Sanjay Tandon, a legal expert on ‘Copyright’ and the former head of IPRS (Indian Performing Rights Society) gives a lowdown on the Copyright Amendment Bill:
[T]HE 8 RIGHTS (Economic Rights)
There are eight rights which composers, and authors or writers of any literary/ dramatic/musical work have got under the Copyright Act:
(i) The right to reproduce your work in any material form.
(ii) The right to publicly perform it or to get it communicated to the public by any means.
(iii) The right to make copies of that work.
(iv) The right to make sound recordings or CDs, DVDs of that work.
(v) The right to make a film out of that.
(vi) The right to adapt.
(vii) The right to translate.
(viii) The right with respect to adaptation and translation and the other six rights.
Hitherto, what was happening is that though one had all these rights but the producers would take them away at the snap of a finger and none of us could do anything individually on that account. Now we have a new Copyright Act, which literally says that though the copyright is assignable, the right to royalty is unassignable. The right of copyright is still the same as it was used to be, but the right to royalty is inseparable.
WHAT IS RIGHT TO ROYALTY?
It is in accordance with one out of the eight aforementioned rights, which is the right to make a cinematographed film, which allows you to give your work to the film producer. Now, we all know that one needs to acquire rights to make a film based on a published book. Same thing applies here. A script, a screenplay, dialogues are first written and then made into a film. This is the right, which the writer transfers to the producer while other rights still lie with him/her.
TRANSFER HAS TO BE IN WRITING
The Act presumes under section 19, that such a transfer has to take place in writing. And it can’t be that all the rights are being transferred at one go. Each Right given to the Producer has to be separately mentioned in the Agreement.
STATUS WHEN THERE IS NO AGREEMENT
If there is no agreement then it is presumed that all these rights are with the Writer and not with the Producer.
If the term is not mentioned in the agreement than it is presumed that it is for 5 years.
If the territory is not mentioned that it is presumed that it is the territory of India only. These are the presumptive clauses of section 19 of the Copyright Act.
ASSIGNATION ONLY FOR TWO YEARS
Another presumption is that if the person to whom you have assigned your copyright doesn’t utilize it in a period of two years then it automatically comes back to you and you can give it to somebody else. Of course, there are ways and means that the assignee takes in waving off that right so that even if it doesn’t get made in two years it is fine.
ROYALTIES CANNOT BE ASSIGNED
Copyright rights are assignable but the right to royalties cannot be assigned.
FORMING A COPYRIGHT SOCIETY
You will get all your royalties. But the question is how? That is also stipulated in the law. Royalties can be collected only by a Copyright Society and can’t be collected individually or by agents. It has to collected either personally by the Writer, which is very difficult because you will never know in which part of the world your film is being played, or it has to be collected by the Copyright Society or by your legal heir which comes into picture only when you are no more.
The need of the hour with these amendments is to have your own Copyright Society. You should form your own Society in which all writers can become a member. That Society will document the work done by its members. Its boards or the management will come up with the tariff and rates, which will decide what the end user will pay you.
Things like the charge of the redistribution or the amount to be paid if a dialogue is taken out of a film and is played on TV; will also be decided by this Copyright Society. After deciding all these tariffs etc. the Society will also need to determine how it will be distributing the royalties once the money starts coming in.
The share of the storywriter, the screenplay writer, the dialogue writer, everything has to be decided.
DEFINITION OF LITERARY WORK
The term ‘literature’ or ‘literary work’ is defined as ‘a creative or imaginative piece of writing’. Imaginative or creative writing can also mean literary composition, a piece of writing, written material, writing or work of a writer, anything expressed in letters of the alphabet (especially when considered from the point of view of style and effect).
The definition further includes, Dialogues – A literary composition in the form of conversation between two people, Fiction – A literary work based on imagination and not necessarily on facts, Fictionalization – A literary work based partly or wholly on facts but written as if it was fiction, Poem, Verse – A composition written in metrical feet forming a rhythmic lines, and even writing of poor quality, is also literature. So this is how the definition of the term literary work is interpreted in legal matters.
FIXING OF TARIFFS AND SHARES
What clearly falls under this definition of a literary work is the dialogue. The other aspects, more or less, are presumed to be more of the work of the director or outsource of the director or something like that. So the collective body first needs to recognize if they (story writer/ screenplay writer) also create. If they do, then you will need to decide how the pay can be distributed. You will have to settle on who will get what share. Does the entire sum go to the dialogue writer or it also gets distributed between the storywriter and the screenplay writer? If yes, then what would be their shares? It should not necessary be equal but will depend on the efforts which go in making that creative piece of literature.
This is, in short, how we have to go about it. But let me underline it again- Copyright is assignable, right to royalty is unassignable. No one take it from you.
The Bill also gives certain Moral Rights to the writer that are inalienable. Even if you can give away any other right, you can’t give this one away. One is the Right of Paternity – the right to be recognized as the parent of your particular work. It means no one can take away your name from what you have created. If a producer doesn’t mention your name, which is your moral right, you can sue him/her.
Second is the Right of Integrity. If somebody amends or modifies your work to such an extent that it amounts to mutilation or distortion or is prejudicial to your reputation or honor you can take actions against him/her, claim damages, stop the thing or do whatever you want. So these are the Moral Rights and the rights which I was talking about earlier are termed as your Economic Rights.
HOW TO CREATE A COPYRIGHT SOCIETY
Writers will have to form a society. I would advise that it should be made under the Companies Act and not under the Society Registration Act or any other Act. So you decide a name, form a company, prepare the memorandum articles of the association and once you are registered with the Registrar of Companies, you get registered with the Registrar of Copyrights in Delhi. Once you are registered as the registered Copyright Society only then you can start your business of granting and issuing licenses.
A minimum of 7 writers or owners will have to get together to make that Society. Now say if 7 rogue elements get together, which can be a concern at this moment; and try to make such a Society it is not necessary that the Registrar of Copyrights will approve it. The Registrar of Copyrights will approve it only when it’s all inclusive. And it doesn’t only mean the Hindi Film Industry but it will also be incorporating films made in each and every regional language. It will be a pan India Society so it’s a huge thing which is being anticipated. Therefore until the Society doesn’t reflect that everyone is there in it, the registrar is not going to approve it which means you don’t get the license to start the business.
Once you become a Copyright Society, you also have to enter into the reciprocal agreements with the world over. For example in Europe there is AIGP which looks after the writer’s copyrights. So they collect your royalties and send it you and you collect their royalties and send it to them. As far as films go, the money is lying abroad and we don’t have an organisation which can collect it for the writer.
CAN A PRODUCER KEEP A WRITER ON THE PAY ROLL AND DENY THE WRITER CREDITS?
The Copyright Bill requires you to clear your stand – Are you in employment or are you not in employment of the producer. If you are in employment, and that is where the writer should be careful about, then everything belongs to the employer. The proviso to section 17 of the Bill speaks in what manner you being the owner of copyright, are not the owner. It says that if you are under employment then the employer is the owner.
What the Bill rules out is the concept of ‘work for hire.’ Now ‘work for hire’ can’t be applicable in assigning copyrights of a literary work incorporated in a cinematographed film and the author will be entitled to receive royalties come what may.
This article was first published on the website of Film Writers’ Association http://www.fwa.co.in