LAW RESOURCE INDIA

On different notes

Posted in UNCATEGORIZED by NNLRJ INDIA on February 20, 2010

Srikrishna Rajagopal in THE INDIAN EXPRESS

The contribution of writers and music composers to Indian cinema cannot be overestimated. However, due to unremitting exploitation by film producers and record companies, they have seldom had the opportunity to truly benefit from the value they have consistently brought to films. Now, a well-intended amendment to the country’s copyright law seeks to address the situation.

However, the amendments proposed to protect writers and music composers may further undermine their ability to negotiate new forms of exploitation of their works. Over the last few years, several new revenue opportunities have arisen with respect to film songs such as their use in ringtones. Although one might imagine that the writers and composers instrumental in the creation of film songs would be able to benefit from these new revenue opportunities, film producers and record companies have systematically ensured that they are denied their fair share.

By way of background, film producers and record companies succeeded in marginalising writers and composers by interpreting a Supreme Court judgment rendered in the IPRS case in 1977. The owner of copyright in a film is the producer of the film. In the IPRS case, the Supreme Court held that when music composers or lyric writers write music to be used in a film, they are in fact making a part of the film, and consequently the producer is the owner of copyright. The decision was based on the definition of “cinematographic film” that prevailed under the Copyright Act 1957 at the time. Pertinently, “cinematographic film” was defined to include the “soundtrack” accompanying the film. The court held that since the music composition and lyrics contribute to the soundtrack of the film, and the soundtrack is an integral part of the film, the producer is the owner of copyright in the music and lyrics.

Significantly, in 1994, the act was amended and the definition of “cinematographic” film changed so that it included only the accompanying “sound recording”. Consequently, musical compositions and lyrics which are treated as “musical works” and “literary works” respectively, under the act, could no longer be treated as integral to the film. In other words, after the 1994 amendment, in the absence of a contract to the contrary, a music composer or lyric writer merely gave a producer a licence to use/ incorporate the music compositions/ lyrics as part of the film and no other rights. All other forms of exploitation of the musical works and lyrics such as use as ringtones, public performance of the music in hotels, discos, etc, were retained by the music composers/ lyric writers, in their capacity as the authors/ creators.

The producers and record companies saw in the 1977 judgment of the Supreme Court an opportunity to deprive music composers and lyric writers of their share in revenues generated out of alternative steams of exploitation of their works. Unfortunately, there was no occasion for a court to revisit the decision of the Supreme Court in the IPRS case in the light of the 1994 amendment to the act, resulting in music composers and lyric writers having no choice but to accept the position of the producers and record companies.

The proposed amendments to the act seek to retain ownership of copyright in favour of the music composers and lyric writers so that producers will have only obtained a permission to use the music and lyrics in the film. However, the amendments may have the unintended consequence of further undermining the rights of music composers/ lyric writers. The amendments ought to have just clarified that music composers/ lyric writers retain all rights of exploitation of their works unless they have specifically assigned their rights to the producer. Instead, the proposed amendments merely give the music composer/ lyric writer the right to claim royalties in respect of exploitation of their works other than in respect of making a film. The amendments merely seek to prohibit any agreement by virtue of which a music composer/ lyric writer assigns the right to receive royalties. Pertinently, there appears to be no bar on the ability of a music composer/ lyric writer to assign copyrights in favour of a producer or any third party in respect of exploitation of his/ her works in any other form. If the proposed amendments were to become law, this could result in an anomalous and peculiar situation.

For example, a mobile company which seeks to exploit a particular film song for mobile ringtones may need to pay the producer (who may be the assignee of all copyrights in respect of the music) and also pay the music composer/ lyric writer royalties. In a situation where a composer/ lyric writer alone has been paid royalties, the producer as owner of copyright may also stake a claim. It is not clear whether the law contemplates in what manner and proportion the producer and the music composer/ lyric writer would share royalties. The proposed amendments will only result in having to additionally pay the music composer/ lyric writer, with the producer being in a position to independently assert his/ her rights.

A simpler way of protecting music composers/ lyric writers would perhaps be for the law to just clarify that they continue to retain all rights of exploitation unless these rights have been specifically assigned to the producer. If the law were to be amended to simply clarify this position, music composers and lyric writers in this country would be placed in a considerable position of strength to negotiate commercial terms. One can only hope that the Copyright Committee constituted for this purpose addresses important issues such as these rather than bicker over whose contribution to cinema is more important.

The writer is a Delhi-based intellectual property litigator

http://www.indianexpress.com/news/on-different-notes/582081/0

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