By Sidharth Chopra and Nandita Saikia
India is once again in the process of amending its copyright law. This comes after a complete overhaul of the field’s governing statute in 2012 followed by the issue of rules under the statute in 2013. The latter were amended in 2017 largely to have the functions of the Copyright Board be taken over by the Intellectual Property Appellate Board while the 2012 amendment of the statute itself was primarily intended to address discrepancies in the power held by various stakeholders in the so-called copyright economy particularly in relation to the film and music industry.
Recently, there have been moves to further amend the rules to bring them into line with technological advances and to address lacunae in the law. However, it is not clear at all that all of the proposed changes can actually be effected through amendments to the rules since some of the changes effectively involve amending the structure of the copyright statute, and it is trite law that a statute cannot be amended via an amendment to rules subordinate to itself which are required to be in consonance with it.
Legal technicalities aside, although the impact of copyright is, of course, not limited to those involved in making and distributing commercially-accessible content, the fact remains that it is they who form the media and entertainment industry which, amongst industries, is one of those most affected by what happens in the realm of copyright law. It is therefore worth considering the path which copyright law appears to be taking in relation to the sector.
The Size of the M&E Industry
The Economic Survey 2018-2019 devotes a dozen paragraphs to the Media and Entertainment Services sector in India and notes: “As per the FICCI EY Media and Entertainment Report 2019, the size of the Industry has increased from 91,810 INR crore in 2013 to 1,67,500 INR crore in 2018, a growth of 82.44 per cent in the last 5 years.”
The sector itself includes television, print, radio, film, music, digital advertising, over-the-top film and television content, visual effects and gaming, with new forms of content and modes of distribution being brought within its umbrella on a fairly routine basis.
Keeping in mind its size not just in terms of the financial considerations involved but also the vast array of ways in which it interacts with consumers, it is imperative that India develop an ecosystem which would enable the sector to realise its true potential and contribute to economic growth. This means, amongst other things, that there must exist a legal framework within which everyone involved can be treated fairly.
Public Interest and Legal Developments
In large measure, ‘achieving fairness’ is the aim with which many of 2012 amendments to the 1957 Copyright Act were proposed and passed, with the rights of individual writers, musicians, and artists being given the highest priority. Under these amendments, they were often granted a continuing right to royalties for the exploitation of their works which right they could not waive through a contract. The non-waivability of the right to royalties protected individuals given that, on the ground, they would enjoy far less power than that of the companies they would routinely be obliged to deal with.
There was also a provision in the 2012 amendments to the Copyright Act to protect companies from each other especially to keep content aggregators from hoarding music and licensing it at extortionate rates: a statutory licence which was intended to apply to radio and television broadcasting was incorporated into the Copyright Act. The licence was later extended to online broadcasting too by the government although a recent interim order by the Bombay High Court has once again restricted its scope to the radio and television broadcasting explicitly contemplated by the statute.
The courts have, in recent years, been interpreting the laws relating to copyright often taking public interest into consideration. In doing so, they have created a virtually unrestricted right for students to photocopy books for the purpose of their education and, when it comes to television, allowed TRAI, the Telecom Regulatory Authority of India, and the statute it operates under to supersede the Copyright Act.
It has not, however, always been clear that ostensible acts in the public interest are actually in the interest of the public since simply cutting revenues of the big players, as attractive as that prospect may seem, ignores the fact that it is the big players who also invest significant amounts of money in content creation. Cutting their revenues would ultimately cut down on their ability to pay individuals, deplete their ability to create content, and impact the general public in ways that are likely to be unintended.
Free Speech and the Economics of the M&E Industry
The general public might indeed save a few rupees on content consumption by measures to leash the ‘big players’ and ‘control’ their revenues. However, it may have to pay for those savings through decreased access to content itself. It is simply not reasonable to expect individual content creators to develop content and make it accessible without being well paid themselves, and it is through large companies that they are often paid.
Having the Economic Survey highlight the potential of the media and entertainment services sector, makes this an opportune time to revisit the provisions of the Copyright Act, 1957, for the purpose of restoring the balance amongst creators, financier-distributors, and the users of copyrighted content. We have to keep on reminding ourselves that growth of the sector is directly linked with how we treat content professionals: artists, musicians, lyricists, and others who are involved in content development and distribution right from the stage of the conception of an idea to its execution and final delivery to consumers.
Few other sectors are as closely linked to the exercise of the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution of India or as reliant on the 1957 Copyright Act for their very survival. The economic exploitation of the right to free speech finds articulation under the Copyright Act. Considering how important free speech is to us as a society, it is not sufficient to simply have a right to free speech: it is equally important to provide economic protection to creative persons to encourage them to be able to invest their time and resources in the exercise of the right.
The Need for Evidence-Based Policy
What has been almost consistently absent from the process of developing copyright policy in the M&E sector has been a reliance on evidence. Data is hard to come by, and solid econometric analyses of the likely effects of policy proposals is rarely, if ever, conducted. Experience has shown that the 2012 amendments to the Copyright Act, though well-intentioned, have had the effect of significantly narrowing the scope of negotiating copyright contracts, and it has not always been obvious that this served anyone’s interests although ‘experience’ is a subjective term and relies, in this case, on little more than anecdata often shared within the copyright community, such as it is.
A robust regime for content creation and utilisation is the need of the hour. Although there is a clear need to establish minimum standards to ensure that individuals are not unjustifiably exploited, there is no evidence to suggest that either the law itself or legal regulators should focus on nothing substantial beyond fixing the prices for content acquisition and exploitation whether to advance public interest or serve the requirements of individual artists. This is particularly true since attempts at safeguarding various interests have rarely been backed by facts and figures, and have severely impinged on both the freedom to contract and market flexibility. While it’s true that hard evidence rarely tells the whole story in any context, it is also true that making essentially financial decisions based on sentiment and gut feeling alone is not ideal.
As opposed to merely regulating prices, regulators and, for that matter, the Board should function as watchdogs which step in to address discrimination and the imposition of unreasonable terms. This requires a sea change in attitudes towards the development of copyright policy. Prudence has to be shown by both the state and the stakeholders of the media and entertainment landscape so that the sector does not become over-regulated in ways that do not necessarily benefit anyone in the long run.
(The authors, Sidharth Chopra and Nandita Saikia, have advised a number of companies in the eCommerce and media realm on issues of law and legal policy, and have been involved in two cases mentioned in this piece. The opinions contained in this article are their own.)