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IPRMENTLAW is pleased to announce that it has been selected as one of the top 20 Entertainment Law Blogs on the web by Feedspot. As per the list IPRMENTLAW is ranked #11 on the world web and seems to be the leading entertainment law blog in India.

Feedspot selects the best entertainment law blogs from thousands of entertainment law blogs in their index using search and social metrics. They carefully select the websites which are actively working to educate, inspire, and empower their readers with frequent updates and high-quality information.

Feedspot helps you keep track of all your favorite blogs, news sites, youtube channels and rss feeds in one place. It makes checking your favorite sites as easy as checking your emails.

These blogs are ranked based on following criteria

  • Google reputation and Google search ranking
  • Influence and popularity on Facebook, twitter and other social media sites
  • Quality and consistency of posts.
  • Feedspot’s editorial team and expert review

I had started IPRMENTLAW a little over four months ago as a knowledge sharing initiative to spread knowledge in the less traversed field of media and entertainment laws. People generally see only the glamour quotient this industry has without knowing the intricacies and complexities of the law involved. An acknowledgement by a recognized platform like Feedspot is thus a huge testimonial for IPRMENTLAW. I would like to thank Anuj Agarwal, founder of Feedspot to acknowledge the work done by platforms like us and encourage us to do better for our readers.

The top 20 entertainment law bloggers selected by Feedspot for the year 2018 are as under:

#1 Biederman Blog – The Latest in Entertainment and Media Law– LA, CA, USA

#2. Fordham Intellectual Property, Media & Entertainment Law Journal– New York, NYA

#3. Harvard Journal of Sports and Entertainment Law– Cambridge, MA

#4. JIPEL Blog, New York

#5. Romano Law PLLC | Business Law & Entertainment Lawyers NYC, New York

#6. Entertainment Law Offices of Gordon P. Firemark, USA

#7. The Entertainment, Arts and Sports Law Blog, New York

#8. Rodriques Law | Entertainment Law, Business Law, Media Law & Sports Law, New York

#9. Edwards PC, Creative Law, Canada

#10. Sports and Entertainment Law Insider, USA

#11. IPRMENTLAW | Where IP meets media & entertainment, India

#12. The Schroder Davis Law Firm, Richmond, VA

#13. Los Angeles Entertainment Law Blog, LA

#14. Shay M. Lawson, Atlanta, GA

#15. Brooklyn Entertainment & Sports Law Society, USA

#16. Sports and Entertainment Law Journal, Arizona

#17. India Entertainment Law Blog, India

#18. Pfeiffer Law | Entertainment Law Firm | Santa Monica, Los Angeles & Hollywood Attorney, Santa Monica, CA

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IPRMENTLAW by Anushree Rauta - 6d ago

I was reading Mr. Javed Akhtar’s interview which was published in Times of India today and there was one striking line which he said which made me wonder what on earth is going on?

When asked about the plans to go beyond synchronization royalty, Mr. Akhtar responded “The `13-crore distribution due to lyricists and composers was a warm and friendly gesture by the music companies.”

If you are getting what is due to you after having fought for it for so many years then it is a victory of your fight, your struggle.. not a result of a warm and friendly gesture. Then why such flattery?

IPRS has undoubtedly made it clear that the INR 13 crore royalties received was an amicably negotiated settlement amount in respect of Television synchronization royalties towards past licensing of Literary (lyrics) and Musical Works of the seven owner music publishers (viz. Saregama India, Sony Music, Tips, Universal Music, Times Music, Venus & Aditya Music) to the Television Broadcasters basis the amicable understanding reached with the authors/composers which was supported by FWA & MCAI.  [Please refer to the clarifications given by Mr. Aashish Rego, director-IPRS in my post here].

In the clarifications provided, Mr. Rego had stated “After 12 odd years of disputes which only helped potential licensees, the members of IPRS are in consensus that amicably closing past claims in IPRS and focusing on the future is critical to having a vibrant and successful society.”

But the question is, in law can bygones truly be bygones especially when the essential ingredients of committal of a crime were clearly visible? A royalty scam of crores of rupees, a fight for over a decade and then a compromise.

For those of you who have been closely following the events that have transpired in the history of IPRS, may be wanting to get answers to these questions as well. I hope someone comes forward to answer these:

1) In my post here and here, I had raised concerns on transparency issues of IPRS with respect to no disclosure being made of compliance of conditions being imposed by the Government vide letter dated November 28, 2017 [No. F. No. 07-01/2017-CO] which is mentioned in item (iii) of the IPRS registration certificate. The certificate mentions the following:

“The registration and the permission hereby granted are subject to the following conditions and liable to be cancelled on non-compliance with or contravention of, any of them, namely-

 …iii. That the Copyright Society takes appropriate remedial action with regards to the observations as detailed in letter no. F. No. 07-01/2017- CO. dated 28.11.2017 in the time bound manner and submit a report within 60 days.”

There has been radio silence by IPRS on what this letter mentions and whether a report has been submitted within the stipulated period.

  • Why has no disclosure been made on the contents of this Letter?
  • Was the report submitted by IPRS within the stipulated period?
  • If the report was not submitted by January 27, 2018, then was an extension granted by the Copyright Office?
  • Will there be another registration certificate granted in furtherance of the compliance?
  • Is IPRS even entitled to ask for royalties till it satisfies the conditions imposed in that letter?

2) What happened to the inquiry report submitted by Dr. Y.P.C Dangay, Inquiry Officer, Commission of inquiry into IPRS?

There seems to be no information available online on what were the findings of the Inquiry Officer Dr. Y.P.C Dangey.

The Central Government (MHRD) had by notification dated August 17, 2015 read with Corrigendum dated October 27, 2015, in exercise of its powers under Section 33(4) r/w Rule 50 of Copyright Rules, 2013 appointed Dr. Y.P.C. Dangay as the Inquiry Officer to inquire into the alleged irregularities in the administration of IPRS . The Corrigendum also asked the Inquiry Officer to suggest whether an administrator should be appointed during the inquiry?

I have been given to understand from reliable sources that the Dangay report cannot be made available through an RTI application since action based on the report is not yet complete.

Wait, what? So, if action based on the report is not yet complete how did this re-registration of IPRS take place?

Does it mean that Dr. Dangay had made observations against IPRS in his report? Did he suggest the Government to appoint an administrator?

As an obvious statutory process, the erstwhile management and board of directors and other officials of IPRS would have been investigated by the Inquiry Officer. If an action is actually pending basis that Report then how is it that some of the members and officials of the erstwhile management still hold key positions in IPRS? Wasn’t the intent that history should not repeat itself? How important was the role of the erstwhile management behind all that happened or was the management only acting at the behest of the erstwhile board of directors?

More importantly, is it possible that the IPRS elections for the post of directors which took place in March 2017 and by which Mr. Akhtar was appointed as a Chairman had anything to do to ensure that cooperation was received by the Inquiry Commission in getting all the past records?

More intriguing is the fact that were all authors actually fine with the fact that complaints were being withdrawn with respect to the past claims? We are taking about crores of rupees of royalties here. No one just gives up on that kind of amount after fighting years for it. There is a missing story here.

Shubha Mudgal, Javed Akhtar, Lalit Pandit, Milind Shrivastava- What made them withdraw their complaints before the ED? I believe the quashing petitions are still pending in a Delhi Court.

3) What happened to Select Media Private Limited?

One of the key reasons behind bringing the Copyright Amendment into place was the non-payment of ringtone royalties. The entire deal between IPRS and PPL and PPL and Select Media wherein IPRS did not receive any ringtone royalties. Is that issue done and dusted or is there a probe going on with regards to the same?

If I remember correctly, one of the issues with respect to television synchronization rights was that the rights were given by IPRS to Select Media via PPL in violation of the Copyright Act as the terms of registration of IPRS as a copyright society required it to administer its own works.

Even if one were to accept the fact that a settlement has been arrived at between IPRS and those labels with respect to the sync royalties, the questions of law still remains unanswered.

4) Since a lot of irregularities had taken place in IPRS due to the fact that its members had assigned the copyright in their works to IPRS vide assignment deeds, should IPRS be even demanding that its members assign their copyright to IPRS?

Well this question might require a lot of deliberation and I shall leave it for another post.

5) Another issue worth considering would be , since IPRS is now a registered copyright society, should IPRS not be considered to be a ‘public authority’ under the RTI Act?. The definition of ‘public authority’ seems to be restrictive under the Act, but it might certainly be an issue worth pondering on.

I am not sure if someone will come forward and provide answers to these questions. Truth in any case cannot be suppressed for long. It will eventually have to come out, sooner or later. I just hope the money which should be paid towards royalties to the authors, the money which is rightfully theirs, is not once again spent in legal battles and all that jazz due to the same mistakes being committed.

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I am pleased to bring to you our next guest interview with Mr. Kulmeet Makkar, Chief Executive Officer- The Film and Television Producers Guild of India.

Mr. Kulmeet Makkar has been part of the entertainment industry for around three decades and has handled senior management positions in Saregama & Reliance Big Entertainment before taking over the new venture Shreya Entertainment as President & CEO.

1. Kulmeetji, could you tell us a bit about yourself and your journey as a film producer and as a CEO of the Film and Television Producers Guild of India?

I have been an entertainment industry professional for close to 30 years now, having served senior roles in Saregama India Limited (More popularly known as HMV in India) including Overseas-based out of UK, Reliance Entertainment in India and Shreya Entertainment as its president & CEO, where I was involved in film and television production and digital entertainment. I was appointed as the CEO of the Film and Television Producers Guild of India in December 2010.

In my current role as the CEO of the Guild, I am responsible for a series of initiatives involving film, television and new media production sector in India on the industry development, policy matters, taxation, copyright, government related issues, locations and incentives, cinema tourism, foreign treaties, liaising with foreign delegations to provide international exposure for its members and arranging conclaves for the benefit of members of the industry.

2. OTT– The past few years have seen the emergence of OTT Platforms which has completely changed the landscape of the Indian film and television industry. What would you like to say about the OTT boom in India and this changing landscape?

OTT provides vast opportunities to all kinds of content creators including large production houses, independent professionals as well as upcoming content creators. In India, with the huge talent pool and having a limited access to traditional platforms, one hopes to see many more talented writers, technicians and actors making a huge impact. At the same time, the audience can expect exciting content across genres which often get restricted on traditional platforms.

There is no doubt that OTT services would continue to grow, the challenge however could be the cost vs revenue at the initial stage. Currently, the OTT platforms in India are focusing more on distributing existing content by making it easier for audiences to access across the globe and at the same time, the original content in the niche segment is made available.

In order to meet audience expectations, there is likely to be more pressure on the traditional platforms to provide content that appeals to audience and at the same time made available across platforms.

3. Censorship– The censorship issues have been daunting the film industry since times immemorial. No steps have been taken post Shyam Benegal Committee Report. With Mr. Prasoon Joshi becoming the CBFC chief, a lot was hoped to be achieved but the whole Padmaavat controversy was a setback for the entire industry. Could you talk to us about the challenges being faced by the producers and if the Government is taking any steps to address the same?

The fundamental issue has been the pending amendments in the Cinematograph Act of 1952 which have been long overdue. Though the Censor board was renamed as the Central Board of Film Certification years back however unless and until the Act, Rules or the Guidelines are not amended, the very purpose of certification gets defeated. There was a Justice Mudgal Committee formed by the previous Government which made its recommendations and subsequently the Shyam Benegal Committee formed by the NDA Government which effectively looked into the basic functioning and procedures to certify films. Padmaavat controversy has not been the only exception. There have been many such issues of the similar nature in the past and I suspect, these issues would continue to impact the industry. This is mainly due to the subjective approach of the CBFC in the absence of modified certification rules and guidelines. We do hope that the recommendations made by both the committees are considered to amend the Act and Rules to make the certification process more transparent and contemporary. We as an industry body shall continue to have a dialogue with the ministry to come up with the amendments at the earliest possible.

4. GST– The M&E industry seems to be the neglected sector in every Finance Budget. How is the film industry coping with GST? Are there any issues on the taxation front which the industry is demanding from the Government?

The basic principle of GST in the country was to abolish multiple taxes at different levels having cascading effect and have a uniform tax structure. For years, the film industry was assured that with the introduction of GST, the archaic state entertainment tax laws will be done away with and taxes shall be rationalised. It is unfortunate that the film industry has been treated differently in the GST regime as well. Post the introduction of GST, multiple taxes as well different rates in the value chain continue to impact the film industry. Though in the GST regime, the state entertainment tax has been subsumed however the entertainment tax imposed by the local bodies has been kept out of GST. It is disheartening to see that many states passed a bill whereby the power to impose entertainment tax has been passed on to the local bodies. In addition, there are many other GST policy issues impacting the industry such as inverted duty structure which is caused due to different tax rates at different levels of input and output services. GST rate of 18% is applicable for the services rendered for film productions whereas rate of 12% is applicable while the copyrights are transferred and further a rate of 28% is applicable on cinema tickets above Rs.100/-. Ideally, there should be a single rate of tax at every level and the GST rate of 28% on cinema tickets above Rs.100/- should be brought down. It is unfortunate that the Film sector is not given the status of an industry where the indirect tax policies will be accorded in line with other service industries.

5. Title registration– Film and Television title registrations are still handled by the film trade associations, Guild being one of them. We are seeing a rising number of disputes on film title registrations in the recent past. What is the reason behind this and how can this be addressed?

Historically, the titles have been registered by the various film trade associations. This has been the prevailing practice for a very long time even though this may not be the ideal process in the absence of a common online portal and uniform bylaws.  It is often reported that the film trade associations tend to favour their members. As we believe that the title registration cannot be a commercial activity for any association, hence this service should be provided to the producers free of cost and also importantly through a single body responsible to manage this activity through online mechanism, with 100% transparency. Some of the concerns often noticed are that the producers as members are holding on to a title/titles indefinitely without any usage and at the same time there is no cap on number of titles each production house can register in line with their production slate. Legally speaking, most of the disputes related to titles have made judiciary to raise questions about the authority of trade associations in this matter.

6. Tourism-A lot was said at the FICCI Frames 2018 about the film industry boosting the tourism economy of the country. Have any steps being taken to ensure single window licensing or have one umbrella license? What are the challenges still being faced by the film-makers?

Cinema tourism is a growing phenomenon worldwide, motivated by both the growth of the film industry and the increase in international travel. Various studies and statistics have proved the positive effects cinema has on the travel decisions made by potential tourists for their holidays or visit to a destination. It is seen that audiences are motivated by the beauty of locations showcased in films.

It is a known fact that films reach wider audiences with a reasonable investment by any country as targeted tourism advertisements and promotion. Film and tourism industries do share a strong relationship with an objective to achieve major revenue growth for both the industries. Cinema tourism therefore could be a game changer in the dynamics of both film & tourism industries. it could also open avenues for hospitality, food and catering sectors besides generating employment opportunities for the underemployed and unemployed.

Most of the countries compete with each other to attract film productions by offering incentives, cost effective quality services and hassle-free processes. We as Producers Guild work very closely with many of the countries and Indian states. There are still large number of Indian states who have unfortunately not understood the potential of Cinema tourism. For the last many years, we are constantly working with Indian states and providing our inputs to create a film policy to ensure simplified processes through single window framework and necessary support to film and television productions.

7. Copyright- One of the most controversial topics for the entire industry is the royalty payments to the authors and performers. We are now close to 6 years being completed since the Copyright Amendment Act, 2012 came into effect. I would like to know your views from a producer’s perspective on this whole royalty conundrum.

The Copyright Amendment Act 2012 is a reality. I believe there are many concerns and objections raised at the various levels, some of which still awaits clarity. As far as royalties are concerned, we are of the opinion that the rightful royalties on the underlying works must be collected from the users and paid to all the stakeholders including authors, performers and publishers as governed by law and the Copyright Board without impacting issues of ownership.

8. IPR enforcement- Piracy still continues to haunt the film industry. What steps are being taken at the government level to curb piracy?

We are arguing for the National IPR policy to make provision for copyright sector in the “M&E” sector with equal significance in line with the IP assets created out of any other sector. The protection of the copyrights in the “M&E” sector is the key to this industry. It is therefore important that the Policy, in its implementation should have adequate systems with regard to the copyright administration and protection. Having said that, our priority therefore is to address the following 3 challenges: Firstly, there are amendments required in the IT Act, Cinematograph Act as well Copyright Act to make laws more stringent. Secondly, the enforcement at state levels by forming as well as strengthening Cyber cells is very critical. Telangana Government was extremely proactive to respond to the industry needs and formed Telangana Intellectual Property Crime Unit (TIPCU) on the lines of a successful enforcement mechanism in UK called PIPCU. Maharashtra Govt has also initiated a similar unit and we hope to see many other states to follow. The industry has been working closely with the Ministry of Industry and Commerce through DIPP as well as the Ministry of Information & Broadcasting to take this up with the states as we know, this is a state subject. Thirdly, we are working closely with DIPP on the IPR Awareness and education program. The Guild has partnered with DIPP to create Anti-Piracy campaign with the leading artistes and we are happy to share that the campaign was formally launched by the Hon’ble Minister of Industry and Commerce, Shri Suresh Prabhu on 11th March 2018 with acclaimed actress Vidya Balan appearing in the first of many such videos. [Links to the videos: here and here]

9. China & Pakistan– With the recent success of Bajrangi Bhaijan, PK and Dangal in China, is there any hope for increasing the entry of the number of Bollywood films in the Chinese market? Are there any talks to bring about a change in the four-film entry barrier?

The success story for Indian films in China is well known. Apart from film distribution opportunities, there are also co-production possibilities for both the industries which I believe does not fall in the quota system. Having said that, I see no reason why the entry barrier for Indian films in China cannot be changed specially with the love for Indian stories in China. It is win-win model as distributors and exhibitors in China make a killing on foreign films there.

What about Pakistan? While a huge chunk of Bollywood films get banned in Pakistan some have managed to get released there as well. Is there any hope for change in the Pakistani market?

Indian films played a major role in reviving the exhibition industry in Pakistan which has not only helped generate increased revenues for Indian films but even for the local film industry. It is unfortunate that the deteriorating situation resulted in impacting film trade which has not only harmed Indian films being legitimately screened in cinema halls but also the exhibition sector. It is important to note that this promotes piracy as the audience there would still aspire to watch Indian films through illegal modes. We have a similar situation in Bangladesh where Indian films are banned leading to closure of most of the cinema halls.

10. The South Indian film industry recently faced a shutdown over VPF. Is Bollywood facing similar issues? Could you explain this issue in further detail to us?

VPF is a grave issue for us and needs to be addressed on priority. The continuously increasing cost of distribution is significantly impacting revenues for the film producers. Technically speaking, the VPF model in India is flawed. One cannot keep paying VPF without a Sun Set clause. Hollywood has successfully followed the VPF model with a Sunset Cap which is also implemented in India whereas the VPF on Indian content as of date has no closure date which is unfair. Once the capital cost of projector and server is recovered by exhibitors/integrators by way of VPF as well as advertising revenues, the charges should therefore be capped to a small fee only for providing services.

11. Any parting thoughts for our readers?

The Film industry in India has been underperforming. Though we are the largest producers of films in the world whereas the revenues generated from theatrically exhibition are miniscule. India is one of the most under-screened markets in the world with less than 9000 screens in the country catering to almost 2000 films made almost in 30 languages. Most of the top grossing films in India are watched by less than 4% of the population. The limited expansion of multiplex cinemas is confined to fewer markets providing no access to the common man to experience films on a big screen. The growth story of the Film industry in China is an inspiring example. With almost 60,000 screens in China with a massive penetration in tier 3,4 & 5 markets has resulted in huge theatrical revenues. It’s heartening to see Dangal making a gross box office revenue of 200mn USD in China whereas its original Hindi version has generated less than 1/3rd of revenue in our country.

It’s time that the film industry in India is treated as a priority sector with the support it deserves by imparting industry status like any other growing industry by rationalising taxes, incentives to attract investments into infrastructure including cinema exhibition specially in smaller markets to facilitate growth of the industry to its fullest potential.

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I am pleased to bring to you our next guest post by Mr. Jagdish Sagar.

Mr. Jagdish Sagar is a practicing IPR attorney in the Delhi High Court since 2006; initially in Anand and Anand, first as Consultant, then as Partner. Since December 2011, Mr. Sagar has been practicing independently in intellectual property, writ jurisdiction, appellate criminal matters and general legal practice. Mr. Sagar was originally a senior civil servant (member of the Indian Administrative Service) from July 1966 to February 2004, acquiring varied legal and managerial experience including criminal and writ litigation, and extensive exposure to copyright law as Joint Secretary in the Government of India in the late 1980’s and early 1990’s. He was the sole copyright law representative from India at the TRIPS negotiations and was closely involved in the amendments that became the Copyright (Amendment) Act 1994. Mr. Sagar had earlier done a guest interview for us which can be viewed here.

One of the most widely debated topics on the Copyright Amendment Act, 2012 has been with respect to its application i.e. whether the Amendment applies prospectively only with respect to the works assigned post the Amendment Act coming into effect (such as works of films like Padmaavat, Bajrangi Bhaijaan, etc) or retroactively i.e. with respect to works assigned even prior to the Amendment but utilized post Amendment (such as works of films like Zanjeer, Sholay, Zindagi Na Milegi Dobara, etc). While the popular theory is that the Amendment has retroactive application owing to the legislative intent[1] behind bringing the Amendment, Mr. Sagar argues that the Amendment is strictly prospective, and no other interpretation is possible. In this post Mr. Sagar has objectively analysed the key legal provisions while deriving on the conclusion that the Amendment has prospective application i.e. it applies to works assigned only post June 21, 2012.

Copyright Amendment Act, 2012- prospective or retroactive application?

-Jagdish Sagar

A question that must have been put to every copyright lawyer at one time and another is whether the 2012 amendments to the Copyright Act apply prospectively, retroactively or retrospectively. The question is raised most often in connection with the royalty right created by insertion of the third and fourth provisos to section 18(1) of the Act, together sections 19(9) and 19(10), which is what I shall discuss.  (I have also heard the question raised in connection with Section 52, but we shall leave that for another time.)

The relevant provisions of sections 18 and 19 are extracted below:

Section 18 (1) Section 19
3rd Proviso: – “… 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 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…” 19 (9) No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
4th Proviso: –  “… the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work…” 19 (10) No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.

Before we go further, we need to consider how the above provisions of sections 18 and 19 work together; we are bound to reconcile them if at all possible. Except in regard to the quantification of royalty (“share on equal basis” and “equal share”) the provisions, though not well-drafted, can be reconciled. Section 18 governs “assignment of copyright” and section 19 governs the “mode of assignment”.  The principal provision of section 18(1) confers on a copyright owner the right to assign copyright in whole or in part. The third and fourth provisos have to be read as creating (obliquely, by necessary implication) a personal right to royalty de hors copyright which comes into existence after copyright in the work has been assigned; then, having created this right, these provisions put a fetter on the author’s right to assign it. (I shall say more on the relationship between copyright and this personal royalty right later.)

Section 19 is not concerned with the right to assign, which section 18 deals with, but with the methodology and scope, or sometimes the default scope, of an assignment—that is clear from the earlier sub-sections.  Hence sub-sections (9) and (10) are concerned with the scope of an assignment of copyright: they lay down that even a complete assignment of copyright does not affect the author’s personal royalty right created under the third and fourth provisos to section 18(1).  Sub-sections (9) and (10) of section 19 are, as it were, the flipside of the third and fourth provisos to section 18(1).  The former seem to have been inserted out of a misguided intention to make section 19 look more complete, balanced against the third and fourth provisos to section 18(1); but unlike the earlier sub-sections of section 19 they really add nothing to section 18 for our present purpose and may be ignored.  Henceforth, for convenience we shall refer only to section 18.

Now, returning to the question of prospective/retrospective/retroactive, we need first to get section 79 of the Act out of the way, since I have heard it cited too often in this debate.  This section, which has never been amended since 1957, provided for the consequences of repeal of the 1914 Act and enactment of the 1957 Act. It has nothing to do with later amendments which neither refer to it nor amend it. It is well settled that the legislature cannot bind itself and its successors: in 1957 the legislature could not have provided for the survival or extinction of rights that might possibly be created in future and/or be affected by unforeseeable future legislation.  After each amending Act, the amended principal Act must contain its own provisions on repeal and saving (by insertion of a new provision or by amendment of an earlier repeal and savings provision, as in the case of section 36A) failing which section 6 of the General Clauses Act applies.

Anyway, it would make no sense to try to apply the substantive provisions of section 79 to the 1983, 1984, 1992, 1994, 1999 and 2012 amendments; the repeal and savings enacted in 1957 were too obviously situation-specific.  Sub-section (1) repeals only the copyright legislation earlier in force (before the original 1957 Act) and the rest of section 79 deals with the consequences thereof retrospectively, i.e. it makes special provision for the legal consequences of past events but operates prospectively.  Since the 1957 Act extended copyright to certain acts in which copyright did not subsist under the repealed 1914 Act, sub-section (2) created, in effect, a compulsory licence to partly save the interests of persons who had incurred expenditure or liabilities on subject-matter in which copyright had not subsisted earlier. Sub-section (3) prevented new rights from being exercised in pre-existing works; sub-section (4) extended existing ownership of copyright in a work to the new rights; sub-section (5) protected the term of copyright in pre-existing works.  (Incidentally there is a background to sub-section (5): the Copyright Bill, 1956 had sought to reduce the term of copyright from 50 to 25 years. Better sense prevailed by the time the legislation was enacted, but this sub-section stayed as proposed in the Bill.)  Sub-sections (6) and (7) are actually redundant, merely applying the general law as laid down in section 6 of the General Clauses Act.

It is trite that an amendment is prospective unless, either in terms or by necessary implication, the amending legislation makes it retroactive or retrospective; or unless the amendment is clarificatory.  I have never heard it argued that the third and fourth provisos to section 18(1) are clarificatory. Again, it is hard to see how they could be retrospective. What is argued by some is that they are retroactive, i.e. that assignments of copyright for literary or musical works included in sound recordings or films made before 21.12.2012 are to be treated as if the new royalty rights applied to them.

It looks very obvious to me that this new right to royalty, which is not in derogation of the exclusive rights of the copyright owner under section 14, is strictly prospective and no other interpretation is possible.  Arguments to the contrary, so far as I have heard them, are based either on legislative intent or section 79.  I have dealt with the latter; so far as legislative intent is concerned, we have only the word of a few proponents of this view. If the meaning of a section is uncertain (though it isn’t in this case) we must first look for assistance by interpreting the statute as a whole. We may also if necessary go to the Statement of Objects and Reasons and Notes on Clauses, which are part of the Bill.   Debates in the legislature may be referred to as a last resort; but it is dicey to try to infer the intention of Parliament from one or more speeches of individual MPs, including the Minister. All this is trite, and anyway none of these external aids to interpretation is necessary in the present case; there is no occasion to go beyond the words of the statute.

Repeal and amendments affecting existing vested rights stand on the same footing. The general rule on the consequences of repeal is laid down in section 6 of the General Clauses Act.  Section 6(c) and (e) save vested rights:

“6.       Effect of repeal. – Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not–

*****

(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

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(e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;”

There is a catena of Supreme Court decisions underlining the continuity of vested rights absent any provision to the contrary in the repealing/amending legislation.

  • “… The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them … “State of Punjab v Mohar Singh [1955]1 SCR 893.
  • “’…vested right” is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provides … “S. Yadav v State of U.P. and Anr (2011) 6 SCC 570
  • “Learned counsel has argued that … the amending Act being a beneficial legislation, retrospectivity is implied in it … but there is no such rule of construction that a beneficial legislation is always retrospective in operation…” Shyam Sunder & Anr. v Ram Kumar and Anr AIR 2001 SC2 472.
  • Other decisions which could be cited include L. Srinivasa Jute Twine Mills P. Ltd v Union of India (UOI) and Anr. (2006) 2 SCC; Bansidhar and Ors. v State of Rajasthan and Ors. AIR 1989 SC 1614; and several more.

(Here, since I have heard it mentioned, I shall parenthetically refer to section 36A as amended in 2012.) This special provision, which earlier applied to the 1994 amendments, has been made with reference to Chapter VII, which relates not to the subsistence of rights in works, but to the management of copyright societies.  The provision takes as a given that rights in back repertoire are unchanged and it merely clarifies the consequences for the administration of copyright societies.

Now what do the third and fourth provisos to section 18(1) do?  They do not affect or derogate from copyright as defined in section 14; in fact, they come into play only after the author has assigned such copyright. The assignee enjoys the exclusive rights enumerated in section 14 by virtue of the assignment; none of these rights is tied to any specified royalty or particular form of compensation. What these new provisos confer on the author is an additional, personal and virtually inalienable royalty right limited to certain forms of exploitation (i.e. exploitation of a musical or literary work included in a film or sound recording, only if copyright in the work has been assigned; and this special additional royalty excludes theatrical exhibition.)

It is pertinent to note that the author’s exercise of this new personal royalty right has necessarily to be tagged to a particular assignment: it cannot be enjoyed de hors the particular assignment of a particular work. Clearly, absent provision to the contrary, this completely new right granted by the statute in regard to assignments, cannot qualify the vested rights of assignees obtained by earlier assignment agreements.  It actually baffles me how anyone could say that it did.

In sum, then, it seems very clear to me that neither the third or fourth provisos to section 18 nor sub-sections (9) and (10) of section 19 of the Copyright Act can be applied retroactively. Assignments made before 21.12.2012 when the last amending Act came into force are unaffected.  In fact, I would go further: assignments of future works that were executed before 21.12.2012 gave the assignee a vested right in the copyright of the work whenever the work came into existence.  The right created by the assignment of rights in a future work, under section 18(1) read with the first proviso thereto is no less an enforceable and vested right than the right created by the assignment of an existed work.   All this is just as well, if we consider the horrifying, unmanageable consequences of giving all author/assignors who have been conferred with the new personal royalty rights a right to claim vaguely defined royalties going backwards in time: who would benefit in the end but lawyers?

[Disclaimer: The views contained in this post are solely the views of the author and do not necessarily reflect the views of this platform.]

[1] Reference may be made to the Parliamentary debates where Mr. Javed Akhtar has advocated retroactive application of the 2012 Amendment.

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The distribution of royalties to the tune of INR 13 crores by IPRS to its author members recently made headlines. It also gave rise to a lot of questions and speculations on why would PPL make royalty payments to IPRS. I was personally surprised since I was under the impression that the PPL assets have been frozen by the Enforcement Directorate.

To put the speculations to rest, I reached out to Mr. Aashish Rego, Director- Indian Performing Rights Society (IPRS) to provide clarifications on a few questions I had and which I am sure a lot of other folks in the fraternity would be having as well.

I am pleased that Mr. Rego has been upfront in all his responses which indicate that IPRS intends to be transparent in conducting its business. In one of my recent posts on the IPRS non-compliance issues, Mr. Rakesh Nikam (CEO-IPRS) had written a heartfelt comment taking the criticism constructively and iterated that if IPRS is to be successful it must not only be transparent but also positive and receptive to well-meaning criticism.

As mentioned by me time and again, the success of implementation of the Copyright Amendment Act, 2012 largely lies on the shoulders of the copyright societies. Given the stiff resistance from several sectors in participating in royalty payments, the copyright societies obviously need to gear up for years of litigation ahead and hence need to be wary of transparency and other issues which could be a litigation nightmare.

Below is the conversation with Mr. Aashish Rego:

1)    As per my information, the amount of INR 13 crores which has been paid by PPL is more of a settlement towards amounts (INR 26 CR) collected by PPL on behalf of those seven music labels towards underlying works and not paid to authors. Is that factually correct?

 Answer: Yes, the value of Rs 13 crores is an amicably negotiated settlement amount in respect of TV Synch Royalties towards past licensing of Literary (lyrics) and Musical Works of the 7 Owner Music Publishers (viz. Saregama India, Sony Music, Tips, Universal Music, Times Music, Venus & Aditya Music) to the Television Broadcasters basis the amicable understanding reached with the authors/composers which was supported by FWA & MCAI. As IPRS has already informed, PPL has acted as a facilitator and paid on behalf of the said Owner Publishers/ Music Companies from their individual share of royalties held by PPL in respect of general collections by PPL.

To clarify further, this does not cover unpaid/outstanding “Performance”/ “Mechanical” royalties (these terms are defined in the IPRS AoA and New IPRS Assignment Agreements) which IPRS will be licensing as applicable & collecting 100% royalties in respect of the Performing / Mechanical Rights from the users/platforms (as it is authorised to do so).

After 12 odd years of disputes which only helped potential licensees, the members of IPRS are in consensus that amicably closing past claims in IPRS and focussing on the future is critical to having a vibrant and successful society.

2)    If yes, then has this step been taken in light of the ED investigation? 

Answer: I can confirm that the ED investigation has nothing to do with this settlement. You may want to note that the Hon’ble Bombay High Court has stayed the ED investigation arising from the Agra FIR (which has also been quashed by the Hon’ble Allahabad HC). Additionally, the Hon’ble Appellate Tribunal dealing with the provisional attachment, by the ED, of IPRS investments has also already held that these investments cannot be categorised as “proceeds of crime”. The simple truth is that the Owners/ Music Publishers further to their amicable resolution with authors and composers agreed to the distribution of this sum to the author/composers, in the interest of amicable resolution and so as to allow for IPRS to actually proceed with its central function i.e., to henceforth administer effectively and transparently, the rights of its members.

3)    If not, then what is the rationale behind PPL paying royalties to IPRS?  How can owners of content (the music labels) be required to pay royalties when the responsibility is on the users/ platform providers? The six music labels mentioned are in fact assignees of works and entitled to 50% share of royalties. If PPL has collected 100% sync royalties without being authorized by the authors, then they are not legally entitled to do so. 

 Answer: Answered in 1 above.

4)    How was this figure of 13Cr derived? Why was the amount not distributed as per the Distribution Scheme of IPRS?

AnswerFurther to our answer to question (1) above, the IPRS distribution policy states “…………Royalties pertaining to earlier years pending distribution due to non-availability of logs or incomplete logs will be distributed on the basis of the fair basis of distribution fixed by the Executive Committee….”. In this case, when a negotiated sum is concerned and where logs are reasonably not available, the Directors of IPRS approved the basis of distribution of the same. This was also raised in the recently concluded EGM on 11-4-2018 and the IPRS members consented to the distribution of the said royalty as Rs 10,000/- to members who have less than 10 works registered with the society and the balance royalty to be distributed equally amongst the remaining authors / composers and the said distribution amounting to approx. Rs 53,000/- per author / composer member.

5)    Mr. Akhtar mentioned in the media reports that these royalties are only towards synchronization royalties and not mechanical royalties. So, has a precedent now been set that sync royalties needs to be paid by the labels and not by the licensees/ platform owners? If so be the case then would this be followed by other platforms which have now sought licenses from IPRS (For instance- Amazon may need sync rights for any of its shows)?

Answer: Not at all. Mr. Akhtar had explained that as per the Articles of Association of IPRS, it was not granted the Synchronization rights royalties and the same would be licensed by the owners whereas IPRS will collect the authors / composers share of royalty. IPRS has also in any case proceeded to claim/collect, as it is authorised to do so, unpaid/outstanding mechanical royalties as well as ‘performance’ royalties from all platforms. Platform continue to be liable to clear rights through IPRS in any case going forward.

6)    Also, why has PPL paid this amount only towards sync royalties? Is there no issue with respect to mechanical and publishing royalties? When would those be paid?

Answer: As informed in answer (1), PPL has paid on behalf of the 7 Owner Publisher members who had licensed the rights themselves. As advised above, however IPRS will be licensing as applicable & collecting 100% royalties in respect of the Performing / Mechanical Rights from the users/platforms and is already engaged in this activity with the relevant platforms – discussions have also already been initiated.

IPRS will as announced distribute royalties every quarter as required under the Copyright Act,1957 and Copyright Rules, 2013.

7) Additional question: As per my information, ED had frozen the PPL accounts. If that is the case, then it is not possible that PPL could have made these royalty payments to IPRS. So, have these royalties been paid directly by the labels or is there some other update which we are not aware of?

Answer: Also, in response to your additional question which you sent later I think that that’s a question that ideally should be directed at PPL and not myself.

[P.S.If any of the readers have any additional information or comments, please do provide the same on this post or write to me separately at anushreerauta@iprmentlaw.com]

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I am pleased to bring to you our next guest interview with Mr. Raghavender G.R.

Mr. Raghavender is a civil servant from Central Secretariat Service (CSS) 1988 and currently posted as Joint Secretary, Department of Justice, Ministry of Law & Justice, Government of India, New Delhi. Previously, he was the Joint Secretary in Department of Industrial Policy and Promotion, Ministry of Commerce & Industry, Government of India, from August 2015 to January 2017. He has also held additional charge of Director General, National Productivity Council (NPC) from November 2015 to May 2016.

Mr. Raghavender is very passionate about Intellectual Property Rights, especially Copyright and Related Rights. He worked as Registrar of Copyrights of the Indian Copyright Office from 2007 to 2014 and played a key role in the introduction of amendments to the Copyright Act in 2012 and introduction of the Copyright Rules, 2013.

1.Sir, could you tell us a bit about yourself and your journey from being the Registrar of Copyright to the Joint Secretary, Department of Justice, Ministry of Law & Justice?

I worked as Registrar of Copyrights of the Indian Copyright Office for about 6 and 1/2 years and played a key role in the introduction of amendments to the Copyright Act in 2012 and introduction of the Copyright Rules, 2013. I also initiated online registration for copyright along with payment gateway and digitisation of documents in the Copyright Office in 2014. Further, I took the initiative to adopt a special logo and got ISO-9001 certification for this office.

I attended many WIPO SCCR meetings, Regional Comprehensive Economic Partnership (RCEP) Free Trade Agreement (FTA) negotiations and other FTA negotiations with EU, EFTA and Japan as a member of the Indian delegation. I made significant contributions to recently concluded two WIPO Treaties namely, the Beijing Treaty on Audiovisual Performances, 2012 and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013. As a WIPO resource person and expert in the copyright law I have contributed to the revision of the copyright legislations of Nepal, Bhutan and Myanmar. As a WIPO resource person, I also give lectures/talks on Copyrights and Related Rights in various International and National seminars and workshops organised by WIPO, Geneva and also in several Universities and Institutes all over India.

I was Joint Secretary in Department of Industrial Policy and Promotion, Ministry of Commerce & Industry, Government of India, New Delhi from August 2015 to January 2017. I also held additional charge of Director General, National Productivity Council (NPC) from November 2015 to May 2016. At present, I am posted as Joint Secretary in Department of Justice, Ministry of Law & Justice where I am a Mission Director for National Mission for Justice Delivery and legal reforms. I am also dealing with implementation of eCourts Project and Enforcing Contracts parameter under the Ease of Doing Business Ranking of the World Bank.

2. Since you were the Registrar of Copyright at the Indian Copyright Office from 2007-2014 and have first-hand knowledge of the entire controversy which led to the Copyright Amendment Act, 2012, could you share with us your experience in bringing about some of the key amendments to the Copyright Act?

Some authors and music composers had complained to the Copyright Office that the owner members created trouble in the distribution of royalties collected by IPRS by making a condition that author and composers had to give an undertaking stating that they do not own any rights in the songs for which they were receiving royalties. In 1993 there was an agreement between authors and music composers of IPRS and recording companies to share performing right royalties on 50:50 basis following the internal business model. This is very surprising at one hand the music companies by virtue of ownership of rights changed the membership of the IPRS for only owner members and on the other hand, they were seeking a written commitment from authors and composers that they do not have rights in those musical works.  Therefore, in the Copyright (Amendment) Act, 2012 an amendment was included to overcome the difficulty created due to the interpretation of application of clause (b) & (c) of Section 17 to the musical works included in the film by the Supreme Court in Indian Performing Rights Society v. Eastern India Motion Picture Association (AIR 1977 SC 1443). The amendment to section 17 gave clarity about the independent rights to authors of literary and musical works in cinematograph films, which were hitherto denied and were wrongfully exploited by the producer and music companies. The amendments introducing new clauses to section 18 and section 19 were introduced to ensure that the authors retain their right to receive royalties and the benefit enjoyed through the copyright societies. In order to remove the malady of domination of owner members in the IPRS, Section 33 of the Act was also amended so that “authors of works” will have equal rights in the collecting societies.

3. Currently there is no clear provision in the Copyright Act or the Rules which provides for the right of the authors to get royalties and as to who is supposed to pay royalties. If one of the key intent behind the Amendment was to provide for royalty rights of authors, why was a separate provision on royalty rights not added in the Act rather than have a confusing language introduced in Section 17, 18, 19 and 33 of the Copyright Act?

Amendments to the section 33 and the various Rules 44 to 67 of the Copyright Rules ensure the right of the authors to get royalties. The provisions under Rule 58 provide various safeguards on distribution of royalties to authors and music composers by the copyright societies.

4. It’s been close to six years since the Copyright Amendment came into effect and we have not yet seen the light of effective implementation; authors and performers have barely received a paltry sum of royalties, provisions on statutory and compulsory licensing cannot be implemented due to IPAB not being in form. Is this attributable to red-tapism?  Who according to you is responsible for this?

 All the administrative issues in the functioning of IPAB may be sorted out now with the appointment of Chairman, IPAB. As the Copyright Board has been merged with IPAB through the Finance Bill, 2017 passed on March 22, 2017 by Lok Sabha there should not be any delay in statutory licensing for broadcasting and approval of tariff scheme of the copyright societies by the IPAB as per the provisions of the Copyright Act, 1957. Now, IPRS has been revived after its re-registration by the Copyright Office and lyricists and composers have buried their hatchets and started working as a team. This will lead to effective collection and distribution of royalties. ISRA, a singer’s rights society has been doing well in collecting and distribution of royalties to its members since its inception. It has won a number of court cases which reinforced performers rights and licensing by ISRA.

5. Copyright societies have an enormous role to play in bringing about effective implementation of the 2012 Amendment. However, as has been pointed out in some of my earlier posts, there still seem to be some possible non-compliance issues on the part of these societies. Why has it been so difficult for copyright societies in India to function transparently and abide by the law?

I strongly support the introduction of Blockchain Technology by all registered copyright societies in India to function transparently, distribute royalties without any discrimination and abide by the law. This disruptive and cutting-edge technology of ledger system has revolutionalised various sectors and many European copyright societies have already proved that the use of Blockchain technology has introduced a win-win situation for all stakeholders.

6. You have in the past expressed some concerns on the DIPP office memorandum of 2016 which clarified that internet broadcasters are included within the scope of Section 31D of the Copyright Act. What is your take on this? 

The definition of the term ‘broadcast’, as per section 2(dd) of the Act, means communication to the public ‘by any means’. But, both section 31D (3) and Rule 29(3) of the Copyright Rules, 2013 restrict the scope of statutory licence to only radio and television broadcasting by eliminating internet broadcasting from the scope. Therefore, allowing statutory licence to internet broadcasting on the basis of the definition of term ‘broadcast’ is not tenable.

7. The Copyright Board order, 2010 was passed at the time when you were the Registrar of Copyright. The order faced strong opposition from the music label industry. According to you was the order intended to be an order in rem applicable to all labels? Is there a need for a revision in the royalty rates considering it has been close to 8 years since the order was passed?

 According to me the Copyright Board order, 2010 was not intended to be an order in rem applicable to all labels. It is for IPAB to review the royalty rates of this decision considering the growth of FM radio industry and its market spread.

8. The Supreme Court’s decision in CISAC vs Aditya Pandey has been interpreted by certain lobbies to apply even in the post 2012 Amendment scenario resulting in no separate underlying works licenses being taken and consequently no royalties being paid for the same. What are your thoughts on this?

It is crystal clear from the legislative intention mentioned in the Statement of Objects and Reasons to the Copyright (Amendment) Bill, 2010 that amendments to section 17, 18 and 19 are to clarify the sharing of performing rights by lyricists and music composers with music companies/film producers. The new section 31D introduced under the Copyright (Amendment) Act, 2012 also clarifies the existence of separate underlying works licenses.

9. Is the Copyright Amendment Act, 2012 intended to have retroactive or prospective application?

It was never intended either in the Statement of Objects and Reasons to the amendment Bill or in any provision of the Amendment to have retroactive or prospective application to any right recognised, clarified or newly extended in the Copyright (Amendment) Act, 2012. There was no such legislative intention to do so. However, the works which were created before these amendments are performed now will definitely attract the new provisions.

10. There has been a lot of debate on Mr. Amitabh Bachchan’s recent rant on expiry of the term of copyright. As per reports, the Film and Television Producers Guild of India is also contemplating to ask the Government to revise the term of copyright. What are your views on this issue?  Do you feel there is a need for international harmonization in the term of copyright of different countries?

Copyright is a legal right and an exclusive right given to an author or creator as an incentive to create more by legislation. However, there is a limitation to this copyright imposed by the legislation in public interest. The term of copyright is internationally governed and limited by post mortem auctoris principle which allows copyright in literary works which commonly lasts until a certain number of years after the author’s death. The economic rights last till the term of copyright. After the expiry of copyright, the works enter the public domain. The TRIPS Agreement which has included the provisions of the Berne Convention has already introduced harmonisation in the term of copyright. Therefore, internationally there is no concept of perpetual rights under the copyright for economic rights of authors. However, in the Copyright (Amendment) Act, 2012 perpetual rights have been extended to moral rights of authors, especially to the right to integrity on the basis of the French model. This has been done to protect the right to integrity or respect of authors in the internet and digital environment.

11. A lot of discussion seems to be taking place on Artificial Intelligence and need for data privacy laws in India. The Supreme Court in the right to privacy judgement (K.S Puttaswamy & Anr. v Union of India & Ors) also emphasized on the immediate need for a comprehensive data protection framework / law to be enacted, which is technology neutral and which encompasses / deals with prominent issues such as the growing use of AI in India. What steps are being taken by the Ministry in this regard?

Many government departments like MEITY and Dept of Science and Technology have been working in the field of AI research. NiTi Aayog is considering the use of AI in effective governance and Dept of Justice in justice delivery.

12. Any parting thoughts for our readers?

I always request readers to respect copyright and contribute to the economic growth of the creative industry of the country.

G.R.Raghavender
Joint Secretary,
Department of Justice
Ministry of Law & Justice
Government of India
Jaisalmer House,
26-Man Singh Road,
New Delhi – 110001

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I am pleased to bring to you our first guest post by Ankit Relan. Ankit Relan, is a practicing attorney in the Delhi High Court, and represents some of the biggest names in the film and music industry in India. He handles the copyright and technology law practice at Mason & Associates, a top tier law firm that regularly advises the top companies in the film and music industry, media & technology sector, internet service providers, book publishing companies, pharmaceutical companies in India on a variety of issues. Ankit had earlier done a guest interview for us where he had dealt on the issue of performers’ rights, which can be viewed here.

Mashups, Cover Versions and all that Jazz under the Indian Copyright Law

In this post, I will try to explain the meaning and concept behind the terms “cover versions”, “mashups”, “remixes”, “version recordings” that are often used loosely and interchangeably in the Indian music circuit. I will also attempt to explain the position under the Indian Copyright Act, 1957 with respect to these concepts.

What is a “Cover Version”?

A cover version is nothing but a freshly performed rendition of an existing song with fresh artists and musicians where essentially the same song is sung/performed again[1]. The lyrics are left untouched, the melody is left unchanged. The song is simply sung/performed again in a new avatar with a new orchestra. This fresh recording is known as a “cover version”.

The Indian Copyright Act describes a cover version under Section 31C as –

“…a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have (already) been made by or with the licence or consent of the owner of the right in the work…”

(Emphasis Added)

Section 31C (3) adds a caveat that this recording must not contain any changes to the lyrics (or “literary work” as law calls it) and to the melody (or “musical work”), that have not been made previously or are not technically necessary. The provision reads as follows –

“The person making such a sound recording shall not make any alteration in the literary or musical work which has not been made previously by (the owner himself) or with the consent of the owner of rights, or (an alteration) which is not technically necessary for the purpose of making the sound recordings…”

 (Emphasis Added)

**Think of Stand by Me originally sung by the legendary Ben E. King (click here to listen), later covered by John Lennon (click here to listen) or Knocking on Heavens’ Door, originally sung by Bob Dylan (click here to listen) and covered by artists like Guns N Roses (click here to listen) or Avril Lavigne (click here to listen) and the like, as an example. They sang the same song. Did not tinker with the lyrics and made magic.

The law permits anyone to make a cover version, if certain conditions spelt out under Section 31C are fulfilled. But, before we deal with the new provisions relating to cover versions, let’s first understand some of the other terms used in the music industry –

 What is a “Version Recording”?

There is no such thing as a version recording under the Indian Copyright Act, as it currently stands. The term version recording was colloquially used by the music industry to refer to song covers or cover versions under the old Copyright Act, before it was amended in the year 2012 and section 31C was brought in.

Version recordings were exactly what “Cover Versions” are understood to be now. They refer to a fresh rendition of a song that is sung again with a new set of musicians. Before Section 31C was introduced, song covers were made under Section 52(1)(j) of the Copyright Act, which was a “fair dealing” provision that provided the defendants with a defence that the cover version made by them was fair and non-infringing as it complied with the pre-conditions set out under Section 52(1)(j). These recordings were known as “version recordings” within the industry and the phrase was caught on by the Delhi High Court in a couple of orders in cases filed by Saregama[2] and T-Series[3]. Apart from the colloquial usage, the words “version recording” do not find a mention under the new Act. They never did, to my knowledge.

That section has now been deleted and re-introduced in the form of a Statutory License provision under Section 31C with some changes, though the essence of Section 52(1)(j) has been largely retained.

What is a Mashup?

A mashup refers to a combination of two or more songs that are synchronized (or mashed up, as they say) with each other in such a way that it becomes a single consistent track of its own.

A mashup does not really change the lyrics or the melody of the song, but involves a creative rearrangement of multiple sound recordings where a few seconds here and there of several songs are stitched together in a constant beat, to create a recording that sounds like a new song in itself.

Listen to this mashup of Aashiqui 2 songs that was officially released by T-Series (click here to listen) to get an idea.

The Indian Copyright Act does not define the expression “mashup”. Under the Act, an alteration or rearrangement of a copyrighted work is known as an “adaptation” and not a mashup. Adaptation is an exclusive right that is provided to the owner of copyright in the lyrics and melody of the song. A person who owns the rights in the lyrics and the melody of a song can therefore adapt it, re-arrange it, alter it or simply mash-it-up the way he wants to. No one else can do so, without his permission.

Apart from the right of adaptation, a mashup also involves the right to “make any sound recording” in the literary and musical works of a song. A mashed-up song is a new recording in itself and no new recording can be made unless the “right to make a sound recording” is taken from its owners.

Quite surprisingly, this right of adaptation has not been specifically provided to a sound recording owner under Section 14(e), as if to imply that the sound recording owner of a song cannot stop a rearrangement or mashup of his sound recording though the lyricist and music composer of the same song might. However, in my view that will be a difficult argument to sustain as the owner of a sound recording still has the exclusive right to communicate his sound recording including ‘every individual part of it’ and can therefore has a valid complaint to make, if a part of his sound recording is used to create a mashup without his permission. This, remember, would apply to the owner of each sound recording used in the mashup.

Besides, the owner of the lyrics and melody of the song may still complain, even if the owner of the sound recording may not.

What is a “Remix”?

The law does not define the expression remix either. Traditionally, a remix has been considered to be an alteration of just the beats and the tempo of a song, with minor additions and variations to the melody and lyrics of the song.

For instance, turning a slow love song like “Channa Mereya” from Aae Dil Hai Mushkil into a fast-paced dance number by adding a double-time feel to its beats. Listen to the official Remix released by Sony Music by clicking here.

Under the Indian Copyright Act, a remix is again considered to be an “adaptation” of the old song as it involves a “rearrangement” or an “alteration” of the literary and musical portions of the song, without really re-creating it or re-performing it.

The Indian music industry has been loosely using the term “remix” interchangeably with terms like a “remake” or a “recreated song” to include any and every modification that is made to the lyrics and the melody of the song. But that usage is incorrect in my view and a cause of confusion in the market which spreads into judicial pronouncements. For instance, the Delhi High Court in the landmark decision of Myspace vs Super Cassettes Industries Ltd. repeatedly recognized a “remix” as a “combination of two songs”, when it clearly is not.

What is a Recreated Song?

A recreated song is exactly what the word itself suggests, a “re-created” song. A song which has been “created-again” in all respects by changing its melody, its lyrics, its musical arrangement, singers, everything. In other words, it is a “remake”.

The catch is, the recreated song uses just enough portions of the original song so as to create an association between the two in the minds of a listener. The essential bits or the catch phrase of the original song is retained in a re-created song and therefore the new song does not fully disassociates itself from the old song (obviously, if it does so, it’s not a “re-created” song anymore but a different song altogether).

For instance, the recreated song “Dheere Dheere Se Meri Zindagi Main Aana” from the 1990 hit film Aashiqui was recently recreated by Honey Singh & Co., and by Zack Knight where the lyrics were changed but the punch line of the original song was retained; the melody was reworked but the chorus part of the original song was retained. Listen to the old song here and the new renditions here and here.

Under the Indian Copyright Act, a recreated song constitutes a new sound recording capable of having independent copyright in itself separate and distinct from the sound recording of the earlier song which has been recreated. Each and every aspect of the recreated song that has been freshly written, composed or produced is capable of sustaining an independent claim to copyright.

A recreated song normally comprises of the following works –

  • Old Lyrics, to the extent they are used in the new song.
  • Old Melody, to the extent the original melody or chorus has been used again
  • New Lyrics, which constitute an independently protectable literary work
  • New Melody, which constitutes an independently protectable musical work
  • New Sound Recording, which constitutes an independently protectable sound recording.
  • Old Sound Recording, which is also sometimes incorporated to give the new song a little bit of an old flavour.

Depending upon how the song is being recreated, different rights under Section 14 get invoked. Broadly speaking, any normal recreated song invokes the right of “adaptation” in the literary and musical works, the right of “making a sound recording” of the literary and musical work, the right of “reproducing” the literary and musical work, the right “communicating” the literary and musical work.

How to make a cover version, re-created song, mashup, remixes?

In India, you cannot touch someone’s copyrighted song without his express permission. That is the law, simply put and bluntly stated.

Doing so, is not only wrong, but is “deemed to be an infringement” under the Act and invites, both civil and criminal punishments. Even an infringement committed without knowledge (ie. Innocent Infringement) is not a defence under the Indian Law.

So, what’s the solution?

There are 3 options under the Indian Copyright Act, to use someone’s copyrighted work and remake/remix/recreate/cover it –

  • Be the owner;
  • Plead the owner;
  • Bleed the owner;

Let’s briefly discuss each option –

Be the Owner

Perhaps the cleanest solution here is to acquire the ownership in a copyrighted song and step into the shoes of the owner(s). This can be done by entering into, what we call an “assignment deed” with the owner of copyright, which is akin to entering into an agreement for sale of any property, broadly speaking.

Remember, a song has many components such as the (i) Lyrics, (ii) Melody, (iii) the Sound Recording and the law recognizes each component to have a separate and distinct copyright. Each component may be owned by different persons and therefore, depending upon which component you want to exploit, an assignment with such an owner (or owners) would be required.

The law does not prescribe any specific format, font colour, paper size or shubh muhurat for drafting a valid assignment deed. In fact, contrary to popular belief, the law also does not require an assignment agreement to be on a stamp paper (though certain States in India, such as Maharashtra have made specific laws, requiring stamp duty to be paid on copyright assignments, but its free in several other states).

All that the Copyright Law requires is that the assignment agreement should be in writing and signed by both parties and it should include certain basic details about the transaction as have been mentioned under Section 18 and 19 of the Copyright Act, such as who are the parties, what are the works being assigned, what are the rights being assigned, what is the term period of the agreement, which territory will the rights extend to, what is the consideration and/or royalty amount payable to him etc. (we will deal with these aspects in a separate post, someday!).

Once you become the assignee of a song, you get all the “exclusive” rights that the owner had under Section 14 of the Act and use/cover/recreate the song to your liking.

Plead the Owner

Owners don’t normally like to part with their ownership. If it were you, you wouldn’t do so either. So, if you cannot acquire ownership in a song, you can always plead the owner(s) to grant you the “permission to use” their copyrighted works in a song in return for a royalty. This is also known as a “License” under the Copyright Act.

Here again, the law does not prescribe any specific format of a license. You can write it by hand, or take it over an email or have it typed on a simple A4 paper. As long as a license agreement includes certain basic ingredients spelt out under Section 30 read with Section 19 of the Copyright Act, it is considered valid. These essentials are almost on the same lines as those required under an Assignment Agreement. For instance, a license agreement must be in writing and must mention the parties, the works, the rights being licensed, the term, the territory, the royalty amounts etc. These details are almost identical to those required for Assignment Agreements (already mentioned above).

However, unlike an assignment agreement, a license agreement is not required to be signed by both parties under the Indian Law [even an NOC from the owner is enough] and there is no exemption from paying the stamp duty to the State Government here.

Let’s now look at the last option.

Bleed the owner

 No, not literally!

If, for some reason, the owner is not available for taking rights or he is someone big, powerful and obdurate about his copyrights and is trying to lawyer you out of using his copyrighted works – the law provides certain options/remedies where you can create a version/remake/cover out of his song, without his permission.

Let’s look at some of these options –

(A) Statutory License for Cover Versions under Section 31C

As briefly mentioned above, you can make a cover version of an existing song if certain conditions under Section 31C apply, without asking for the owner’s consent. These conditions are briefly culled out below (only the principal ones) –

(a)The 5 year waiting period: Please note that to make a statutory license under Section 31C, a period of 5 years must have passed after the original song was first published. The law starts calculating these 5 years from the 1st of January of the next year regardless of which month the song was published in the previous year. (Yes, that’s how our legislature likes to do its math!)

(b) The written notification: Under Section 31C, a written notice is a must. A notice sent to the owner, conveying the intention to cover his song. This notice is supposed to be sent in advance and not after using/changing the song. (If you send it afterwards, it defeats the purposes of putting him to “notice”, right?)

(c) Who to send it to: This notice must be sent to the owner of each component of the song that you plan to cover. (Remember the different components in a song theory?)

(d) What do I need to pay: The notice must attach royalty for a minimum of 50,000 copies. Obviously, if you make more copies, you pay for those as well. The rate of this royalty will be decided by the Copyright Board and you cannot send the notice till the Board decides this rate. (I hope that happens before I turn 50)

(e) How can I market it: Market it the way you want but make sure that the artwork/album art/labels and covers of the new song clearly call out that it is a “Cover Version” and the labels/artworks etc. must not contain the names of the earlier song’s artists or create any association between the new song and the old song. (Please don’t be misleading!)

(e) Can I change the song to my liking: No, under a cover version you cannot change the lyrics or the melody, unless the changes were previously made or authorized by the owner or unless the changes are technically necessary. (Please take a license if you want to change it)

(B) Fair Use of a Song

 “Copyright is not a divine right”, said the Delhi High Court recently. It is not an absolute right that the law cannot regulate. Section 52 of the Copyright Act, provides for certain specific instances, where any copyrighted work (songs, films or others) can be used/enjoyed by anyone without the need of taking the owner’s permission or worrying about being dragged to court. These instances are known as “Fair Dealing” provisions.

Section 52(1), of the Indian Copyright Act, exempts any person who carries out a fair dealing of any work if the same is done for any of the following purposes –

  • private or personal use, including research;
  • criticism or review, whether of that work or of any other work;
  • the reporting of current events and current affairs, including the reporting of a lecture delivered in public;

The term “fair dealing” has not been defined under the Act, but in my opinion, it would include covering, adapting or even re-creating a song for any of these limited purposes as listed out under the said provision. Outside India, there have been a number of judgements allowing the remakes/recreation of songs under the principles of fair use (which is broader concept than fair dealing and which will require a separate post altogether).

Which set of rights would be required for making a cover version, mashup, remix, recreated song?

It depends!

It depends upon how you plan to ruin cover a song. That will decide which category of remake you fall under and consequently, what rights would be needed. Here is a chart that may help –

Activity Short Premise What rights are involved/needed

(at a bare minimum)

Cover Version

Same song, performed afresh (i)      Right to reproduce the literary and musical work

(ii)    Right to make a sound recording of the literary and musical work;

(iii)   Right to communicate the literary and musical work to the public

Mashup Multiple sound recordings -stitched together – creating a single track (i)      Right to make an adaptation of the literary and musical work

(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

**These rights are to be taken for each song that is used in the mashup.

Remix Same song – beats changed and some music added (i)      Right to make an adaptation of the literary and musical work

(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

Recreated Song A remake in all respects – lyrics added – music altered – but essential components of old song retained (i)      Right to make an adaptation of the literary and musical work

(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

In case you have any queries or want to share any feedback, criticism or you simply want to light up my day, please feel free to write to me at ankit.relan@mason.co.in or relan.ankit@gmail.com.

Disclaimer: The contents of this article are purely for academic purposes and do not constitute any binding legal advice, opinion or commercial suggestion by and between the parties, being you, the reader and me, the author of this article.

End Notes:

[1] In Star India Pvt. Ltd. vs Piyush Agarwal & Ors, MANU/DE/5535/2012, it was observed as follows “…Once a combination of the aforesaid three works being the lyrics, music and the performer’s works together, is performed and a sound recording created, that sound recording which is the first sound recording…. After the first sound recording is made, then, if and after permissions are taken from the authors of the musical work and the lyrics writer which formed the basis of the first sound recording, another band of orchestra with the singer (i.e. another set of performers) can by their performances on the basis of the existing musical work and the lyrics, cause to come into being a new sound recording. This second/subsequent sound recording is called a version recording/cover version.” This jugement was subsequently set aside in appeal, though on a different point, not affecting these observations.

[2] See Order dated 01.07.2010 in CS(OS)No. 399 of 2005

[3] Super Cassette Industries Ltd vs Bathla Cassette Industries Pvt., 2003 (27) PTC 280 Del

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In my previous post here, I had covered details of the legal notice issued by Mr. Javed Akhtar to Armaan Malik, Amaal Malik and T Series in relation to the recreated version of the song ‘Ghar Se Nikalte Hi’.

In this post, I shall be analysing the legal position on recreated versions with respect to moral rights.

Before dealing with the legal position, I would like to point out few technical issues pertaining to the notice:

  • The notice (strangely) was not addressed to the lyricist of the Recreated Version i.e. Kunaal Verma. If the main grievance of Mr. Akhtar was distortion and mutilation of his works, then the notice ought to have necessarily been addressed to the lyricist of the Recreated Version who had authored the lyrics.
  • The only platform mentioned in the notice which had failed to acknowledge the authors of the Original Version seems to be Apple Inc/ Itunes store. Surprisingly, the notice had not been addressed to Apple Inc or even copied to them. Under Section 52-A of the Copyright Act, the responsibility to include the particulars of the author and owners is on the person publishing the sound recording/ cinematograph film.
  • The allegation on recreated versions being a ploy to avoid non-payment of royalties should be made by IPRS and not Mr. Akhtar since he has assigned his rights to IPRS. Moreover, the allegation ought to have been made to the platforms exploiting the song rather than the owner of the sound recording rights.
  • As mentioned in my earlier post, the notice had been addressed to Armaan Malik for merely making a public comment on the Youtube page in which he has not acknowledged the credits of the authors of the Original Version. Armaan Malik’s only role in the song is that of a singer / performer. He has neither written the lyrics of the song nor composed it. Further the reliefs claimed are against all addressees including Armaan Malik.

[While technical issues don’t really matter at a notice stage, it creates suspicion on the real intent. The only reason this has been highlighted is because the actions of the people involved in this notice are likely to be to be followed as a precedent by others].

The issue of moral rights with respect to recreated versions:

A recreation is when something is recreated, remade, reinterpreted. The Copyright Act, 1957 does not define what a ‘recreation’ is. However, the definition of adaptation under Section 2 (a) of the Copyright Act includes within its scope in relation to any work, any use of such work involving its rearrangement and alteration. Section 14 of the Act confers such right to an owner of underlying work i.e. literary, dramatic, musical and artistic work. In the instant case, if T-Series is the owner of the literary and musical works in the Original Version, then by virtue of Section 14(a) of the Copyright Act, it has the sole right to make an adaptation of the Original Version which includes the right to make the Recreated Version. However, ownership of T-Series over the Original Version does not seem to be the issue in dispute here.

Whether an adaptation of the Original Version can amount to violation of moral rights / special rights of the authors of its underlying works?

The moral/ special rights of the author under Section 57 essentially recognize, the right of identification / paternity rights of an author i.e. right to claim authorship of the work; and the integrity rights i.e. the right 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.

Authors’ moral rights gained international acceptance in 1928, when the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) added to its provisions the rights of attribution and integrity. The most influential international copyright treaty, Article 6bis of the current Berne Convention provides:

“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

It would be important to reproduce Section 57 as it originally read in the Copyright Act, 1957 and the amended provision as it reads now:

Original Provision Amended Provision
Author’s special rights. -(1) 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 to claim the authorship of the work as well as the right to restrain, or claim damages in respect of-

(a) any distortion, mutilation or other modification of the said work; or

(b) any other action in relation to the said work which would be prejudicial to his honour or

reputation.

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim

authorship of the work, may be exercised by the legal representatives of the author.

Author’s special rights. –(1) 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 which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

Provided that the author shall not have any right to restrain or claim damages in respect of any

adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.

Explanation. Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.

The first amendment to Section 57 was introduced by the 1994 Amendment to the Copyright Act. The notes on clauses in the Copyright Amendment Bill, 1992 mentions the following:

“Clause 20- This clause seeks to amend sub-section (1) of section 57 (concerning author’s special rights) in order to limit the remedies available to the author in respect of distortion, mutilation, modification or other acts in respect of his work to cases where such acts would be prejudicial to his honour or reputation. The present provision in the principal Act, whereby even distortion, mutilation and modification of the work which are not prejudicial to the author’s honour or reputation would violate the author’s special rights, are likely to have anomalous unintended consequences and are incidentally in excess of the requirements of the Berne Convention….”

The Legislature thus thought that the existing provision under the 1957 Act, whereby even distortion, mutilation and modification of the work which are not prejudicial to the author’s honour or reputation would violate the author’s special rights may have anomalous unintended consequences and were, incidentally, in excess of the requirement of Berne Convention. Copyright law in India was thus brought at par with the Berne Convention. In conformity with the Berne Convention, Section 57 of The Copyright Act 1957 protects the author’s right of paternity as also the right of integrity. Distortion, mutilation or modification if established to be prejudicial to the author’s reputation or honour are actionable.

To understand what constitutes to be prejudicial to honor and reputation, a reference could be made to the US District Court for the Southern District of New York’s decision in the case of Carter v. Helmsley-Spear, Inc., (though reversed on other grounds), where the court referred to Webster’s and declared that “prejudicial,” “honor” and “reputation” have readily understood meanings.” Thus, the court stated that in determining whether the prejudice to honor or reputation standard has been met, it would “consider whether such alteration would cause injury or damage to plaintiffs’ good name, public esteem, or reputation in the artistic community.”  “Prejudice” is commonly understood to mean “injury or damage due to some judgment of another.” “Honor” is commonly understood to mean “good name or public esteem.”. “Reputation” is commonly understood to mean the condition of “being regarded as worthy or meritorious.”

As far as integrity rights are concerned, to be actionable, the distortion, mutilation, modification of the original work thus should cause real injury/ damage to the honor and reputation of the author of the original work.

As far as paternity rights are concerned, a recreation has to necessarily associate itself to the original version in some manner else it would not count as an adaptation and would be a wholly new or unconnected song altogether. Necessarily, a recreated version would need to acknowledge the new authors of the recreated version as well as mention the names of the authors of the original version.

Waiver of moral rights: One of the most widely negotiated clause in any author agreement pertains to waiver of moral rights of an author. Those representing the author would argue that moral rights cannot be waived and such waiver would not be legally enforceable.

In my view, none of the judicial precedents in India (detailed below) delve clearly upon the issue of waiver of moral rights. What has been held in these cases is that even if the author assigns the copyright, his moral right continues to vest with him. Section 57 does not contain any restriction on the author from voluntarily waiving his moral rights.

In the case of Sartaj Singh Pannu vs Gurbani Media Pvt. Ltd, while dealing with an arbitration petition in relation to the film ‘Nanak Shah Fakir’, one of the issues before the Delhi High Court was with respect to whether the moral rights of an author can be waived voluntarily (director being construed as an author of artistic works if his works amount to artistic craftsmanship). The Court declined the plea of the petitioner that independent of the Copyright Act he has moral rights to the film, the waiver of which would be opposed to public policy. The Court held as under: In response to a query whether a Director can decide to not want his name to be associated with a film which he considers harmful to his reputation, Mr. Rao submitted that such a waiver would be contrary to public policy since the public would have a right to know who the Director of a film was. However, the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy. The mandatory declaration of the name of the Director in the application for a censor certificate is sufficient to satisfy the requirement of the right of the public to know who the Director is.

 One can thus argue that moral rights/ special rights of an author can be voluntarily waived by the author. There are jurisdictions such as Canada which permit waiver of moral rights of an author.  The Copyright, Designs and Patents Act 1988 in UK recognizes the waiver of such rights as well. The waiver may be by instrument in writing signed by the person giving up the right, and it may relate not only to a specific work in existence, but to a class of works or even works in general, and to further works. It may be the subject of a condition and it may be revocable. Such waiver may also be operative under general principles of contract or estoppel [Section 87 CDPA]. In United States of America, under Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, any transfer or waiver of moral rights should be voluntary and memorialized; the author is presumed to otherwise retain the dignity-based right.

Right to receive royalties

I am not entirely sure why Mr. Akhtar would interpret that in a recreated version the authors of original version are not entitled to receive royalties. To my knowledge, even internationally, authors of original versions receive royalties along with authors of the recreated version. As mentioned earlier, considering that Mr. Akhtar would have assigned all his rights to IPRS, any claim on royalties cannot be made by him in his personal capacity. Further, such claim ought to have been made to the platform providers and not assignee of the underlying works.

Some of the Indian case laws which set out the jurisprudence on moral rights are as under:

  1. Mannu Bhandari v Kala Vikas Pictures Pvt. Ltd. and another [AIR 1987 Delhi 13] – While dealing with the issue of moral rights where the Appellant had filed a suit seeking permanent injunction against screening and exhibition of the respondent’s film on the basis that the film was a mutilation and distortion of her novel ‘Aap Ka Bunty’ the Delhi High Court had observed that Section 57 lifts authors’ status beyond the material gains of copyright and gives it a special status and held that Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed even after the assignment either wholly or partially of the said copyright. Section 57 thus clearly over-rides the terms of the contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57.” The parties moved a joint application for settlement on August 7, 1986. In view of the settlement between the parties the findings of facts and the directions given in this judgment have become ‘Otiose’.
  2. Amar Nath Sehgal vs Union of India [2005 (30) PTC 253 Del]

The Plaintiff had produced a piece of art- a bronze mural sculpture which was put on the walls of Vigyan Bhawan. The mural continued to occupy its place of pride at the lobby of Vigyan Bhawan till it was pulled down and consigned to the store room of the Union of India in the year 1979. The Plaintiff had contended that improper handling caused immense damage and that bit and pieces of the mural altogether disappeared including the name of its creator and thus violated his moral rights. The Court observed that there was an urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the authors creative corpus it affects his reputation prejudicially as being actionable under section 57. The Court directed the remnants of the mural to be returned to the plaintiff and declared that all rights in the mural would vest with the plaintiff. Damages to the tune of 5 lacs were also awarded in favour of the Plaintiff. The Court recognized an author’s moral rights to be the soul of his works – essentially granting the author the right to preserve, protect and nurture his creations irrespective of the assignment of such copyright, whether wholly or partially.

  1. Arun Chaddha vs Oca Productions Private Limited & Ors [CS (OS) 1096/2009]

The Plaintiff filed a suit seeking to restrain the Defendants from broadcasting the TV Serial, Ek Kadam Aur, which was based on an autobiographical work ‘Kasturi Kundal Basey’, the rights of which the Plaintiff had acquired through a valid assignment and thereafter assigned to one DAE prior to the commencement of production of the said show. The Plaintiff’s grievance was that few of his episodes were already telecast by the Defendants without any consent, on Doordarshan channel and credits were not accorded to him. The Plaintiff moved the court claiming authorship over the TV serial and sought damages for breach of special rights under Section 57 of the Copyright Act, 1957. The court held that the principle underlying Section 57 of the Copyright Act is that damage to the reputation of the author is something apart from infringement of work itself. Section 57 provides an exception to the rule that after an author has parted with his rights in favour of another person, the latter alone is entitled to sue. The court therefore granted permanent injunction against the Defendants, without making any order for damages.

  1. Sholay Media and Entertainment Pvt. Ltd and Anr. V. Parag Sanghavi and Ors [223 (2015) DLT 152]- The Plaintiffs had filed a suit against director Ram Gopal Verma and others in respect of the film ‘Ram Gopal Verma ki Sholay’ alleging violation of moral rights amongst other grounds of infringement of trademark, copyright, passing off, etc. The Delhi High Court held that the Defendants had intentionally and deliberately made the movie in violation of plaintiffs’ exclusive moral rights of copyright and passing off. On the relevant date they were aware about the rights of the plaintiffs, their ownership and authorship as well as use of unauthorized copyright. The Court observed that the defendants had distorted and mutilated the original copyright work of the plaintiffs and had thereby infringed the moral rights of the plaintiffs as under Section 57 of the Copyright Act, 1957. While determining the loss of goodwill and reputation, the Court held that the impugned film was a flop and failure. Thus, being portrayed as a remake of SHOLAY, immense loss to reputation and goodwill had been caused. Loss through infringement of moral rights of the plaintiffs was held to be incalculable.

All the above-mentioned cases are clearly in support of moral rights of authors. However, it is important to consider that each case was specific to its facts and circumstances.

In this background, lets analyse the issue of violation of moral rights with respect to adaptations in the following scenarios:

Scenario 1: So, if one were to conclude that there is no restriction on an author from voluntarily waiving his moral rights and the first scenario being that such moral rights have been waived and all other rights in the works have been assigned by the author including the adaptation rights, then can an author object to an adaptation of his work which he feels distorts, mutilates, modifies his work in such a manner as may be prejudicial to his honor and reputation? 

In my view, once the author has waived his moral rights he cannot seek recourse under Section 57 of the Act.

 Scenario 2: The next scenario being where the author has not waived his moral rights but has assigned all rights in his work including the right to make an adaptation of the work, can the author object to such an adaptation being in violation of his moral rights?

In my view, in such a scenario, if adaptation right of an owner and moral right of the author were to co-exist, it would be important to strike the balance and restrict the integrity right to derogatory treatment of such work only i.e. where real injury/ damage has been caused to the honor and reputation of the author. If every alteration or re-arrangement of a work is construed to be a distortion or mutilation of such work, then it would be impossible for any owner of rights to make an adaptation of such a work without violating the moral rights of the author, which does not seem to be the intent of Section 57. The right therefore needs to be confined to real injury.

 Scenario 3: Where the author has expressly stipulated in the agreement that his consent would be required for any adaptation of the work. In my view, in such a scenario, irrespective of whether the author has waived his moral rights or not, one can argue that the consent of the author is contractually required to be taken by the owner of the work.

 I am not aware about the agreement signed by Mr. Akhtar with the producers of the film ‘Papa Kehte Hai’. It would therefore not be possible to ascertain which of the aforesaid scenarios would apply. However, as far his allegation on paternity rights is concerned, the same seems to be misplaced as the credits to the authors of original works clearly seem to have been mentioned. If any platform has failed to adhere to the same, that specific platform is to be blamed for being in violation of Section 52-A of the Copyright Act. As far as integrity rights are concerned, if one compares the lyrics of the Recreated Version of the song ‘Ghar Se Nikalte Hi’ with the Original Song, a bare reading of the lyrics of the Recreated Version would show that there is nothing even remotely prejudicial or dishonorable that could injure the reputation of the authors of the Original Version. If this recreated version is treated as a violation of moral rights of the authors of the original version, it would be alarming for the music industry to make recreated versions without taking consent from the authors of the original version.

With the growing number or remixes, recreated versions, the issue on violation of moral rights is bound to attain significance in India. Recreated versions are one of the major opportunities for young and upcoming artists to showcase their talent. It would have to be seen whether Indian courts protect the economic interests of the owners as has been seen in US or take an expansive interpretation of moral rights according highest protection to authors as has been the case in France.

 Image source: Here

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The Delhi High Court today dismissed the suit which was filed by the Indian Performing Rights Society (IPRS) against Aditya Pandey and others in 2006. Read judgement here.

Key Highlights of the judgement:

  • Jurisdiction – IPRS had filed an application under Order VII Rule 10 of the CPC for return of the plaint in light of the dicta in the Supreme Court’s decision of IPRS vs Sanjay Dalia [(2015) 10 SCC 161] i.e. having realized that the Delhi High Court does not have the territorial jurisdiction over the matter. Justice Rajiv Sahai Endlaw relying on Supreme Court’s decision in Harshad Chiman Lal Modi vs DLF Universal Ltd observed that there is no lack of subject jurisdiction of the court in the present case. He pointed out that there was no impediment to the court in proceeding with the suit since the defendants had given up the plea on objecting to the territorial jurisdiction of the court. Justice Endlaw further observed that it is a well settled principle of law and public policy and essential part of rule of law that a person shall not be vexed twice for the same relief. “The plaintiff, by instituting the suit in this Court has vexed the defendants in this Court and in the appeals arising from the suit, for the last twelve years, and for this reason also I am unable to find any equity in favour of the plaintiff for allowing the plaintiff to seek return of the plaint for filing the same in the High Court of Bombay. Rather, allowing the plaintiff to do so will tantamount to this Court allowing its machinery to be used improperly and permitting the process of law to be abused.”
  • Evidence- Justice Endlaw observed that the suit must be necessarily dismissed since -(i) the Plaintiff failed to lead any evidence (ii) the evidence of plaintiff having already been closed (iii) the order having attained finality and (iv) the onus of the main issues being on the plaintiff.
  • Costs- The Court imposed costs of INR 2,00,000/- to be paid by the plaintiff to the defendant.

Background of the dispute:

  • In 2006, IPRS had filed a suit against Synergy Media Entertainment Ltd a company involved in broadcasting business, its Senior Manager Aditya Pandey, and others and sought permanent injunction and other consequential reliefs for infringing the copyright of IPRS. The suit was clubbed with another suit filed by IPRS and PPRS against CRI Events, an event management company which had organized an event where works comprising of the plaintiffs’ repertoire were communicated to the public.
  • The main issue before the court was whether the defendants required to obtain permission only from the copyright owner of the derivative work (sound recording) to broadcast the work or additionally required a similar permission from the owner of the underlying works. IPRS submitted that when recorded music is played in public, two licenses are payable, namely, one to IPRS for performing or communicating to the public the musical composition/ lyrics and the other to PPL for communicating the sound recording of the music to the public by playing the sound recording. The Defendants relying on the 1977 IPRS vs EIMPAA case had submitted that once the author of underlying works parts with his copyrights in the making of a film or sound recording, that copyright is subsumed with the right directly flowing from Section 14(d) and (e), which entitle the copyright owner of the film or sound recording to communicate the entire film/ sound recording which includes either the entire song or part thereof to public and he cannot be compelled to pay a separate authorization or license fee to the creator of the music or the song writer.
  • Justice Ravindra Bhat had vide order dated July 28, 2011 disposed of the Plaintiff’s application for temporary injunction by holding that the defendants do not have to secure a license from the plaintiff with the direction that “in case the defendants wish to perform the sound recording in public, i.e. play them, a license from PPRS is essential; in case the musical works are to be communicated or performed in the public, independently, through an artiste, the license of IPRS is essential. In case the defendant wishes to hold an event involving performances or communication of works of both kinds to the public, the license or authorization of both IPRS and PPRS are necessary. The defendant is accordingly restrained from communicating any of such works to the public, or performing them, in the public, without such appropriate authorization, or licensing pending adjudication of the suit.”
  • IPRS thereafter filed an appeal against the single bench order. The division bench comprising of Justice Pradeep Nandrajog and Justice S.P Garg vide judgement dated May 8, 2012 dismissed the appeal and upheld the single bench order. The division bench of the Delhi High Court had also observed that “Had the intention of Indian legislature been that the owner of a sound recording (derivative work) should not communicate the sound recording to the public without obtaining the prior authorization of the owner of the copyright in literary and musical works (original works) or that 2 permissions had to be obtained, it should have specifically manifested such intention in the Copyright Act, 1957, as has been manifested by the legislature in the United Kingdom in the CDP Act, particularly when CDP Act, 1988 prohibits the owner of copyright in sound recording from communicating the sound recording to the public stood enacted, at the time when provision relating to copyright in sound recording was amended in India in the year 1994. Faced with such situation, it is difficult to accept the stand of IPRS that 2 separate permissions would be required.”
  • An appeal was filed in the SC against the division bench order which was decided by the Supreme Court in the matter of International Confederation of Societies of Authors and Composers Vs. Aditya Pandey & Ors [Civil Appeals No.9412-9413/2014] where Justice Gogoi vide order dated September 20, 2016 dismissed the appeal and upheld the Division Bench order which had held that event organizers need not secure a separate license from lyricists and musicians for playing the song in public after it has paid for the broadcasting of the song to the sound recording company. The Court however clarified, that with effect from 21.06.2012, in view of sub-section (10) of Section 19, the assignment of the copyright in the work to make sound recording which does not form part of any cinematograph film, shall not affect the right of the author of the work to claim an equal share of royalties or/and consideration payable for utilization of such work in any form by the plaintiff/respondent.
  • IPRS filed the interim application under Order VII Rule 10 for return of plaint which came up for the first time before the Delhi High Court on September 29, 2016 where IPRS argued that as per the Supreme Court judgement in IPRS vs Sanjay Dalia, the plaintiff realized that it did not have territorial jurisdiction since the suit had been filed on the basis of the plaintiff having a branch office in Delhi which is not sufficient for creating jurisdiction under Section 62(2) of the Copyright Act. IPRS further pleaded that since its principal office is in Mumbai, the plaint be returned to be presented before the Bombay High Court.

 The Jurisdiction conundrum: The application under Order VII Rule 10 was filed by IPRS for return of the plaint relying on Supreme Court’s decision in IPRS vs Sanjay Dalia.

  • IPRS vs Sanjay DaliaThe Supreme Court in the landmark case of IPRS vs Sanjay Dalia had held that  “the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place.”

The Sanjay Dalia judgement was subsequently relied by the Delhi and Bombay High Court in the following judgements:

S. No Place of Plaintiff’s Principal Office (Sole office in S.No.1)

 

Place of Plaintiff’s Subordinate/Branch Office

 

Place where cause of action arose

 

Place where Plaintiff can additionally sue under Section 134(2) and Section 62(2)

 

1. A C A
2. A B A A
3. A B B B
4. A B C A

The Division bench further observed that “By virtue of the Supreme Court decision in Sanjay Dalia (supra) this deeming provision contained in the explanation in section 20 of the Code has been read into section 134(2) of the Trade Marks Act, 1999 and section 62(2) of the Copyright Act, 1957 for the purposes of isolating the place where the plaintiff can be said to carry on business. It will be noted that though the expression “carries on business” is used in all the three provisions (i.e., section 20 of the Code, section 134(2) of the Trade marks Act, 1999 and section 62(2) of the Copyright Act, 1957), the deeming provision contained in the Explanation in section 20 of the Code has not been expressly incorporated in the other two provisions. But, the Supreme Court has, in the said decision, given the expression “carries on business” used in relation to a corporation in the context of a defendant in section 20 of the Code the same meaning when it is used in relation to a plaintiff under the said sections 134(2) and 62(2).”

(a)a plaintiff suing under the Trade Marks Act or Copyright Act can always file the suit in the jurisdiction where he lives, works for gain or carries on business. In the context of a company, given the view in Sanjay Dalia, this would mean where the company has its principal or registered office. All issues of cause of action and situs or location of the defendant or the cause of action are inconsequential. It makes no difference where the defendant resides. It makes no difference where the cause of action arose. It certainly makes no difference that the plaintiff also happens to have a branch office in another location where the cause of action may have arisen or where the defendant may reside or carries on business.

(b) Where the plaintiff has only one office, it presents no difficulty. Where the plaintiff has multiple offices, however, he has a limited choice. He may either bring a Suit under Section 134(2) or Section 62(2), i.e., within the jurisdiction where he resides; or he may invoke Section 20 and file a suit where the Defendants reside or work for gain or where the cause of action arose wholly or in part. The fact that the Plaintiff has the choice of bringing a suit based on Section 20 of the CPC does not mean that his rights under Section 134(2) or Section 62(2) are in any way eroded, curtailed or restricted.

(c) However, where the plaintiff chooses not to file a Suit at his or its principal business or where his registered office is located, and also chooses not to file a suit in a jurisdiction covered by Section 20 of the CPC but instead attempts to file the suit at some other location where the plaintiff happens to have a subsidiary or satellite office, but where there is absolutely nothing else (neither cause of action nor any of the defendants) the Plaintiff cannot invoke Section 134(2) or Section 62(2) to drag the Defendant to that distant location. That, following the decision of the Supreme Court, is the abuse that is required to be prevented. That is in fact the only abuse that is required to be prevented.

(d) The Section 134(2) and Section 62(2) privilege or advantage attaches to the registered office or principal place of work. It is a privilege not to be used by abandoning the registered office situs, abandoning the Section 20 situs options, and travelling to some remote location where there is neither defendant nor cause of action. That is the mischief addressed in Sanjay Dalia.

To illustrate: the plaintiff has its registered office in Mumbai. The defendant is in Delhi. The cause of action arose in Delhi. The plaintiff also has another branch office in Port Blair. A plaintiff can sue in Mumbai or in Delhi, but not in Port Blair.

In his judgement, Justice Patel had disagreed with the analysis of the Delhi High Court in the Ultra case and had observed that there is nothing in the Sanjay Dalia judgement to suggest that the provisions of Section 134(2) of TM Act or Section 62(2) of Copyright Act are in any way curtailed by the provisions of Section 20 of the CPC. Justice Patel had also placed reliance on the Delhi High Court single bench’s decision in the case of M/S Rspl Ltd. vs Mukesh Sharma & Anr in which the Justice Vipin Sanghi was of the view that the case before him was unaffected by the Division Bench’s decision in Ultra Home, one he came upon after he reserved judgment in RSPL Ltd. Justice Sanghi had returned the plaint under Order VII Rule 10 in that case.

The decision of Justice Sanghi was set aside by the division bench of the Delhi High Court vide a subsequent judgement dated August 3, 2016 where the division bench comprising of Justice Badar Durrez Ahmed and Justice Sanjeev Sachdeva upheld the decision of the Delhi HC division bench in the Ultra case. The Division Bench had held as under:

“it is indeed unfortunate that the learned Single Judge has embarked upon an adventure to disagree with the decision of a Division Bench in Ultra Home (supra), albeit, as a student of law’. It is not open to a Single Judge (and more particularly a trial court) to differ from or critically appraise a decision of a Division Bench (and more particularly of an appellate court). Once it is recognized that the decision of the Division Bench is binding on the Single Judge, there is no need to express any difference of opinion or disagreement or purport to give reasons for the said difference of opinion or to even suggest that the decision of the Division Bench may need re-consideration. That is only in the domain of another Bench of co-equal strength. In any event, the findings and observations of the learned Single Judge with respect to its interpretation of the Supreme Court decision in Sanjay Dalia (supra), to the extent they are contrary to the decision of the Division Bench in Ultra Home (supra), are set aside.”

The main disconnect between the Ultra and RSPL division bench judgements on one side and Justice Patel’s judgement and RSPL single bench on the other seemed to be with respect to the division bench (Ultra case) where it said that the deeming provision of Section 20 of CPC, i.e., the explanation, had been ‘read into’ Sections 134(2) and 62(2) (for isolating the place where the plaintiff can be said to be carrying on business)

However in the Aditya Pandey case, with respect to IPRS’s contention that its registered office is in Mumbai, subordinate office in Delhi and cause of action has arisen in a third place, the rulings in all the abovementioned cases seem to be that the suit should be instituted at the place where the plaintiff has its principal business.

While Justice Endlaw rightly pointed out that the defendant cannot be vexed twice for the same relief and that equity is not in favour of the plaintiff in allowing it to return the plaint to be filed in another court, in my view his judgement fails to clarify as to how the guidelines set in the abovementioned decisions would not apply.

In all likelihood, IPRS would file an appeal challenging this decision.

It would also be pertinent to point out that the Supreme Court in para 6 of the CISAC judgement had held that “all observations, findings and views expressed by the High Court in the original as well as appellate proceedings before it to be of no legal effect, whatsoever, in so far as the merits of the suits are concerned which will now be expedited and heard and disposed of within a year from today”. The Supreme Court’s decision was only an interim exercise by the court to find a reasonable solution to the matter which was to govern the parties until disposal of the suit. The SC had upheld the Division Bench order only as a workable solution during the pendency of the suit.

In view of the CISAC judgement, the 2011 and 2012 judgements passed by the Single and Division bench of the Delhi High Court in the IPRS vs Aditya Pandey matter have no legal effect.

The CISAC judgement had led to varied interpretations on whether dual licensing is required post 2012 Amendment or whether the decision was limited to pre-2012 Amendment. In the absence of any clarification on this point in Justice Endlaw’s judgement, the issue remains open for interpretation.

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As per the notice published on the IPRS website, its 1st/ 2018-19 Extra-Ordinary General Meeting (EGM) will be held on April 11, 2018 to approve the ‘Tariff Scheme’ framed and presented by the Governing Council. The notice further reads that “This resolution is pursuant to the requirements under the Copyright Act, 1957 read with the Copyright Rules, 2013 and not under the provisions of the Companies Act, 2013.

Note: Any Member having objection to the “Tariff Scheme”, is entitled to withdraw his authorization given to the Society or surrender/relinquish his Membership of the Society”.

The proposed tariff scheme can be accessed here and the existing tariff scheme can be accessed here.

Surprisingly, the EGM has no mention of the ‘Distribution Scheme’ on its agenda. The IPRS page on Distribution Scheme states “Distribution Scheme is in the process of update”.

Rule 56 of the Copyright Rules, 2013 requires a copyright society to frame the Distribution Scheme setting out the procedure for distribution of royalties specified in the Tariff Scheme among the members whose names are entered in the Register of Authors and Owners for the approval of the General Body of the society, as soon as may be, but in no case later than three months from the date on which a copyright society has become entitled to commence its copyright business.

Considering IPRS received its registration on November 28, 2017, three months elapsed on February 28, 2018.

Rule 66(f) of the Copyright Rules, 2013 clearly requires that every society shall make available on its website- “all schemes of the society”.   Absence of the Distribution Scheme from the website of IPRS therefore seems to be a clear violation of Rule 66(f).

I did not come across any provision in the Act or the Rules giving any relaxation to the three-month stipulated period for compliance with the Tariff Scheme and Distribution Scheme.

Interestingly, Rule 53 of the Copyright Rules, 2013 which provides for cancellation of registration of a copyright society mentions non-compliance with publication of Tariff Scheme under Section 33A as a ground for cancellation but makes no mention of distribution scheme. I fail to understand the logic behind the said distinction, but our draftsmen would have known better.

I am also not clear as to how is the proposed new tariff scheme being made effective from April 1, 2018 when the EGM to discuss that tariff scheme is on April 11, 2018.

What about the AGM?

Rule 61(1) further requires that every copyright society shall hold a General Body meeting of all its members as its annual General Body meeting before the 31st of March every year. As per the details available on the IPRS website and the Ministry of Corporate Affairs, the last AGM of IPRS was held on September 29, 2017. Further, Rule 61 (4) requires that the notice for General Body meeting shall be issued before twenty-one days of the meeting and it shall and specify the agenda, time, date and address of the venue of the meeting and the same shall be posted on the website of the society.

The Articles of Association of IPRS  under Article 11 provide that “The Society shall in each year hold a General Meeting as its Annual General Meeting of all Members, in addition to any other meetings in that year, and specify the meeting as such in the notice calling it. The Annual General Meeting shall be called by the Company within a period of six months from the date of ending of its financial year or fifteen months from the date of last Annual General Meeting of the Society, whichever is earlier. The Annual General Meeting shall be held at such time and place as the Board shall determine.”

Given that IPRS has not completed its one year from registration, this may not be a violation under provisions of the Companies Act, 2013. However, the language in Rule 61 seems to be pretty clear and has no reference of the date of AGM being connected to the period when the society received its registration. I therefore have reason to believe that non-holding of the AGM prior to March 31, 2018 is in contravention of Rule 61(1) of the Copyright Rules.

As pointed out in my posts here and here, there seem to be some non-compliance issues by IPRS and if these are not rectified in time, these issues are bound to haunt IPRS in all the forthcoming litigations or even lead to its cancellation as a copyright society.

There are a lot of unanswered questions on the functioning of IPRS post its re-registration. What would be the consequence of non-compliance of these statutory provisions would have to be seen.

P.S. If I have interpreted any of the provisions incorrectly or missed out on any information which is publicly available, please do provide your valuable comments. The Memorandum of Articles of IPRS also does not seem to be accessible on their website. If anyone has a copy of it, please do send it across to me.

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