The Copyright Society Debate: Should Actors Get Royalty?
Introduction
Copyright, much like other IPs, have aimed at not only protecting someone’s right, but also enabling them to garner maximum commercial exploitation from such an exclusive right over their unique creations. Copyright societies are registered collective and administrative bodies, facilitating and actually carrying out the distribution of benefits arising out of copyright protection to the rightful copyright-holders. It protects interests of person wanting to use it as well as that of the artist, because artist can’t quote some arbitrary amount for each instance of usage and person wanting to utilise work can’t back out on his promise and not pay after utilisation, because society lays down specific rates as per tariff schemes. When it comes to the filmmaking industry, the Screen Writers Association (SWA)* for screenplay and scriptwriters has applied for registration pending approval, but there is no copyright society in sight for actors. Royalties can be defined as a sort of variable consideration for the utilisation of work, for a public performance or selling of a copy. It is not statutorily defined under Section 2 or anywhere else in the Copyright Act, 1957, but is generally known as a payment over and above service fee. Section 18(1), 3rd proviso states that the right to receive royalties cannot be waived or assigned or licensed except to legal heirs or copyright society for distribution and collection. Royalties are shared equally with the author(s) and assignee of copyright, eg. 50% with the composer and lyricist together (authors, 25% each) and 50% to a music label such as TIPS (assignee, music/film producer will usually transfer rights to label or enter into a Section 17(b) scenario, where the label is first and sole owner ab initio). Ideally, the term “assignee” should be replaced with “owner” intending to exploit it such as a commissioner. Thus, this proviso implies that royalties accrue upon utilisation of work except communication to the public of film (playing movie) at cinema hall. Royalties thus generate for all communications to public, except for theatrical exploitation, so for digital exploitation it is allowed. There is no discrimination as to who utilises the work, whether it be a music label or any TV channel.
The Statutory Position of Royalty
Section 19[1] talks about assignment and licensing of work against which we get royalties. Section 19(3)[2] states that whenever a copyrightable work is assigned, rate of royalty is to determined beforehand, to be paid to the author or legal heirs. Section 19(9)[3] mentions that authors (or their legal heirs) are entitled to receive royalties or other forms of consideration for all forms of communication of cinematographic film to public except at cinema hall. Section 19(10)[4] states that even if the sound recording is assigned to someone else, author (or legal heirs) is still vested with right to get royalty.
The Statutory Position of Copyright Societies
Section 33[5] deals with registration of copyright societies, and Section 33(3)[6] specifically states that all societies functioning in the capacity of copyright societies should be registered in order to become valid. Their term of validity is for five years, then they can choose to renew registration, as per prescribed procedure laid down in this section, within one year of the Copyright Amendment, 2012. Eg. IPRS was in existence before the amendment, but they had to re-register after the amendment. This led to them getting more exposure by others, including even people outside the media and entertainment industry. Members, which are the creators/right-holders of copyrightable work, should then register with these societies suitably according to the kind of copyrightable work in order to receive royalties. Each copyright society is formed to address a specific kind/class/subject-matter of work and to render specific services related to that work.
Link Between Royalty and Copyright Societies
Copyright societies cannot collect royalties on behalf of every person in India or worldwide working in such a field, simply because they do not know about them.In order to identify them, those people need to register themselves as a member with the appropriate copyright society as per procedure laid down on their website. Next, the person should enter into paperwork or understanding with that society. There is usually a specific clause included which states that the author/his legal heir is entitled to royalties upon subsequent exploitation of work from that copyright society and/or any other suitable one. Agreement will also include that any work the musician is associated with shall come under within its purview, such as existing works, whether published or unpublished) and future works.Copyright societies cannot collect royalties on behalf of every person in India or the world working in such field, simply because they do not know about them. Then, they need to enter into an agreement with the society, authorising them to collect royalties on timely basis as per prescribed rate and depending on type of usage on behalf of composer.
Arguments for Actors Receiving Royalty
Section 2(qq)[7] of the Copyright Act, 1957 defines a “performer”, which includes “actor” within its ambit. After the 1994 Amendment to the Copyright Act, performers’ rights were given statutory recognition. While Section 38A(1)(b)[8] deals with the right to broadcast or communicate performance to the public except in cases where it’s already in public, Section 39A[9] states that Sections 13, 18, 19 and 38 would apply in respect of the performers as well and Section 18 includes royalty as well, which is not granted to artists.
Under Section 18[10], we observe that the part about royalties constitutes a part of the proviso and not an operative/main part of Section 18. Section 38A(2)[11] proviso expressly mentions that the performer will be entitled to royalties, but royalties can be waivable for performers. Section 18 specifically mentions that royalties cannot be waivable for authors.
The Act is silent on this point on whether royalties for performers can be waived or not. There are two schools of thought, wherein one states that Section 18 includes provisos, includes entire section because proviso has not been expressly excluded, while the other claims that the intent of the legislature cannot be to state that royalties will not be waivable. This is because they’ve separately mentioned royalties here under operative part of Section 38A(2), but they’ve not said that waiver is going to be restricted, so had it been the intent of the legislature to restrict waiver or to restrict assignment, they will have mentioned it explicitly, like how they have expressly mentioned royalties otherwise.
[Image Sources : Shutterstock]
Everything under Section 38A[12] (rights available in performance) usually gets assigned to the producer. Rights that can be retained with actor includes right to receive royalty, because it is a right statutorily granted to the actor and he/she can argue that such right is not waivable as per above discussion. Technically, as per the first school of thought, it would be possible that the actor and producer get into that irrespective of all the rights granted to the producer, the artist will be entitled to retain right to receive royalties (from the first school of thought).
Unlike the Screen Actors Guild (SAG)[13] in the USA, artists do not have their own copyright society like the singers do, which is the Indian Singers Rights Association(ISRA)[14]. They are not included under the IPRS either because “performers” in its name refer to those who are composers and lyricists.[15]Not all actors earn a hefty remuneration in exchange for their performance in films or any other audio-visual content, so royalties would be helpful for them to earn a steady livelihood even after retirement. Furthermore, actors do not get to perform in isolation from the film they were a part of, so it would more sense to give them royalty as they do not get many places to commercially exploit their talent and services.
Arguments AgainstActors Receiving Royalty
Since actors make a fat chunk of money already, people within the settled industry practiceargue that that they’re not entitled to receive anything over and above that. Also, it is not possible to evaluate this, because there is no copyright society in India that currently deals with artists or an actor’s royalties. There is no clarity on how royalties would be calculated. It is impossible to calculate the “repeat value” or “recurring” performance. Royalty is given for each use of the same performance, which is hard to calculate. It is not feasible to give royalty every time a film is played on TV or for each second the actor is present in the scene.
If actor’s performance is taken out or independent of the film, then there is no film from a holistic perspective. Section 38B[16] talks about moral rights of a performer which states that like authors, they are entitled to special rights, including moral rights in their works/performance. Producers tend to take a waiver, and actors waive their moral rights[17] to the extent permissible in law. Firstly, the producers must accordon-screen credits. Inadvertently, then the producer will rectify such defaultwithin a reasonable time frame, which is their right to paternity). Secondly, the actor’s work cannot be mutilated in a manner that is prejudicial to my reputation (right to integrity).
Conclusion
After analysing both sides, we can see why actors currently don’t have the pressing need for a copyright society. Unlike singers, actor’s performance cannot be taken out as a performance on an isolated basis or independently exploited from film. For other copyrighted works like a song, royalties can be calculated arising or throwing from or on the basis of the lyrics, because lyrics and music can be used separately. Actors are arguably inevitable to the film, and we usually look at the cinematographic film as a whole and not the performance in isolation, so it becomes very difficult to calculate or figure out amount to be given.
Author: Anjali Baskar, A student at School of Law, Christ University, Bengaluru, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
[1]Copyright Act, 1957, §19, Acts of Parliament, No. 14, 1957 (India).
[2]CRA, supra note 1, §19(3).
[3]CRA, supra note 1, §19(9).
[4]CRA, supra note 1, §19(10).
[5]CRA, supra note 1, §33.
[6]CRA, supra note 1, §33(3).
[7]CRA, supra note 1, §2(qq).
[8]CRA, supra note 1, §38A(1)(b).
[9]CRA, supra note 1, §39A.
[10]CRA, supra note 1, §18.
[11]CRA, supra note 1, §38A(2).
[12]CRA, supra note 1, §38A.
[13]Lindsey Powers, Screen Actors Guild Launches Foreign Royalty Tracker Online, Backstage, (Jun. 21, 2022, 3:45 PM), https://www.backstage.com/magazine/article/screen-actors-guild-launches-foreign-royalty-tracker-online-56221/
[14]Prashant Reddy, Indian Singers Rights Association (ISRA) Gears Up for a Losing Battle against Saregama, SpicyIP (Jun. 20, 2022, 5:20 PM), https://spicyip.com/2017/09/indian-singers-rights-association-isra-gears-up-for-a-losing-battle-against-saregama.html
[15]Shwetha, India: Delusion Over Indian Performance Rights Society Being A Part Of Copyright Society, Mondaq (Jun. 19, 2022, 11:28 AM), https://www.mondaq.com/india/copyright/709542/delusion-over-indian-performance-righmts-society-being-a-part-of-copyright-society
[16]CRA, supra note 1, §38B.
[17]Monika Verma, Actors in India: Asking to bestow their Morality Rights, 1 MIPR 75-78 (2014), http://docs.manupatra.in/newsline/articles/Upload/65D12761-88D2-45EA-8DDF-00E328058849.pdf
