Guest interview: Ankit Relan- IT, Media & Entertainment attorney, Partner- Mason & Associates

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I am pleased to bring to you our next guest interview with Ankit Relan. This interview is another step towards making IPRMENTLAW a neutral platform by offering representatives from different industries to put forth their point of view.

Ankit Relan, is a practicing attorney in the Delhi High Court, and represents some of the biggest names in the film and music industry in India. He handles the copyright and technology law practice at Mason & Associates, a top tier law firm that regularly advises the top companies in the film and music industry, media & technology sector, internet service providers, book publishing companies, pharmaceutical companies in India on a variety of issues.

Ankit has graduated in law from Delhi and has been working on Media & Entertainment Law matters for almost a decade now. He has been a part of some of the industry defining litigations in India and has represented music companies before Parliamentary Committees for suggesting changes in the Copyright Act. A familiar name in the industry, Ankit is the go-to man for several top film and entertainment companies in India which includes music labels like T-series, with whom he has been associated for almost 7 years. He has been representing T-series in an ongoing litigation against Indian Singers Rights Association (ISRA) and feels that there is more to this association than meets the eye.

1. Ankit, could you tell us a bit about yourself and your journey as a copyright lawyer?

First of all, thank you for this opportunity. I am usually quite awkward during interviews, but let me try this.

I am a musician turned lawyer specializing in Media & Entertainment Law and Technology based matters. I currently handle the copyright law practice at Mason & Associates, a top tier IP law firm, based in New Delhi.

Before joining the legal practice, I was a performing artist and used to perform at gigs, events and college fests in and around Delhi. Given the bent towards music and arts in general, I think the choice to become an IP lawyer was obvious, though the choice to become a lawyer itself and give up music wasn’t.

When I joined the legal profession, the majority of cases that I got to work on were mostly simple infringement cases. It was really the period around 2010-2012 that saw a sudden upsurge in the quality (and the complexity) of issues that arose in the copyright law, across various industries. This was also the time when I was introduced to people at some of the top film and music companies in India. Working on their matters, advising them on a daily basis helped me put the law into action and be a part of some industry defining litigations en route.

Over the last 9 years or so of my journey as a lawyer, I have worked closely with some of the brightest content creators in the country, negotiated some of the biggest content acquisition & licensing deals in India, argued infringement cases against media conglomerates who still think it’s okay to use someone’s copyrighted content without giving due credit for it.

It’s been fun. I continue to learn.

2. What is your take on the Copyright Amendment Act, 2012. Do you feel the Amendment has been able to achieve the objective with which it was enacted?

 I think the amendments were well intended but poorly drafted. It has given everyone concerned something to like, something to hate but most of all, a lot of pain to decipher and implement.

Yes, the legislature must be lauded for taking up issues such as the non-payment of royalties to authors and composers, clarifying the rights of performers etc. but how these provisions have eventually turned out has made matters worse, if you ask me.

What good is amending the law, if no one can make any head or tail out of it?

For instance, just look at the newly inserted provisos to Section 18. These provisos were meant to provide authors and composers, an assured right to receive royalty whenever their creations are exploited. But one look at the language of these provisos and you wonder, what does this even mean in plain English? Where is this “right to receive royalties to be shared on an equal sharing basis” coming from? Why has this right been granted to authors and composers alone, aren’t there other creators of copyright that deserve royalty? And what about the freedom to contract? Not every author, composer needs a largesse as big as an “equal share” with the assignee.

My point is, law is meant to be simple and unambiguous. Something that anyone can read and easily understand. How will you implement a right when the meaning of the section is not even clear.

A country that boasts of one of the biggest entertainment industries in the world cannot afford to have laws which no one understands. This ambiguity is what is helping maintain status-quo in the industry! Till this ambiguity remains, it will keep suiting those who enjoy it and the industry will keep getting more and more divided.

3. In one of my recent interviews with Mr. Sanjay Tandon (co-founder and CEO of ISRA), he has expressed his views on the provisions pertaining to performers rights. Having represented one of the leading music labels in the country, I would like to know whether you agree with the interpretation taken by Mr. Tandon particularly in questions 6 to 8 of my interview with him i.e. on the controversial definition of ‘performance’, ambiguities surrounding Section 38(A)(2) and owners of performances missing from constitution of ISRA.

Notwithstanding the nice little speech he gave about lawyers fighting with fallacious briefs, his views on the scope of performer’s rights were quite convenient and something I don’t personally agree with.

I don’t know what he was hoping to achieve by saying certain provocative things about music companies, though I can see it certainly suits his larger narrative. I think a project like ISRA cannot sell well unless the narrative is made to sound attractive to prospective singers. In doing that, someone has to be made out to be a villain and someone the saviour. Who better to fit into the role of the villain than the music companies, right?

Anyway, let me now briefly address the issues you’ve raised in the question one by one-

The live vs non-live debate.-

So the first issue was about where the performer’s rights really lie? Only in live performances or in studio-recorded songs, or both. Let’s look at some provisions.

Section 2(q) defines a performance as follows –

“2(q) Performance – In relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.”

Without reading too much into the what ifs and what nots, what does this definition read like in simple language? To me, it quite simply reads as if a performer only has rights in a “presentation” that is “made live”. As simple as that.

This definition of “performance” was in fact amended by the Legislature in the year 1994 to introduce this concept of a ‘live’ performance. Please see what the definition of the word “performance” was before 1994 and what it became after 1994 –

 

Prior to Amendment in 1994 After Amendment in 1994
Section 2(q) – Performance
includes any mode of visual or acoustic presentation including by any such presentation by the exhibition of a cinematograph film, or by means of radio-diffusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture”
Section 2(q) – Performance

“In relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.”

 

What ISRA is arguing is basically what the legal position was before 1994 and was consciously changed by the legislature. Back then, the word performance itself meant “presentation by way of exhibition of a cinematograph film, or by means of radio-diffusion… or by other means”. But not after 1994.

When this definition was amended, for the first time, the definition of a “sound recording” was also introduced and a clear demarcation of rights was carried out between rights available in a live performance and a sound recording (an essentially non-live activity). Importantly enough, the legislature has chosen to not amend this definition till date and has left it untouched even after making all these amendments in the year 2012.

What is live?-

But what amounts to “Live”, is the next question? Mr. Tandon says any activity which is in “flesh and blood” is a live performance. Which basically means you are entitled to get royalty for anything and everything under the sun. May be even breathing. I disagree.

The word used is “live” not “alive”. A live performance has an element of presentation, continuity, use of personal skill of the performer and a contemporaneous communication of the activity to an audience. In other words, it is an act-in-motion done for an audience capable of seeing or perceiving the performance. For example, a performance on stage like a play, a dance show, a stand-up comedy act, a singing performance at an award show, or an interview, or a live news reading. The venue is not important, I agree. The act itself is.

His reliance on the third explanation to Rule 68 of the Copyright Rules, 2013 is misplaced. This explanation was brought in later, not along with the 2012 amendments. The wording of Section 2(q) remains intact nonetheless. This explanation merely clarifies that the location where the performance is being given is not relevant. A performance can be live even inside a studio, as is the case with interviews, plays, unplugged music performances. Any other interpretation to this rule would create a direct conflict between the substantive provision i.e. Section 2(q) and the procedural rule i.e. Third Explanation to Rule 68.

Do the performances given inside a recording studio qualify to be “live performances”?-

A performer creates a performance when he gives one, such as on stage or in a live setting. Inside a recording studio, he does not give a performance, he gives a “service”. A service on behalf of a music composer who has conceived the song. A service where the music composer has complete supervision and control of the service provider. A service for which the music composer compensates the singer for.

Such a performance is not given in one go. The voice is recorded onto an empty track, after several re-takes and re-recordings. It takes place inside a sound proof room having virtually no-audience at all. There are no live musicians or chorus singers or other performers acting simultaneously with the Singer and most of the music portions are pre-recorded before the Singer even arrives at the recording studio. The recordings often take place on several days in several sessions and are thereafter edited, mixed and put together in the form of a single consistent vocal track.

Similar recordings are separately made with the musicians to create separate tracks containing the instrumental background music as well as the beats of the song. Thereafter, all these tracks are synchronized with each other, mixed and edited to create a single unified sound recording of the song.

No part of this process has the essence of a “live performance”. The singers know that. So should their association.

Is there a Right to royalty for singers?-

The other issue they raised is about the singers having a right to receive royalty and this right being “inalienable”. Mr. Tandon cited the third and fourth provisos of Section 18 and Section 38A(2) in his support.

First of all, they need to stick to one provision for claiming the royalty. Both these provisions talk of different things and cannot be collectively relied upon. Secondly, the provisos to Section 18 are in the nature of specific carve outs to the main provision and apply only to authors of literary and musical work. Section 39A(1) makes only the general portion of Section 18 applicable on performers not these provisos, which are in themselves carve outs to the main provision. Thirdly, if for the sake of an argument, these provisos are made applicable to performer’s rights, then by the same logic and under the same provision, there would be a right to receive royalty created even for broadcasting organizations in their broadcast. That’s the level of absurdity we are potentially looking at.

In my understanding, Section 38A(2) does talk of singers receiving royalties but for “making of” their performance for commercial use. This provision again takes us back to the live vs non-live debate and applies only on live performances. Moreover, it neither makes the right of royalty inalienable nor talks of performances inside sound recordings.

Validity of ISRA’s Registration-

This is the issue I was hoping to hear more about in Mr. Tandon’s interview. However, apart from waving the registration certificate around, no real answer was forthcoming.

I believe ISRA’s very registration is legally untenable and “could not” (and should not) have been granted as it contravenes clear and simple wordings of the Act. Section 35 clearly prescribes that a copyright society such as ISRA must have “equal representation” and “collective control” of owners and performers. Everything, from the selection of governing council, to the day to day functioning of ISRA, to the fixing of royalty rates and tariffs, to the reporting of accounts had to be done jointly and under the collective control.

Joint and equal governance was a mandatory pre-condition to granting them a registration. What instead happened, was that ISRA miraculously got registered without a single owner being on board. In fact, their Memorandum and Articles of Association did not even allow a music company to be a member. Only after this blatant illegality was pointed out by T-series, in an ongoing litigation, certain changes were introduced in their Articles of Association to pretend as if they were always acting clean.

As a result, ISRA continues to fix rates on their own, collect royalties from unwary consumers of music and not one music company is on board. A body which claims an “equal share” in the royalty, is not only unilaterally deciding how much that share should be, but is also keeping the whole of it.

4. What is the current status of the litigation matters with ISRA?

 The figures cited in Mr. Tandon’s interview are absolutely incorrect.

There are about 9 cases filed by ISRA that are still pending where the music labels have sought to intervene. All these suits, including 3 latest ones filed by them, have been tagged together and fixed for a hearing on the 22nd of March 2018.

Music Companies have been permitted to intervene and asked to file their intervention affidavits as well as the agreements to explain the legal issues involved in the matter.

The one review petition that got dismissed was in fact disposed of with a clarification that ISRA’s ex parte decree will not apply  to Tseries and Saregama’s songs as they were not a party to the suits where decrees were passed.

5. There is a public perception that the music labels are against paying royalties to authors and performers. What would you like to say about it?

Public perceptions are built on narratives that are fed in the market, not on facts. The people who feed these narratives are either misguided, ill-informed or simply pandering to their own interests.

Music companies are soft targets. So it’s easy to blame them and get away with it. I won’t deny that non-payment of royalties has been an issue but the music companies alone are not to blame. A bulk of the blame has to be shared by the law makers for making the provisions complicated and by license seekers who take licenses from music companies, exploit their music and then refuse to pay the royalty component that is due to the authors, composers etc. They take advantage of the ambiguities created by the 2012 amendments as well as the confusing judgements that have been passed by courts in India and refuse to pay due royalties.

Consequently, what the music companies end up getting from these license seekers is only one half of the value they were supposed to get, which covers only their share of royalties. The other share lying with the license seekers, no one is really asking about!

6. Any parting thoughts for our readers?

I hope I was able to convey my side of the argument in this whole ISRA vs Music Companies debate, logically and simply. If you wish to discuss anything further with me or want to generally chat about what I have said in this interview, please feel free to write to me at ankit.relan@mason.co.in

Thank you for your time.