The Copyright Amendment Bill, 2011: Proposed Impact on the Film Industry in India

With the recent developments in the Copyright Act and with the Rajya Sabha very recently passing the proposed amendments in the Copyright Act, 1957, we thought of aggregating the major issues with the current version of the Act and the proposed changes in the Act, and how such changes might impact the overall rights of the stakeholders, particularly the ones in the Music and Media Industry. Here is what Rupkatha Basu, an Intern at Khurana & Khurana and 3’rd year student at KIIT School of Law, Bhubaneswar has to say:

When the legendary lyricist Javed Akhtar raised a furor demanding Amit Mehra and Apoorva Lakhia to seek permission from him before opting to remake the cult Bollywood movie Zanjeer, the question arose, is his demand lawful or even justified? The argument that Akhtar raised based on the moral rights of the creator may hold good in his case, but the right to integrity as u/s 57 of The Copyright Act,1957 definitely perishes once the work is made a part of a cinematograph film. There is increasing demand in the film industry to give more rights to the performers, the composers, the lyricists and most importantly the directors. This is because at present, producers of films are keeping all rights with themselves. As a result the lyricists and singers are not getting royalty in case their works are used for commercial purposes.

In the wake of such a scenario comes, The Copyright Amendment Bill, 2011. It was first introduced in the Rajya Sabha in November, 2010 but later on was recommended to the Parliamentary Standing Committee. The PSC has put forth certain recommendations and the final result is the Amendment Bill, 2011.

The Present Law

Section 2(d) of the Copyright Act, 1957 states that in relation to a cinematograph film or sound recording, it is the producer who is the sole author of the work. Reading section 17 along with this, it becomes clear that the producer is the first owner of the copyrighted work. It leaves no doubt that it is he who solely has all the rights and thus only he can assign or transfer it. The lyricist, composer, artists, script-writer, even the director are appointed by him and thus he also holds the copyright being the employer since the work has been created during the course of the employment. The Director, though being the brain behind the film, does not hold any right whatsoever on the movie other than the moral rights. He is not a performer within the meaning of section 2(qq) and thus cannot claim rights u/s 38 of the Act. In fact, as per section 38(4), once a performer has consented to the incorporation of his performance in a cinematograph film, all rights u/s 38 are denied to him.

Presently, the lyricist or the composer of the song receives no royalty once the song has been incorporated in a cinematograph film. This is the position subsequent to the decision of the Hon’ble Supreme Court in its landmark judgment Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association[1] (IPRS Case). In the afore-mentioned matter the Copyright Board initially decided that composers and lyricists retained copyright in their musical works incorporated as sound tracks in cinematograph films and thus can collect fees, royalties and charges with respect to those films. On appeal, the High Court set aside the decision of the Board. Finally, the Supreme Court held that interpreting section 17(b) and (c) in terms of section 13(4) would mean that the rights of the music composer and lyricist are defeated by virtue of the producer becoming the first owner of the copyright. If the author of a lyric or musical work authorizes a film producer to make a cinematographic film on his composition, he cannot later claim copyright infringement.

The Road Ahead: The Copyright Amendment Bill, 2011

The Amendment aims to bring the Indian law in conformity with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The 2010 Bill is aimed to give authorship not only to producers like UTV Motion Pictures but also to directors like Imtiaz Ali and Sujoy Ghosh who actually make the movies. It was proposed to amend sub-clause (v) of section 2(d) to acknowledge both the producer and the principal director as the “authors” of a cinematograph film. But this has been deleted from the 2011 version of the Bill on the recommendation of the Parliamentary Standing Committee.

It is further proposed to insert a “Proviso” to section 18 prohibiting lyricists and composers from assigning away their right to receive royalties other than to the legal heirs or to a copyright society for the collection and distribution. Sub section 9* is also to be added to section 19 providing that 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 equal royalties with the producer in case of utilization of the work in any form other than as part of cinematograph film or sound recording. This is definitely going to benefit lyricists, composers, scriptwriters when their work is being used outside the movie viz., in commercials. Such modifications were suggested to bring about greater clarity in matters related to royalty.

The Bill proposes to insert section 38A and 38B replacing section 38(3) and (4). These aim to give exclusive rights to the performers and introduce moral rights for them as well. It says that once the performer has consented to the incorporation of his performance in a cinematograph film, he cannot object to the enjoyment of the performer’s rights by the producer.[2] But the “proviso” to it reads that the performer will still be entitled to royalties in case of making of the performance for commercial use. In both UK and US, royalties accruing by utilization of a copyrighted work in a cinematograph film are the legitimate right of the lyricist or the composer.

Section 38B has been proposed in consonance with the existing section 57 which gives moral rights to the author. If the Bill is passed by the Parliament and receives the assent of the President, even the performers can claim moral rights. Injunction or damages can be claimed for mutilating any performance. Thus, when films like Agneepath are remade, the performers of the earlier film can claim damages if their performance is deteriorated by the subsequent performance. Thus, Amitabh Bachchan can definitely have a case if he finds that the remake is by anyway degrading his performance.


The Bill has received widespread support from the International Confederation of Authors and Composers[3]. The restriction on the assignment of the right to royalty may be argued to be in violation of freedom of contract granted as an extension to the freedom of trade guaranteed by Article 19(1)(g) of the Indian Constitution but in reality it is just a reasonable restriction as other welfare legislations like the Minimum Wages Ac, 1948.

The amendment providing joint authorship to the director was required since the film is essentially a director’s brainchild. Moreover, there is no other way provided in the Bill to protect the interests of the Director.

The Bill is no doubt a necessary change required to undo the injustice caused by the IPRS case and to implement the observation made by Justice Krishna Iyer where he had categorically asked the legislature way back in the ‘70s to do something to help the authors and music composers who are left in the cold

[1] 1977 SCR(3) 206

[2] Section 38A(2) to be inserted by the Copyright Amendment Bill, 2011

Leave a Reply



  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010