Brief overview on why Amendments to the Copyright Act has created such a stir

By Bollywood Hungama News Network -

February 20, 2010 - 9:54 AM IST

While the Ministry of Human Resource & Development is working on the amendments to the Copyright Act 1957, several issues and concerns have been raised and discussed in print, media and on the Internet that is based on speculation and has created a cloud of uncertainty, anxiety and concern for people in the Media & Entertainment Industry and more particularly music companies and owners of copyright in music and films. Most concerning speculations that have spread in the industry are regarding amending the copyright laws to make them oriented selectively in line with certain (though not all) western jurisdictions and Bollywood Hungama believes that we as committed members of the Industry, must distinguish the Indian situation from that of other countries. Even within the developed world, there are very significant differences between the copyright laws and traditions of different countries.

Brief overview on why Amendments to the Copyright Act has created such a stir

Creation, Production & Promotion of Music: The Indian Experience vis-à-vis the West

Most music in India is primarily made for and promoted by films/movies (cinematographed films). The film producers in India commission various creative artistes (music composers, lyricists, singers) and a song is recorded at the instance of the film's Producer (or producer of a music album). Selection of such a team of creative artistes is also mostly by the producer of the song/album and often the songs are written based on the script/story or situation of the film from which the composers of music and lyrics draw heavy inspiration. Thus, the Producers/Music Companies who commission the making of such music/songs control and determine greatly the creative nature of the final output/product.

Not only does the producer/music company bear the cost of the recording of the song (that includes substantial payments to such creative artistes), the producer spends large amounts of money on the shoot of the film with which such song is synchronized, its promotions and publicity that includes promotions by way of hoardings, print in magazines and papers, broadcast visual songs on Satellite TV channels and Radio and digitally over mobile and telephonic platforms and Internet.

Unlike many developed countries, where the business model whereby music is brought into the market is different, i.e. the artist takes his work to a music publisher; Indian industry remains primarily film-driven. Unlike developed countries, where the creative inputs in terms of music and lyrics are generally given by the same artist, and often such artist makes the investment of the recording and promoting his music, in India the Producer himself identifies talent and proactively chooses and goes to the artist whose works he will promote through his films or otherwise. Further, where in most countries usage, in a film, is only incidental, and in fact it is the song that makes a film popular, unlike the case in India where the film promotes the music in it. This system has evolved historically on the basis of economic realities in India.

Popularity of music and songs

The Indian experience, and also the global experience, shows that the popularity of music/song of a film is not entirely based on the creative inputs of such creative artistes (composers of lyrics and music), but very substantially on the promotion that the artiste gets from those who invest in him.

It is the producer of the film who spends large amounts of money on the glamorous sets and locations and ever increasing amounts of monies on popular actors on whom the songs are shot and picturized coupled with tireless promotion and publicity plans to make the song/music get public attention and popular among masses. In reality it is the efforts of the producer and the music company that makes a song heard and noticed by public and when liked, such songs become popular. Also, the duration of footage in a film (with 4-5 songs) form a substantial portion of the film and the proportionate cost of shooting of the song today runs in several crores. Thus, it is the producer who shoots the songs creatively and aesthetically selecting the popular actors, sets and locations and the music company who subsequently spends crores on promotion of the music album across all platforms (FM Radio, Satellite TV, Mobile and Internet) and also spends on manufacturing of compact discs/cassettes/dvds and distributes it across all corners of the country and thus, after investment of crores of rupees, a song becomes heard by the masses and if liked then popular. It's only then that such creative artistes who have collectively contributed in a song as commissioned by the producer also get their fame.

While the creative artistes (composers, lyricists and singers) are paid at the time of recording of the songs, the producers and music company who subsequently acquire copyright takes many years to recover the investments made on such songs/music before they break even and start to taste the fruit of their investments. Such creative artistes on the other hand from the popularity of the song/music attained by tireless efforts and investments of the producer/music company, get opportunity and profit from public performance in shows, events, but they do not share any share of their profits with such producers/music company on whose behest such song was created, recorded and made popular.

The most prevalent business models in the Industry today reward such creative artistes at the time of commissioning such music albums and thereafter upon recoupment of investments a fair share of profits from the music companies/producers.

Again, by way of example, we feel that the present system of compensation to composers, writers and performers is in their interest giving them security of agreed compensation regardless of the success or failure of the film-it must be borne in mind that the majority of films are not successful. The entire risk at present is borne by the Producer.

Alternative royalty-based non-assignable rights models, if imposed by law, are likely to do away with the present up-front payment system: being bound to pay royalty from the first day of exploitation without recouping the costs incurred, the Producer will be less willing to make a substantial up-front payment. The result will make the artist dependent on factors beyond his control affecting the success or failure of the film, and also dependent on the accounts rendered to him periodically by the Producer (or the Producer's successor-in-interest), and that too for the entire term of copyright. This can only lead to disputes.

Unconsidered intervention in existing market arrangements and market structures can have highly unpredictable consequences. It may hence be preferable to allow the law of contract, of competition and of copyright to evolve through judicial decisions and through the development of new business models in response to changing technologies, than to risk unresearched amendments to the law.