With righteous indignation, Rajeev Shukla (‘Play the new copyright act’, IE, January 20, 2017) lashed out at music companies for non-payment of remuneration to playback singers of yesteryears, particularly those from the 1940s and early 1960s.
Unfortunately, Shukla’s views suffer from inadequate understanding of the law and trade practices. He seems unaware that the film producer is the copyright owner of the film, according to the copyright act. It is the producer who engages playback singers as well as actors, story/script/dialogue/lyrics writers, director, cameraman, music director and numerous technicians and others, who contribute to the making of the film. It is the producer who, in legal parlance, takes the initiative and responsibility for making the film.
A music company deals only with the producer for acquiring the rights to make and sell sound recordings of the songs (and even dialogues) of the film. The copyright in sound recordings belongs to the music company, which is obliged to pay the agreed royalties to the producer. The music company is not obliged to make any payment to the playback singer for acquiring these rights. However, a playback singer is free to ask the producer to share with her a part of the royalties receivable by the producer from the music company.
Copyright law has been on the Indian statute book for over a century. The first Indian Copyright Act patterned on the UK copyright law of 1911 became operative in 1914. The copyright regime underwent a major uplift post-Independence with the Copyright Act 1957, considered among the best copyright legislations in the world. The Act has, of course, been amended as many as six times. The 1983 amendments were mainly to enable compulsory licensing provisions in accordance with the protocol to the Berne Convention for developing countries. Thereafter, the 1984 amendments, inter alia, strengthened the law’s anti-piracy provisions.
The Indian law accords copyright protection to literary, dramatic, musical or artistic works, cinematographic films, and sound recordings. The producers of sound recordings have collectively administered their public performance and broadcasting rights through their copyright society, Phonographic Performance Ltd (PPL). Lyricists and composers are similarly entitled to administer their rights collectively through their own separate copyright society, Indian Performing Right Society (IPRS). Such collective administration has been provided for in our copyright law.
As for performers, our copyright law, before and after amendments in 2012, has provided a performer not with copyright but with special rights called performer’s right in relation to the performance. Internationally, the need to afford protection to performers (as also sound recordings and broadcasting organisations) was acutely felt, and hence the Rome Convention was adopted way back in 1961. India had signed but not ratified this Convention. But, then, the Indian copyright Act has afforded protection to performers who by definition include not only singers but also actors, musicians, dancers, acrobats, jugglers, conjurers, snake charmers, lecturers and so on.
In December 1996, WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) were finalised by WIPO (World Intellectual Property Organisation). Both these treaties were essential for providing international stipulations in response to the evolution of digital technology and internet. They deal with technological measures of protection and rights management information necessary to license and monitor uses of copyright works. WPPT also maintains a balance between the rights of performers and producers of sound recordings and the larger public interest. WPPT thus is of prime importance for record producers as also performers.
The advent of WCT and WPPT influenced 2012’s amendments in the Indian copyright law, which expanded the special rights of performers. These also enabled formation of performers’ societies for collective administration of their rights. For instance, Indian Singers’ Rights Association (ISRA) has been formed to carry on collective administration of singers’ rights. Lata Mangeshkar is one of the directors, according to ISRA website.
Shukla gives credit to All India Radio, Vividh Bharati and Radio Ceylon for making singers and composers popular. Sadly, he has forgotten the music companies, which brought out their recordings. For instance, the pioneering HMV has tremendously contributed to the propagation and preservation of Indian music through its recordings. The role of the dedicated music industry which made the music of the golden era popular and last forever should be acknowledged.
Will the 2012 amendments to the Copyright Act apply to songs of the golden era of our film music? Will the singers of yesteryears or their legal successors start earning royalties on the broadcast or public performance of recordings of their old songs? I have serious doubts. First, the legal terms of protection of those old recordings and performances are slowly but surely getting over. Second, the copyright law itself then contained a stipulation which virtually took away performer’s special rights once she consented to incorporate her performance in a film. The battle seems to have been lost before it began.