There is little denying that the 2012 amendment of The Copyright Act, 1957 was a step in the right direction by the Government to bring Indian laws in conformity with international copyright regimes, while simultaneously addressing India’s long-pending obligations under the two WIPO internet treaties concluded in 1996; namely, the WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty (“WPPT”). This amendment followed earlier amendments that occurred in 1983, 1984, 1992, 1994, and 1999.
However, The Copyright (Amendment) Act, 2012 – which came into effect on June 21, 2012 – was the most substantial of all and, among various other inputs provided throughout this article by Advocate Anushree Rauta – Partner, M&E, ANM Global, and Founder, IPRMENTLAW also listed some of the key amendments for the music industry, which included:
- Non-waivable royalty rights for authors and for music composers;
- Introduction of exclusive economic and moral rights for performers;
- Restriction on assignment in modes and media not in existence on the date of assignment;
- New proviso to Section 33, requiring the business of issuing or granting license in respect of literary, dramatic, musical, and artistic works incorporated in cinematograph films or sound recordings to be carried out only through a registered copyright society;
- Equal membership rights in, and equal control over the governing body of copyright societies for authors and for other right owners
- Modification of statutory licensing provisions for cover versions as there was Section 52(1)(j) earlier for statutory licensing of cover versions. This was deleted and 31 C added as an amendment; and
- Introduction of statutory licensing of sound recordings, underlying compositions, and lyrics for use by the radio and television broadcasting industry.
Hence, the resultant impact, post The Copyright (Amendment) Act, 2012, was:
- Restructuring of agreements to ensure compliance with the Amendment. For instance, adding royalty clauses, section 19(8) waivers, and ensuring that assignment is present across all modes, media, and formats in existence;
- Companies making provision for royalty payments in their budget; and
- More recently, the first-ever radio royalties statutory licensing order being passed.
Although one of the intents behind The Copyright (Amendment) Act, 2012 was to address historical issues facing composers and authors whereby their performing rights were being interpreted as having lapsed or subsumed in cinematograph films and sound recordings, thus raising a question mark on their sharing public performance royalties along with other owners of rights, the ambiguous drafting of The Copyright (Amendment) Act, 2012 has led to nothing but an interpretation nightmare for the entertainment industry and its beneficiaries.
For instance, instead of clearly setting out the mechanism and responsibility of the party required to distribute royalties; the respective shares of authors, composers, other rights owners, and also the performer’s, based on ground realities of the music industry, instead of simply stating equal shares which perhaps on the face of it can be interpreted as being inequitable as the film producers and record labels have borne the cost of producing the sound recording and cinematograph film. All these and other lacunae have led to confusion and a veritable log jam, where even well-intentioned users wanting to pay usage royalties are confounded as to what amounts and to who all they are required to pay!
“Instead of addressing vexing issues and smoothening the copyright owners’ statutory right to undertake unhindered exploitation of their Works even while providing ease of access to users of copyrights despite best intentions,” adds Advocate Hardeep Singh Anand, Partner, JNA Law, “the 2012 amendment has instead lead to a slew of court cases, with nary a light at the end of the tunnel.”
The Copyright (Amendment) Act, 2012 has unfortunately resulted in impediments in the successful exploitation of these Works, which has not only resulted in losses for the copyright owners but has also resulted in delayed or no royalty payments being made to the composers and authors for whose benefit The Copyright (Amendment) Act, 2012 was initiated in the first instance.
“The biggest limitation experienced by the industry due to The Copyright (Amendment) Act, 2012 is the myriad of interpretations across each key amendment introduced,” declares Advocate Rauta, “which has resulted in respective stakeholders expectedly interpreting the amendment in their favour.”
A case in point is the ongoing dispute in the Honourable Delhi High Court where, in less than a week of the Intellectual Property Appellate Board (IPAB) categorically ruling that a separate share of royalties is to be paid by the radio broadcasters towards sound recording and underlying works, and also set down these royalty rates, there was a diametrically opposite view provided by the Honourable Delhi High Court in the case of IPRS vs ENIL wherein it was ruled that when a sound recording is broadcast on radio, separate royalties are not payable for underlying works as the underlying works get communicated as a part of the sound recording as they do not have their own independent existence. Says Advocate Anand,
“The learned Single Judge of the Honourable Delhi High Court has observed that the 2012 amendment does not change the legal position; thus implying that the historical impediments faced by composers and authors pursuant to the 1977 Supreme Court judgment in the matter of IPRS v/s East India Motion Pictures Association, sought to be addressed by the 2012 amendments, still continue.”
Appeals against both these decisions are pending before the Division Bench of the Honourable Delhi High Court and the eventual ruling(s) will decide the fate of publishing royalties in India.
For a moment, please consider that if you could have two learned judges, albeit in different proceedings, provide contrary views on the same statutory provision, it speaks for itself that the language of the provisions introduced by The Copyright (Amendment) Act, 2012 is flawed and requires a revamp.
Therefore, some of the other resultant limitations experienced by stakeholders include:
- Entities which are seeking to professionalize the music publishing business in India on the lines carried out in almost all Western copyright regimes will virtually be unable to do so. The publishing business will be restricted to the promotion of underlying works usage in live performances only, which will make the music publishing business unviable and will result in loss of income to authors, composers, and other owners of rights.
- Authors have often not received royalties from all sources that ought to be rightfully available to them.
- There being no copyright society for each category of “Work”, more effective licensing to users is going a-begging, and has frequently resulted in the royalty provision being merely on paper.
- Several sectors of the industry are at loggerheads with each other – broadcasters vs labels, broadcasters vs IPRS (Indian Performing Right Society), performers vs producers, performers vs labels, etc., and court cases are aplenty, much to the benefit of lawyers!
- There is still no clarity on who is liable to pay royalties, to whom, and how much.
“As lack of certainty and clarity about rights and obligations of rights owners and users of these rights continues in the music industry, and competing interests are litigating even after nine years of the 2012 amendments with no resolution in sight,” agrees Advocate Anand, “it clearly indicates that lacuna continues to exist in the existing Copyright Act, 1957, as amended in 2012, at least insofar as the music industry is concerned.”
However, can corrections be made to these travesties? “Indeed,” says Advocate Anand,
“a further, clearer amendment is required or else speedy final adjudication by the courts on pending issues aimed at meeting the legitimate aspirations of all parties involved, and thus preventing further time-consuming appeals! Perhaps, if competing interests in other copyright industries like: film production; book publishing; software and I.T.; print and online media; art world, etc., also feel that the 2012 amendments do not equitably or fully address contentious legal issues facing them, then perhaps it is time to relook the entire Copyright Act 1957. The way forward could perhaps be by way of setting up of a committee of experts on the lines of the Whitford Committee of the U.K., whose findings and suggestions rendered in 1977 were deliberated upon for some 11 years, and followed by the drawing up de novo, the entirely new Copyright, Designs and Patent Act 1988 which, from all reviews, is serving the U.K. well.”
One also needs to reconsider certain other provisions that require to be rehauled in light of changing times from what it was in 1957. For instance, sub-section (za) of Section 52 was introduced when the Act was first enacted. “At that time,” voices Advocate Rauta,
“Marriage ceremonies and social festivities connected with them were primarily religious proceedings that would be held in the place of worship or in the households of parties entering into a sacred communion. In contrast, the marriage ceremonies that India has witnessed in the last two decades, where music plays a predominant role, goes beyond being just a marriage ceremony but becomes a virtual stand-alone social festivity where parties book the most luxurious of venues that are comprehensively dedicated to playing or performing music and sound recordings, and the religious aspect is non-existent or, in any event, is so limited that one cannot fathom such ceremonies falling under the category of ‘religious ceremony’.”
With such a drastic change in the perception and performance of wedding ceremonies today, one needs to deliberate whether all such “social festivities” should fall within the ‘limitations to copyright’, provided under the ambit of Section 52.
To sum up and, based on the aforesaid expert opinions obtained, it is obvious that The Copyright (Amendment) Act, 2012 has failed to reach its potential objective in the last nine years of its enactment, owing largely to the lack of clarity in drafting of the provisions.
Text by Parag Kamani