Incidentally, I would like to inform everyone of the present status of the matter. We received a letter from the NCPA, several weeks after our mail to them, informing us that they were wanting to promote Indian music by way of making the collection public and that they would respect the rights of the musicians at all times. To date, we have received no response to the point we raised about getting copies of our recordings that were in their possession with or without our knowledge. I don’t foresee much of a proactive approach from their end, given this state of affairs.

Aneesh

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.

The contracts I wrote about were signed well before the days of the internet, but even there, I suppose law firms were taking short cuts.

I am afraid I am bound by an agreement to not publicise the facts regarding a case that was settled in my favour in a court of law. But it is very evident that performers do have rights in a recorded performance.

> 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

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.

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?

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?

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.