Copyright amendments and cinematographic films

By Rahul Chaudhry, Lall Lahiri & Salhotra
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We On 29 April, Calcutta High Court refused an interim injunction to Anandji, one part of the famed Bollywood music composer duo Kalyanji-Anandji, against the use of their song Apni Toh Jaise Taise, from the 1981 film Laawaris, in the 2010 film Housefull.

Sajid Khan, the director of Housefull, claimed that Saregama, the label on which the Laawaris soundtrack was released, gave his film the rights to the original song. However, Anandji and the heirs of the producer of Laawaris, Prakash Mehra Productions, claimed that Prakash Mehra Productions owned the copyright to the song and they had not licensed its use. They are likely to appeal the decision.

Rahul Chaudhry Partner Lall Lahiri & Salhotra
Rahul Chaudhry
Partner
Lall Lahiri & Salhotra

The proposed amendment to the Indian Copyright Act is set to change all this. At present, producers of films have a monopoly over all copyright material. The proposed amendment seeks to prevent the absolute assignment of rights so that composers and lyricists continue to receive income from what they create.

The Minister for Human Resource Development, Kapil Sibal, put together an informal committee to review the provisions of the new Copyright Bill. Aamir Khan and Javed Akhtar, two prominent Bollywood personalities, were part of the committee. However remarks by Aamir Khan about lyricists not deserving as much protection because songs are really made popular by actors, have reportedly resulted in a war of words between the lyricist and music composer community and the film producer community.

Composers and lyric writers have contributed vastly to Indian cinema. However, they have not truly benefited from their work and their exploitation by the film producers cannot be ruled out especially after the 1977 Indian Performing Rights Society (IPRS) Supreme Court case. This judgment stated that when the works of composers and lyricists are used in films, they are a part of the film and hence the producer is the owner of the copyright of the underlying works. This decision used the definition of “cinematographic film” from The Copyright Act, 1957, which includes the soundtrack accompanying a film.

Unfortunately, the courts have not revisited this decision after the 1994 amendment of the Copyright Act, which changed the definition of a “cinematographic film” to include only the accompanying sound recording. Consequently musical compositions and lyrics became “musical works” and “literary works” and the copyright for these were to be treated independent of the film.

So far, film producers and record companies have denied composers and lyricists their fair share when fresh revenue opportunities arise. The proposed amendments seek to ensure the right of writers and composers to claim royalties for the use of their works outside the film space. These changes will prohibit any agreement through which a composer or lyricist assigns the right to receive royalties to anyone other than their legal heirs or to a copyright society for collection and distribution.

The text of the proposed amendment of section 19(9) reads: “No assignment of copyright in any work to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties in case of utilization of the work in any form other than as part of the cinematograph film or sound recording”. And the proposed amended section 18 reads as: “Provided further that the author of the literary or musical work included in cinematograph film or sound recording shall not assign the right to receive royalties from the utilization of such work in any other form other than as part of the cinematographic film or sound recording except to the legal heirs or to the copyright society for collection and distribution and any contract to contrary shall be void”.

Despite its good intentions, these amendments could weaken the negotiating power of composers and lyricists. For example, if a mobile company uses a film song as a ringtone, both its composer and lyricist can claim royalties. So the mobile company has to pay its producer, being the assignee of the song’s copyright, and also pay its composer and lyricist. What has not been considered is how the three would share royalties. The most workable solution, proposed by the committee formed by the minister for human resource development, is for the three parties to decide the share of royalties and other fees before making a film.

The proposed amendment also prevents the authors of underlying works in films from assigning the copyright of their works for its use in new and undiscovered modes of exploitation. This is relatively clear and the proposed amended section explains that if new modes of exploitation are discovered, a separate licence or assignment would be required, which will create a new source of revenue for the authors of the underlying work.

The government’s intention behind these proposed amendments is commendable. However, it may be worthwhile to mention that it would have been, perhaps, easier to simply clarify that the authors of underlying works continue to retain all rights to exploit their works unless specifically assigned to the producer.

Rahul Chaudhry is a partner with Lall Lahiri & Salhotra.

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