REPORT: IPRMENTLAW VIRTUAL CONFERENCE – JUNE 21 2020; TOPIC: NEED TO REVAMP THE COPYRIGHT ACT?

On the occasion of the Copyright Amendment Act, 2012, we at IPRMENTLAW conducted the biggest copyright virtual conference.

Link to the recording of the conference: here

 PANELISTS: (See details here)

Guest of honor: Mr. Raghavendra G.R (Joint Secretary, Department of Justice, Ministry of Law)

Keynote speaker: Mr. Blaise Fernandes (President, Indian Music Industry)

Industry Stakeholders:

• Atul Churamani (Managing Director, Turnkey Music and Publishing Pvt. Ltd.)
• Ashish Rego (General Secretary, Music Composers Association of India)

Lawyers:

• Oindrila Maitra (Director, Legal and Business Affairs, Jio Saavn)
• Bishwarup Chakrabarti (Legal head Eros Digital)
• Isha Rathnam (Director, Legal – Lionsgate)
• Dominic Dsouza (Independent Advisor and Influencer – Legal, Strategy and Regulatory)
• Rahul Ajatshatru (Counsel and Head of Ajatshatru Chambers)
• Manojna Yeluri (Entertainment, Media and IP lawyer – Founder of Artistik License)

Moderator:

Anushree Rauta (Founder of our very own IPRMENTLAW Blog)

SPEAKER SYNOPSIS:

Raghavendra G.R: (Guest of Honor)

Mr. Raghavendra’s perspective centered around the legislative intention from bringing in the amendments in 2012 to the Copyright Act. He stated the purpose of the amendments to enable adaptation of laws and enhance protection from being limited to a physical environment, to one compatible in the digital space.

Specifically, Mr. Raghavendra discussed three features of the amendments, namely the (i) right to receive royalties (adopted from the German Copyright law) (ii) Statutory licensing provisions, and the difference as against compulsory licensing provisions and (iii) Performers rights (in consonance with the Rome Convention and the WIPO -WPPT)

He emphasized upon how the amendments strived to provide equitable royalties to the author even upon secondary uses, taking inspiration from the provision of Artist resale rights. He emphasized upon the role of Article 12 of the Rome Convention. One of the main intentions of the amendment was to align the law with the opinion of Justice VR Krishna Iyer’s obiter in the case of IPRS v. Eastern India Motion Pictures. He further went on to assail the rationale in the CISAC v. Aditya Pandey case, stating that the court has recognized therein that the amendments do not have a retrospective application. He also assailed the functioning of the IPRS citing the CISAC report calling it the highest working PRO in the world, emphasizing upon the positive impact of the amendments.

Coming to the issue of Statutory licensing, he went on to state that this provision under Section 31D was brought in light of public policy objectives. This was not to further the interests of the licensee but rather in public interest. Mr. Raghavendra cited Moorhouse Publishers v. NSW University, which is a similar case to the Delhi Photocopy case (India), wherein the Australia HC did not allow for a license as in the case of the Delhi case. The reason for a statutory license provision was inspired from the Delhi case, to effectively provide for Access to Knowledge as well as Access to entertainment. The statutory board was entitled, in lieu of this to fix licensing rates for a balance of entitlements and public interest.

Mr. Raghavendra further stated that within the broadcasting industry, especially radio, there were problems of entry due to the mount of costs involved. Over the top of this, there were issues of seeking licenses from content owners to showcase content. To liberalize the same, statutory licensing was introduced to enable the survival of a flourishing industry, only for radio. Further, allowing for a differential rate-setting for different modes, this mechanism was specially extended for the TV broadcast medium as well.

When asked by our moderator Ms. Anushree Rauta whether “Statutory licensing provisions need to be revisited, as the radio/ broadcasting industry isn’t at a nascent stage anymore?”, Mr. Raghavendra answered that to be the government’s prerogative. He further, stated that statutory licensing provisions, under section 31-D never intended to include webcasting, and there is no confusion there, as has been clarified by the Bombay HC in the case of Tips vs Wynk.

Finally, coming to the interpretational concerns regarding the Performers rights provisions, Mr. Raghavendra stated that the Neha Bhasin case has clarified that a “live performance” means a performance at the instance of the performer performing, and need not be live as in before an audience. That was never the intention.

He further concluded stating that his dream would be for the Indian Music industry to reach the class of top 10, and potentially top 5 in the world.

Concluding remarks: We need to move forward. We must pay royalties. Need to contain piracy and we need to work towards that. Copyright should be extended to designs wherein alternative protection must be given. TDM must be addressed. Language can be improved to provide clarity, however wouldn’t want to remove any substantive provision.

Blaise Fernandes (KEYNOTE ADDRESS )

Mr. Blaise stated that he doesn’t have a position on the need to revamp the amendment or not, however was intending to pose a few questions to be pondered upon. As an instance for evaluation and relative comparison, he mentioned Brazil (primarily due to the developing connection, as well as a common association to the BRICS). In comparison to Brazil, he mentioned a revenue deficit of 130 million dollars. He stated that one of the reasons could be the diversity opposed to the relative cultural homogeneity in Brazil.  However, he questioned the big gap between public performance revenue between India and Brazil, with the former being 14 million, as against 70 million in the latter jurisdiction.

Most importantly, Mr. Blaise emphasized upon the need for a WIPO study on the Indian creative market. He focused on how the creative industry was one of the highest contributors to the GDP and the national exchequer, apart from being a prominent source of employment.

He also, spoke about platform capitalism and the need to rethink the safe harbor provisions, wherein due to non-indigenous platforms being the ones mostly used, all the earnings out of the Indian works are going abroad.

He spoke about Piracy and the need to build a model like the Chinese sword net project, which, as he claimed, brought piracy rates down by 90%. He emphasized upon a prominent 67% music piracy rate in India, symbolizing the loss of revenue for the industry, and the national exchequer. He built all this up to establish that the copyright act needs to be strong enough to address such piracy concerns, and it definitely isn’t at the moment.

Finally, he spoke about the need for capacity building and skill development to make the creative industry at least a 4% contributor to the GDP.

 Concluding remarks: Two points:

1. Need to protect against piracy.  67% revenue need to be coming back to the industry
2. Public performance license should be implemented on a pan-India basis. Need to ensure capacity building. Need to ensure a growing ecosystem to ensure investments. Copyright Act must ensure there are returns upon investment, for more investments to come in.

Atul Churamani (Speaker -1)

Our first speaker providing an industry’s perspective, Mr. Atul Churamani, was a delight to listen to. He focused on what he referred to as the “lay person’s” perspective, regarding the Copyright Amendments in 2012. He stated, that the prime purpose of the amendment was to effectively protect the creators and guide business at the same time. He recognized the need for law to compliment business and provide “ease” in conducting the same, rather than being an interpretative nightmare. He emphasized on the need to rewrite the copyright law and not just revamp it as the Copyright Act has references to several other amendments as law also reflects the state of the nation and there is a dire need to adapt it to current era taking into account today’s business.

With respect to performers rights, Mr. Atul mentioned that a lot of private performances were happening in the early nineties which live performances started getting recorded and exploited which necessitated the need to acknowledge performers rights (which was reflected in the 1994 Amendment). He clarified that the performance under the Copyright Act is limited to ‘live performance’ and could not be extended to studio recorded performance. (examples- SRK dancing on stage, a snake charmer or a juggler performing, etc. where people record their performance and reproduce it on different mediums, where the necessity for consent of performers and royalties arose).

Building upon this backdrop, Mr. Atul, passionately, advocated for a need of a “clear/precise” law that is understandable to the industry stakeholders. He stressed upon the multiple impediments created by “vagueness” in legislative drafting and the resultant ambiguity, posing a question on law’s compatibility with the society and business.

Specifically, with respect to the statutory licensing under section 31-D, he proposed for the need to make definitions clear and use business-friendly terms like “Video-on-demand” and then show whether they come within the realm of this law or not.

Secondly, he proposed for the need for special copyright courts to deliver judgments within 7 days, due to the current lax position of multiple interim orders, and delays in judicial decision making. He proposed this in an alternative to decriminalization, for the availability of an effective deterrent in cases of infringement.

Thirdly, and interestingly, he proposed the need for all establishments, who use music, obtain a mandatory music license what he calls an “8000 crore form”, which would specify whether a public performance license has been taken and paid for or not, similar to the IT returns model. This should be made sure in the case of government entities like All India Radio (AIR) as well, to ensure effective payments to collecting societies, as well as memberships. He highlighted that AIR has not procured an IPRS license and the need for the Government to pay heed to the music industry.

Fourthly, he proposed for the need of a single window license, to facilitate a user-friendly mechanism for payments. He argued that this shall automatically make it less cumbersome to find mechanisms to pay and will automatically increase revenue. A single window, issuing multiple licenses (for e.g. performing, public performance, sound recording use etc.)

He also questioned the need for a wedding exemption. He stated that weddings are one of the highest revenue generating forums for the entertainment business, and go beyond devotional. So, what is the need for an exemption? A venue license is a must.

Next he stated the need to ensure a balance between the user’s rights as well as the copyright owners right, emphasizing the need for easier music licenses to facilitate cover versions, samples etc., as law should not be a creative impediment that tells creators what to do (while criticizing the language in Section 31C). He emphasized on the liberal idea of fostering diverse creativity.

Finally, he emphasized upon the need to effectively get rid of the 1977 IPRS v. EIMPAA judgment and ensure that everything in the film is compensated to the members creating.

Concluding remarks:

Completely newly written Act required, to get rid of the baggage of the past. Make the language business friendly, to ensure efficient regulation. Government must work with the industry. The pie needs to grow for revenues to grow.

Aashish Rego (Speaker -2)

Coming purely from an artist’s perspective, Mr. Aashish was our second speaker to provide useful insights from a stakeholder’s point of view. He primarily emphasized upon why the amendments were brought into being, the prime reasoning being, the need to balance out the inherent imbalance between creators and business owners, to ensure creators are not completely disassociated from their works. He also emphasized upon the unequal bargaining power and the hierarchical power dynamic in the industry.

Referring to this background he posed the important question of whether this intention of balancing out the imbalance had been achieved, and whether songwriters/ composers/ publishers were receiving amounts commensurate to their works? Answering, of course, in the negative.

Offering, recommendations and questions, Mr. Aashish stated firstly, for the need of a single society per sub-class of works, like in the US, for example an actors performers rights society, similar to ISRA, an across classes of works, instead of a uniform one, to provide for representational diversity.

He also stated the question of why music composers are not being paid in India. He stated that the membership of IPRS is 182 times lesser than the American society and the revenue 200 times lesser, exploring the need to question the same.

Building upon phases post the 2012 Amendment, he stated that 2012-2015 went in denial of the Amendment and useless interpretive litigation, on part of people who did not want to pay. 2015-2018 went into strong holding and capitalizing upon bargaining power, to ensure the prevalent cartelization. And finally, 2018 onwards, the law of limitations and huge discount schemes thereafter made the sum being recovered miniscule.

He proposed the immediate need to revisit freedom of contracts and address the problem of exploitative contracts in the industry, to curb evasive methods for royalty exemption- for e.g. Labels withdrawing membership of musicians from CMO’s as the condition for them to be signed, using this as a technique for strong holding.

Finally, Mr. Aashish, emphasized upon the need to monitor the CMO’s and question the composition of the boards, and need for an efficient body to oversee the same, not a non-functioning copyright board.

Concluding Remarks:

• A – Accountability all around – especially with CMO’s
• B- Balance – inequities to avoid conflicts
• C – Compliance – ensuring compliance against the end-user efficiently
• D – Dialogue – Discuss and discourse rather than litigation – accept the diversity of music.

Oindrila Maitra (Lawyer-1)

Our first lawyer on the panel, Ms. Oindrila in her opening statement stated the explicit need to revamp the Copyright Act. She emphasized upon using practical challenges faced as a lawyer to bring this viewpoint into perspective.

Firstly, she questioned the proviso under Section 18 of the Copyright Act, questioning the use of the vague term utilization. She basically questioned, “At what stage does utilization take place?” and the clarity issues around it.

Secondly, she questioned the vagueness in Section 19, where it states “Assignment cannot be contrary to what has already been assigned to a copyright society.” What does this mean? Which assignment is being spoken about here?

Thirdly, she spoke about the dynamism of changing mode and mediums (of creation as well as dissemination) and the need for law to adapt to the same, and the current law not being capable of the same.

Fourthly, she spoke on the need to define the contours of broadcasting and communication to public, with specific definitions in the Act.

Fifth, coming to the spectrum of Performers Rights, Ms. Oindrila spoke about the ambiguity around section 39B and the need to define the difference in royalties for authors/ composers and performers, the former being the originator and latter being the transmitters of the work. She also spoke about the need to define why the word “modifications” was used in 39B and mention the scope of changes clearly, while applying section 18 to performers rights.

Concluding Remarks: We need to clarify and remove ambiguity, rather than remove provisions. Process of fixation of royalty needs to be clearer. Clarification not just in the Act but also in the rules.

Rahul Ajatshatru (Lawyer-2)

 Mr. Ajatshatru started off by saying that the media and entertainment business stands on three main pillars: to create, to communicate and to remunerate. Copyright accounts for these pillars, by incentivizing creation and promoting communication (through mechanisms such as statutory licenses). However, the legal framework has struggled on the remuneration front, as creators and artists have been divested of control over their works. He pinpoints the SC’s 1977 IPRS judgment as a contributor towards this end, as it interpreted S. 17(b) of the Act in a manner where the copyright of literary or musical works produced for a cinematograph film was ousted from the creators of said works. Furthermore, the Act, even post-amendment, fails to shed light on whether the creators of said works (i.e. the original authors or artists behind a film song) are entitled to a share of the revenue arising from the cinematograph film in which their works are used.

Section 18, in his view, somehow assumes that there is a ‘right to royalty’, without ever having explained this right in the first place. This, he states, creates a legal conundrum, as once the assignment of copyright of the musical work in a cinematograph film has been done, there exists virtually no legal basis to claim royalties going forward. Only recourse from there is to join a society such as IPRS, which would take on the task of enforcing and collecting royalties on the artists’ behalf. The Amendment should’ve ideally defined a ‘right to royalty’ and its intricacies.

Coming to S. 31D, he discussed how this was mainly to be used as an exception, given the lack of ease with which one can avail of a compulsory license in accordance with the Copyright Rules. Voluntary licensing under a free-trade regime should have been the norm. Further, the definition of ‘broadcast’ also needs illumination, as in his view, ‘broadcast’ refers to linear programming where the end-user cannot choose what content is available when. Accordingly, streaming would be ‘narrow-cast’, as it allows the end-user to pick and choose content at his/her own whim (services of Apple Music, Spotify, etc. would not qualify as ‘broadcast’ as per this definition). The use or non-use of internet thus should not solely determine what is a ‘broadcast’ or not.

Concluding Remarks: Need for honesty. Should avoid waivers of essential rights like moral right. Need for a diverse dialogue of the government with the industry collectively, for an effective discourse rather than individual perspectives of stakeholders. Need for work together.

Bishwarup Chakraborty (Lawyer-3)

Our next lawyer on the panelist, Mr. Bishwarup, started by discussing the intent of the proviso to Section 18 of the Copyright Act, which was introduced through the amendments. He stated that the intent of the proviso was to ensure that the author could get a share from the producers earning, and for the same, royalties were brought in to ensure the author partaking in the earnings of the film.

Upon this, he stated that the intention was not achieved by this particular remedy in the legislation, due to an attempt to filling a gap without discussing the actual nuances of the remedy, for e.g. – what are the royalty rights? What is the share of the author? Who decides all this?

Next, Mr. Bishwarup spoke about the lack of clarity in the mention of the words “cinema halls” in the proviso, considering it non-adaptable. He questioned what about audio visual works on OTT, wherein the primary mode of exploitation (as for a cinema hall in case of a movie) is an OTT platform. Do royalties need to be shared then? If not then why not?

Using this example, he reiterated the need for clarity in the Act, and a need for a futuristic language of the legislation. He spoke how such vagueness results in a dissonance between the normative view as against a statutory view.

At this point, as a common question from most of the panelists was the relationship between an author and a performer and whether the law treats them at an equal pedestal (as in the language) or an equitable pedestal? Accordingly, what shall be the royalty differentiation?

Another interesting debate followed this, wherein the core concern was whether for new mediums of exploitation of works, re-assignments have to taken? And what about the practical difficulties associated with the same? Mr. Raghavendra cited the necessity of re-assignment due to the impossibility to foresee the nature of the technology which would be the new medium, suggesting going back and re-seeking assignments for these new mediums.

Concluding Remarks: Comprehensive revamp and clarifications through delegated legislations.

Dominic Dsouza (Lawyer-4)

Our 4^th lawyer panelist, Mr. Dominic reiterated the need to question and clarify definitions within the act. He spoke about the need to question the meaning of broadcasting from the OTT point of view as well. In light of new emerging technologies and potentially new technologies it is essential for definitions to come up and clarified rather than being caught up in the mode-medium vortex.

Concluding Remarks:

Need to respect the intention of the government and need to support the government by stakeholder cooperation and embracing technology enhancements. Mutual agreement between the industrial stakeholders rather than imposing laws. Use the Copyright Act for guidance.

Isha Rathnam (Lawyer-5) 

Our 5^th lawyer on the panel, spoke about the need to take creators and their interests, not merely in a vacuum but rather with the interests of the investors.

Further, section 38(A)(2) needs to establish whether theatrical exploitation includes royalties to A-list actors as well, and whether this provision intends to compensate actors for the display of the film as well. This needs to be clarified. Who are the beneficiaries of this provision in terms of royalties?

Finally, coming to the current issue of COVID, Ms. Isha emphasized upon the question of what constitutes primary exploitation in the times of COVID – wherein OTT is the new cinema hall?

She further went on to establish the need of multiple collecting societies to address needs of multiple stakeholders of the entertainment industry.

Concluding Remarks:

Clarity and course correction are extremely essential.

Manojna Yeluri (Lawyer-6)

Ms. Yeluri opted to take a macro view of the issue at hand, and questioned whether the intent behind the 2012 amendment was ever to benefit independent musicians. She emphasized upon how the priority has always been the ‘film music’ industry, with independent creators being neglected. This is despite the massive and vastly diverse music landscape of India. Mostly, these sectors of the music industry are overlooked and cannot avail the benefits of the Act, as per Ms. Yeluri. She admitted that perhaps in 2012, the music industry was more aligned towards the film industry and independent creators/artists were few in number. However, the situation has drastically changed now, with creators like Prateek Kuhad gaining global fame despite having no links to/affiliation with the film industry. She discussed how more leeway needs to be given to artists in negotiation of the rights to their works, the medium through which their works will be disseminated, etc., in order to inspire more confidence in artists regarding the law. Going forward, there is a need to go beyond the myopic view of the music industry vis-à-vis film and television (even video games like Fortnite are now hosting immersive concerts virtually, and artists now livestream their performances on social media platforms; there’s a need to account for these mediums).

Concluding Remarks: Need for the amendments to be inclusive, fostering collective bargaining and ensuring accountability. Need for more wiggle room. Also, let’s not work on the assumption that there is only one kind of music industry in the country. Need to figure out a way to optimize revenues for the creators. We need to ensure that waiver clauses are prohibited and the bargaining dynamics are improved for a fair system to persist, and rights to have a value.

Concluding remarks by our moderator Ms. Anushree Rauta:

Ignorance of law is no excuse. So laws need to be abundantly clear and cannot leave room for such myriad interpretations to enable people to circumvent it and leave room for judgements to give confusing interpretations. Laws should be there to avoid conflicts and not create conflicts.

CONCLUSION – NEED TO MOVE FORWARD

Core conclusive remarks:

• Address inequities
• Revamp for clarity and in order to make it more business friendly
• Emphasize upon law which looks at multiple stakeholders and accounts for the whole ecosystem
• Law which inculcates honesty in the business and the industry ensuring a ban on waiver clauses for essential balancing rights and remedies provided.
• Law to promote inclusivity and accountability including a strong mechanism of collective bargaining, through more no. and types of collecting societies for perspectivism to strive.

RECOMMENDATIONS AND QUESTIONS POSED

Questions for clarity and deliberation:

• Do Statutory licensing provisions need to be revisited, as the radio/ broadcasting industry isn’t at a nascent stage anymore?
• What does the word “utilization” under the proviso to Section 18 of the Copyright Act imply? What is the stage of use which is relevant herein?
• What does the phrase “Assignments cannot be contrary to what has already been assigned to a copyright society imply?”
• What is the significance of the use of the phrase “apply with modifications within section 39B of the Copyright Act?
• What is the scope of royalty rights? Is it a contractual remedy, or is it a copyright within section 14? What is the share of the author for this royalty, and who decides this rate of royalty? Need for a nuanced clarity
• Whether there is a need to relook the definition of “broadcast”?
• What is the meaning of the term “cinema hall”? Does it refer to a theatre or any primary mode of exploitation, which would include an OTT platform? What would be the implication of such primary mode of exploitation for platforms like YouTube where User Generated Content is uploaded as a primary means of exploitation.
• Does the law treat the author and the performer at an equal pedestal (as in the law) or an equitable pedestal? What should be the royalty differentiation?
• How does the act address the practical difficulties associated with the need to take re-assignments when new modes of dissemination come up?
• Does theatrical exploitation under section 38(A)(2) includes royalties to actors as well?

 

Recommendations and imperative need to deliberate for a positive change:

• A dire need for a WIPO study on the Indian creative market, and its role in the economy.
• Need to strengthen the Copyright Act to address piracy concerns, which it clearly doesn’t, due to 67% piracy in the Indian Music industry itself.
• Need for a clear/ precise and business friendly law, with clear definitions in business-friendly terms.
• Need for special Fastrack copyright courts to deliver judgments within a short duration.
• Need for all establishments who use music and other content to procure a mandatory music license showcasing whether they have paid and obtained music licenses or not akin to taxation laws or licenses required by shops and establishments.
• Need for a single window, issuing multiple licenses for ease of conducting business for users.
• Need to revisit the exemption for weddings under Section 52, due to the multimillion-dollar industry that weddings are, and the non-devotional nature of songs used.
• Need to ensure a balance between user’s rights as well as the copyright owners right, by ensuring creative flow and quick licenses for remixes, cover versions and samples to come in, to ensure achieving the purpose of copyright as an “engine of more expression”
• Need to effectively get rid of IPRS v. EIMPAA decision
• Need for a separate society per sub-class of works, for example: actors, singers, composers, directors etc.
• Immediate need to revisit freedom of contracts and address the problem of exploitative and imbalanced unconscionable contracts in the industry, and frame laws addressing the same.
• Need to monitor the CMO’s and question the internal composition of these boards including the representative diversity.
• Need to define the contours of broadcasting and communication to public, with specific definitions.
• Need to realize that the law until now has emphasized upon the priority always being- the ‘film music’ industry, with independent creators being neglected. – A need for a law that inclusively represents the interests of the regional multicultural industries as well as independent artists, who make non-film music.
• More leeway needs to be given to artists in negotiation of the rights to their works, the medium through which their works will be disseminated, etc., in order to inspire more confidence in artists regarding the law.