My songs, my royalties

satwik gade

satwik gade  

The Ilaiyaraaja-S.P. Balasubrahmanyam controversy puts the spotlight on our miserable record in fostering a fair and sustainable creative ecosystem for songwriters

Light, it is said, is the greatest disinfectant and music the greatest healer. The controversy over the legal notice by Ilaiyaraaja to S.P. Balasubrahmanyam to claim royalties for the performance of his songs will serve a greater purpose if it can clarify the confusion on this subject in the minds of music industry professionals and the legal fraternity.

Music is an essential component of our human identity. There is no culture without music. This country has been blessed with an unbroken line of musical giants — right from the Sama Veda, the Sangam and the Tamil Saiva saints to Amir Khusro and Tansen through to our own contemporaries like Hariprasad Chaurasia, M.S. Subbulakshmi, A.R. Rahman and countless others — who have woven the various traditions of this country into a musical tapestry that is a marvel to the world.

A fair deal for songwriters

But, to create, one must eat. Under earlier aristocratic and monarchic systems of governments, artists received their livelihood from the patronage of the rulers. Under modern copyright law, whose fundamentals are enshrined in the Berne Convention (1886) to which India is a signatory, lyricists and composers — jointly called songwriters — earn their livelihood through a fair remuneration for any use of their works during their lifetime and 60 years after their death. In other words, royalties are the salary and pension plan of creators and the legacy to their heirs.

This basic principle of copyright law was spectacularly reaffirmed in May 2012 when both Houses of Parliament, in a rare show of bipartisanship, unanimously adopted the amendments to the Copyright Act in the face of fierce opposition from film and music producers. In a letter to thank the Prime Minister for supporting creators, Bharat Ratna Pandit Ravi Shankar stated that he had retained his copyright in all the work he had done abroad but had been unable to retain a single copyright in any work he did in India because “every time the record companies would flash the Copyright Act at me”. It is against this backdrop that we must examine Ilaiyaraaja’s action.

The kind of stellar body of work that Ilaiyaraaja has created in the last 40 years should have placed him among the world’s Top 10 wealthiest songwriters, somewhere between Andrew Lloyd Webber ($1.2 billion) and Mick Jagger (over $300 million). So one can understand the depth of his frustration — a feeling experienced by all songwriters across the country — when he sees little royalties, if any, from the use of his works even after they become super hits.

Why do Indian songwriters miss out on royalties? Can Ilaiyaraaja prohibit the public (live) performance of his songs? To answer these questions, understanding the role of performing rights organisations (PRO) in the global collection and distribution of royalties is essential.

The importance of PROs

PROs were created in the mid-19th century in response to the impracticality for the owners of music to licence each and every live performance of their songs around the country and the globe. Under this arrangement, songwriters and their publishers would assign/transfer to a PRO — such as the Indian Performing Right Society (IPRS) in India — their right to authorise the public performance of their songs. In return, the PRO would collect a fee for every musical performance in its country and distribute the money equally between the songwriters and the owner (publisher) after deducting a 15% service fee.

Additionally, the PRO will enter into reciprocal agreements with similar societies around the world, doing the same work in their own territory. Essentially, such agreements say that I give you the exclusive authority to collect the royalties when the music of my members is performed in your country; reciprocally, I will collect whenever music of your members is performed in my country. And we will pay each other.

Under this single-window clearance, the user obtains a licence to commercially perform any music in the world and the royalties collected by the PRO are distributed accordingly. Last year these PROs, representing four million lyricists-composers and their publishers, collected over Rs. 61,000 crore (€8.641 billion) in 123 countries!

This global system of royalties collection and distribution is regulated by the Paris-based not-for-profit International Confederation of Authors and Composers Societies (CISAC). To become a member and benefit from this global system, a PRO must conform to CISAC’s demanding standards of efficiency, fairness and transparency called The Professional Rules.

Ilaiyaraaja is a member of the British ‘PRS for Music’ and was issued an international identifier no. 619442541. Having divested himself of his performing right in favour of PRS for music, he had therefore no locus standi to issue such a legal notice. Only PRS for Music and its sister societies around the globe have the right to licence the public performance of Ilaiyaraaja’s songs. We must conclude that the celebrated composer received bad advice.

But this begs the question: why would Ilaiyaraaja want to become a member of a foreign society? Because IPRS has a miserable record of service to its members. Its annual income is hardly Rs. 40 crore, a figure that compares poorly to similar PROs that in 2016 collected Rs. 225 crore in South Africa, Rs. 550 crore in Russia or a massive Rs. 1,825 crore in Brazil. Worse, in 2014 the IPRS surrendered its licence to operate as a legitimate copyright society when it came under investigation by two separate arms of the government. Thereafter its bank accounts were seized by the Enforcement Directorate.

Subsequently, a CISAC audit in 2015 found that IPRS was meeting almost none of its Professional Rules; after two warnings went unheeded, last June CISAC expelled the IPRS for one year. As a result, all royalties collected for the use of Indian music will be held in suspense accounts around the world until IPRS reforms and is readmitted into the CISAC fold.

A just ecosystem for all

Lastly, songs must be registered in every PRO of the world. This is the responsibility of the music publisher or, in its absence, of the PRO in the country of origin of the songwriter. We find that only 180 songs of Ilaiyaraaja are registered in the U.S., only two in France, none in Germany… so even after the organisers of S.P. Balasubrahmanyam’s concerts pay royalties to a PRO, this money cannot reach Ilaiyaraaja if his songs are not found in its database.

Only an efficient and transparent IPRS can foster a fair and sustainable creative ecosystem for all players, big and small, newcomers and established songwriters, to take the musical talent of India to global heights.

Achille Forler is an expert on music copyright administration and advocate of authors’ rights

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