“Today if you are paying two people [royalties on music they worked on], under the law there could be potentially six people who ought to be compensated for this exploitation,” said Rahul Ajatshatru of Ajatshatru Chambers. But, he said, there are many more people involved in a song’s creation that may be entitled to royalties, but are not receiving them. The music industry has undergone significant changes since the last time the Copyright Act was amended. Speakers at MediaNama’s discussion on Copyright and Digital Media discussed the possible changes that the Act could undergo to accommodate these changes, as the government has begun private consultation to once again amend the Copyright Act, which we first reported. Held on October 30, the discussion was supported by Netflix, Facebook, and Amazon.
Increasing demands for dynamic injunctions
- Dynamic website blocking: “Recently, the music industry has been quite vocal in asking for inclusion of dynamic injunctions as a remedy with the law,” Pragya Chaturvedi, Senior Intellectual Property Advisor at the British High Commission in New Delhi said. Chaturvedi was speaking in a personal capacity.
- What are dynamic injunctions? Dynamic injunctions are an emerging method of website blocking where a court can approve future mirror URLs of a blocked website to be nearly automatically blocked as well. The Delhi High Court in August granted one such injunction. As music revenues rapidly start coming from licensed streaming services in India, music companies may be keen on obtaining such orders to snuff out piracy more effectively.
Copyright societies and reforming them
- Need more copyright royalty societies: Copyright societies are organisations that collect royalties from people using copyrighted music, and pay these royalties to the music’s creators. “There are only three societies, we have Phonographic Performance Limited, we have the Indian Performing Rights Society and we have the Indian Singers’ Rights Association,” Ajatshatru said. We need to have societies for other people in the music industry who are collecting royalties,” he added.
- Of the societies mentioned above, PPL isn’t even a registered copyright society anymore, law firm Lexic’s founder Sandhya Surendran pointed out.
- Reforming copyright societies: “What I like about the 2019 draft rules [Copyright Amendment Rules, 2019] right now is that it’s definitely putting a lot more onus on the societies to shake themselves up, to be more accountable, to be more transparent. I would like to see more of that in the act itself, rather than merely just the rules,” Manojna Yeluri, founder of business and legal consultancy Artistik License said.
- “PPL is currently an authorized agent, and not a registered copyright society anymore,” Surendran said, asking, “Even if they are recognized now, how are they going to redeem themselves and actually take their part seriously, and collect on behalf of the people who actually own the music?”
“I would also very much like to explore the opportunity of empowering other societies to collect on behalf of different stakeholders. It is kind of naive of us to also assume that one society should reflect everyone’s interest. That’s not the case. It’s a rather myopic view to take. The non-film music space, for instance, in India is growing and has very different needs. And for those very different needs, it would need a different set of infrastructures that are accommodating of that. Maybe that’s in the form of collective bargaining organizations, or maybe it is a good idea to have more societies and power to actually collect royalties.” — Manojna Yeluri, Founder, Artistik License [emphasis ours]
Why compulsory licensing needs clarity: Compulsory licensing of music under Section 31-D of the Copyright Act is a contentious topic. While the Bombay High Court has held that such licensing — which lets radio stations and music TV channels unilaterally buy rights to music without a negotiated license — doesn’t apply to online streaming services, there are still calls for clarity.
- “When there is either an unreasonable refusal of a voluntary license [as opposed to a statutory license] nobody wants to do business because they are being either monopolistic or something else, or the transaction costs of negotiating a license are too much,” Ajatshatru said. “What is the compulsory license, and what is the scope of statutory license, how there is no need to negotiate anything, [how] you need to just apply and get it. So, in which situation what regime is to, what path is to be followed, there is no clarity,” Ajatshatru added.
- “[Section] 31D was only to help the radio industry because it was a nascent industry and we had this huge fight in the copyright board which culminated into 2010 two percent advertising revenue royalty rate sort of a arrangement. That is gone, it’s now a twenty-year old plus industry. 31-D if at all has any relevance it has to be very limited to this kind of a usage,” Ajatshatru argued.
Participation and compensation for artists
- Including artists in conversations: “A couple of months ago, we definitely saw a lot of furor and hungama over the IPRS [due to its livestreaming tariffs],” Yeluri said. “And even then, there were so many artists who were left completely out of the conversation, considering that this is something that necessarily affects them.” Yeluri added that musicians found themselves excluded due to the dominance of film music in the industry. Many independent artists are not signed with labels, Yeluri said, and “a lot of the times their interest is simply not represented.”
- “We actually might need stronger functionality and hence stronger enforcement,” Yeluri said. “Because right now a lot of is up in the air. When it comes to copyright societies, I think my primary issue really is this: the societies that exist right now aren’t really doing a good job. I’m definitely not going to be shy about admitting that.” Yeluri added that independent musicians did not have enough incentives to join copyright societies.
- Statutory damages: “In America, you have the concept of statutory damages, which is not something we have in the Indian regime right now,” Lexic’s Surendran pointed out. For context, statutory damages are penalties that are mentioned in the law itself, as opposed to being decided individually by adjudicators. Incorporating it into the Copyright Act would probably change industry practices to the benefit of the artist, because it would discourage labels from actively infringing copyright provisions, which is what they do right now, according to Surendran.
“They [labels] ask you to waive your moral rights, they asked you to assign hundred percent of publishing, and I mean, understandably, song masters are owned by them, but publishing royalties shouldn’t be assigned hundred percent, there’s still 50% that the composer and lyricist can retain. And this is not practiced actively at all.” — Sandhya Surendran, Lexic
Note: Quotes have been edited for clarity and length.
Update (November 4): A remark from the event that should not have been quoted was carried in this piece at the time of publication. We have removed the quote, and apologise for its inclusion.
- Our complete coverage of the discussion here.
- Government starts private consultation to amend Copyright Act