In a blog post on March 17, Amitabh Bachchan expressed his outrage that Indian copyright law gives him the exclusive rights to the writings of his father, Harivansh Rai Bachchan, for a period of only 60 years after his death. The senior Bachchan died in 2003, and his actor son was irritated that by 2063, the novels, poems and essays will enter the public domain.
According to the Copyright Act of 1957, the 60-year limit applies to all literary, dramatic, musical and artistic works. Although Bachchan’s complaint had to do with his father’s writings, concerns over the act’s provisions have been rippling through the Indian film industries too. Many filmmakers and their families contend, like Bachchan, that the work of their forebearers is their inheritance, and that a time limit cannot be imposed on what is handed down in a family. Another argument is made about the monetary value attached to a film. The rationale is that whoever has put in the money must reap the benefit without a time limit. (Or, in the case of a movie, whoever, the producer wills it to.)
India is hardly the only country to have instituted such a law. In the United States of America, for instance, a film goes out of copyright 70 years after it has been released. Some of the early films of Frank Capra, Orson Welles and Fritz Lang are now in the public domain. In India, all films made up until 1958 are now out of copyright. They include Kamal Amrohi’s Mahal (1941), Raj Kapoor’s Awara (1951), LV Prasad’s Missamma (1955), Sharada (1957) and Mehboob Khan’s Mother India (1958).
My copyright, my legacy
The issue has been the subject of debate at the Film and Television Producers Guild in Mumbai, which is contemplating asking the government to revisit the copyright act.
“Earlier awareness about copyrights in films was very limited,” said Jaiprakash Naidu, Executive Director, Prasad Group. “But, now with increased sources of revenues, various avenues and more remakes and sequels, copyright has gained attention and importance. Many of our producer members at the guild have been of the opinion that the industry should send a representation to the concerned ministry in the central government to have a relook at the outdated laws governing films. I’m not sure what the status of that is.”
Naidu feels that a 60-year cap does not make sense. “Take, for example, films like Mughal-e-Azam or Mother India – these are all-time classics, award-winning films, heritage films,” he explained. “The children and grandchildren and future generations of these iconic producers decades down the line should know what their forefathers have created and achieved. We should avoid putting a limit of 60-year ownership rights on them. We expect the government to at least consider the important fact that in case of films that are or will be in the public domain, interested people should take some formal permission from the original filmmakers before they use them or screen a film.”
Some of LV Prasad’s earliest films, such as Ilavelpu (1956) and Sharada (1957) are now out of copyright. Is the studio tracking these films now?
“Frankly no, we are not seriously tracking our films yet,” Naidu said. “The problem is not about giving access to our films. Our films were blockbusters in their time and socially relevant family dramas. We expect that everyone watches them and the future generations too.”
Producers are sensitive to how their productions will be re-used by other filmmakers, which is one reason they want to hold on to copyright. Naidu gave the example of Aanand L Rai’s 2017 production Shubh Mangal Savadhaan, for which he wanted clips from Prasad Group’s Ek Duje Ke Liye. “We never expect any monetary consideration in exchange for such clippings,” Naidu said. “Moreover, Aanand L Rai is such a fine technician. We were glad that he found some relevance in our film. We asked him for a formal letter, against which we gave the production house permission to use the clipping. Shubh Mangal Savadhaan is such a beautiful film. The clipping was so nicely used. We were very happy.”
The case for money
The monetary benefits of copyright cannot be restricted by a time limit, argues Supriya Yarlagadda, the grand-daughter of Akkineni Nageswara Rao. The legendary Telugu screen icon had acted in close to 250 films in his career, many of which are now out of copyright. Yarlagadda puts her arguments on behalf of the producers of Rao’s films.
“We are the lucky ones who don’t need to extract monetary value out of his work but I think there are a lot of others who could highly benefit,” she said. “The legacy of my grandfather is with us, and he has always been loved by all Telugu people. So, to say he is ours is unfair. But monetarily, I think it is his producers who should benefit from the films – the right should rest with them, their families or whoever they will it to. A producer is always the first one to put the money and last to get it back. He takes the losses when they are there.”
What complicates matters, she added, is that many of the producers of her grandfather’s films had sold the rights to satellite networks for meagre sums.
“In the mid-1980s and ’90s, many masterpieces were picked up for small sums by what I call the big boys, the networks and corporations,” she explained. “The producers needed the money but nobody had educated them about copyright and intellectual property. They gave up the rights to the film’s negatives for Rs 15,000 and Rs 20,000, and that’s unfair. Maybe my grandfather was compensated aptly for being a star. That is fine but it is the producer’s film, and he or she deserved better.”
Yarlagadda is trying to get in touch with producers and their families to see if anything can be done to rectify the situation. “A producer’s career thrives for, say, five years, ten if they’ve done extremely well,” she said. “How can you put a limit of 60 years on his rights over his films? The law is pretty archaic and irrelevant, to be honest. What we are trying to see is if anything can be done in cases where my grandfather’s film producers have released the rights in very loose-ended agreements.”
If the 60-year period is indeed extended, it will not only benefit film families but also companies such as Shemaroo, which has invested in digitisation and distribution. Typically, Shemaroo acquires titles from producers after scrutinising previous deals. A value is attached to the medium of usage, the duration of the contract, and the territory.
An extension of the 60-year limit could mean a change in the revenue potential for companies like Shemaroo. Many of Shemaroo’s acquired titles are now in public domain.
“Many of the older films need restoration,” explained Hiren Gada, the CEO of Shemaroo. “However, they are all also passing into the public domain and so the cost of restoration is not justified. I think there’s a provision in the US wherein if you restore a film, you can extend the copyright for a certain period because you have spent money on it and therefore, you need to recoup that. There are multiple aspects to the idea of extending the copyright period. One of them is giving people the incentive to invest in a film or keep the quality of content in a good shape.”
At the same time, Shemaroo has tapped the monetary potential of movies that are out of copyright. Does Gada have to have conversations with producers before doing so? “No, we don’t,” he said. “After 60 years, it is no more in the hands of anyone to give or not give. The way the copyright act is drafted or worded, after 60 years, anyone can monetise the film. The challenge is the availability of source material, because I can only monetise if I have access to the source material. And that is a challenge because you are talking of older black and white films. Those films are not always in the best of shape.”
Copyright versus archives
An extension in the 60-year cap could make matters difficult for film scholars, archivists and students. For instance, for a title to be added to the National Film Archive of India, an agreement is reached between NFAI and the copyright holder. The archive only gets non-commercial rights, which means that the movies can be screened only for educational purposes. “Suppose a film’s copy is with an archive and it is required for outside purposes like a festival, then we ask the organisers to take an NOC from the copyright holder and only after that is the copy sent outside,” explained Prakash Magdum, NFAI chairperson.
The no-objection certificate does not always placate family members. In 2016, Ritwik Ghatak’s daughter tried to screen two of her father’s films at a retrospective in Dhaka. Ajantrik (1958) and Bari Theke Paliye (1959), were still under the 60-year-cap. Ramlal Nandi, the head of Chhayabani Films, which is the copyright holder, declared that NFAI did not have the right to restore the two films, let alone allow them to be screened. “Being the copyright holder, I should be first consulted before any restoration work is done,” he told Times of India. “Any work done otherwise is illegal.”
However, one of the ways in which a film can be preserved is if it is seen. While Magdum maintains that the copyright act does not directly prevent preservation or archiving, it is important to have conversations with copyright holders even after a film enters the public domain.
“Earlier when only the celluloid medium was there, I don’t think this issue came up,” he said. “But in the digital medium, where there are a lot of possibilities, this issue has come up. Now, we have to explore in what way those films which are supposedly in the public domain have to be dealt with. We have to have discussions with stakeholders, get a consensus and then only we can figure this out. Because our role is that of a custodian, we need to get more clarity. This is also why we have brought out only one DVD so far, on the occasion of the centenary of cinema. The DVD had three silent films, two of which were by Dadasaheb Phalke.”
The concept of fair use can come to the assistance of research-oriented projects, such as the online cinema archive Indiancine.ma, which hosts close to 7,200 films. Ashish Rajyadhyaksha, one of the website’s co-founders, says no one has asked them to take down an out-of-copyright film from their archive – yet.
“If you are seen to be doing it for research purposes, then I do think you do have an additional support mechanism,” he explained. “From our discussions with the producers’ guild, we realise that there’s been a certain amount of interest in recognising Indian cinema’s heritage and history, especially of the kind that might die. Nobody yet has brought up the copyright question, at least with us. At the same time, while looking for funding, we have been asked why we don’t have a revenue model and so on. The moment we have a revenue model, even if we charge one paisa, it takes away our credibility. The fact that we are doing this completely as a non-commercial, public access resource and nobody really pays for it is one of our strongest defences.”
In the case of films still within copyright, Indiancine.ma, marks them with a “C/”, which means that while they have the title, a user cannot see it.
Rajyadhyaksha feels that copyright holders and archivists often view each other with wariness for complicated reasons. “One of them is the archive’s presumption that accessing a film damages it,” he said. “In the digital medium, on the other hand, the more the people see it, the more the chances of it surviving. This is a mindset that hasn’t penetrated. Then, there is this assumption on part of the producers that archives are misusing their rights by screening films. Instead of seeing a win-win situation, we’re actually seeing a situation of mutual suspicion. I don’t think copyright holders have internalised the fact that their own idea of self interest is so sometimes narrowly conceived that it is actually against the interests of long-term survival of their own films.”