Legal training for filmmakers & creators

Mooting Equitable Remuneration to prevent the Contractual exploitation of Authors!

Mooting Equitable Remuneration to prevent the Contractual exploitation of Authors!

Contractual exploitation of authors/screenwriters/lyricists is an open secret in our country. We rarely come across an agreement between a writer and a production house with fair terms and conditions. The Copyright Amendment Act, 2012 had brought few protective measures for writers/creators. However, all those protections remained mostly on paper. In practice, production houses use an agreement as a tool to compel the writers to waive the rights granted under the Copyright Act. I am reproducing below a sample clause that we can find in several Writer-Producer Agreement.

The Writer, on behalf of Writer and on behalf of Writer’s successors or assigns, hereby unconditionally and irrevocably waive any and all rights in favor of the Producer, including but not limited to rights accrued under Section 19(4) of the Copyright Act,1957 any authors’ special rights, performer’s rights, “Droit moral” or “moral rights of authors” or “artist’s rights”, or other similar rights that it may have under Section 57 of the Copyright Act, 1957, or any performer’s right under Section 38, 38A, 38B or 39A, or otherwise, in relation to the Film and the underlying works thereto, in perpetuity, and the enforcement thereof, and all claims and causes of action of any kind with respect to any of the foregoing.

The strategy of the production house is simple. Firstly, production houses draft all the clauses one-sided in solely in their favor. The example of such clauses includes the assignment of all rights in unconditionally their favor. The production houses generally give a small signing amount to the authors at the time of the executing of the Agreement. They withhold a large portion of the consideration to be paid after the shooting. What if the shooting does not happen within the prescribed time? Another example of the unfair clause is the unilateral termination of the contract by the producer. They retain the right to terminate the clause anytime without assigning any reason. However, it is pertinent to note that generally, there remains no exit clause for the writers in such agreements. The consequence of termination also remains in the favor of the production houses. Secondly, they make the writer unconditionally and irrevocably waive all the rights granted to them under the Copyright Act. Therefore, in my previous article, I have proposed that in the upcoming amendment, the Government should ensure that there cannot be a contractual waiver of the rights granted under the Copyright law. This shall reduce the contractual exploitation of the author to some extent.

Further, the writers, especially newcomers, receive an acutely smaller amount of consideration when we compare the same to the considerations paid to film stars and directors. Generally, screenwriters/authors are not in a position to bargain efficiently due to the difference in the bargaining power of an author and a production house. Consequently, they have to settle with a minuscule amount and enter into the contracts with unfair terms (as elaborated above). The Screenwriters Association (SWA) has proposed a Minimum Remuneration Slab for its members. However, production houses are not bound to follow the same. Hence, authors are not able to collectively bargain against the big production houses, OTT platforms, label owners even after the much-acclaimed amendment of 2012. The authors in India need more legislative protection. There is the requirement of welfare provisions in our Copyright law to reduce the contractual exploitation of the Author. Introducing a Statutory Right to Equitable Remuneration to the authors can be a way forward in this direction. We can get inspiration from the Act on Copyright and Related Rights of Austria (Act).

Section 32 of the Act states that parties can contractually agree to remuneration in the absence of the same, and an author shall receive Equitable Remuneration. Further, the author shall have the right to amend/modify the agreement if the contractually agreed remuneration is less than the Equitable Remuneration. The Act provides for a fair procedure of collective Bargain to arrive at the Equitable Remuneration (under Section 32 read with Section 36). As per Section 36 of the Act, the author’s association shall negotiate with the user of the work (generally the Producer or their association) to reach a joint remuneration agreement. Parties shall decide the remuneration by considering various factors like the nature and extent of the rights granted, in particular the duration, frequency, extent, and time of use, and considering all such circumstances. An Association that has a maximum number of authors as members is entitled to negotiate the joint remuneration agreement. Any dispute related to the Equitable Remuneration is addressed by the Arbitration Board specially constituted for this purpose under Section 36a of the Act. Germany also has similar provisions of Equitable Remuneration.

We should include similar provisions of Equitable Remuneration in our Copyright Act, 1957. It shall strengthen the collective bargaining of the author. Consequently, it shall decrease the vulnerability and contractual exploitation of the authors. I agree that we should respect the freedom to contract. However, we also not forget that India is a welfare state. As a welfare state, it can interfere with the freedom to contract to protect the party will lower bargaining power and vulnerability. Minimum Wages Act is an example of such interference. Further, we have the precedents of such legal provisions in the European Countries like Austria and Germany. The upcoming amendment is a golden opportunity to introduce such welfare provision to fill this gap and protect the rights of the creators and authors!

I appeal to the readers to share this article. You should strike the right debate and strengthen your voice! I welcome your comments and suggestions.

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