Saturday, 28 June 2008

NCPA and the Sell-out of Heritage - II: Legal Issues

NCPA and the Sell-out of Heritage
Part II - Legal Issues

[This is the second in a series of articles on NCPA's recent move to commercialise its archival resources. Here Abhik takes a look at the legal issues involved.]

1. Introduction

NCPA's tender for the marketing of audio tracks in its archives is not an isolated development. All-India Radio, owner of by far the most extensive archives in the country, is also taking steps to commercially release its recordings, as are other institutions like the Sangeet Natak Akademi. Such policy changes inevitably affect the interests of many. And none more so than the artistes involved, whose performances are being utilised in a manner they had perhaps not contemplated. The legal implications of this, under both public and private law, need to be examined closely.

2. Public-Law Remedies

One possibility is to challenge the commercialisation as arbitrary and therefore violative of the right to equality under Art. 14. Notwithstanding the "National" present in NCPA's name, this strategy is problematic.

It is well settled in Indian law that the fundamental rights listed in Part III of the Constitution are available only against the State. Artice 12 of the Constitution defines 'State' as comprising inter alia "local and other authorities". A lively debate ensued over what the term "other authority" meant or comprised. By far the widest interpretation of the term was given in Ajay Hasia v. Khalid Mujib in 1980. The effect of this was diluted in a number of subsequent decisions such as Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) and Zee Telefilms v. Union of India (2005). In the last decision, it was held that the Board of Cricket Control in India (BCCI) did not fall within Art. 12. The court observed:
It is not that every body or association which is regulated in its private functions becomes a 'State'. What matters is the quality and character of functions discharged by the body and the State control flowing therefrom.
NCPA is not created by a specialised statute; the Tata group site states it is in the nature of a registered society and a public trust. It does not enjoy a state-conferred monopoly (or indeed, any kind of monopoly) over its activities. Apparently it does not even accept government grants; most of its money including its initial endowment has come from the Dorabji Tata Trust. The government has hardly any control over it. Nor can its activities of promoting the arts be considered to be in the nature of a sovereign function (that is, an activity considered to be the preserve of the government alone).

Under the circumstances, there is little chance of NCPA being considered "state" under Article 12. However, one more argument can be proffered. In Zee Telefilms, the court held that even if the body in question cannot be considered "state", if its functions are in the nature of public functions a writ may be filed under Art. 226. It referred to AMSSMVSSJMS Trust v. VR Rudani (1989), where a college run by a private trust shut down without paying its employees their dues. The court held [at p. 707]:
The words "any person or authority" used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body.
Of course, in this case the court concluded the college performed a "public duty" because it received funds from the government, and was affiliated to, and thus subject to regulation by, Gujarat University, a state body.

Neither factor applies here. Nevertheless, a case can be made out that NCPA's work is in the nature of a public duty, given that it describes itself as a national centre. However, this is a rather weak line of attack as far as the NCPA is concerned and, in my opinion, best not taken as things stand. It is far more effective if used against AIR or SNA, whose identity as "state" is manifest.

3. Remedies Under the Copyright Act

Private-law remedies deriving from the Copyright Act, 1957, seem to comprise a more promising line of attack. (A copy of the Act may be sourced here.)

A common misconception exists that copyright in sound recordings rests with the performer. To understand why this is incorrect, one needs to keep in mind that copyright can subsist only in embodied, permanent works. Literary, dramatic and musical works (as in composed melodies) are works of this nature, as are cinematograph films and sound recordings.

A performance is not. It is by its nature ephemeral or immanent unless embodied in a film or sound recording. And if this is done, it is the embodiment, rather than the performance itself, that becomes the subject of copyright.

Copyright rests in the author of a particular work. Given the foregoing, the "author" of a performance need not be the author of its embodiment as a sound recording. Indeed, in most cases he is not. Section 2(d)(v) defines the "author" of a sound recording as its "producer". Clause (uu) of the same Section defines "producer" in respect of a sound recording or cinematographic film as the "person who takes the initiative and responsibility for making the work."

Hence if NCPA invites a musician and records his performance, it is the former, by virtue of having produced the recording, who is recognised as the author and thus the copyright-holder of the recording.

To protect the interests of performers, the law of copyright vests them with what are called performer's rights found in Chapter VIII of the Act. Section 38(3) outlines the nature and ambit of the right; in essence this amounts to a prohibition on unauthorisedly recording a performance, making reproductions of the recording, broadcasting the recording, or otherwise communicating the recording to the public. Section 39 states that these rights may not apply in cases involving bonafide research or educational purposes.

Section 38(2)(b) deals with making reproductions. It specifies three grounds, namely (i) without the performer's consent, (ii) made for purposes other than those for which the performer consented, and (iii) in respect of a recording made under Section 39, for purposes other than that covered in that Section. The italics are mine.

Noted musicians Shubha Mudgal and Aneesh Pradhan claim that NCPA routinely asked for their consent only in respect of research and educational purposes. If so, then clearly NCPA must secure fresh consent from all performers before it can legally proceed with commercial release.

4. Legal Validity of Pre-Existing Permissions

The shoddy drafting of the Copyright Act gives rise to a legal situation both interesting and pertinent to the present topic. Section 19 lays down strict requirements for the assignment of copyrights. It has to be in writing, and must identify the work and specify the nature, duration and territorial extent of the rights assigned, the royalties to be paid, and so on. Clause (4) is relevant to us: it states that if the rights assigned are not exercised within a year, the assignment lapses unless the contract of assignment specifies otherwise.

These principles have been made to apply elsewhere in the Act also. Section 30-A makes the provisions of S. 19 applicable mutatis mudandis to licensing of copyright under S. 30. Likewise, S. 39-A applies the provisions mutatis mudandis to performer's (and broadcaster's) rights.

Reading S. 19(4) with 39-A, we may infer that in the absence of a contract to the contrary, if the performer's consent for commercial release is taken but not utilised within a year, it lapses. Consequently, NCPA did a good job drafting the consent form, it might need to seek fresh consent for recordings over a year old even if it did secure consent for commercial exploitation at the time of recording. And the same holds true for AIR and SNA.

This anomaly can be attributed to shoddy drafting. Section 39-A effectively treats copyrights and performer's rights as similar (or, as we lawyers say, ejusdem generis). This is both inaccurate and misleading. Copyright can be likened to any other property right. Such rights are designed to enable the owner's enjoyment of his property. So just as my right over my land entail some subsidiary rights (for example, the right to grow oranges, the right to stop other from picking those oranges etc.), so does my right over my copyrightable work entail rights such as the prohibition against unauthorised copying, which enable me to enjoy the fruits of my property.

On the other hand, performer's right is similar to a right to permit someone else to acquire a particular property. If I have the first option on a piece of land, I can permit a potential buyer to purchase the land, prevent him from doing so, set conditions and other limitations etc. But for all that, I am not able to myself enjoy the oranges growing on the land.

Now, if I assign my copyright in a book to X in exchange for future royalties (as is often the case), and then X sits on it and refuses to publish it, I stand lose ont considerable. Not only can't I enjoy the benefits deriving from the book, I can't even assign the copyright to someone else (since it's already assigned to X).

Suppose on the other hand, I allow X, on the promise of future royalties, to record my performance for commercial release. Subsequently X sits on it once again. This time, while I won't get any royalties, there is nothing to (legally) prevent me from performing the same compositions in the same styles as many times as I want.

Suffice it to say, then, that the unwarranted conflation of copy right and performer's right into a single "type" has inadvertently resulted in the performer's interest getting better protected.

5. Moral Rights

Section 57 confers on the author of a copyrightable work the rights to (a) identify himself as the author, and (b) restrain any mutilation, distortion etc. of the work; both rights subsist even after the copyright has been assigned.

Section 39-A does not extend S. 57 to cover performer's rights as well. This is a pity. As is widely know, commercial releases of live Hindustani recordings are often heavily edited to the extent even of greatly diminishing their artistic excellence. At this time, though, the performer seems to have little legal remedy in this respect.

6. The Way Forward

Several public- and private-law remedies exist to mitigate the effects of wanton commercialisation of archival recordings. At least on paper. Whether as of now they comprise practicable strategies is another issue. Nevertheless, it is at least clear that performers have at least a thin toe-hold, standing on which pot-shots against NCPA and other errant archives may be contemplated.

[back to prefatory note and list of articles]


james said...

Arnab, Maybe I am missing something. Wouldn't most musicians be in favor of their cd's coming in the market? Your post gives the opposite impression. I am curious in your opinion, how and to what extent permission to publish is to be obtained by descendants of musicians, especially harmonium, sarengi and tabla accompanists. Should an accompanist be able to block proposed commercial exploitation of a recording to the detriment of a soloist? Your arguments seem to rest on the premise that the stated procedure by the NCPA is mala fide which seems unlikely in the current climate of copyright paranoia (try to open a "Mickey Mouse Cafe"-Disney will be hot on your tracks), and what seems to me to be a project that couldn't have a serious profit motive.

Abhik Majumdar said...

> Wouldn't most musicians be in favor of their cd's coming in the market?

Under the right circumstances, sure why not! But on this basis, can we take their approbation for granted? And simply go ahead without bothering to find out if they are actually with the arrangements or not?

It would seem that's precisely what NCPA has done. Hiring a foreign consultant, and then sending artistes a PDF copy of their catalogue, smacks of fait accompli. And at least Shubha Mudgal and Aneesh Pradhan have recorded their displeasure, and on these very grounds.

> I am curious in your opinion, how and to what extent permission to publish is to be obtained by descendants of musicians, especially harmonium, sarengi and tabla accompanists.

This is a valid question, and calls for extensive research. Copyright is not really my subject, so I can bone up on it only in my spare time. I'll try and look into it, work-pressure permitting.

> Your arguments seem to rest on the premise that the stated procedure by the NCPA is mala fide which seems unlikely . . . , and what seems to me to be a project that couldn't have a serious profit motive.

Why you think malafide intentions are "unlikely"? To my mind, the fait accompli I mentioned earlier is itself a ground for apprehension.

Lastly, I didn't follow why you chose to address your comments to Arnab. He didn't write this post, let me assure you :)

james said...

sorry abhik, I thought it was arnab's post. why i thought malafide intentions unlikely was because as i mentioned financial gain seems unlikely and it is unlikely ncpa would do something illegal in the field of copyright. so far it is only a proposal isn't it? If someone wishes to not be included, do you think ncpa would ignore their wishes? Have there been instances of commercial exploitation of artists' music without rheir consent, except in the case of Iyer vs. Amonkar? I do not see a major problem here at all.