A different tune

An amendment to the Copyright Act, 1957, is music to the ears of lyricists and composers in the Indian film industry.

When the lyricist Javed Akhtar was 21 years old and struggling to make it big in filmdom, a writer associated with a big banner approached him to ghostwrite dialogues for his films. He offered me Rs.600 a month, but with the condition that the films credit will have his name as the dialogue writer and not mine. The offer was very enticing, recalls Akhtar, now 76.

At that time Rs.600 was like Rs.6 crore to me, but I resisted, thinking that if I take up this offer, I wont be able to leave this job ever, he says. Akhtar preferred his principles and creativity to money. And to date, he says, he has been able to maintain the ethical standards he had set for himself then.

So, on a day when spot-fixing in IPL cricket made headlines, the Rajya Sabha was witness to Akhtar making a powerful speech in defence of the rights of composers and authors. With heart-rending examples of how talented writers or composers in the Indian film industry died or lived in shabby conditions while the world enjoyed their songs and music, Akhtar made all the members of the House agree that the creative community needed to be given their due and fair share of royalty, which had been denied to them so far.

It has long been a practice in the Indian film industry to engage authors and composers on a work-for-hire basis where producers pay them a one-time fee. In return, they make lyricists and composers sign away the royalty rights for their music and songs by including a mandatory clause in their contract.

Background

The issue goes back to a 1977 Supreme Court judgment which said that the ownership of all underlying works in a movie was vested with the film producer unless a contract provided otherwise. Justice V.R. Krishna Iyer in E.M.P.V. vs IPR Society (AIR 1977 SC 1443) pointed out that while the film producer retained the sole right to exploit the film, the use of the lyrics and musical compositions apart from the film would require a licence from the author and composer (songwriter and music director). But for all practical purposes, producers, through a contract/agreement, gave composers and lyricists a lump sum for their services and utilised the song in and outside the film.

Thanks to Akhtars efforts, the government formed in July 2011 a 10-member committee consisting of the film personalities Aamir Khan, Mukesh Bhatt, Javed Akhtar, Vishal Bhardwaj, Vishal Dadlani, Prasoon Joshi, Boney Kapoor, Anjum Rajabali, Madhu Mantena and T-Series (music label company) chairman and managing director Bhushan Kumar to look into the proposed amendments.

Akhtar had the backing of the creative community and the All India Film Employees Confederation (AIFEC), which has almost a million members across India.

The amendment, Akhtar says, will help the creative community get their due share of royalty and will also attract new talent to the community. He clarifies that the amendment Bill will not create new royalty but protect the royalty which was already there.

Royalty in the industry

With regard to royalties for songs, the film industry has worked in a complicated manner. Each time a song is played on radio or TV and used in ringtones or CDs, two types of royalties are generated all over the world one for the sound recording and another for the underlying works which are called performing rights. In India, the sound recording royalties go to the producers or the music company or whosoever owns that sound recording. The other royalty, for lyricists and composers, never reaches the intended beneficiaries.

The Indian Performing Rights Society, or IPRS (a non-profit autonomous body), which collects the royalty on behalf of lyricists, composers and publishers (music companies) to distribute it to them after deducting its share, could never play that role. This was because producers, who dominate the film industry, became members of the IPRS in 1983 and manipulated things against the creative community. They signed a memorandum of understanding (MoU) with the IPRS which said that they would share the royalty with lyricists and music composers on a 50:50 basis. But producers actually never shared any royalty because a mandatory clause in the contract with lyricists and composers made them sign away all their rights to producers.

By around 1993, when ringtones and digital music started becoming popular, music companies smelt money and they offered the producers a deal. They offered producers money upfront for the publishing (music promotion/marketing) rights of each album producers gave them. Producers found the deal lucrative and they moved out of the IPRS. Music companies now signed an MoU with the IPRS stating that they would share 50 per cent of the royalty with the respective authors and composers. But they too never shared this with the creative community. According to international norms, the music publisher cannot take more than 50 per cent of the royalty. But music companies were able to manipulate that and say that they shared the royalty and followed the international protocol, says Akhtar.

Soon music companies took over the IPRS and told producers that they would buy music from them only if they made lyricists and composers sign away all their (royalty) rights in perpetuity and unconditionally. Since a film without music is unthinkable in the Indian situation, producers agreed to it. That is how composers and lyricists began to sign on the dotted line to survive in the industry. If any lyricist or music director refused to give away his [royalty] rights in perpetuity [forever] and unconditionally, he would be ostracised by them, says Akhtar. For pursuing the cause of lyricists and composers, Akhtar was blacklisted by the Film Federation of India.

Akhtar claims that a few big producers who dominate the film industry never wanted to share royalty because they are hand in glove with select big music companies. But with the new law all that may be a thing of the past.

Royalty sharing

Is the exact sharing of royalty feasible? Akhtar thinks royalty distribution can be regularised and monitored with the help of technology, but Hasan Kamaal, chairperson of the IPRS, feels that technology is not advanced enough to determine the exact amount of royalty generated.

There is no foolproof system. But we go by two systems called logged on and unlogged. Logged on systems include television and radio where a song is played with the names of the film, its composers and lyricists. Unlogged systems include songs played in live performances/ concerts/ ringtones, and in restaurants and other public places. We decide the royalty on the basis of the logged on system, which means that wherever a song in this system is played, it generates 50 per cent of royalty, and the remaining 50 per cent we decide on the amount of work done by that author/composer. Out of this, we take 15 per cent and distribute it among [those] IPRS members who have worked on this. The popularity of a song is decided on the basis of its visibility on the television and playing on the radio. On the basis of the logged on system we decide how much of it would have been played under the unlogged system, he says.

In 1994, we signed an MoU with the Indian Music Industry [IMI, a trust born in 1936, represents recording industry distributors in India], according to which it had to share 50 per cent of the royalty rights with authors and composers. Most of the music companies except T-series and Yashraj agreed to it, but all the producers unanimously agreed that music companies were the sole owner of royalty rights as they [producers] would sell all their rights to them. This is what made music companies strong in the film industry. Many in the industry fear that soon actors and singers, technicians and choreographers will stand up for their rights. The producer Vipul Shah suggests that all the people in the filmdom, be it producers, directors, music directors or actors should become members of a regulated society such as the IPRS and that the government should monitor and regulate this body partly for transparency. But the singer and music director Shankar Mahadevan feels that the IPRS should organise itself better to perform well.

Objections to the Bill

Says Vipul Shah: The new amendment Bill is a positive but incomplete step. Its structure is flawed and unattended at many places. It has proved to be draconian for producers because it adds a statutory licensing rule which snatches the producers fundamental right for free trade of their own product. It has arbitrarily reduced the royalty to producers from radio to just 2 per cent from the earlier 12 per cent. This is ironical too that on the one side you ask us to share royalty with them [writers/composers] and on the other you restrict royalty generation arbitrarily.

He adds: Through the new amendment, the law says that let authors and composers make huge money but producers forgo their right to make money. How can a radio station decide how much money I should earn on my own product? Can I go to a Versace showroom and say that I want to buy a pair of jeans for Rs.1,500 though its actual price may be Rs.20,000? Can I arbitrarily decide the price of a product as a consumer? Even Javed Akhtar who took the producers head on over the royalty issue finds it illogical.

Vipul Shah says the Parliamentary Standing Committee did not take into consideration the suggestions made by the Producers Guild to it regarding the statutory licensing rule. The producers have now decided to approach the government again with their suggestions.

Neeraj Kalyan, vice-president, T-Series, says that the amendment Bill has made little difference to big authors and composers who have any way been receiving huge money upfront from music companies. According to him, small writers or singers will suffer more now.

Vipul Shah says that unless the government sits with producers, music directors, lyricists and authors at the same table, the problems will only grow. But Ghai says that Bollywood should follow the Hollywood model in which everyone from the producer to the director and the musician share the risk equally and also reap the benefit in the process of working on/in a film.

The Hollywood model follows a point system (applicable to each crew member of the film) in their revenue model. [The actor] Anil Kapoor, for instance, got his share of 1 per cent profit from the worldwide success of Slumdog Millionaire, which meant hundreds of millions, though he signed this film for peanuts, says Vipul Shah.

The producer and director Mahesh Bhatt, who had earlier led a delegation of producers to the Human Resource Development Ministry, says: There is no denying that historically writers and music composers have been denied a fair share of their royalty and [that] producers have been instrumental in it. I believe feudal structures where man exploits man should be done away with, and in a knowledge-based economy, idea is the king and it should be gracefully accepted, but having said that, lyricists and composers should not move to the extreme.

According to him, producers also believe that the HRD Ministry has been biased in its opinion towards lyricists and composers as it was privy to only their side of the narrative. This David and Goliath type of construct is a bit too simplistic an analogy where the government favouring the so-called starving David sounds very romantic. There have been several cases of producers who died in penury. Also, a bulk of music composers and writers were or are much more affluent than several producers, so the case of starving lyricists and music composers is misleading.

Bhatt, however, calls it a family quarrel and feels that it will be solved soon amicably if both sides stretch a bit.