RIFT in the Family

Screen talked to representatives from both sides as well as one of the lawyers,who argued the case for the Copyright Amendment Bill. However,repeated attempts to contact music company honchos from T-Series and Saregama elicited no response. And Vishal Bhardwaj,who could have given interesting inputs as he is composer as well as filmmaker,also did not respond to calls and a message.

What came across clearly was a lot of hurt on both sides,a feeling of betrayal because both clearly admit that in the arena of cinema,it is about mutual needs and teamwork. Also,the producers are not very clear about what the Bill entails. There is a lot of misunderstanding and misinformation that is causing heartburn.

What is the dispute all about?

Javed Akhtar,veteran writer and lyricist who has been a key player in the move to amend the Copyright Act,says,“A bill being passed unanimously by the Rajya Sabha Standing Committee is a very rare occasion. The Amendment merely codifies things. The authors (writers and lyricists) and composers are only asking for what is there already and the Amendment merely implements something that has rarely been followed.”

Akhtar says that the massive opposition to the Bill is largely due to misinformation either from ignorance or because of a few vested interests that are spreading myths and inciting producers. “Honestly there is no conflict between our interests and those of the producer. We can only prosper if the producers do so,and our interests are clubbed beyond just money. The producers have this impression that once the Bill becomes an Act,they will cease to be owners of copyright. But that is completely false! All that the bill will do is stop the assignments of just the performing rights and the royalties incurred by authors and composers from these rights to any party!”

A bouquet to be shared

He adds,“A copyright is not some monolith or a big flower,it is a bouquet of various rights. The Sound Recording Rights and Synchronisation Rights (that is,the song as present within the film,or ‘Cinematograph Film’ as it is termed in legal parlance) remain exclusively with the film producer who invests money in it. He is the owner of this recording. Then there are Publishing Rights and Performing rights. In the latter segment,two societies are working — the PPL (Phonographic Performance Ltd.) and the IPRS (Indian Performing Rights Society).” PPL is the Copyright Society in respect of Sound Recordings in which no lyricist or composer is a member. The IPRS is where the creative side comes in.

“So out of Rs 100 that comes in as royalty,Rs 50 goes straight to the film’s producer as he is the First Owner of the recording,”says Akhtar. “The Publishing Rights account for Rs 25 from the rest,while the Performance Rights,where the song is conveyed to the public anywhere,in original form or otherwise,outside the film to which it belongs,is what should be divided between author and composer,working out to Rs 12.50 each!”

The lyricist points out that overseas there are publishing institutions,but in the context of Indian cinema,the producer himself is the publisher. “So he is actually getting Rs 75 out of Rs 100 already! Why should he have problems with the creators who are just asking for Rs 12.50 each?”

The chasm between rights,myths and reality

The root of the problem,notes Akhtar,is that the producer surrenders both recording and publishing right to the music companies on demand. “The companies offer them a lump sum that looks tempting and the producers do not realise that over a period,the companies will earn in multiples and they will not get anything. The authors-composers in turn sign agreements unaware of the whole implications and waive off their rights altogether after the fees they have received. Any of us who is aware and reluctant to do so is replaced by someone else.” He offers the example of A.R.Rahman who was replaced both in Om Shanti Om and Taare Zameen Par because he placed this condition.

What the government has now done is make the performing rights non-assignable. “We can no longer waive them or give them away. These rights can only be assigned to our legal heirs or to a recognised royalty collection society that will work for us.”

Explains Akhtar,“There is a difference between laws existing and their actually being implemented. If dowry,child labour and minimum wages rules are flouted today,it is because the victims are nowhere as powerful as their opponents and need legal protection.”

Akhtar points out that Memorandum of Understandings (MoUs) clearly defining things were signed by authors-composers as far back as 1989 and 1993 with producers and companies respectively,but there was no real benefit. Around 1993,the producer woke up to the possibility of a future El Dorado called ring-tones and words such as ‘any media emerging in the future’ were added to agreements and contracts that their fraternity had to sign.

Concludes Akhtar,“Over a period of time,and after studying the Amendment,the producer will learn that it is actually to his benefit too.” Right now,says the veteran,the producer feels that he will lose his copyright on a song,which cannot happen at all. The second myth being circulated is that this Amendment will mean equal moneys for everyone from a Shankar-Ehsaan-Loy or Pritam and Gulzarsaab or me to newcomers or upcoming talents. But remember that it is the percentages that are equal,and percentages are not amounts! Let us also not forget that royalties come to a song — if it is a reasonable hit — and it is not about coming to specific people!”

Selfless fight

Veteran composer Anu Malik agrees,and calls this fight and the incipient legislation “outstanding news and a selfless act that will benefit not just us but all composers and lyricists who have just come in and will do so in the future.”

Says the impassioned composer,“It will protect our families when careers slump or if a writer or composer dies. It will decide what kind of life we lead after we retire and prevent composers’ and lyricists’ families from not having basic comforts and roofs over their heads,as has happened so often.”

Songs,says Anu,are often the mainstay of films,and their fraternity was signing away the future,as he had himself done in so many films,either out of ignorance or because the only other choice was to lose a film.

Anu says that he understands why film producers are up in arms. “I don’t blame producers for the way they have reacted. But it’s a knee-jerk reaction because they do not understand that all we are asking is a drop in the ocean. This way,if we feel secure,then obviously we will work harder,and give even better music because we will be also working for our own future rather than just for the monetary benefit of a film or someone else.”

He points out that “We creators of the songs are the only ones who do not earn from our creations! Producers earn,music companies earn,and even singers earn huge money singing our songs through their shows! But when we composers call them for our shows,they quote exorbitant amounts for singing songs that we have created and given them in the first place! Can you imagine that?”

Anu implores the producers to be fair to his tribe. “We are emotional,creative people. Don’t we and our families deserve a fair deal too? This law is fair too,and we are not depriving anyone else. Who does not want to work with the best banners and stars? But they too need us. We all need each other and we cannot exist without each other.”

The investor speaks

The forthright Mukesh Bhatt,however,makes no bones about the fact that the producers,already burdened by multiple woes by the present central government,are hugely upset about this Amendment. Bluntly,he says,“If there was any rectification needed,it should have been done within the film family,openly,by thrashing out issues,and without the government interfering. The way the government went about it,in a secretive way,by keeping us completely in the dark,was unwarranted,uncalled-for and unscrupulous. They have created a divide within the family,and this is the most damaging thing that has ever happened!”

Bhatt argues that the producers never had a problem with royalties. “But we must look at ground realities. Any amendments must look beyond bank balances,so that everyone benefits. GenerationNext should thank us,not curse us.”

Getting specific against his grouse by what he calls a secret move by “elitist composers and lyricists”,he says that it is very easy for the other side to point fingers. “We are putting in all the money,we record songs and later promote them with the film. Why don’t they say that we will not take upfront fees but only royalties in that case? A bare two out of 100 songs actually work,but we pay upfront for recording and promoting every single song and for making the rest of the film and promoting that as well! If music companies offer us money and we need it,what’s wrong? We also need a cash flow. And if our films and music flop,are they willing to share our losses too?”

Bhatt points out that the producer tribe cannot be considered an affluent lot just because a handful of filmmakers are prospering “out of 5000”. Thunders Bhatt,“Dadasaheb Phalke,the founder of Indian cinema,died a pauper. And how can we forget a genius like Shailendra? He was well-to-do as a lyricist and he died because he made the mistake of becoming a producer. Teesri Kasam brought him so much debt that it killed him! If many composers and lyricists have passed away in penury,so also have producers. And we have a multi-millionaire like Pandit Ravi Shankar who is sitting in California declaring that this Amendment is justified!”

Bhatt,like Malik,also asks for fair play. “We must share responsibilities and profits equally. Music directors and lyricists are creative people,so are we,but we also look after the business side. Any transition must be step by step and amendments and laws must be based on facts,not opinions.”

Seconds a Guild spokesperson,who requests not to be named,“We are asking for our democratic rights to trade,contract and monetise our film rights freely. We accept that the royalties need to be streamlined. India is different from the rest of the world — the largest music in India is film music and composers and lyricists get this big platform because a producer takes the risks.”

He stresses that the producer is not like the typical lala or zamindar. “At one level,he is on the same page as a Javed Akhtar or an Anu Malik. He too is creative – look at how musical Mukesh Bhatt is,for example,irrespective of his composer. We all want to grow and the industry to flourish.”

If this Amendment comes,he feels,the producers will have no option but to cut out the music. Remind him that only six or seven films have worked in Hindi cinema without songs in 80 years,and he replies that most films with songs flop too.

About Akhtar’s statement that the Amendment will also benefit producers,he says,“Well,it might turn out to be wonderful,but basically in film music in the Indian context I fail to see how there can be multiple owners of rights. The film and all its contents can only have a single owner — the man who invests in the project. The profits can be shared with contributors to a film’s success.” He argues that flexibility in agreements and freedom of assignment is needed.

Ominous signs

The producers reiterate that the main culprit is the government,and the Amendment is only one more nail in the filmmakers’ coffins. Bhatt declares with characteristic intensity,“Please put this in bold print — this is the most anti-entertainment industry government since Independence — just imagine,the previous government was the one that recognised us as an industry!”

He goes on,“They look upon us as a ‘sin’ industry,levy all kinds of killing taxes — even more than the tobacco and alcohol industries! — and simultaneously are cutting our revenue streams. This government is meticulously looking at ways to kill us! Recently,they made it compulsory to give out our songs to private FM channels for a paltry two percent instead of the existing 15 to 18 percent royalties that we were getting. We are not even given the freedom to refuse these channels that are minting crores. So now we have no right even to protect our properties and interests.”

He declares ominously,“This is something that will even affect the composers and lyricists. Do they know of this? By 2013,unless a miracle happens,the government will be writing the industry’s obituary instead of celebrating the centenary of Indian cinemat and they will need to start a “Save The Producer” project because we might,like tigers,soon become extinct! Let the NFDC then keep making films to try and entertain the people!”

THE LEGAL ROOM

Saikrishna Rajagopal,Managing Partner,Saikrishna Associates,lawyers specialising in Intellectual Property,speaks in a Screen exclusive.

“The root of all this is a 1977 Supreme Court judgement in an IPRS case,which producers interpreted to mean that when they created content for a film,all copyright went to the producer. In 1994,a legislative amendment in the Copyright Act overruled this judgement. The Cinematograph Film,as it is termed,was then said to include the accompanying soundtrack,which meant the lyrics and music too,and so the complete owner was the person at whose instance the film was made. There was thus no need for any assignment of rights.

In 1994,the definition of a film changed. The term “soundtrack” was replaced by the apt term “sound recording”. Thus the soundtrack rights including the music and lyrics within the film’s reels were exclusively owned by the producer,but the music and lyrics by themselves were separate works and so the composers and lyricists had rights too.

However,after 1994,there was no occasion to check the effects of this Amendment,and so producers completely exploited the authors and composers. The IPRS,formed actually to ensure these royalties to authors and composers,was itself completely taken over by recording companies and film producers,who told the authors-composers that they had to accept such largesse that they would hand out. They alienated the composers and lyricists from what was essentially an organisation that had been formed for their benefit – they were treated as second-class members who did not even have voting rights within the IPRS. When new revenues like ring-tones opened up,they started entirely pocketing those revenues too,which were essentially performing rights. Thus,rights had to be assigned completely by authors and composers to the producers or music companies metaphorically at the point of a gun — that is,with the alternative of losing work and livelihood.

Gradually,when many such music and lyrics creators started living or dying in penury,or as can be said,‘dying outside a hospital because they could not afford treatment there’,the government realised that something was wrong,and to undo the damage,an amendment was needed even in addition to the 1994 one. What has come out now is a wonderful model that has a more equitable distribution of economic benefits. It will give composers and authors a stronger position in IPRS,which is as it should be.

The challenge here was in striking a balance,a fine and realistic one that was not author-centric. Most civilised countries have similar provisions for film music.”

A warning note

“But I also have another vital issue to spotlight,and this will affect the film industry at large,including the producers,authors and composers and even music companies. The HRD Ministry is also planning to bring in an Amendment about Section 2 (m) pertaining to territorial division of rights. If this does become law,the industry will be terribly affected. The industry must study this problem and address this new and larger issue now.”

rajiv.vijayakar@expressindia.com