‘Tender’ Archives at NCPA

Some organizations have developed expertise in turning the living traditions and cultural arts into “historical” artifacts so that they can be “exhibited” like museum artifacts and commercially exploited for viewer-ship.

Who is responsible for ensuring that living traditions are destroyed and turned into “archived” artifacts that are frozen forever.??

“How often have we as musicians, students, or music lovers, objected to the fact that there is little or no space for living traditions on most television channels?”

Not only that, the television space has been completely taken over by bollywood- but even news channels feature bollywood item dance.

We used to think that TV would destroy bollywood- but the fact is that now it is bollywood that is destroying everything from our living musical traditions to the moral values.

Bollywood has taken over TV channels and TV channels now determine what the “living traditions” are in the current times.

On the top of it, some organizations are busy “archiving” living culture so that the mummification of these living traditions is complete!!

It is such a mess and we need to keep on blogging and raising voices against the “mummification” of our living traditions.

Thanks for sharing your thoughts on this blog, and I hope others will also join in shortly.

suvir, I fail to see how archiving and commercially releasing that music turns it into “historical artifacts”. Archiving the music is important! Don’t you see it coming into the market as a good thing? I do. I have commented on the subject on abhik’s blog at “debating shastriya sangeet” and will not repeat myself here. I certainly agree about the bollywood disease and my particular grouse is with the print media who pretend to be serious but all churn out the same bollywood, page 3 crap in the “culture” sections, at least here in mumbai. In the current scenario is training the guns on ncpa appropriate? I may be wrong but I have been under the impression that anyone can go to the ncpa and listen to anything in the archives. That there has not been willy-nilly pilfering of the archives there by avaricious collectors is commendable. Now when they do want to commercially release music with every permission required from the artists they receive brickbats. With their current proposal doesn’t a simple “no” keep them from releasing any recording, if so desired by the artist, as you, Aneesh and Shubha have done? I do wonder about your thoughts on accompanist rights, Aneesh. For example do you, or a harmonium player have the right to object to the release of any recording if it is desired by the soloist? would these rights of the accompanist extend through to his or her descendants too? to any vocal accompanists too?

Aneesh, Many good points but I don’t really see mala fide intentions by the ncpa in the absence of any likely substantial pecuniary gain. As far as dissemination goes, I still have not received any contraindication of my impression that anyone can listen to anything in the archives of ncpa if they desire. Do you think that over the years they should have given out copies of recordings to anyone, or been in the position to judge who had a genuine interest and who did not? If I, as a student of music would like a copy of a particular piece of music, i wonder how many institutions would provide it, be it arce, ncpa, samvaad, khairagarh u., st. xaviers college, sra- unless as you say you have the right connection with the establishment. i will stick with the other private collectors, some of whom are generous. Nobody has gained from the hoarding mentality except a few precious egos but on the other hand they have not betrayed the trust placed with them either. I hope more old music comes out commercially to the satisfaction of all parties concerned.

what about the legality of an archive possessing a recording obtained from a 3d party, for example ncpa holding babubhai raja’s collection? As there most probably is no written agreement between the artists and raja can the artists or in this case the descendants of the artists object? I believe Pt. Ravi Shankar was surprised to see some of his unauthorised recordings deposited in an archive. by the way, in taking permission of legal heirs is it eldest son, all children? this could be very complicated which i have heard it is amongst Begum Akhtar’s heirs. Whether ncpa asks for permission before sending out the tender or after doesn’t seem to me to be a major problem, I imagine they assumed all or at least the majority of the musicians (or descendants) would be in favor! I hope the project comes off eventually.

aneesh, why doesn’t Underscore Records get involved? I imagine the tender offer involves much more than just the highest bid, and you and Shubha have expertise, knowledge, and the goodwill and respect of the music world.

There are several issues related to archiving which need to be carefully examined and I am sure many are doing so across the world. The yahoo group for archives started by Dr. Shubha Chaudhuri, who heads the ARCE, Gurgaon, is currently having an interesting dialogue on the NCPA issue.

I am not sure of the legal status of recordings like those deposited by Babubhai Raja. To my mind, any recordings that are made without prior permissions from the artistes, are bootlegged recordings. Even if they are deposited in an archive for posterity, I don’t imagine you can sell such recordings, as they were bootlegged ones in the first place. Besides, like all other recordings, permissions would be required from the artistes concerned, and that includes accompanists too.

I am afraid assumptions does not hold good for musicians - certainly not for us - we stick to the original principle; that you can’t decide to sell something without inquiring with the owner of the property. In any case, assumptions don’t work when it comes to discussing legal matters.

As for the last message from you, we in fact received the mail from NCPA, probably because we are heading Underscore Records, and not because we are artistes or because some of our work was in the archives. We cannot be party to anything that is even remotely against the rights of musicians. The home page of our site clearly mentions that we are Pro-Music and Pro-Musician. We will participate in endeavours as and when they fulfill these basic conditions.

You may feel this is a myopic view, but that’s how we feel and will continue to.

James, it is certainly not legally or morally right or proper on the part of NCPA to invite tenders for its archives without obtaining prior permission of the artistes - and, by artistes, I mean all the artistes performing at a concert, not just the main performer.

The copyright of the music piece/ music pieces / concert/ recording vests in each of the musicians and not just the main performing artiste. And just because it is NCPA which is doing this tendering of archives, they cannot presume all musicians will give their consent automatically.

If I interpret their blogs correctly, what Aneesh Pradhan and Shubha Mudgal have taken exception to, is the very act of inviting tenders for the archival recordings, without taking the prior permission of all the musicians concerned/ their legal heirs/ their estate. Commercial considerations is something that would follow later. I know for a fact that ‘ bootlegging’ does occur at concerts. What’s to stop these from coming up for sale? It need not be done overtly like what the NCPA has done - with the internet being a vast medium, it can be posted on the net too.

Let me give you an example - some months back, when I used to surf You Tube regularly for some work, I found a lot of video recordings ( holiday recordings, etc etc ) put up on the the site for sale. This included music performances, glimpses of the air force show in India, the Republic Day parade, people strolling down the mall in Shimla etc. This is in violation of the rights of the people involved, because (a) most of the recordings, from the quality, camera angles etc, appeared to be done in a stealth manner, obviously without the prior permission of the people featured (b) commercial exploitation of the same was being done, again without the permission of the people featured therein. I am not even taking commercials of these recordings into account here.

Here, one needs to understand that ‘permission’ means ‘prior permission’ or permission taken before actually doing the recording or, in this case, the invitation to tender, not permission taken thereafter.

Please do not mix the copyright issues with those of commercials, both fall in different categories, though they may be linked to each other.

For that matter news organisations never take permission before publishing photos of accident victims and people in other distraught states. Nothing can be done about it but it is despicable sort of exploitation. Sorry Nandini, I did not understand the reference in your last paragraph about commercials and copyright! I myself have never seen anything on youtube that was for sale.

James, in one of your earlier posts you had written that you did not think there were any mala fide intentions on the part of the ncpa in the absence of substantial commercial gain. This is where I strongly disagree with you.

Irrespective of whether there is a commercial / pecuniary motive or profit from the whole process, the fact of the matter is that no one can release archived material, without any copyright releases / assignments in favour of the person seeking to release the material. It would be tantamount to some one selling ( and, if you dont want to look at the profit issue - distributing without any commercial consideration) your goods/ property/ material, without your explicit or implicit permission.

That is why I requested that copyright issues should not be mixed up with commercials. What I meant by commercials was the profiteering motive behind the whole venture.

And let’s not mix up the issues of news channels using visuals etc etc in this debate -

I am not at liberty to give details - but yes, you tube had a number of videos, or to be more precise, ‘ bootlegged’ recordings of various concerts - and personal videos for sale. This was about 6 months to a year back. I did not have occasion to visit You tube later on. I did visit the You Tube site while writing this post and find there are a whole lot of concert recordings on the site - I saw many of Pandit Ravi Shankar and other musicians up for viewing. I dont think these have been shot/ recorded with the knowledge of the musicians concerned or recorded with their permission. Due to time constraints, I have not been able to surf this site or other sites to verify whether commercials have been posted in respect of these recordings. I will get back on this later.

Concert organisers do like media coverage of their concerts and therefore invite the media for coverage of the event. Most of the times, no time slots are available for the media shoots and artistes are not asked their comfort levels nor permissions sought before coverage starts.

What happens most of the times is that the artistes are engrossed in their performance and the pre performance dligences and therefore, do not have the time to check each mike/ camera/ wire and its owner. And lets face it, some of the artistes are not aware of their rights or may not want to antagonise anyone.

Nothing to stop a person therefore, from recording the concert, for the whole or part of the duration, without the knowledge and consent of the artistes and commercially exploiting it, which is illegal. with the advent of various recording devices, this has become very easy.

Similarly, for eg., if an artiste, whether a friend or not, performs for you at home or in a private environment, you do not have the right to record them in any manner whatsoever, without their permission and you definitely cannot exploit that private performance by making copies of the same and gifting it to people, even without a commercial angle to the whole issue.

Let me put this in simple language - you cannot distribute or sell what was not yours to begin with.

Nandini, a quick response to your take on the law.

First, strictly speaking, performers do _not_ own copyrights to their performances. They are vested with what are called performer’s rights, which differ from copyrights in both content and magnitude. We have covered in or own blog this issue apropos of the NCPA fracas:

http://debatesangeet.blogspot.com/2008/06/ncpa-and-sell-out-of-heritage-ii.html

Inviting tenders and all does not in itself constitute a legal wrong. It just indicates their lopsided priorities. This is what musicians and music-lovers have taken exception to, this coupled with the apprehension that it might lead to rights being disregarded.

Prior permission is most emphatically not required at the stage of floating a tender. It is only when one reproduces the recording of a performance for purposes other than that in regard to which consent was given, (i.e. in this case, when a recording made for research purposes is copied for commercial sales) that a violation of performer’s rights occurs.

Copyrights and performer’s rights apply only to creative works. This rules out people strolling in Shimla. Can you imagine the havoc created if it became necessary to take permission of people before photographing or videographing them? For one, any decent piece of reporting, such as the Tehelka spy-camera traps, would promptly become illegal as violative of copyright or whatever.

The legal status of performances in the course of Republic Day parades is somewhat uncertain, thanks to Section 52 (za) read with 39(c). It could be subject to performer’s rights, I’ll need to check up on it.

Lastly, recordings offered for sale on youtube? Are you sure?

Yes, I did mean performers’ rights,.

Yes, I know for a fact that You Tube had certain recordings put up on sale in the time frame that I mentioned. I am not at liberty to mention the complexity of who put up the recordings for sale etc etc and the manner in which it was done.

Now that the issue I was looking up on You Tube no longer exists - what do you make of the various recordings of artistes put up on You Tube for viewing without, what appears to be commercial exploitation? Isnt this exploitation of their rights too?

I dont think we can mix up news reporting and such other media coverage with the issue of intellectual property rights. Since I cannot find those videos on You Tube any longer, I cannot send you a link to the same - if you could have seen them, I could have perhaps supported my arguments better.

I disagree with you when you say that there was nothing wrong in NCPA floating the tender. How can one float the tender for material which is not one’s own, without any permission from the artistes concerned?

The document ‘request for proposals’ in Section 5.2.3 states that the NCPA will initiate the process of securing artist copyrights by raising awareness of its intentions in advance of the publication of the tender - according to my information, this was simply not done. If this norm had been followed, the artiste could have notified their responses and things could proceed further from there.

How can the NCPA release advertisements notifying the tenders, without the prior consent of the concerned artistes?

I am sure this was not an overnight effort on the part of the NCPA. A lot of thought, planning etc., must have been invested in the effort before they went public. What prevented NCPA from initiating discussions with the artistes during this period?

Abhikji,

I completely agree with Nandini that the NPCA or any other organisation needs to seek permission of the property owner before the former decides to invite potential collaborators like record labels on board.

I understand your statement about there not being any copyrights in performance, but once the performance is recorded, the copyrights are owned by the artistes, unless they have assigned these rights to the record label/archive or any other person, as the case may be. The situation in the case of the NCPA and other archives is that artistes have given permission only to record for archival purposes (of course, that’s only when they have been informed of the recording, and not when their performers’ rights have been violated by recording live concerts). Consequently, by virtue of the fact that the NCPA set up the recording to take place, does not in my opinion transfer the copyrights to them. Correct me if I am wrong, but the material is only licensed to them for archival purposes as would be stated in the agreement or MOU between the two parties. Naturally, the same MOUs would have to be signed by the accompanying musicians, but this is not done in most cases. I understand that field recordings and those involving large folk ensembles would present a different set of problems, but here to, things are not as insurmountable as they are made out to be. I think people need to have the will to change the present situation, which is certainly not the reality in most cases.

What is more disturbing is the fact that record labels would earlier ask musicians to sign contracts that would even give the copyrights in the compositions/repertoire to the labels. However, how could this be done, if the knowledge was traditional and was not owned by the performers in the first place? They could have only signed the copyrights in the present sound recording, but no one ever thought it necessary to question this aspect. I know for a fact that Shubha has not signed any contracts that ask for copyrights for the repertoire, but I would be interested in knowing if others approached the question in the same manner.

I do not know how many artists are on the ncpa list, but searching out the descendants of all the musicians involved really would be a herculean task i imagine. Imagine just doing it for a recording of the recently deceased Bismillah Khan, and here just tracing who are the accompanists wouldn’t be the difficult part. Aneesh, have you at underscore records verified that this has been done with all artists whose music is sold with you, or is there some leeway. If it is orally claimed that “we tried to find so and so but could not…..” is that acceptable. I do agree that asking permission prior to the tender would have been better, but I also think that nobody has suffered because this wasn’t done and artists will still have control over what is released or not, according to what is proposed. We all know that the majority of artists or their descendants would like their recordings to come out- there is a financial benefit and exposure and maybe ways to better facilitate that could be devised- which is why i mentioned Underscore Records.( Sorry aneesh, i didn’t mean to encourage immoral activities!) Note, I am not defending ncpa. I am not involved in any way, nor am I a lawyer. It is just the way I see it.

@ Nandini

> I disagree with you when you say that there was nothing wrong in NCPA floating the tender. How can one float the tender for material which is not one’s own,

By “wrong” do you mean ethical wrong or legal wrong? There is no question they are going about the whole process in an ethically most fishy manner. I mean, why do you think we’re all so het up about it? But at the same time, as things stand now, they have not broken any laws yet.

While I cannot sell something I don’t own, I am legally at liberty to _offer_ for sale something I might not own yet but have a chance of owning in the future. In fact, a tender does not even constitute an offer within the meaning of the term in contract law, It amounts to what is called an ‘invitation to offer’ or ‘offer to chaffer (i.e. negotiate)’.

Secondly, I don’t know if you can separate media coverage of an event from, say, me making a video film of people strolling in Shimla. In law, at least in intellectual property law, no distinction exists.

@ Aneeshji

With respect, that is not how the law of copyright works. You are right, no copyright exists in a mere performance; copyright can subsist only where the creative expression is “fixed”, or embodied, in permanent form. However, when the performance is fixed, the copyright vests in the author of the fixing, i.e. the producer of the recording as per the Act. This is usually not the performer.

What the performer is within his rights to do is decline to authorise fixation. In such a case, in the absence of a written consent (in accordance with S. 19 read with 39-A), the person making the fixation cannot legally make copies or distribute them or enjoy other benefits that derive from copyright. Nonetheless, strange as it may sound, he (i.e. the “fixer”) still owns the copyright to the work! That is, copyright in a bootleg recording will not be transferred to the performer just because the recording was made without his consent.

Record companies demanding copyright over repertoire, especially traditional repertoire, is pure rubbish as you also realise. My guess would be the company approached a law firm for getting contracts drafted, and the subordinate in the firm merely downloaded a standard-form contract off the net and made cosmetic changes to it. Believe me, you’ll be shocked to know how little work some firms do for the exorbitant fees they charge.

Abhik

Abhikji,

I am sorry for the delayed response, but I wished to put down a few points related to the current status of copyrights vis-a-vis the law. I am aware that the law protects performers by empowering them with Performer’s Rights, and yet the matter related to copyrights is open to interpretation. Elsewhere, you mentioned a judgement delivered by Justice Krishna Iyer, but in my humble opinion, that was probably a matter related to cinematographic work, in which case, the copyrights do vest in the producer. However, what we are presently discussing relates to traditional music. While the law does not differentiate between the two, it is evident that performers do create copyright when they perform for a recording of an improvisatory genre like Hindustani music, and that if this is not explicitly assigned to the producer, it continues to vest in the performer/s.

This interpretation has been upheld in the court of law, though much needs to done in terms of discussing and strengthening the voice of traditional music by law.

Instead of resisting this move by NCPA , I think Artiste forum should negotiate with NCPA on revenue sharing on this proposed commercialisation , so that the artistes too benefit from this venture. It is a good idea to bring to the fore the work of forgotten artistes thru such commercially viable means .Otherwise the archived resources will be of no benefit to any one. I am sure NCPA will agree to it and it will benefit both. and in fact it may even create a new avenue of income for young artistes .