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“There Is Too Much Simplistic Euphoria…”

Eminent copyright lawyer Jagdish Sagar shares his views on the recently passed Copyright (Amendment) Act 2012

The amended Section 18 of the Act provides that authors of literary and musical works included in cinematograph films and sound recordings cannot assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright therein for any utilization of such works, except when a film is shown in a hall.

a.  Would this restriction apply to works assigned prior to the amendments coming into effect?

b.  Would this restriction apply to future exploitation of works assigned prior to the amendments coming into effect?

My answer to both questions is no. The Parliament did not make the amendments retrospective. Therefore, the restriction doesn’t apply torights that were vested in anyone before the amendments came into force. Thus, if rights in a future work were assigned before the amendments came into force, the rights under that assignment vest in the assignee even if the work comes into existence later. Again, the restrictions won’t apply if the work was created before the amendments came into force: this is because a full right to assign the work including the right to assign royalty rights already vested in the author under the unamended law the moment the work was created. Further no royalty shall be payable for old works when they are exploited in post  amendment era because Producer was the first author in absence of any contract to the contrary.

 

Right to Royalty to authors of literary and musical works under Section 18 of the Act has some misunderstandings, could you please elaborate on this.

Right to Royalty for authors and composers is limited to so called publishing royalties in the underlying literary and musical works only and the Master Sound Recordings right is an exclusive right of the Producer / Music Lables; remember, that is a separate right from the copyright in the sound recording.

The real problem is how to identify that royalty share precisely: what exactly is the author’s share of royalty on an “equal basis” in a given case, in the actual context of multiple rights existing in a film? The various interpretations that one hears being given to these newly enacted provisions put one in mind of the six blind men and the elephant.To avoid painful litigation, producers/music labels and authors will have to find agreed ways of determining how to implement Parliament’s mandate to give authors a fair deal. This is not going to be an easy process: there is too much simplistic euphoria around.

Can an author authorise a publisher to administer his rights in the works? To clarify, can an author license his right to receive royalties to a publisher in lieu of being paid an advance royalty with subsequent revenues being set off against the advance royalty?

(a) Unless the author has mandated IPRS to collect the author’s share directly from users licensed by the producer, it’s the producer’s job to collect the royalties and give the author his share.  So where is the question of the author having to authorise the publisher?

(b)  Yes. Of course the author and producer can agree on the modalities of royalty payment. There is nothing to stop the author and producer from agreeing on an advance royalty with subsequent revenues being set off against the advance.

 

The newly inserted provison to Section 33 provides that the business of granting or issuing licenses for the literary, musical, artistic and dramatic works included in cinematograph films and sound recordings can only be done through a copyright society. Can a copyright owner, such as a music label, continue to license such rights considering a music label in not in the business of issuing and granting licenses?

Any copyright owner can license his own works: the copyright society’s monopoly is in carrying on the licensing of third party works as a business.

 

The term Performance is defined as a presentation made live by one or more performers? So would a performer’s right subsist only in those performances which are made live, such as concerts, shows etc?

Any performance by a performer is a live performance while being made. Under Section 38A performers have a right of fixation (to use the international term) of live performances and  rights in fixed performances (i.e recordings of them). This means that their live performances can’t be recorded without their permission and that, once they have been recorded, they have rights in the recordings.

Further Section 39A makes Section 18 applicable to performer’s rights with     necessary modifications and adaptations. Would the royalty share mandated by Section 18 also entail a royalty share with performers?

No. Only  performers (actors) in cinematograph work do have a right to royalty under Section 38A(2) which also they can assign. But the non-assignable royalty share under  Section 18 is for certain authors only; not for performers. However, singers as Performers have been given certain rights u/s 38A(1), which off course are assignable, will place them in better negotiating position while determining their fee.

– Jagdish Sagar has long civil service experience followed by extensive legal practice focusing on copyright and the entertainment sector. He handled copyright for nearly five years as Joint Secretary in the Government of India, Ministry of HRD, during an eventful period when the TRIPS negotiations took place and the Copyright Act was amended extensively.  After retirement from the IAS, he continued to be consulted by the Government on copyright matters. Until recently he was a partner in Anand and Anand and now practices independently.

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