Updated: Nov 29, 2020
The Registrar of copyright has started public consultation to amend the Copyright Act. The previous amendment to the Act in the year 2012 was done with an underlying objective to establish a just and equitable framework of copyright administration and revenue sharing for protecting the rights of authors of works incorporated in sound recordings and films. However, there are few lacunae in the previous amendment to the Act. This amendment is a golden opportunity to rectify those lacunae and practically uplift the position of the authors by reducing their vulnerability. In this blog post, I am providing my recommendations for the amendments. I shall be glad to receive your suggestions that may be added to this list. I know this one is the lengthiest article on my blog. I request both my legal as well as creative readers to get some time out and read this article as well as give your valuable inputs. This is a much-needed dialogue of the present time for the creative fraternity.
A. Amendment to be made in Section 13 (4) of the Act to clarify the ownership of the underlying work of cinematographic film and sound recording.
Currently, Section 13 (4) of the Act reads as below;
The copyright in a cinematograph film or a [sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the [sound recording] is made.
There are confusions surrounding this Section. We can understand this well with the help of a practical illustration. Mr. A wrote the script based on that Mr. B made the film. Now, who shall be the copyright owner of the script of the film? Does Section 13 (4) allow Mr. A. to exploit the underlying script of a film as per section 14 of the Act? Can Mr. A. assign the rights in the script to any other person without the permission of Mr. B by virtue of this Section? Who shall have the rights on derivative works of the Script? There is no clarity on these questions.
We suggest that the following clarification should be added to this clause to avoid any such confusion.
The copyright in a cinematograph film or a [sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the [sound recording] is made. It is clarified that the author of the underlying work can exploit the underlying work in his/her absolute discretion unless a contract to contrary is signed between the owner of the cinematographic film or sound recording (as the case may be) and the author of the underlying work.
This clarification shall make it clear that until there is an agreement (copyright assignment/license) is in place, the author shall remain the owner of the underlying work of a cinematographic film/sound recording.
B. Amendment to Section 14 (vi) of the Act to clarify the obligation to share royalty with the author
We suggest amendment in Section 14 (vi) of the Act a to include the right to receive an equal share of royalty in Section 14 and provide that the right to make a cinematograph film or sound recording of a literary, dramatic, or musical work is subject to the payment of such royalties to the authors. Such Amendment of Section 14 shall remove any confusion arising out of the business practices and interpretation of this right.
14 (iv) to make any cinematograph film or sound recording in respect of the work provided that any person making such cinematograph film or sound recording pays an equal share of royalties from the consideration received by such person from the exercise of the right to communicate to the public, make an available and commercial sale, make derivative works or provide on rental outside a cinema hall in such cinematograph film or sound recording;
C. Amendment to Section 17 (b) of the Act to clarify the work for hire arrangement in case of literary or dramatic work.
The legal position of commissioned work arrangements in India is complicated. Section 17 (b) of the Copyright Act 1957 deals with commissioned work/work for hire arrangement. However, unlike Section 17 (a), the exception under Section 17 (b) applies to only specific kinds of copyright work (photograph, painting/portrait, an engraving, a cinematograph film) made at the instance of a person at the payment of valuable consideration. For example, Mr. A can successfully claim ownership if B takes a photograph or make a painting/portrait or engraving or cinematographic film at her instance at the payment of valuable consideration. Section 17 (b) is limited to photograph, painting, engraving, and cinematographic film. Hence, as per literal interpretation, this Section shall not apply to any other literary, artistic, musical, or sound recording work.
Therefore, a person cannot claim automatic ownership of a copyrighted work (excluding photograph, painting, engraving, cinematographic film) made at her instance without having the work for hire agreement executed between the parties. This Clarification is required to be made in Section 17 (b) of the Act. We have observed that it is rampant in the industry that producers claim ownership if they have approached the writer with a concept and requested the writer to develop the same after making some token amount. However, this is an incorrect position of law. Just because the Producer has made some payments to the writer, it doesn't make it automatically a work made for hire arrangement.
Hence, we propose the following amendment in Section 17(b) of the Act.
17 (b). subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. In the case of a literary and dramatic work made for valuable consideration at the instance of any person under a written commissioned work agreement, such person shall be the first owner of the copyright therein.
We emphasize that there must be a contract for the creation based on the 'work for hire' arrangement. The contract should unambiguously state that the parties are agreeing that the work is a work made for hire/Commissioned work. The language must be explicit to the intent. Also, it must be in writing and signed by the author of the Copyright work agreeing to the conditions. At least these elements must be in every literary and dramatic work made for hire agreement. On the contrary, in all cases, the copyright starts and stays with the author/writer.
D. Statutory Rights to receive a royalty to the author of dramatic work included in a cinematographic film
The statutory right to receive a royalty to the author of literary and musical work included in a cinematographic film was a path-breaking change brought by the 2012 amendment to the Act. Following proviso was inserted in Section 18 of the Act;
Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of the copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or a copyright society for collection and distribution and any agreement to contrary shall be void.
This Section empowered the authors to receive equal royalty for his/her creation. However, there is no reasonable justification for not including the author of the dramatic work in this Section! As per this Section, and author of the story, dialogue, lyrics, etc. has the statutory rights to receive a royalty. However, an author of a screenplay (being a dramatic work) has no statutory right to receive a royalty. There is no clarification of this differentiation.
Unfortunately, even having a legal provision in their favor, the authors of the story, dialogue, and other literary work (except lyrics of a song) have not got any benefit from this provision. Hence, this Section is required to be amended in the following manner to remove any ambiguity.
Provided also that the author of the literary, dramatic, or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of the copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void.
E. Remedy granted under Section 19 A cannot be contractually waived
It is a frequent practice in our film industry that producers make writers assign all the rights in their favor merely by executing an assignment agreement and just making the payment of a small token amount (signing amount). The producers link the payment of the remaining amount to the commencement of the principal photographic. In case the producer unreasonably delays the principal photography, the writer has no option but to wait without payment at the mercy of the producer.
Provisions like Section 19 (4) and 19A were inserted in the Act to tackle this issue. The legislative intention behind the same was that incase an assignee unreasonably fails to exercise the rights assigned within a reasonable time then the assignment should get revoked. However, in most of the cases, producers make the writers/creators sign an agreement contractually waiving the rights granted under Section 19 (4) and 19 A. Considering the difference in the bargaining power of a production house and individual writers, a writer has no option but to sign such a contract waiving the remedy granted herein. Hence, the rights and remedies conferred under this section become pointless. Therefore, we propose the following revision in Section 19 A to protect the vulnerable communities of writers and creators.
[19A. Disputes with respect to the assignment of copyright. — (1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the [Appellate Board] may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment. Any agreement/contract signed contrary to this provision will be null and void.
F. Amendment to Section 57 of the Act regarding relinquishment
Section 57 guarantees the moral rights to the author and includes rights to paternity and the right to dignity. It is independent of economic rights. Moral rights guarantee two basic rights that every author is entitled to due credit and dignity. However, most of the authors are denied these rights through one-sided contracts by the producers. We are presenting below the sample clause in most of the writer-producer agreement waiving the moral right;
“The Writer irrevocably and unconditionally waives in perpetuity, in favor of the Producer, financiers and distributors of the Film, all moral rights that the Writer may have in and to the Bible, the Work or the Writer’s Services under this Agreement and the Film, and the benefits of any provision of law known as "Droit moral" or any similar law in any country of the world.”
Such a contract is highly detrimental to the interest of the creators/authors/writers. Hence, the writer/author should receive statutory protection against the waiver of moral rights. If an author wants to renounce the moral rights, he/she can do the same in the manner prescribed under Section 21 of the Act. Hence, we propose the following changes in Section 57 of the Act.
57. Author’s special rights. — Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right—
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work [***] if such distortion, mutilation, modification or other act would be prejudicial to his honor or reputation:
Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which clause (aa) of sub-section (1) of section 52 applies. Provided further, the author cannot waive/relinquish the rights granted under this Section except the manner as prescribed under Section 21 of the Act.
I shall be happy to receive more comments. Please do let me know your views. Looking forward.