Interview : Neel Masson

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”The Copyright amendments only refer to authors of literary and musical works”

Neel Masson, the Managing Partner of Mason & Associates, an intellectual property firm specializing in copyrights and trademarks, has extensive experience in the field of Media and Entertainment Law and regularly advises entities in the entertainment industry. He has also appeared before the Parliamentary Standing Committee which was tasked with making recommendations on the Copyright Amendment Bill. He even lately threw light on certain burning issues in the Copyright Act and clarified the varied misconceptions. In conversation with Neel Masson, a prominent Copyright Attorney. Here are the excerpts:

What is the position of a producer of a cinematographic film qua their right to receive royalties and whether a producer can assign or waive their right to receive royalties in the context of Section 18?
The amended statute is very clear that the only class of people who cannot assign their right to receive royalty is the author of literary and musical works included in a cinematographic film or sound recording. While the author of the sound recording is the producer, the restriction has not been made for sound recordings so being the author of a sound recording is irrelevant for the purposes of the amendment. Additionally being the first owner of copyright is distinct from the author so even if the producers claim to be first owners of copyright (as was the case) the amendments do not make them the author of the literary and musical works. Therefore, the producer can assign or waive their right to claim royalties.

Whether a producer can claim a royalty for the ‘past catalogue’?
Clearly when the legislation does not confer a right to receive royalties even prospectively (by way of a negative covenant of not assigning or waiving their right to receive royalty) the question of producers claiming this right on past catalogue clearly does not arise.

Whether one needs to pay for past catalogue to the author of literary and musical compositions for the relevant exploitation of the works going forward?

Please note that this appears to relate to publishing rights which will now be licensed by the IPRS (or any new body that is formed within a year and the constitution of the IPRS has to change). The amendments are prospective in nature which essentially means that NO past agreement will be declared void if it does not adhere to the principles as laid down by the amendments. Therefore the consideration paid under those agreements and the rights vested under such agreements and arrangements will continue to be valid. Certain rights have been vested and unless the legislation specifically divests a party of such rights, which does not appear to be in the present case in relation to past catalogue, there appears to be no mandate to pay for past catalogue.

The Producer fraternity is under the impression that the Publishing rights assigned or licensed in the past will return to them and they will now be able to collect publishing royalties for the past catalogue when it is exploited now going forward along with author and composers
The amendments only refer to authors of literary and musical works. The producer does not fall under the category of author of a literary or musical works. The producer of a sound recording is an author but the author of the sound recording is not covered by the amendments. The producers in the past have been considered as first owners of copyright of literary and musical works. However they are the first owners of copyright and not the authors and the amendments specifically refer to authors of literary and musical works and therefore they cannot ask for a share of revenue going forward. Moreover, the amendments are prospective and thus neither authors/composers nor the producers will be able to claim any royalties for exploitation now going forward for rights assigned in the past.

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