RadioandMusic
| 27 Oct 2020
Copyright Act Amendments - Misconceptions Cleared

Mason & Associates managing partner Neel Mason

There appears to be a popular perception that by way of amendments the author of literary and musical works incorporated in cinematograph films and/or sound recordings cannot assign their copyright in such works post the amendments of 2012. What the amendments seek to do is retain for the author, only the right to receive royalties for exploitation of the said works, wherever applicable, by providing that an author of the above mentioned classes of works cannot waive or assign the right to receive royalties. The assignability of copyright in such works is not hindered in any manner by the amendments and they remain assignable, wholly or partially, as was the position earlier. It is therefore expected that agreements going forward would factor these elements into the consideration that may be payable to the author.

Furthermore, the right to royalties granted to the authors of literary and musical works is a prospective right and does not cover a right to royalties accrued from works published and /or commissioned prior to the enactment of the Copyright Amendment Act, 2012. This is clear from the wording of the amendments which state that any agreement to the contrary shall be void. This unambiguously refers to agreements to be entered into in the future as an interpretation to the contrary would have the effect of rendering all agreements entered into in the past void which would create havoc in the entertainment industry. In any event, it is a general principle of law that an amendment cannot retrospectively seek to divest an individual of rights which are already vested in him.

In relation to Performers, their rights appear to be assignable but there is an obligation to pay royalties in certain circumstances. In this regard, it is pertinent to note that the Performer’s right relate to Performances as defined in the Act and the definition of the term 'Performance' has not been changed by the amendments, the ambit of which appears to cover only live performances such as stage shows, concerts etc..

Neel Mason is the managing partner of Mason & Associates, an intellectual property firm specializing in copyrights and trademarks. He has also appeared before the Parliamentary Standing Committee which was tasked with making recommendations on the Copyright Amendment Bill.