The author takes a look at the recent amendments to the copyright law and explains how the amendments will unsettle long established practice of the entertainment industry and how the producers have received a raw deal from the legislature

The Copyright (Amendment) Bill, 2011, which was pending for the last two years, has finally been approved by the parliament, and would upset the delicate balance between the rights of the producers and performers. The amended law distorts the fine tuned copyright regime in the country. The amendments in fact not only addresses the concerns that were initially raised by the composers and lyricists regarding their rights but also provides benefit to all the “performers”, not asked for in the first place.

The equilibrium in the industry rests on the mutual trust and co-operation existing among the producers, the technical artists and the actors. Nevertheless, it is the producer who carries the entire burden of producing the film and puts his neck on the line. It is the producer who endeavours to unite the talent of both the actors and the technical artistes to complete a film by employing considerable amount of economic resources and effort.

This crucial role of the producer is widely acknowledged in the Copyright Act, 1957. Section 2 (d) of the Act states that in relation to a cinematograph or a sound recording, producer is the author, i.e. the producer is the first owner of a film. He hasbeen given a blanket right over any performances in the film under Section 38(4) and was not liable to make any kind of perpetual payment for such performances.

The Act extends enough protection to the performers too. It enlists several rights that belong to the performers on account of their performance in the film. However, their performance does not have a separate existence from the film. Hence, once a performer consents to incorporate his performance in a film, all his performance rights naturally accrue to the producer. He gets the rights to utilise the film in any manner as he desires, like any other entrepreneur. In a way, the Act allows the producer to utilise its copyright and enjoys its economic benefits on account of the risk that he undertakes. However, the amendments in the bill disregard the efforts of the producers and try to fragment their rights by allowing parallel rights to the performer.

The amendment with regard to performers’ rights was a result of two parallel campaigns led by lyricists and vocalists. They advocated for the payment of performing royalty to the composers. Performing royalty, with regard to music industry, arises when the performance of a song takes place in live through traditional media, through forms of communication or entertainment. He argued that performers should also be given right to performance royalties.

Section 38A enumerates the performers’ rights that are essentially enjoyed by the performers at par with the producers, with regard to the respective performances incorporated in the film. The rights1 include: Right to make sound or visual recordings of the performance; Right to reproduce, issue copies, communicate to public and to sell or rent such recordings; and Right to communicate or broadcast the performance to the public.

Apart from guaranteeing a plethora of rights, the section proposes that the performer has the option to withhold his rights by way of a written contract to that effect2 . It does not imply that the performer would be deemed as the author or owner of the whole film but the performer is equipped to restrict the transfer of performer’s rights with regard to the particular scenes or portions in which the performance has been incorporated.

Nevertheless, this provision can jeopardise the whole film. Further aggravating the situation, the section also holds the producers liable for paying royalties in case of making of the performances for commercial use3 , i.e., when the performance is put to any other commercial use, apart from being used in the film. If the producer is obliged to pay royalty to the performers, he would pass on that economic burden to the assignees, as he would be collecting such amount to be paid to the performer from the assignee. It would in turn make the whole entertainment industry costly. The section, in short, restricts the enjoyment of rights by the producer in caseof commercial exploitation of the performance.

Moreover, as per the current industry practice, there is enough freedom to the performers to contract and have the commercial arrangements with the producers. The amendment, instead of doing any good, would rather adversely affect most performers, who may end up getting lesser royalties, which are the sole means of their livelihood. Giving wider rights to performers will not get them anything but will disturb the present market equilibrium and adversely affect non-star actors.

These proposals were strongly opposed by the producers before the parliamentary standing committee. The committee stated that the apprehensions of the film producers are guided by commercial interests. However, one should remember that film industry is essentially a part of the private enterprise and the producers are individual entrepreneurs. The object of anyprivate endeavour would be to maximise revenue. When such a basic management principle exists, how can one expect the producers to share the extra dividends of their risk bearing to be shared with the performers who have already received secured definite payments? Also, a producer knows the best how to commercially exploit a film, as he has the knowledge and better infrastructure. Right to commercially exploit a sound recording or a cinematograph film should vest with the producers