Mason & Associates managing partner Neel Mason has given an in-depth explanation on the implementation of Copyright Amendment Act 2012 and its repercussions on stakeholders.
The amended statute is very clear that the only class of persons who cannot assign their right to receive royalty is the author of literary and musical works included in a cinematographic film or sound recording. While the author of the sound recording is the producer, restriction has not been made for sound recordings so being the author of a sound recording is irrelevant for the purposes of the amendment. Additionally being the first owner of copyright is distinct from the author so even if the producers claim to be first owners of copyright (as was the case) the amendments do not make them the author of the literary and musical works. Therefore the producer can assign or waive their right to claim royalties. Also as the legislation does not confer a right to receive royalties even prospectively (by way of a negative covenant of not assigning or waiving their right to receive royalty) the question of producers claiming this right on past catalogue clearly does not arise.
If a query arises on whether one needs to pay for past catalogue to the author of literary and musical compositions for the relevant exploitation of the works going forward, then it must be first kept in mind that publishing rights will now be licensed by the IPRS (or any new body that is formed within a year and the constitution of the IPRS has to change). Also the amendments are prospective in nature which essentially means that NO past agreement will be declared void if it does not adhere to the principles as laid down by the amendments. Therefore the consideration paid under those agreements and the rights vested under such agreements and arrangements will continue to be valid. Certain rights have been vested and unless the legislation specifically divests a party of such rights, there appears to be no mandate to pay for past catalogue.
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It is also noteworthy that the amendments only refer to authors of literary and musical works. The producer does not fall under the category of author of a literary or musical works. The producer of a sound recording is an author but the author of the sound recording is not covered by the amendments. The producers in the past have been considered as first owners of copyright of literary and musical works. However they are the first owners of copyright and not the authors and the amendments specifically refer to authors of literary and musical works and therefore they cannot ask for a share of revenue going forward. Moreover the amendments are prospective and thus neither authors/composers nor the producers will be able to claim any royalties for exploitation now going forward for rights assigned in the past.
