Bio: Akshat Agrawal is a lawyer specializing in IP theory and the intersection of law and culture. He is currently working as a Judicial Law Clerk at the Delhi High Court. Akshat has served as an editorial board member of the Jindal International and Comparative law review and is a core editor cum contributor of the IPRMENT Law Blog as well as the erstwhile 1709 Blog.
In this article, questions relating to the assignment of the right to make a derivative work by the composers, in favor of producers, and the viability of the same in terms of the author-owner divide in copyright policy and the basic justifications of Copyright law, will be discussed. This piece is independent of the author’s theoretical views around Copyright, and only seeks to provide for the best possible interpretation (in the author’s opinion), of certain provisions of the present copyright statute in India. The article does not seek to criticize the law here, rather, it tries to propose a policy interpretation of this existing statutory provisions, which would be in line with some of the justifications which the parliamentarians advanced while bringing the law in place, as it currently stands.
Assignment or waiver of the right to make derivative works to the producers
There is no denying that even if the composers are the first copyright owners in their musical works, they may assign the copyright to the producers and given the unequal bargaining power, that is what the composers are often required to do. However, a blanket assignment would not encapsulate a right to make a remake of the said work, being transferred, as was held in a vaguely analogous situation in case of right to make a sequel of a film, in the case of Zee Entertainment v. Ameya Khopkar . The Bombay High Court held that even in a case of blanket assignment of rights, unless there is a specific mention of the right to make a sequel being transferred in the assignment deed, such an assignment cannot be assumed. Further, an assignment primarily being a contractual agreement, vague and blanket terms, which are not specific cannot be used as a basis to claim overarching transfer of rights, which go beyond the intended domain from the perspective of the transferee.
Is assignment or waiver of the right to make derivative works, such as remakes, valid?
Taking the example of the recently released controversial number called Masakali 2.0.,the primary question here is, whether the assignment of rights by AR Rahman to the producers of the film, and subsequently to T-Series, in the original Masakali (which was showcased in the film Delhi-6), in terms of Section 18 of the Copyright Act, includes the right to make a derivative work? Although there exists an option to fully or partially assign the copyright in favour of the producers under Section 18, the copyright is assignable only to the extent necessary for utilisation by the sound recording companies. This is visible in section 19(10) which permits assignment only to the extent of “utilisation” and not “changing or modification”. Hence, it is arguable that section 18 does not envision the blanket assignment of the right to authorize change or modification in the work.
The second question here is whether the right to authorize the making of a derivative work is assignable in the first place? A school of thought in copyright theory argues that copyright is an “engine of expression”, urging “freedom of expression” as a constitutional justification for copyright protection, focusing on autonomy of the creator.
In Basheshwar Nath v. CIT, the SC of India had ruled that a right backed by a justification present within Part III of the Constitution, shall not be permitted to be contractually waived. Further, specifically in situations of unequal bargaining power, the court prohibited waiver of such basic rights. Here, autonomy in expression, which not only constitutes a part of copyright, but also the essence of expressive freedom, cannot be waived, especially due to inequalities in bargaining power present in the industry (emphasis on the problems with the freedom to contract argument, as argued here). Further, impinging upon the autonomy of choosing how one’s speech is adapted, goes against the core idea of expressive public autonomy, violating an essence of public policy. A waiver (here assignment sort of becomes a waiver) is not permissible in matters dealing with public policy. Therefore, the exclusive right to “authorize” the making of derivative works is non-assignable and cannot be allowed to be transferrable under the garb of “freedom of contract”, as it leaves such rights vulnerable to exploitative power dynamics, given in the hand of various record labels and corporates, clearly going against the aim of having such a legislative stipulation of such rights (in the sense the author’s right to make a derivative work) in the first place. In India, the copyright legislation is often justified by the personhood theory, and although I do not completely agree with the aforesaid justification theoretically, I am of the opinion that as long as such a justification is adopted as a legislative intention of lobbying for the presence of such rights, it is imperative that the same is visible in practice and the application of such rights. Such a stipulation of permitting transfers of derivative rights, which go against the concept of expressive autonomy of the creator, goes completely contrary to the legislative intent of having these rights in the first place, and allows for corporates to exploit the power dynamics which are available in the entertainment industry, due to the distributional capability of corporate entities.
Copyright, even in its current shape, cannot, on one hand, be backed by personhood justifications and such similar grounds, while lobbying for stronger rights in the parliament, and the other hand be allowed to be transferred in favour of large and impersonal corporations to basically profit out of these string exclusivities, which are present under the garb of personhood. In that particular sense it is essential to question the property rhetoric associated with copyright, because an argument to uphold autonomy based natural rights cannot be claimed on the said ground, and later be permitted to be transferrable like property. The rhetoric seems extremely hypocritical in its stipulation, as clarified in an enlightening piece by Prof. Jessica Litman.
Further, freedom of contract cannot be looked exclusively or in a vacuum, without understanding the concept of prevailing power dynamics and unequal bargaining power in the societal structure, It is imperative to realise the same, as was also recognised in the afore-cited decision in Basheshwar Nath, specifically in the opinion of Justice K. Subba Rao. Therefore proponents of assignability of such rights cannot further an argument of freedom of contracts, without acknowledging the presence of a realistically illusory freedom, due to the societal structures in these copyright industries (publication, music and entertainment, to be specific).
A legislative clarification to this effect providing that a right to authorize the creation of derivative works is inalienable and it has been argued that any agreement to the contrary shall be void must be added in Section 18 of the Copyright Act, for the law to be in accordance with its intendment, as is visible from the parliamentary debates (where most of the amendments in the copyright act have been argued for on the overarching premise of personhood of authors and “authors rights”). This does not restrict the flow of content, and also balances the same with the right of the author to control the autonomy over their expression, in terms of the present legislative stipulation. The argument here is to protect the authorization capacity, to allow for derivative works (which in fact is stipulated in the copyright act), solely with the author, because the presence of such a right is justified on the ground of the principle of “author’s to be incentivised” and “welfare of the author”, as against any other welfare, which transfer of such rights stipulates. In absence of such a provision, the inherent inequality in bargaining power leaves many artists vulnerable to contractual exploitation, clearly going against the intendment behind such an entitlement being present in the copyright act in the first place.
How about trust and good faith?
Another argument for the author, and specifically AR Rahman in this case, comes on the heels of the common law doctrine of “trust”. A US court has recognised the obligation of “trust and good faith” in a contract of assignment, specifically in a situation where the publisher has licensed the use of an original composition (licensed to the publisher) to a third party, without the specific consent of the original author, and it is used in a way which the original author thinks to be offensive or subjectively unpleasant. The corresponding right to receive royalties (Section 18 in the Indian Act) gives the creator a beneficial interest in the copyright and creates an equitable trust relationship between them and their publishers. When a composer assigns copyright title to a publisher (here producer) in exchange for the payment of royalties, an equitable trust relationship is established between the two parties which gives the composer standing to sue for infringement of that copyright. This logic finds support in a plethora , of American cases, and rests upon the sound logic of retention of personhood in copyrightable works, inspite of a fiduciary relationship, based on trust having been established. The composer gets money for their compositions, and hence has an interest in overseeing the exploitation of the same and object if it is being done in a wrongful manner, prejudicial to his/her beneficial interest in the work.
Although there is no IP jurisprudence on the lines of such “trust” and “good faith” in India, the factual situation may be instinct with a duty which should be imposed by law on the publisher, as argued here (pg. 376). This should be explored as a matter of policy in India.