Author: Arushi Dubey | LL.M. Graduate, King’s College, London
Image by Olena Sergienko from Unsplash
Introduction
OTT platforms have transformed content viewing habits of people. People prefer these platforms because they have more control over what they want to watch and when. These new avenues of entertainments are not only beneficial to the viewer but also to the entertainment industry as these platforms are a new source of income. OTT platforms are not limited to just hosting new content. They have tapped into the nostalgia of old viewers and the inquisitiveness of new viewers by providing video-on-demand (VOD) content of old and classic TV shows and movies. From devotional shows like Ramayana to comedy shows like Khichdi, these platforms are filled with the rerun of shows that were popular in the late 90s and early 2000s. With the reruns of these shows and movies minting money, talks about remunerating the performers of these movies and shows started to do the rounds. The remunerations due to the performers from these reruns are called residual royalties. This demand was met with mixed reactions from the industry.
Residual Royalty and Copyright Act,1957
It is worth examining whether the royalty demands by actors have any basis in law. The answer is yes, performers can claim royalties as a legal right for any commercial use of their performance. In 2012, the copyright laws of the country went through a positive overhaul which led to the addition of provisions providing performers and authors with the royalty right. The 2012 amendment to the Copyright Act,1957 was spearheaded by the famous lyricist Javed Akhtar. With this amendment, actors and singers, who are called “performers” under the Copyright Act 1957, became entitled to lifelong royalties. Anyone using their performance for commercial use must pay them royalties despite any assignment agreement under Section 38A. The 2012 amendment also gave the right to royalty to writers, lyricists, music composers, etc., who are classed as authors in the Copyright Act, 1957. Any assignment of the royalty rights of the authors is void according to the second and third provisos to Section 18(1) and Section 19(9), (10), the Copyright Act, 1957.
Reasons behind the struggle for securing Residual Royalties in India
However, despite these provisions being enacted in favour of performers way back in 2012, why are the performers not being paid royalties? This is because in India, the entertainment industry is more interested in keeping up the established industry practices than the law of the land. It is worth mentioning that authors as a class have been more successful in getting royalties for their works than performers have. This is because there are performing rights societies in India like the Indian Performing Rights Society (IPRS), which is spearheading the campaign to secure royalty rights for lyricists and music composers who are its members.
However, the efforts of IPRS were dealt a blow by the single judge bench of the Delhi High Court in IPRS v. ENIL and PPL v. CRI EVENTS. The order ruled that authors are not entitled to royalties for underlying works when these works are used as part of a sound recording. Although this order is only related to entities involved in the music industry, it has the potential to harm the rights of other players who are entitled to get royalties in the entertainment world. Fortunately, this order has been stayed by the Division Bench of the Delhi High Court with the specification that it will not be cited and used as a precedent until further orders.
Witnessing the success of IPRS has led to writers in the entertainment industry to come together and form a separate copyright society for collecting the royalties due to them. There is no such collecting society in India that performs the same function for actors and singers. They are not even able to get recognition of their royalty rights from producers, let alone actual payments.
An analysis of the industry reveals an interesting answer as to why royalties for performers are not being demanded with the same force as they should be. Effective change in any industry is only possible when it is backed by the stalwarts of the industry who have the power and wherewithal to push forward their demands. In the entertainment industry, the stalwarts have found another way to earn from their works and thus do not feel the need to demand royalties. Big names in the industry, from Shahrukh Khan to Alia Bhatt, have started to produce their movies, which makes them the owners of the copyright in the work. It is the small actors, singers, etc. who face the brunt of this exploitative system. They do not have the resources to open their own production houses, nor do they have the clout to authoritatively demand royalties and secure their rights like the big names.
Conclusion
It is shocking that despite there being a law protecting the rights of the performers, the industry is unwilling to pay them their dues. It is important to pay residual royalties to performers as an acknowledgement of their talent and effort. There is no guarantee that, after the success of one of their works, they will be hired again and again. Residual royalties will act as continuous income ensuring the survival of the performer in cut-throat show business. The lump-sum payment given to these performers is nothing compared to the huge amounts of money the producers of the works make from the reruns of the T.V. shows and movies. It reflects badly on the industry which does not respect its performers.
The Indian entertainment industry stands out like a sore thumb in the entertainment world. It should take a leaf from the US entertainment industry, which has special guilds like the Screen Actors Guild, and the Writers Guild of America, which negotiate and collect royalties on behalf of the performers who are their members.
The best way to ensure that royalties are paid to performers is for them to come together and form a performer rights society for this purpose. This is not a far-fetched call; the industry already has associations like the Cine and TV Artist’s Association (CINTAA) working for the betterment of artists/performers in India. These associations can transform themselves into performer rights societies and secure the economic interests of the artists/ performers. To attract goodwill at global level, practices like paying royalties to performers must be applied in the Indian entertainment industry as well. The monetary success that newer avenues of distributing old content have brought to the producers/makers in India should be shared with the performers. A new industry practice to that effect must be started. Only then will the 2012 amendment to the Copyright Act prove to have any real meaning for the performers in India.
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