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FWA Discussion Board:
COPYRIGHT AMENDMENT BILL: Demystified


1. THE 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.

2. RIGHT TO ROYALTY
The new Copyright Act says that though the Copyright is assignable, the right to royalty is unassignable and inseparable. No one can take it from you.

3. TRANSFER OF RIGHTS
(i) The Act presumes under section 19, that such a transfer has to take place in writing.
(ii) The Rights being given to the Producer have to be separately mentioned in the Agreement.
(iii) If there is no agreement then it is presumed that all these rights are with the Writer and not with the Producer.
(iv) If the term is not mentioned in the agreement than it is presumed that it is for 5 years.
(v) If the territory is not mentioned it is presumed that that it is the territory of India only.
(v) If the person to whom you have assigned your copyright doesn’t utilize it in a period of ONE year then it automatically comes back to you and you can give it to somebody else UNLESS you have specified otherwise in your Agreement.
(vi) Exploitation of the Writers work through any medium other than while playing in a cinema hall will now get royalty to the writer.

4. MORAL RIGHTS
The Bill also provides Moral Rights to the writer which are inalienable.
(i) The Right of Paternity – the right to be recognized as the parent of your particular work
(ii) 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.

THE LAW IN RESPECT TO TV WRITERS
Legally, TV writers start getting royalty from day one but the exact tariffs or any exemptions will be decided upon by the Copyright Society after the Writers form that Society. The producer can give to the channel only the right which the writer has given him, and not whatever he feels like.

DEFINITIONS
The law is meant for the ‘author of the literary work’ in a ‘cinematographed film.’ It includes the author of story, screenplay, dialogues etc.

(i) The DEFINITION OF THE ‘AUTHOR’is: In relation to the literary work, is the author of the work.
(ii) TheDEFINITION OF ‘LITERARY WORK’is:Acreative or imaginative piece of writing’, Can also mean literary composition, piece of writing, Written material, Work of a writer, Anything expressed in letters of the alphabet (especially when considered from the point of view of style and effect), Dialogues, Fiction, Fictionalization, Poem, Verse etc.
(iii) The DEFINITION OF A ‘CINEMATOGRAPHED FILM’ is:Any work of visual recording for any medium produced through a process by which any film can be produced by any mean and includes the sound recordingaccompanying such visual recording and cinematographed shall constitute as any work produced by any process which is analogous to cinematography including video film.

THE COPYRIGHT SOCIETY
Royalties can be collected and distributed only by a Copyright Society, by the writer personally or by their legal heir (i.e. when the writer is no more) and can’t be collected individually or by agents.

So, writers will need to form their own Society in which all writers will be members.

It will be an all inclusive pan India Copyright Society incorporating films made in each and every regional language and also TV content.

The Society will be representative of all Authors/Writers in the country
It will perform four major tasks:
(i) Granting and Issuing Licenses
(ii) Documentation of work done by its members
(iii) Collection of Royalties
(iv) Distribution of Royalties

Its board or the management will decide tariff and rates of royalties and also the scheme of Distribution.
It will also have to enter into the reciprocal agreements with similar Societies the world over.
 

Mr.Sanjay Tandon explains the intricacies of the Copyright Bill

On May 26, 2012, Mr. Sanjay Tandon, a legal expert on copyright related matters and the former head of IPRS (Indian Performing Rights Society) visited the office of the Film Writers Association to brief the Executive Committee on the Copyright Amendment Bill.

Mr. Tandon said:
“We now have got a very good Copyright Act in place which will benefit writers, composers and performers. Some unique amendments have happened and let me tell you that this Bill will soon be emulated by other countries as well; we have gone so far ahead. The rights which have been given now were there even earlier. Section 14.1 A defines clearly the 8 rights which composer, authors or writers of any literary/dramatic/musical work have got under the Copyright Act.

THE 8 RIGHTS
One is the right to reproduce your work in any material form. The second is the right to publicly perform it or to get it communicated to the public by any means. Third is the right to make copies of that work. Fourth is the right to make sound recordings or CDs, DVDs of that work. Fifth is the right to make a film out of that. Sixth is the right to adapt. Seventh is the right to translate and the eighth, is 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 seen the light of the day of 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?
What is the 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 are accustomed 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.

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 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’. Therefore, the Society will also need to decide whether dialogues, story and the screenplay fall under that definition or don’t.

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.

MORAL RIGHTS
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.

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 interpret the Act in terms of the TV Industry?
After giving an outline of the new Copyright Act, Mr. Sanjay Tandon invited questions from the listeners who were already waiting with doubts to be cleared up. “How to interpret the Act in terms of the TV Industry?” was the most important question, put up by the EC member Ms. Preiti Mamgain. Sanjay clarified:

“The right to royalty is unassignable and excludes when the producer shows a film in a cinema hall. You can’t go to the cinema hall owner and start asking for royalty. It’s a funny thing that TV writers have got an edge here. The cinema writers needed to carve this niche for them and now when it has been carved out it directly benefits the TV writer because a TV writer’s creation is directly shown on TV. You can’t help it, it’s a loophole but now the law is like that. It’s in our favor so we are happy.

So the TV writer starts getting royalty from day one. As far as the transfer of copyright from the producer to the channel is concerned, there has to be an agreement. The producer can give to the channel only the right which the writer has given him, and not whatever he feels like. The problem lies in the fact that they give away much more than what you give them which means you can sue them. Legally, you are subjected for your royalties from the day one but the exact tariffs or any exemptions will be decided upon by your Copyright Society.”

On being asked by Ms. Zoya Akhtar to clear the stand of the Bill on royalties generated through the first telecast of any show for which the writer has already been paid, Mr. Tandon said,

“What has happened is that the intention of the law was to primarily protect the lyricist but under that garb nobody paid attention what was actually happening. Thus, the term which has now been incorporated in the Bill is ‘author of literary work’ which also includes the author of story, screenplay, dialogues etc. You can view it whichever way you want but the bottom line is that your royalties are there for anything other than the part of the film and the law says that it can be a part of the film only in a cinema hall. In case of a TV serial, which doesn’t get played in a cinema hall, there is no question of any exemptions. So public performance of that serial when it gets played on the TV will definitely generate royalty to the Copyright Society. Therefore, the industry will undergo a change as far as the contracts, agreements and lump sum upfront payments are concerned. The producer bodies are bound to raise question about paying twice as it will impart a lesser value to their product when they go and negotiate with the channel. It will all undergo changes and will evolve.”

On being asked if the absence of any specific mention of the TV writers in the Bill, will allow the channels to say that the Act doesn’t cover the TV Industry at all, Mr. Tandon said:

“Not at all. The Act clearly says in the second proviso of the clause number 8, that the law is meant for the author of the literary work in a ‘cinematographed film.’ Now if you look at the definition of a cinematographed film, it is - Any work of visual recording for any medium produced through a process by which any film can be produced by any mean and includes the sound recording accompanying such visual recording and cinematographed shall constitute as any work produced by any process which is analogous to cinematography including video film.

This speaks of the literary work being incorporated in a cinematographed film. TV writer is author of a literary work whose work is being incorporated in a cinematographed film whose definition I have just read out. Now if you read further the Bill says that the only exemption from royalty is while playing the cinematographed film in a cinema hall. So you can tell the channel that it’s their choice if they are not playing your work in a cinema hall and not utilizing the right given to them by you. It’s their problem not yours. They can put the episodes together and show them in a theatre without paying any royalty!”

As the discussion went further Mr. Jalees Sherwani said that the present scenario demands that the Copyright Society (for literary work) will have to sit with the producer bodies and work out the terms and conditions. Mr. Tandon clarified that the negotiations will be between the Copyright Society and the channels. He added further:

“Let me make one thing clear. The common perception in the industry is that the producers will get affected adversely by the Bill. One, producers are not going to be affected directly because you are not asking the producer to pay the royalty. It’s the end-user who will pay for it and therefore it’s a win-win situation for everybody. They should not view it as sharing from their pie of 100 rupees but shall view it as 150 rupees.

Now the channel will be paying the writer a lump sum fees and would provide with time slots. The Copyright Society will need to document the account of when a show was aired on which slot. It’s not like a social welfare scheme where every writer would get equal royalty or share, because if your show is played more number of times you will be paid more. This will encourage writers to come up with better products.”

HOW TO CREATE A COPYRIGHT SOCIETY
Mr. Kamlesh Pandey, asked about the mechanics of forming the Copyright Society. Sanjay Tandon explained,

“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.”

The interaction went further and while answering another query, Mr. Sanjay Tandon stated that the royalty of playing a show in more than one country and all such aspect will be decided by the tariffs which the copyright society will form. The royalties will include every possible public communication mediums like web viewing of TV episodes (where each click gets revenue to the channel) and even if a show is being played in an airline or on a certain mobile application. “Therefore, the intelligence goes in making the tariffs”, he added. On being asked if a rerun of an old film, which is fetching revenue to the producer, will also get royalty to the writer, Mr. Tandon was affirmative.

But he also said,

“Let me just warn you that there will be litigation on this point because the producers are not going to let your off so easily. They have the old contracts and they have taken 100 percent rights from you, so they will say that the Act is only applicable to films that are made from henceforth. It has to be litigated and the court has to pass some orders on that.”

Mr. Vinay Shukla, and Mr. Atul Tiwari, inquired if the Bill, which was primarily directed at the lyricists, covers the work of a screenplay writer or a dialogue writer. Mr. Tandon went on to explain the definitions of the terms involved to clear the doubts.

“The Bill is directed at the ‘author of the literary work.’ The definition of the word ‘author’ which is being used is that - In relation to the literary work, is the author of the work. It is as simple as that. The Bill says that the literary work includes computer programs, tables, compilations, data sheets etc. and if we fall back to the dictionary meaning of the term ‘literary work’ it means:

Imaginative or creative writing, Can also mean literary composition, Can also mean 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 writing in her novels is excellent’ - ‘that editorial was a fine piece of writing’ This also comes under literature.

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 Tushery - writing of poor quality, is also literature. So this is how the definition of the term literary work is interpreted in legal matters.”

Mr. Tandon further showed light on the shrewd defensive measures which producers can take against the Copyright Act. (Can a producer keep a writer on the pay roll and deny the writer credits?) He said:

“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.”

Mr. Sanjay Tandon signed off with these words:

“Let me tell you that writers will face stiff opposition and it is a matter which will evolve. One tactic which the producers might put into practice is that they will create departments of song, music and story etc. trying to encourage ghost writing. They might say they won’t give away any credits to anyone and thus the question of royalty will be ruled out. But I don’t think that will last!”

 

 

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