Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

15 May 2011

Microfinancing and Creation

In recent times, there have been a number of attempts to move away from traditional business models which result in creators (often) being underpaid and publisher-distributors being (arguably) overpaid.

In many cases, the creators of copyrighted works have begin to play a proactive role in the commercialisation of their works after they have been created. For example, as Kaitlin Mara pointed out in “Copyright Law’s ‘Byzantine Maze’ Stalling New Business Models”, a number of music bands have been experimenting with alternative methods of exploiting the copyright in their music:
  • Radiohead released the album “In Rainbows” online and, for the first few weeks after its release, users could pay whatever they wanted to pay, if at all they did.
  • Nine Inch Nails released two albums under a Creative Commons licence.
  • McFly launched a new website with a limited number of potential members (10,000 persons). It charged £40 to become a member; on the first morning itself, they had 55,000 membership requests.
  • Metric encouraged persons to remix its songs by selling stems (i.e. individual components such as the voice alone) for 2 USD. The remixes were published under Creative Commons licences, and within four weeks of the sale of stems, there were 12,000 remixes.
However, authors have not limited such experimentation, to post-creation copyright commercialisation.

There is absolutely no doubt that the creation of a copyrighted work in any form involves the input of significant tangible and intangible resources whether in the form of intellectual effort. There is also not much debate regarding the premise that authors/artists should be paid for their work even though some may argue that they can always engage in the creation of works while holding a day job.

Regardless of whether or not one believes that creation should be adequately compensated, possibly to an extent which allows an artist/author to engage in nothing else but the creation of copyrightable works, what is inescapable is that the creation of a copyrightable work may require a tremendous amount of time and effort.

Traditionally, if a creator was talented and/or well-connected and/or lucky, he would be able to find some form of sponsorship to support himself while engaged in creating a work. This could have been in the form of patronage, a grant, or payments from a publisher who would later publish and distribute the work.

In virtually all of these cases, the sponsor would have to invest a large amount of money towards the creation of a copyrighted work. And although this may have benefitted the sponsor in some cases, it also meant that the artist/author would be far less likely to receive any form of sponsorship if he were not well-known, and the sponsor did not feel relatively assured of a return on the investment it made on the artist/author.

As an alternative to this traditional model where one sponsor -- or at any rate, a very limited number of sponsors -- invested in the creation of a work protected by copyright, some author/artist have begun to look towards microfinancing to facilitate creation.

A number of different microfinancing models have been created with many of them being targeted at different kinds of copyrighted works. Among the models which are used variations of pledge models.

The Threshold Pledge System, for example, has a number of subtle variations. As a general rule though, it involves the collection of contributions in an escrow fund till a certain target is reached. It is possible that an artist/author who has solicited contributions (or on whose behalf contributions are solicited by an escrow agent) would release a work protected by copyright into the public domain, upon which the money in the escrow fund would be released to him. The release of funds may depend upon the artist releasing a work within a particular timeframe.

Alternatively, upon the threshold being reached, the funds may be released to the artist/author for the creation of the work.

Various variations of the Threshold Pledge System are also known as the Street Performer Protocol (SPP), the Rational Street Performer Protocol, the Wall Street Performer Protocol and the Ransom Publishing Model.

A variation of the Threshold Pledge System is the assurance contract: it works in almost the same way as the SPP although contributions are not kept in an escrow fund. Instead, the pledges are called in only after the threshold is reached, and if the threshold is not reached (possibly by a certain cut off date), the contributors are not bound to contribute any money.

However, what is interesting is that microfinancing models are not new. Mozart, for example, used what could be considered to be micropatronage systems through subscriptions to premiere concerts and first print editions of works (such as the three piano concertos K413-415 for which subscriptions were priced at 27 florins). These “subscriptions” required a certain number of people to pledge a defined amount before a concert took place or a piece of music was printed. Once the threshold required for a concert to be held or an edition to be printed, however, did not mean that the concert or edition would be accessible to everyone: it  was the “subscribers” who would have access, and thus, subscriptions would be associated with a degree of prestige as non-subscribers would not generally have access.

Perhaps recent moves towards crowdfunding and microfinancing are little more than the models for the financing of the creation of copyrightable works forming a full circle. However, one snag in the process, is that it isn't entirely clear what would happen if the work being financed through "pre-orders" was not created.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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