On the occasion of International Women’s Day, I am pleased to bring in our second guest interview with Ms. Vanditta Malhotra Hegde.
Ms. Vanditta Malhotra Hegde, Founder and Managing Partner of Singh & Singh| Malhotra & Hegde, is an accomplished lawyer with more than 17 years of legal advisory and corporate leadership experience, having worked with a premier law firm and one of the biggest media conglomerates. She specializes in Media & Entertainment and Intellectual Property law practice.
She is a founding member of the Global (Goa) IPR Protection Forum that propagates IP awareness and conducts various debates and discussion on various facets of IP. She is the preferred choice of some of the biggest studios, internet companies and media groups including broadcasters operating in India. She also serves on the board of a leading content producer in Bollywood.
She has an extensive in-house experience of over a decade with India’s leading media conglomerate ‘Times Group’ where her last role was Senior Vice President and Head of Legal, Entertainment Network (India) Limited (Radio Mirchi). Vanditta has been responsible for numerous businesses at the Times Group- Events, Movies, Out of Home, Internet and Radio.
Vanditta is a commerce graduate from HR College and law graduate from the Government Law College, Mumbai. She began her carrier in law practice with one of India’s prestigious law firms, Mulla & Mulla, Craigie, Blunt & Caroe, Solicitors and Advocates.
1. Vanditta, could you tell us a bit about yourself and your journey first as an in-house legal head of ENIL and now as the Founder and Managing Partner of Singh & Singh | Malhotra & Hegde?
I am a mother of a daughter, who like many women is balancing her family and work life. Work has always been my passion whether as a General Counsel at Radio Mirchi or as the Founder and Managing Partner at SSMH. I was 29 years old when I was heading the legal team at Radio Mirchi and it took a lot of hard work and passion to reach there. My journey has been very exciting from day one. I joined the Times of India Group in the phase where new age businesses were fast growing, whether it was events, out of home, movies, internet or radio and hence it was a great experience. I am a firm believer that legal and business go hand in hand and therefore, I am always looking at providing solutions based advisory to my clients both in house and now in my law firm. I had the opportunity to lead some of the most important copyright cases across India, in the Radio space during my stint at Radio Mirchi.
The jump from an in-house role to starting a law firm was one of the most challenging decisions I had to make personally. Having spent a decade as in house legal counsel, I thought it was time to look at various other aspects of law and work with other industries too. It meant a lot of more hours of hard work and toil more than as in-house job for me. Starting a law firm makes you an entrepreneur of sorts and suddenly you have to be head chef, cook and butler all at once. It has been amazing journey so far and I have my mentor Prathiba Singh (now Justice Ms. Prathiba Singh) to thank for giving me the confidence to shift from an in-house role to that of a law firm managing partner. It’s been three years now and I have not needed to look back. From a one member law firm in September 2014, in Mumbai we are now a 10 member law firm in 2018. As a law firm, we are currently advising some of the biggest studios, internet companies, media groups, pharma and FMCG companies, etc. operating in India and internationally. I see the firm’s practise areas increasing year on year with a steady growth in clientele.
2. Having represented the interests of both radio and now internet broadcasters for over a decade, what is your take on the provisions of the Copyright Amendment Act, 2012 affecting them?
Copyright amendments made by 2012 were the need of the hour. I think it’s important to applaud the legislature for making the copyright law beneficial for the creators of copyright and giving them clarity in terms of their rights. A very important and crucial change. Copyright laws are meant to protect copyright owners and creators and also meant to balance the needs of the users of the copyrights. The Copyright amendments of 2012 has tried to achieve just that. We have to realise that the end-user is as important as the creator of the work, if there is no user, who will appreciate the Work. Access to copyright works at an affordable price is everything.
Radio had fought its battle and I see internet going in the same direction. Radio did that in 2002-2010, Internet is now facing the same challenges as far as licensing of music is concerned. Internet is where everything is being consumed. Mobiles are like a part of your body now, no one leaves the house without one. Making the music available to the public at large is what both the Radio and Internet industry aims at. In India, the music industry is one of the biggest and the finest. The music industry and radio and internet broadcasters should together work towards reaping the benefits of the array of creativity and talent at their disposal. Piracy has always been a huge issue. Legitimate music sites will in fact combat piracy. As the industries grow I see a sea change in the voluntary and non-voluntary licensing regime in India.
3. Could you throw some light on how the digital broadcasting deals function in India?
Digital broadcast deals are dynamic and fast changing. It is largely Minimum Guarantee driven at this point. Content has been and will continue to be the King. Pricing is largely dependent on how popular the content is and so are the models. Per stream rates, pay per view, and a large subscription market has now been created. I see far more water tight and robust agreements being executed now. Rights are being crystallised and so is the usage of the rights.
4. There has recently been a lot of buzz around the statutory license granted by the Copyright Office to the internet company Kuku & Koyal Internet Pvt. Ltd which has now been set aside by the Delhi High Court in the writ petitions filed by the music labels. What is your view on this issue?
If I understand correctly both the parties in this matter agreed mutually to the order being set aside. Statutory License is a very complex subject. The reason for the provisions is a long-drawn battle, the idea was that public access to music must not suddenly shut down. It appears that fixation of royalties is the function of the appellate board i.e. Copyright Board, which is now under the ambit of the Intellectual Property Appellate Board (IPAB) and hence the Court has directed that the Board should be set up at the earliest and the parties can all adjudicate before the Board.
5. The music labels and radio broadcasters have always been at loggerheads over compulsory licensing provisions which resulted in the Copyright Board orders of 2002 and 2010. The statutory licensing provision of Section 31D was proposed to avoid the situation faced in the compulsory licensing disputes. Section 31D is already a subject matter of constitutional challenge in the Eskay Videos vs UOI matter before Calcutta High Court. In your view, will we be seeing a long-drawn battle between the radio / digital broadcasters and the music labels with respect to statutory licensing provisions as well?
The intent behind Section 31 D was an automatic license and to avoid the kind of conflict the music labels and radio broadcasters faced under the Compulsory Licensing regime. Unfortunately, the Copyright Board has been non-functional for years and that has led to parties interpreting the law to their own advantage. The quicker the Board is set up the better it is for the industry.
Eskay is a dispute that is pending on the issue of 31 D, in the meantime there is SIMCA (South Indian Music Companies Association) matter before the Madras High Court, wherein the provisions of Section 31D have been upheld.
6. Given the absence of a single window licensing system for music content and there being multiple copyright societies (currently ISRA and IPRS) and right owners, what are the challenges faced by radio and digital broadcasters in obtaining licenses and payment of royalties?
This has always been a very cumbersome exercise for music users in India. The numerous licenses one needs from 1000s of copyright owners is a herculean task. I think the need of the hour is to make music affordable and licenses easy to procure. There is a practical real difficulty in one procuring 1000s of licenses for one particular business. At this point it involves negotiations both commercial and on law point with various stakeholders. There is certainly a need to have a single window licensing to not only make sure that everyone who is involved in making a piece of work gets her/his dues, the broadcasters should also get the assurance that the rights that they are procuring are legitimate and absolute so that there is an ease of running the business.
High royalty regimes and cumbersome licensing can be a deterrent in the growth of new age business like the internet.
7. There has been a lot of debate on the DIPP office memorandum of 2016 which clarified that internet broadcasters are included within the scope of Section 31D of the Copyright Act. Many say it’s beyond the DIPP’s constitutional competence to issue such a memorandum. What is your take on this? Also, why weren’t the internet broadcasters consulted to have them statutorily included within the scope of Section 31D when the Standing Committee was making a report on the Copyright Bill, 2010?
DIPP is the department that formulates the policies related to intellectual property rights, including Copyright Laws, which until 2016 was under the HRD ministry. In my view DIPP has only issued a clarification, they have not stated that they are vide the memorandum doing something that the law doesn’t permit them to do. It is a clarificatory memorandum and because it does not suit a certain industry it does not make it illegal. It is only clarifying their take on the existing law and I am not sure why so much of a hue and cry is being made out about that.
Answering the second part of your question now, please understand that the amendments were proposed way back in 2006, they went through various rounds and finally the amendments happened in 2012. In my view internet is clearly included and there has been no provision that excludes the internet broadcaster from the provisions of 31D. The definition of broadcast under the Copyright Act is pretty clear that it includes internet. No clarity is needed on this aspect whatsoever.
8. With the advent of international players in the internet broadcasting sector and the Jio mania, there is currently a cut throat competition in this space. What according to you would be a sustainable model for the small and medium players to survive?
I think it’s the best time for the industry. There is plenty of place for many players. Demand is high for good content, in today’s day and age consumer has so many choices and the ones that are able to market and sell the package best will survive and thrive. We all know that if something is not available at one place, there are number of other avenues available for the consumer to explore to get what they want. Same is the case with music. If it’s not available on one music platform, consumers tend to go elsewhere. Curation, variety, ease of accessibility and the speed at which content will reach will be crucial.
Small and medium players will be hit with high royalty costs, music sites need deep pockets if they want to cater to the entire diaspora of the country. Licenses are not only expensive but also cumbersome. Till we have a one window shop and by that I mean that all music labels, and other copyright owners should offer one joint license by all coming together by an arrangement, there is no sustainable model for small and medium players in this industry.
The small and medium players will be hit with costs as the Indian consumer is just about adjusting to the idea of paying to hear music, so on one hand the consumer won’t pay enough and on the other hand the music owners need minimum guaranteed royalties with or without recoupment of the royalties or usage of the content. This makes the entry of small and medium players into this industry very difficult and somehow unsustainable. However, if the small/medium players were to create a niche segment for themselves with low costs and good reach then they may survive. The royalty regime in terms of ease of licensing as well as in terms of correct pricing for players situated differently must come into force.
9. In your view, has the Copyright Amendment Act, 2012 been able to achieve the objective with which it came into effect? If not, then where did the Government go wrong and what steps can be taken to bring about an effective implementation of the Copyright Amendment Act, 2012?
The Copyright Amendments as a law has certainly achieved the objective it was set out for. The implementation of this law is taking time. There are numerous interpretations of these amendments that are doing the rounds just like any other law there will be different groups trying to see how the law can benefit them. We need quick redressal of disputes, we need appellate boards to be set up across the country and functioning full time. The one window shop for all societies is the solution to many a problems. This would help in taking a pragmatic view and an approach that makes it easier for their members as well as licensees. We cannot expect the government to step in each time, stakeholders need to come together and see if they can agree to disagree on certain aspects and then strike a balance.
10. Any parting thoughts for our readers?
Today on women’s day I would like to tell all the women to spread their wings and try and reach the sky, especially to all the women who aspire to be lawyers. Keep at it and be so outstandingly brilliant that you cannot be ignored. Build your support system, I have had a very supportive family. My father, husband, bosses have been my support systems just like my colleagues, mother, sister and now daughter is.
I am often asked why women need to be treated differently at the work place when they want equality. It is far tougher for women to survive at the work place – she needs the work from home, she needs the maternity breaks, more so till paternity breaks become the norm. Let’s change this world one woman at a time…Let’s aim for a truly gender neutral world!
P.S. The views expressed in this interview are personal views of Ms. Vanditta Malhotra Hegde and do not express the views of her law firm.
