Artists and broadcasters divided over copyright policy

By Abhai Pandey, Lex Orbis IP Practice
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The proposed amendment to the Copyright Act, 1957, addresses numerous issues. On the one hand, the amendment aims to bring the act in conformity with internet treaties, namely the Performers and Phonograms Treaty and the Copyright Treaty of the World Intellectual Property Organization (WIPO), and on the other hand it examines the interests of various stakeholders such as broadcasters, lyricists, singers and composers. Although one group of parties are in favour of the amendment, there are others who vociferously oppose it, especially when considering the rights held by broadcasters.

Abhai Pandey Lawyer Lex Orbis IP Practice
Abhai Pandey
Lawyer
Lex Orbis IP Practice

The amendment being contested frantically by broadcasters deals with the deletion of section 52(1)(b)(ii), which allows broadcasters to use literary, dramatic, musical or artistic works for the purpose of reporting current events – an allowance under the fair use exception.

The deletion of this provision will result in broadcasters having to pay royalties each time they use such works for the purposes of news reporting, films or any other television broadcast. The provision, which is applicable to news channel broadcasters, will also extend to the payment of royalties for the use of clippings as well as archived telecasts. However, when television channels or radio stations use their own orchestrated versions of music, those compositions still qualify as “fair use” under section 52 of the act.

Broadcasters protest

The passing of this amendment may lead to a steep rise in the amount of royalties payable for works used. With this in mind, broadcasters are requesting the Ministry of Human Resource Development (HRD) not to undertake any policy modifications without consulting their representative body – the News Broadcasters Association (NBA). Formed by representatives of 14 leading news broadcasters, the association met with the HRD Ministry and demanded that no amendment be carried out in the original act that takes away the well established protection of fair use from them, especially for the reporting of current events.

This exemption is recognized as the basic foundation of broadcast reproduction rights, assisting in the dissemination of information and communication to audiences. The association asserted that the fair use exception, as a reflection of freedom of speech and expression, could not be done away with, since this prejudiced broadcasters, and incorporated no recourse or redressal on the issue of excessive royalties.

Demands for statutory licensing

Another proposed provision to section 33A, which will allow aggrieved parties to seek relief from the Copyright Board, has also been met with objections. While making the Copyright Board the forum for relief, the provision also stipulates that while the appeal lies pending, the complainant would have to pay the royalty sum demanded by music companies or copyright societies.

In view of the fact that appeals in India take about four to five years, broadcasters are opposing the provision saying it adversely affects their position.

Further, demands have been made to incorporate statutory licensing provisions and settlements of tariff-related issues to ensure that broadcasters are not made subject to the exercise of arbitrariness by copyright owners or societies with respect to royalties and tariffs. Broadcasters have also insisted that a single window regulator be established to preserve the interests of various stakeholders and to ensure that copyright societies operate in a transparent manner.

Good news for creative artists

Although the HRD Ministry has received complaints by aggrieved broadcasters – lyricists and writers have voiced their appreciation for the proposed amendments, which will grant them greater rights to royalties.

While the scheme of copyright legislation has incorporated “moral rights” in favour of the author of the work, the rights appending commercial gain rest with the producer of the work. In this regard, the final version of the legislation will have to be looked into to ascertain how the provision can more effectively grant them right to receive royalties every time their work is used.

This is important because their access to commercial gain is more a result of contractual dealings that they enter into, rather than the absence of a provision in the current legislation.

The amendment bill is soon to be discussed in the Indian parliament, during its budget session. The fate of the bill may have a crucial bearing upon the prevailing practices in royalty assignment and copyright that stakeholders will be watching out for.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a law firm specializing in intellectual property issues.

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