Opinion Changing our tune

In the midst of all this brouhaha,what has been largely missed is a problematic provision that effectively sanctions an inequitable transfer of wealth from India to the US.

Section 40 of the copyright act urges the Indian government to protect foreign copyrighted works in India only if Indian works of a similar nature are protected in the foreign country. While the Indian government has largely adhered to this principle of reciprocity,it has miserably failed to protect our interests in the context of sound recordings.

It bears noting that the US copyright scheme does not provide any protection for the public performance of Indian sound recordings. However,US sound recordings are protected in India,just as all other sound recordings are.

By way of background,our copyright act provides for the protection of a number of works,including literary works,artistic works and musical works. It also provides separate copyright protection for producers of sound recordings. In the context of a movie,the sound recording is usually owned by the producer of the movie and then assigned to a music mogul such as T-series.

A typical Bollywood number has two set of rights associated with it: the copyright over the sound recording (which vests with the sound recording producer) and the copyright over underlying words (such as the lyrics and musical composition which continue to vest with the lyricist and composer). When a dimly-lit bar in Mumbai belts out raunchy numbers hailing Sheila’s Jawani or bemoaning Munni’s Badnami,both sets of rights are implicated. Therefore,under our present copyright norms,royalties have to be paid by the bar to both the underlying artist and the sound recording company.

However when this music is played in a US bar,no royalties need to be paid at all,to either the sound recording company or the artists,provided that “home-style” equipment are used to play the music within the bar.

An ideal outcome for many of us who lack respect for the innate sanctity of copyrights would be to simply replicate the US position — amend the law to remove such public performance rights,at least in the context of small outfits that play such music.

Yet,till such time that we evolve to this superior position,the spirit of Section 40 dictates that the government must exclude US sound recordings from the ambit of the international copyright order,an order that lists out the various foreign copyrights recognised under Indian law.

One may argue that the letter of Section 40 permits the government to violate this cardinal principle of reciprocity in some respects. And it is this ambiguity that ought to be rectified immediately through an amendment.

If the US does not protect our interests,there is no reason why we should go out of our way to protect theirs. Charity no doubt begins at home,but has to be curbed when it results in an unfair filling of US coffers at Indian expense. And this is precisely what happens when Phonographic Performances Ltd (PPL),a coercive collecting society,comes knocking on many a hotel or club door to collect moneys for recordings that are played. In its operations,PPL is about as transparent as a coal seam and there is considerable uncertainty about its rights to collect in this regard and whether or not it remits money to its foreign counterparts. But that is the subject of another debate altogether.

One hopes that the government strengthens this reciprocity provision prior to re-introducing the amendment bill in Parliament during this budget session. For,any apathy in this regard will continue to spur the inequitable transfer of wealth from an aspiring super power with appalling levels of squalor to an existing super power tiding over a turbulent economic wave.

The writer is the Ministry of HRD professor at the National University of Juridical Sciences,Kolkata