A Royalty Pain

0
114

Musicians and lyricists love it. Producers hate it. What is this mystery law cleaving Bollywood into two raging camps? Rishi Majumder tells all

Willy nilly poster boy Actor-produce Aamir Khan stuck in IPR controversy

Regulating Bollywood can be like regulating the Mumbai underworld. Imagine Home Minister PC Chidambaram calling in Dawood Ibrahim and Chota Rajan for discussions on the drafting of a hypothetical Immunity To Organised Crime Bill. And inquisitive press men reporting a squabble between them – on whether it is the hitman or the don who must take credit for the crime – in bold black headlines which place what each said out of context. Finally, imagine Dawood Ibrahim sulking, and Chidambaram calling out to him, saying, “Come back. We need your help in drafting this bill.” Such a fracas, however imaginary, would be no less ridiculous than what was reported of the one that took place recently, involving actor Aamir Khan, Lyricist Javed Akhtar, and HRD Minister Kapil Sibal, over proposed amendments to the Indian Copyright Act, 1957. Ridiculous for two reasons. Because the media has ruined any hope of meaningful dialogue by misrepresenting every party involved, and missing the larger point. And because both the underworld and Bollywood are practically parallel systems, which run on their own terms – despite what the law deems.

Let’s take the first reason first. The Bill that will incorporate the proposed amendments to the Indian Copyright Act is yet to be made public. But preliminary reports about it from lawyers and legal blogs show it to offer up a smorgasbord of changes. It seems to promise, among various things, to bring the Act into conformity with the WCT and WPPT, protect various members of the music and film industry, address the concerns of the physically challenged and safeguard the rights of authors – of both musical and literary works. Yet the media has transformed this guardian of Indian intellectual property into a Hindi film dialogue drama, with dialogues no writer would claim credit for. In this case, the actor didn’t either. The Times Of India, this country’s leading daily, actually carried on its editorial page a ‘view’ and ‘counter-view’ on the absurd and unrelated issue of whether an actor is more important than the song ‘picturised’ on him. A few days later, Aamir Khan “the actor in question” gave an interview published on the editorial page of the same paper, claiming this was not his question of choice in the first place.

Music and film companies still strong-arm rights out of an artist, which the provision aims to prevent

Now, the second reason. Every legislative process has three aspects – a law, a lobby, and a context. The law, in this case, is the Indian Copyright Act, for which amendments were prepared in 2005 by the Ministry of HRD, which after wide ranging consultations with stakeholders constituted a core group of 30 members for this purpose. Certain provisions with regard to the film and music industry, however, have been reportedly been added to this list of amendments in 2009, without any great national consultation – indicating that the ministry’s enthusiasm for democracy might have somewhat waned by then. Now, just before the bill is to be presented in the parliament, a committee of representatives from the film industry has been formed, to first try and grasp convoluted legal provisions, and then provide their insight on them. Out of these provisions, there is only one that the Hindi film fraternity seems to be aware of, and which it engages in violent debates on. The wording of this provision may be changed later, but according to current reports it reads: “No assignment of copyright in any work to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties in case of utilisation of the work in any form other than as part of cinematograph film or sound.” For Bollywood, this provision applies primarily to music directors and lyric writers. Even though screenplay writers are included in the meaning of the provision, its empowerment for them is symbolic and does not translate into revenue.

Song of songs Did SD Burman’s music or directors make Hindi film classics; (clockwise from top) Still from Aradhana; Still from Slumdog Millionaire, the rights to the music is retained by composer AR Rahman because the production house is UK-based not Indian; Still from Pyaasa; Still from Lagaan whose producer Aamir Khan and lyricist Javed Akhtar now cordially disagree

 

What it means for music composers and lyricists, on the other hand, is that they can “claim royalties” on their songs, if used in “any form other than as part of cinematograph film or sound”, which includes times when songs are used as ringtones, or for live performances, or on the radio – despite their assigning these rights in a contract, which makes the concerned rights non-assignable. Praveen Anand, managing partner of Anand and Anand, this country’s most prominent Intellectual Property law firm, is a member of the committee drafting amendments to the Copyright Act. A busy man, he talks briefly and doesn’t mince words: “There is no provision like this anywhere else in the world. It is a provision which is totally unacceptable.” Lawrence Liang, IP lawyer with the Alternate Law Forum argues against this: “Is there a need for a provision like this in other countries? The US, France and Germany have a grading system safeguarding the rights of authors, won through collective bargaining.” The concerned artists in India, he says, have no bargaining power because they are not united.

The lobby in favour of this provision, from Bollywood, so far consists of music directors and lyricists. They are tired of being forced by producers to sign away their rights to royalty, for work they have created, on a contract. Lyricist Javed Akhtar is a part of this lobby. Looking about half as enraged as the angry young man he wrote into scripts (with co-writer Salim Khan) and penned lyrics for, he produces a copy of such an agreement which every lyricist and music director is made to sign. “The rights assigned here are ‘for perpetuity and throughout the world”, Akhtar quotes.

Talking to some more music directors and lyricists provides a summation of this lobby’s reasons for pushing this provision. These arguments work their way up from a premise to a point. EIMP Vs IPR Society was a 1977 Supreme Court case where Justice Krishna Iyer observed that a use of lyrics and musical compositions beyond their use in a film would require license from the author and composer. Publishing royalties are already shared on a 50-50 basis between authors and composers and music companies. Also, publishing rights to music composers and writers “even those who lend their work to cinema” is provided for in the west. Most importantly, the Indian Copyright Act recognises clearly the copyright of music directors and lyricists. These facts constitute the premise. The point is that film and music companies still use the proverbial upper hand to strong-arm rights out of an artist during the signing of his contract. An arm twisting which the contentious provision aims to prevent.

Then come the stories. Stories of legendary lyricists like Sahir Ludhianvi and Shailendra and music directors like SD and RD Burman and Shankar Jaikishan, who with their talent wrote and put to song a film’s success, rather than the other way round. To credit their creativity entirely to the directions that filmmakers gave them towards the creation of their works would be blasphemy. There are tragic stories, such as that of the wife of Hemchand Prakash, composer of the Hindi film classic Aayega Aanewaala. His wife was found begging on the platforms of Mumbai’s Borivali Railway Station after her husband’s death. Another such story is told by Lyricist Shailendra’s daughter, Amla: “My father died at the young age of 43. If this provision was there at his time, he might have been alive today. An artist deserves financial recognition, in addition to other recognition.” Financial troubles, magnified by the failure of Teesri Kasam, a film Shailendra was investing in, have been quoted by many to have caused his death. And then there is music director Salil Choudhary’s son Sanjoy Choudhary, whose voice shakes as he says bitterly: “My father died a pauper. This provision will ensure artists get their due. It will inspire artists to create original work, not steal and mimic tunes.”

And finally the success stories, which evoke more of a reaction than those of failure. Such as that of music director AR Rahman, who won an Oscar for Slumdog Millionaire, and kept the rights to his work because it was for a UK based production house, whereas he would have had to surrender the same in an Indian production. Another success story is Vishal Bhardwaj, who has gone on from being a music director to being an acclaimed filmmaker, and producer. Having seen both worlds, his voice lends a poignant edge to the debate: “Despite being a producer, I can’t ignore the music director within me. This provision must be passed. I remember paying up for the use of the song ‘Aisi Bhi Baatein Hoti Hai’, in Ishqiya. Hemant Kumar and Kaifi Azmi, and their families, had a right to that payment.”

The Mumbai film industry lobby against this provision is very obviously made up of producers. And actor Aamir Khan, ever since his comeback and advent into a new kind of cinema with Lagaan, has been a producer. He calls from his retreat in Panchgani to say: “The first problem I have with these amendments is that I didn’t know about them.” Khan then narrates how he met HRD Minister Kapil Sibal socially, and how Sibal told him about amendments to the Copyright Act. How he wanted to know more, and how Sibal invited him for an official discussion and asked him to suggest names of other stakeholders who might also be invited. One of the stakeholders he suggested, he says, was Javed Akhtar. The spat that has ensued between producer and lyricist has possibly made Khan aware of the fact that he has more to lose than the average producer, because he is also a star. Even if, say, Mukesh Bhatt was to be projected by the media as a greedy megalomaniac, it wouldn’t really erode his fan base. But Aamir Khan smoulders in the heat of public gaze.

The producers question both the means and the ends of this provision. They are astounded by the suddenness of a law, which will wrench away from them a crop of more or less certain earnings that provided great comfort in an industry plagued equally by piracy and flop films.

Also, an industry renowned for its sentimentality. The business of Bollywood is the business of unparalleled stardom and of great profits and losses in one day. This bequeaths many raw nerves. Every member of the film fraternity is extremely emotional. Producers see the fact that lyricists and music directors knew about these amendments, and didn’t tell them, as a sort of betrayal. As one producer dramatically, and paradoxically, asked of his lyricist: “How will you look me in the eye now, after stabbing me in the back?”

The producers of Bollywood have been and will be the great risk takers. They embark on ventures with zero certainty by taking on debts of many crores. Often these debts pile up, and a producer tries to pay them through other avenues – like earnings from ringtones, radio broadcasts and live shows. And a film’s failure doesn’t take away from the fact that they have to pay their actors, their cinematographers, their production managers and yes, even their music directors and lyric writers. With this provision in place, their one predictable source of income will have to be shared.

Also, such a provision is an infringement on the right to contract. An artist should have the right to decide when he wants to assign his rights. As for browbeating and coercion, there are reports of those arising from all over the industry, like in any industry. They could be seen as isolated events, not a class war. “I’m projected as being somewhere at the top of this industry’s power list,” retorts Khan, for instance, “Yet a group of action directors recently extorted from me three times the amount I had agreed to pay them.”

There are sad stories here too. Producer Boney Kapoor screams in outrage: “Producers who stake their families future to ensure an opportunity for every kind of film artist are treated like petty businessmen, not to be honoured. Even today, in Mumbai, there is a Laxmikant Chowk, but can you show me a BR Chopra or Mehboob Khan Chowk?” He then lists producers who have lost all to cinema, beginning with Dadasaheb Phalke, whose family languished in poverty after he fell on hard times. He talks of Chinappa Devar, producer of Haathi Mere Saathi, whose family found themselves homeless after his film debacles, and had to move out of the city, back to their village.

Khan, who has by now become the face of the producer’s lobby, suggests what seems to be a compromise. He offers up the idea of a point system, where all the collaborators for a film, including even the production in charge will receive royalties according to points assigned, but only after the producer has extracted a minimum percentage of profit. Akhtar, very much the spokesperson for lyricists and music directors, rubbishes this. “Where do these questions arise, when the music or lyrics are not being used as ‘part of the cinematography,” he reiterates, quoting the section. All that is being used in a ringtone or a live performance of a Bollywood song, he argues, is the lyricists and music directors’ work: “And all we’re asking for is a ‘share’ from the income which arises from it.”

This brings us to the context, Bollywood, which only about a decade ago wrangled for itself the status of an industry. This made it easier to loan money from banks and financial or private institutions and marked the new Hindi film industry’s elated divorce from the underworld, once its financier. Not long before that, when producers had problems with artists who possessed criminal influence they would not be sued. They would be shot at. Adding to this departure from the wild west was the fact that liberalisation threw up a gamut of revenue streams, apart from the film itself, which came from TV channels, the Internet, a mushrooming of live Bollywood shows and yes, especially from ringtones. It also birthed problems like piracy and unwarranted music downloads. This new and improved Bollywood is what music directors and lyricists want to be more in tune with. And they’re wondering whether this one provision can truly tune them in. It can’t. Because, in filmdom, some formulae are not so fickle. And because even sans the underworld, parallel systems in Bollywood still determine the game.

AR Rahman kept his Slumdog Millionaire rights because it was for a UK producer not an Indian one

Bollywood was, and is, about camps. There is no general auditioning for the best music director and lyricist. Unlike other industries, you don’t just pick up the phone and ask people to do business with you, or sample your services. Music directors with one camp, stick with that camp, through successful and unsuccessful phases. Camp loyalty dictates royalty. This system, coupled with the bizarre swings of a business that is show business, nurtures the exploitation that music directors and lyricists complain of.

Why won’t a provision prevent this? To understand, let’s look at another act very applicable to Bollywood: The Indian Contract Act, 1852. The beginning sections of this act outline the basic principles of contract, which state that an agreement between two persons, to be enforceable, has to consist of ‘consideration’ for both. Suketu Mehta, in his book on Mumbai called Maximum City has published a copy of a contract between producer Vidhu Vinod Chopra and actor Sanjay Dutt, for the film Mission Kashmir, where the sum of consideration is one rupee. Whether Mehta’s report was accurate or not, the fact that one-rupee contracts abound in the industry is common knowledge. Some of these contracts occur because the amount paid is unaccounted for, and in black. Some of them actually indicate what the artist receives, because his real ‘consideration’ will be the break the film gives him. Sections in the Contract Act could not prevent them, because sections deal with words, not figures.

 

The other side Lyricists Javed Akhtar and Prasoon joshi are in favour of the new provision

And business is about figures. Like with the one-rupee contracts, this provision could easily promote the idea of 0.0001 percent of royalty. Or it may have producers paying lyricists and music composers a miniscule amount as down payment, or refusing to pay them royalty at all. Will a music director in this competitive industry actually sue his producer, quit his camp, and jeopardise his career? Will a new lyricist who gets to work with a mammoth banner like Yash Raj Films tell them “Let’s talk royalty first”? If arm twisting is what an artist is succumbing to, then he will continue to do so – only his arm will be twisted in a different direction. Either way, an artist and his art will soon be separated. “My argument for this provision is more conceptual, than financial,” says lyricist Prasoon Joshi, an ardent voice from the lyricists and script-writers side. “If a law is made, people will find means of getting their way.” Joshi suggests this provision can be a first step. But a first step does not a journey make.

What might help in the Mumbai film industry is active unionisation, quasi judicial bodies with producers as well as lyricists and music directors represented in them. On a larger canvas, a specialised system of insurance might help lend some stability to a Bollywoodians reeling under the effect of the Friday rollercoaster. A system of credit, which includes industry specialists in deciding which film to finance, might lead to some quality control and profitability for an industry that has recently been finding it hard to break even on more than a small percentage of its ventures. Such provisions would be active provisions, not plain letters of law like the Ten Commandments handed down to Moses. It’s only human to want to be part of a central committee that plays God. Till you realise even he had a problem getting it right.

 

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Comment moderation is enabled. Your comment may take some time to appear.