Home » Intellectual Property » Writers’ Rights…. Authors Rights and the Copyright Society under the Copyright (Amendment) Act 2012

Writers’ Rights…. Authors Rights and the Copyright Society under the Copyright (Amendment) Act 2012

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Background:

The present Copyright Act in India was enacted in the year 1957 (“Copyright Act”) for protecting the rights of creator of a literary, dramatic, musical, graphical or artistic work. The Copyright Act has been amended several times, in order to meet the national and international requirements. Most recently, the Indian government passed the Copyright (Amendment) Act 2012 (“Amendment Act”) on 7 June 2012, bringing certain important changes to the Copyright Act. The Amendment Act has successfully brought the copyright laws in India in compliance with the World Intellectual Property Organization (“WIPO”) internet treaties, such as the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

One of the main objective behind passing the Amendment Act was to correct the imbalance that prevailed under the copyright laws in India, which primarily favoured the film producers and record labels over the lyricists, script writers, song composers or creator of literary, dramatic, musical, graphical or artistic work (“Author”). This article aims at understanding the scope of the Author’s rights under the copyright law and highlights the important changes brought about by the Amendment Act in this regard.

Authors Rights under the India Copyright law:

The Amendment Act has introduced a number of Author friendly amendments, facilitating greater protection and proper administration of the Author’s rights. The Amendment Act further clarifies the scope of the rights available to Authors with respect to their creative work such as books, plays, music, films and other works of art.

Broadly speaking under the Copyright laws, the Authors have two important rights, which are the economic rights and the moral rights.

Economic rights:

 The Copyright Act recognises eight economic rights of the Authors of any literary, dramatic or musical work which include:

  • The right of reproduction;
  • The right of dissemination;
  • The right to exhibition;
  • The right to communicate work to the public;
  • The right to recitation, performance and presentation;
  • The right to broadcasting;
  • The right to communicate through visual or sound recording and
  • The right to communicate by broadcast transmissions.

However, the practice in the media industry in India has been such that the producers seek to own the entire bundle of rights attached to the Authors works (all the eight rights provided to the Author). Furthermore, in the year 1977 the Supreme Court in the case of IPRS v/s Eastern Indian Motion Pictures Association and Ors[1] (“Eastern Indian Motion Pictures Judgment”) had held that:

“the producers of a cinematograph film are the first owners of the copyright in the musical and lyrical works and no copyright subsists in the composer of the lyric or music so composed, unless there is a contract to the contrary between the composer of the lyric or music and the producer of the cinematograph film”

Therefore, until now the Authors were not given their dues and were not recognised for the work created by them. It was rather the producers and the labels who bought the work from the Authors who were reaping the maximum benefit. Through the Amendment Act, the legislature seeks to protect the interests of the Authors and has therefore inserted the following provisions to safeguard the Author’s rights:

  • Right to Royalty:

Under the Copyright Act there was no provision for the Authors to receive royalty in return of exploitation of their work by the assignee. Even when such rights were created, it could be transferred or waived by the Author in favour of any person. Under the new provisions inserted by Amendment Act, it is provided that the Authors have the right to receive royalties from the assignee. The right to royalty is an inalienable right. Further, it is required that the Authors must receive equal share in profits earned by the assignee form exploitation of Authors works (other than exploration of such work in cinema halls) by way of royalty.

  • Assignment of Copyrights:

Under the Copyright Act, the Authors could assign the copyright to any person for current or future modes of economic exploitation. However, under the Amendment Act the rights to royalty cannot be waived or assigned by the Authors except in favour of their legal heirs or the copyright societies. Therefore, under the Amendment Act any agreement that seeks to assign or waive the above rights shall be void. In this regard, the Amendment Act has inserted the following provisions:

a)      An assignment made by the Author is not applicable to any medium or mode of exploitation that was not in existence at the time of the assignment, unless such clause is specifically mentioned in the assignment agreement entered between the Author and the assignee;

b)     The Author cannot assign or wave his right to receive an equal share of royalties from the assignee for exploring any work (to make a cinematograph film or sound recording) in any form other than communication broadcasting in cinema hall. The only exception to this rule is assignment of such rights to the copyright societies or the legal heirs of the Author. Therefore, under the Amendment Act, the producers are obligated to share the non theatrical exploitation royalties equally with the script writers, lyricists and the composers.

  • Mode of Assignment of Copyright:

a)     Issuance of license through copyright society:

The issuing or granting of license by the Author (who is a member of a copyright society) in respect of his work shall only be through such copyright society duly registered under the Act. The Amendment Act provides for the mode of assignment of copyrights. According to the present position of law any assignment which is contrary to an assignment made to a copyright society is void. Therefore, once an Author assigns all his present and future rights to a copyright society, he cannot assign the same to other persons.

Even if an Author is not a member of any copyright society and assigns such rights in favour of an assignee, he will still be eligible to receive equal share of royalty accruing from non theatrical exploitation of his work as a part of the film or otherwise.

b)     All assignment to be in writing:

The Amendment Act requires that all such transfers have to take place in writing. And each right given to the assignee has to be separately mentioned in the Agreement.

  • Works under Contract of Employment and Commissioned Works:

Under section 17 of the Copyright Act, if the work is produced by the Author under an employment contract or commissioned work, then the employer or the commissioning party is considered to be the first owner of the work. The Amendment Act clarifies that the above provisions will not affect the rights of the Authors of original literary, musical, dramatic and artistic works. Thus, the original Authors of such work will continue to be the first owners in such case.

Moral Rights:

Moral rights are special rights conferred to Authors in addition to the economic rights. These rights  are inalienable and requires that the Author be granted:

i)      Paternity right which is the right to claim Authorship of the work; and

ii)     Integrity right which is the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work which should be prejudicial to his honour or reputation.

Under the Copyright Act it was provided that such moral rights could be exercised by legal representatives of the Author, however the right to claim authorship was an exception to this rule. Pursuant to the Amendment Act, this exception has been removed and the right to claim authorship can now be exercised by the legal representatives of the Author. Therefore, in case if the credit is not given to the Authors work after his death, his legal representative can take action against such breach. Also under the Amendment Act, the right against distortion is available even after the expiry of the term of copyright. However, under the Copyright Act, such right was available only during the subsistence of the term of copyright.

 The Copyright Society:

Under the Copyright Act, no person other than a copyright society could issue licenses for the Author’s works. The only exception to this rule was that the Author himself could issue licenses with respect to his own work. However under the Amendment Act, even the Authors are required to issue licenses for their work only through a copyright society. The copyright society is responsible for granting and issuing licenses, documenting the work done by Authors, collecting the royalties on behalf of the Authors and distributing the royalties collected to the Authors. The board or the management of such copyright society will decide the rate of royalties to be charged and the scheme of distribution of royalties to the Author’s will also be decided by them.

For this purpose, the Authors will need to form their own copyright society in which the Authors will be members. Once the copyright society is registered as a society it can start granting and issuing licenses. The registration of a copyright society is made valid for five years and is renewable thereon.

Conclusion:

Over all the amendments strengthen the rights of the author and help in streamlining the process of assignment and grant of licenses. It enables the Authors to retain their rights over the work created by them. The Amendment Act is a welcome step towards creation of protection and incentives for further development of the nature of Intellectual Property that forms the back bone of the entertainment industry. It has been historically seen that better IPR framework has always resulted in generation greater value and exploitation of innovations and creations to a level of appropriate and commensurate result.

We can be fairly certain that stronger IPR regime will therefore further boost the entertainment industry and help evolve a fair rise in the monetisable value of the industry in India due to inclusion of all creators as equitable stakeholders in the final exploitation of the end product.


[1] 1977 AIR 1443, 1977 SCR (3) 206

Souvik Bhadra [souvik.bhadra@pxvlaw.com]

Published in the Film Writers Association publication ‘Untold Stories – Screenwriting and the truth of our times’ and was also presented at the Indian Screen Writer’s Conference on 28 February 2013

 

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1 Comment

  1. manish_acs@yahoo.com says:

    Hi Souvik :

    Very nice piece you’ve written, well articulated as well.

    Many thanks and all the best,
    Manish Kumar
    +91 8689900022
    Sent from my BlackBerry® smartphone from !DEA

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