, 1984, 1992, 1994 and 1999.

The changes brought about by the Copyright (Amendment) Act, 2012 (amendment) will have a revolutionary impact on music, film and photography It is seen as a major victory for songwriters, composers, performing artistes and musicians working in the Indian film industry since revised amendments to the Copyright Act will provide them better control of their works, art and compositions. Considering India’s film industry is dominated by songs, the amendments, which aim at updating existing laws and bringing them on par with International and WIPO (World Intellectual Property Organization) norms, are likely to have a larger impact on how royalty rates are negotiated and shared in the future.

Traditionally, Indian film producers have worked on a work-for-hire basis, employing songwriters, composers and singers for a one-time fixed fee. This ensures that they are denied all additional revenues from other sources such as cover versions and use on other media like ring tones, which have become increasingly lucrative in nature.

The amended statute recognizes authors or song creators as owners of the copyright, which cannot be assigned to the producers or music companies, replacing the earlier system. The amendments also specify that it will now be mandatory for broadcasters – both radio and TV – to pay adequate royalty to the owners of the copyright, each time a work of art is broadcast or aired. The amendment also specifies that a cover version of any literary, dramatic or musical work can only be allowed after five years from the first recording of the original creation.

The amendments clearly state that film performers (mentioned in a film’s credits) as well as the authors of certain underlying works used in cinematograph films and sound recordings have a (largely non-assignable) right to continuing royalties for the use of their performances or works in certain circumstances, regardless of the fact that they may have assigned the copyright in those works or the fact that they may not be entitled to the enjoyment of a performer’s right.

(“Cinematograph films” in terms of the Copyright Act include both feature films and television serials. In the interest of convenience, the term “films” has been used here instead of “cinematograph films”.) Music in Indian movies is a vast business and it’s unacceptable that the composers and lyricists who actually generate or compose the music should be deprived of the benefits from the success of their own work because of an outdated and orthodox system. Indian producers and record companies clearly do not want to share royalty with creators, lyricists or composers.

These amendments are an extremely positive move and it is heartening news that composers and lyricists will finally get their share of the royalty pie. This much awaited revolution will help to initiate the process of interpreting and implementing the new developments in a broad and consensual manner, developing healthy new practices in the field of Indian arts. Nevertheless the drawbacks in this amendment are that it has not addressed the ubiquitous issue of piracy that is rampant within the entire entertainment fraternity and also the issue of statutory licence for broadcasters.

The Impact of the 2012 Amendment on the Copyright Act,1957

The impact of the Copyright (Amendment) Act, 2012 on the Copyright Act, 1957 is extremely broad. Significantly, this amendment also envisages that private and personal copying will be treated as ‘fair dealing’. This, interestingly, allows users to break the Digital Rights Management (DRM) on their legally purchased content, as long as they are not violating the copyright terms. This will also allow them to progress and use the content on various devices. Amazingly, in a rather paradoxical situation, this provision will also allow developers to make and sell tools to break DRM protection.

These are the other major changes:

1. Independent authorship rights for lyricists, composers, and singers in films, which presently belong only to the film’s producers and the music company.
2. Addresses concerns of music companies for not being able to derive royalties from “version recordings” of their original songs.
3. The producer and principal director will be treated as joint first-owners of the copyright, which at present, only belonged to the producer.
4. Changes in the term of copyright for photographers from 60 years to “life plus 60 years”.
5. Permits physically challenged persons to access the copyright material in specialized formats.
6. Proposes to make the Copyright Act conform to WIPO’s Internet treaties of anti-circumvention, giving equal rights to both online and offline work.
7. Statutory or compulsory licensing for broadcasting companies to be allowed to access written, audio, and video works.

As expected, the changes proposed have resulted in strong opposition and disgruntlement, mainly from music companies, who claim that the Indian film and music industry cannot be compared to any other in the world, and will have to have different laws. Even those who stand in favour of the new provisions are sceptical if the amendments will ever be implemented as law, as many of the changes run counter to the manner in which the Indian entertainment industry has worked for many decades. Some changes such as individual rights for lyricists and composers cannot be found elsewhere in the world.

Liability to Pay the Contemplated Royalties:

None of the provisions dealing with the requirement that the specified authors and performers be paid royalties specifies who would be responsible for making the royalty payments. Presumably, the assignees – that is, the persons to whom the rights were assigned by the authors (generally, producers) would be responsible for ensuring that the royalties were paid. However, the law does not explicitly state that it is the assignees’ responsibility to ensure that these payments are made. All that the amendment states, in a proviso to Section 33 is that ‘the business of issuing or granting licence in respect of literary, dramatic, musical and artistic works incorporated in [a] cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act’.

As such, in the absence of statutory guidance, it would be prudent for those acquiring rights from assignees to include (in their content acquisition agreements) clauses which specifically state that producers will ensure that the royalties payable under the amendment are in fact paid to the authors of underlying works and to performers, and that the assignees will indemnify those to whom they grant rights for any consequences of non-payment.

Conclusion

The Copyright (Amendment) Act, 2012, aims at encouraging creativity to promote culture, enterprise, and innovation and to protect performers from unfair exploitation of their rights. This will encourage new talent and also provide dignified lives to the lyricists and composers, who earlier survived at the mercy of music companies and producers.

Disclaimer–The views expressed in this article are the personal views of the author and are purely informative in nature.