Giving up the Flyte - Ending the fight against piracy in India?

Piracy has been a cause of great concern in India over the last couple of decades. With the advent to technology, piracy has not only allowed a consumer access to cheap copies of the latest bestseller being sold on the traffic signals or a bad camera held copy of the new English blockbuster that was yet to released in India, but has allowed anyone with decent internet access to download movies, music, e-books and software without worrying about the quality or the consequences. It is no more about getting a copy that is cheaper than the cost of the original but getting it at no cost at all. And this could very well be the reason that Flyte, the MP3 store by Flipkart is closing its doors come June 17, 2013.

The Media and Entertainment industry has been dealing with the menace of piracy for a few decades now and while they have tried to put disclaimers at the beginning of the films, or publicize that piracy means losses for the industry, they have not been able to stifle its growth. To curb piracy, cheaper original DVDs and VCDs were introduced, and being released in the marketplace a few weeks after the release on the film in movie theatres, MP3’s which cost half of an average music CD but have at least twice the number of tracks on them, and while players like Moserbaer and YRF have to a certain extent helped the cause of curbing physical piracy, the mindset of buying the original is avoided by most people like the plague.

It is however online piracy that has been creating the largest dent in the pockets of the Media and Entertainment industry as a whole, with all the stakeholders admitting to losses being incurred by the industry, running into billions of dollars, because of piracy. While there have been attempts like the introduction of Flyte by Flipkart or the Itunes store in India, where original music is available at a per song basis ranging from anywhere between Rs. 7 and Rs. 15 on an average, or websites like ErosNow or Spuul which allow people to stream the latest films at a per monthly subscription akin to Netflix or Hulu in the west, none of the models have helped reduce the level of piracy in India. With the average Indian consumer not been able to accept the practice of paying for the music he listens to and assuming that anything that is available online for free is being made available to him legally and hence no crime is being committing by downloading the same, the current attempts seem to have fallen flat.  

India has been trying to adopt the model which worked for the US with respect to curbing piracy and encouraging people to spend money on their movies and music. However, what the Indian counterparts have forgotten is that the enforcement measures that were and are being used in the US to curb piracy are nowhere in sight in India, and half hearted amendments to the law, or a few judgments categorizing piracy as a menace are not going to dissuade people from indulging in piracy.

With Flyte shutting shop in a little over a year the question again arises – are the stakeholders in India willing to go the extra mile and change the mindset of people or is it always going to be about the numbers?

It is not Common Wealth!

The Indian news channels haven’t stopped relaying the scandals and instances of corruption associated with the Commonwealth Games 2010 hosted by India since the day the preparations for them began to see light. After being embroiled in controversy through its preparatory period, the games saw you and me being enthusiastic about sports like Athletics, Archery or Gymnastics, sports we follow once every four years at the Olympics.

With the medal count on a rise, for those two weeks we forgot about the negativity, the corrupt practices, the laundering and the legal battles that ought to follow. Three months later, the CBI probe is on, showing far fewer results than we anticipated. However, there have been two recent allegations against the Commonwealth Games Organising Committee that might just reach the justified end.

While on one hand we see an Australian company demanding that their dues be cleared, on another, we see T-series sending a copyright infringement notice to the Organising Committee of the games. T-series, a major music label in India, it has always been in the forefront in protecting its intellectual property. From a legal suit against YouTube, where they stopped the video uploading website to store and show clips and songs from the movies under their label, T-series has been using the relevant sections of the Copyright Act, 1957 to its fullest.

In this particular legal notice sent, T-series is alleging (and rightly so) an infringement of their copyright. They claim that there exists a valid basis for them to get compensated for such an infringement since songs from movies like Kaminey, Slumdog Millionaire and Om Shanti Om amongst others were telecast as a part of the Games without proper licenses. They further contend that these songs were used either in their entirety or as a tune in the background of the various parts of the Games.

For anybody, an individual, a company or an organisation, to use the music or songs whose copyright vests with another, there exists a need to take appropriate licenses or no objection certificate/permissions to use such songs unless they fall within the ambit of fair use. You might remember reading about Farah Khan, director and producer of Tees Maar Khan obtaining a no objection certificate (NOC) from Manoj Kumar, an erstwhile Indian actor, for using a song Desh ki Dharti in the movie so as to avoid the embarrassment faced by her on a similar issue with Manoj Kumar during her prior release Om Shanti Om.

While T-Series clearly agrees that the Committee had taken a ground license from them for playing the songs during the Games, they mention that a license for telecast rights of these songs was not taken. The music label has sent this legal notice for copyright infringement to the tune of INR one crore. This can serve as an eye opener for many organisers who are either complacent or unaware that different licenses have to be procured for different purposes and that in copyright there exists nothing like common wealth.

The (Copy)Right Baritone

‘Khamoosh’, we have heard this word being used numerous times in various mediums, most commonly the radio. But is it always Shatrugan Sinha's voice that we hear? More often than not it is an imitation. Though we can pass the usage on the radio as an allowed imitation or even a parody, what happens when we hear conversations, jokes, advertisements and even news in the voices of many celebrities or characters made famous by movies?

Amitabh Bachchan has recently, while expressing his disbelief in a gutka company using an imitation of his voice for the purpose of advertisement of their product, stated on a famous online blogging website, "for someone who does not smoke or propagate smoking or any kind of intoxicant, by keeping away from endorsing such products, it is most disgusting to find someone conflagrating the law of the land and the law of ethics.” Further, he has explored the possibility of legal protection to his voice so as to have an enforceable right against such advertisements.

Due to the influx of new media, the need to raise the sales, and ideas for advertising, people have started using the voice and mannerisms of well-known public figures to try and emulate their personality. An area undiscovered by India until very recently, celebrities are now getting more conscious about their brand and its usage. With the advent of brand imaging in India,  the ‘star’ who works hard for many years before reaching the cult status he enjoys gives him the capacity to cash in on his success. If someone uses this brand he has created, for material gains, without permission, he is depriving the ‘star’ of his income and success. Today, a lot is to do with brand recognition, recall and brand identity and it is on this proposition that today many consumers buy a product or service, depending on the level of identification with the brand and the person or logo attached with it.

With respect to Copyright in the voice, a copyright exists only when things are in tangible form. Though the law requires no registration to have a valid copyright, it must be expressed in tangible form. A person’s voice on its own cannot be a subject matter of copyright in India. Although, if this voice is a part of a movie, song or advertisement it can get protection to the extent of which it is a part of such expression under Sections 2(y) and 13 of the Indian Copyright Act.

The facet of protection for the right a person has in their voice falls under Rights of Publicity, an inherent right a person has to safeguard and monetize his own personality. This right is an intrinsic right and hence need not be registered. Though in its nascent stages in India, the Delhi High Court has held that the right of publicity vests in the individual and he has the sole right to his voice, mannerisms or signature. In the American case of Midler v. Ford Motor, it was ruled that voice is a part of a person’s identity and thus controllable against unauthorized use by that person’s right of publicity. While in Waits v. Frito Lay Inc, an artist successfully sued a company for using an impersonator without the artist’s permission.

Thus, in today’s legal setup, Amitabh Bachchan has a valid claim against the makers of the advertisement, on the basis of exploitation of his persona, unfair use and even defamation, if it is sufficiently proved that the common man assumes the voice in the advertisement to be his.

Like Amitabh Bachchan, the sudden awareness about various intellectual property rights and methods of exploitation are making celebrities aware of their inherent rights. However, while it is imperative to curb the free reign seen today by way of imitations bordering on passing off, it is also important to make sure that the freedom of expression with respect to parodies, known imitations and using of look-alikes is not made extinct with the sudden onset of protecting rights.

Why is Music Taxing today?

As an avid music listener and someone who frequents music concerts, I jumped at the idea of Bryan Adams coming to Mumbai in February and bought the tickets. Such concerts are far and few in between in Mumbai but I pacify myself by visiting Hard Rock Café or the local but famous Not Just Jazz by the Bay. The price of the ticket to the Bryan Adams concert made sure I didn’t indulge in anything else for that month.

People from other cities or countries with enough means are generally not put in such positions. The difference then is not your earning capacity or inflation but a simple word called tax. The city of Mumbai faces entertainment taxes far higher than many other places. The Mumbai Entertainment Tax (Amendment) Bill 2010 passed by the Legislative Assembly enables the government to now impose taxes on live performances at all venues amongst other things.

The new tax structure proposes the entertainment tax levied on live performances in the city to be 25 percent, an amount no proprietor would be ready to shell out, instead moving towards the easier alternative of recorded music. The effects of the this new tax structure can already be seen with many musicians having already lost their jobs as freelance artists, singers and performers at hotels and bars are being fired.

The ticket prices soar with every passing year and the performances decline. Over the last few years Mumbai has already lost out on many foreign artists performing due to the sky high entertainment and other varied taxes on the performances. Being the Entertainment capital of the country, Mumbai is now becoming the first city which is hearing the death knell of its musicians.

Recently, a number of musicians gathered at Carter Road, a locality known for its rich and famous, young and enterprising people, to protest against the entertainment tax and performed without charging a penny. The reason behind the protest is that when music is a form of expression and in India we all have the freedom to expression is it fair to then be taxed when this freedom is utilized?

Another argument being put forth by the musicians, music enthusiasts and the young politicians alike is the fall in the level of tourism if this tax is implemented. Live performances are used to showcase the culture of a city and with the end of this mode of entertainment, there would be little, if anything at all, left to attract tourists to Mumbai.

With carol groups being replaced by protest concerts all over the city this winter, we can only hope that this is not the last time we can enjoy live performances without having to search the papers for the elusive concert and the hefty ticket price. 

Introducing the Blog

Welcome to The Media Law Blog!

This blog is an attempt to combine my interests in law, media and writing. It aims to, in simple language; introduce you to the legal issues and effect of the law on various aspects assailing the media industry today.

I hope to be able to ignite discussion on the topics I blog about and would love to hear from you on any topics of interest that you might have to share with me.

I look forward to seeing you around. :-)