By Arun Fulara. Posted on February 18, 2016
The Film Writers' Association is the organisation that represents the rights of writers in Bollywood. The organisation has been at the forefront of fighting for a level-playing field for writers vis-a-vis producers & studios. We all know about the problem. Everyone agrees that writers need to be paid more, that writing talent needs to be nurtured. Yet, action on the ground suggests many a slip between the cup & the lip.
The Jyoti Kapoor case is an excellent example of how the writer has to struggle for her share of what's rightfully hers. The FWA has recently published an extensive interview with her which you can read here. The brilliant prologue to that interview by Anjum Rajabali highlights the endemic nature of the problem & the challenges that a writer has to face. We've republished that prologue here with permission from Mr. Rajabali. If you are a writer, ensure that you register with the FWA & know your rights. The FWA site is also an excellent resource for writers. Make sure you check it out.
Quite fortunately, a lot that has been written, and quite extensively so, on Jyoti Kapoor’s battle to wrest back her rights to her script which she had complained had been plagiarized by Kunal Kohli. The details of the poaching are in the public domain now, via social media, the print and electronic media and via this substantial account by Jyoti herself. What also need not be reiterated here is the dogged courage and single-mindedness with which she herself pursued the case. Her lawyers too have expressed unstinting admiration for her tenacity clearly concluding that without this attitude of hers, it may not have been possible to win this case.
However, what does need to be emphasized is that hers' is not an exception, far less a singular instance of copyright infringement faced by screenwriters in India. Lifting of ideas, stories and even full screenplays from screenwriters by producers, directors, and sometimes even other screenwriters, has been a common and unchecked practice in India.
One can argue that this is because copyright, by itself, is a relatively new concept for India. Even today, many in the Film and TV industry are quite frankly bewildered by the rights associated with it. Underlying their outrage at the passage of the Amendments to the Copyright Act in 2012 is a long-standing attitude that has not taken cognizance of a scriptwriter’s vision and rights. An attitude that seems to have resisted acknowledging the writer as a stakeholder in the filmmaking process, a partner to the director and the producer. Hence, the presumption that the writer is an employee, doing the producer or director’s bidding, like a hired pen engaged to realize their vision, rather than bring in his own. So, his input is taken for granted and not valued.
When the debate among the stakeholders, before the bill was tabled in the Parliament, was going on under the aegis of the HRD Ministry, several leaders of industry actually asserted that, if the amendments were passed, the film industry would shut down! Shut down?! Why? Because you had to give writers their due?! Hollywood screenwriters receive hefty fees and massive residuals - in lieu of royalties for their work, in millions of dollars. And yet, the American Film and TV industries have gone from strength to strength, with American TV delivering perhaps the best storytelling in the world today!
A quick glance at the evolution of the situation that lead to Jyoti’s crisis shows up perhaps three primary reasons for why the concept of copyright causes discomfiture and anxiety in the Film and TV industry in India.
One: We have a long and ancient culture here. Meaning that there are so so many stories, so much mythology, music, poetry, theatre, and other arts that are ancient in origin, and hence free from copyright, that the practice of taking from these freely is very natural for us. And, that is how it should be too.
Two: Historically, the screenwriting function, by itself, has had a rather nebulous status in filmmaking in India. As opposed to the West, where the screenwriter was clearly defined as the author of the script and his task was to be performed exclusively by him before the film went into production, here most writers constructed the script in conjunction with the director, the producer, even the actor, and many sundry others, thereby blurring the label of authorship. Many times it was impossible to distinguish who contributed or even constructed which aspect of the script. Hence the principle of attribution was very difficult to enforce.
Three: The filmmaking business, while referring to itself as an industry, never really functioned like one. There were hardly any regulations that governed its working. There weren’t any standard good practices that were formulated or followed. Or, more pertinently for us, writers’ rights and responsibilities were not regulated and nor did they have any uniformity about them. Deadlines for submission, credit specification, schedules of payments, protection of rights, etc. were almost never specified. There were hardly any contracts or letters of appointment! Ambiguity seemed to be integral to the system. And, of course, in every case, the producer’s decision was final. Barring half a dozen writers before the 90s, no one had an effective voice to demand his/her rights, including in the instances where their work was stolen, or robbed.
Writers, unfortunately, mostly kowtowed to this culture by default, believing that this is how things were and would be. Those who felt otherwise were perhaps anxious that they shouldn’t be ostracized and lose employment. With very very few exceptions, individual writers had no bargaining power, effectively. So, if their credit or fees were denied, it was because it could. This is of course not to say that every producer or director was out to exploit his writer. Point being made is that the power equation was completely skewed against the writer. Completely! As a result the writer was generally undervalued and denied his/her due position. Unfortunately, the Film Writers Association hadn’t found its collective bargaining feet yet and hence never really functioned like a union that writers could turn to for redress of any kind.
Apart from the fact that this must have kept away a lot of talented and self-respecting writers from the film business, or driven them to direction, it encouraged the practice of plagiarism. Lifting from Hollywood, lifting from earlier Hindi films, from regional films, pilfering the original ideas from other writers, from spec scripts.. All these were considered absolutely legitimate practices until the turn of the century.
What Jyoti’s case, and the hundreds of other complaints that FWA’s Disputes Settlement Committee receives, reiterate is that we are far from being able to root out this crime. The borders which define copyright of a person’s work are still porous. Many filmmakers still refuse to realize or acknowledge that when a writer writes, s/he is creating intellectual property. Tangible property with a potential commercial value! It is then his/her prerogative to allow the filmmaker to use it to make a film and exploit it for monetary gains. Writing a script is like building a house and leasing it to a tenant for a fee, with conditions attached. The tenant cannot claim that he built it. The owner’s authorship is permanent!
While it is tempting to rhetorically lament that the film and TV industries’ attitude towards writers and writing has to change, it is essential to realize that such change doesn’t happen automatically. It is imperative that first writers themselves become that change by treating their work as rightfully their own, by becoming cognizant and familiar with their rights in it, and by being determined to protect those. It is this reorientation which is going to be the big factor in ushering in a sea change in the screenwriter’s status in this industry.
Writers feel vulnerable and nervous, and many a time isolated, in their individual fights. Sure. But, so did Jyoti Kapoor! However, she hung on. And, fought with conviction in the belief that what was hers was hers. Her victory, which is not as big as it should have been, has gone a significant distance in boosting the morale of other writers, and has also created a fighting precedent. Even legally so. It has also proved that our judicial system is gradually but surely getting sensitized to writers’ distress, and happy to intervene to offer redress.
The time seems to have come for the screenwriter to say NO to his work being distorted or undervalued, to her position being undermined, to any action that causes his/her dignity as a writer to be lowered.