Aamir Khan, Anjum Rajabali working on model contract for writers and producers

A panel discussion at the fifth Indian Screenwriters Conference involving actor-producer Aamir Khan, producer Siddharth Roy Kapur, writer-directors Akshat Verma and Amit Masurkar, Dharma Productions' development head Somen Mishra and the moderator for the evening, writer Anjum Rajabali, brought to the fore a continuing problem with the contracts between producers and writers despite a 2012 amendment to The Indian Copyright Act. And, interestingly, a solution to this may also be on its way.

During the discussion on 'writers versus producers: can they never be allies?', Verma spoke up about the biggest problem writers face in the Hindi film industry: screenwriters are forced to sign away all their rights when entering into a contract with producers.   

"Screenwriters are not protected like novelists or other artistes," Kaalakaandi (2018) writer-director Verma said. "In the contract we sign off our rights to the producer. In this business we are the only ones who are replaceable. You cannot make a change to a play without the writer signing off [on the change]. You cannot change a novel. But the way the entertainment industry is set up, historically, we have signed away our rights.

"We are always doing work for hire. Even if we are doing original work. We go to the producer, it's theirs. Once that is done, you become an impediment to the process. Then they can get another writer to do something with it. Until we are protected legally in our contracts, it is going to continue like this."

According to the 2012 amendment, the producer of a cinematograph film is no longer the first owner of the copyright. The change mandates that those assignment contracts that preclude the right of the author of a literary or musical work incorporated in a cinematograph film to collect royalties in case the work is used in forms other than the cinematograph film would be void unless such assignment is made in favour of legal heirs of the author or the copyright society for collection and distribution of royalties.

In simple terms, a producer is obligated by law to give the writer, the lyricist and the music composer a royalty every time their work makes money outside of the theatres, for which they have already been compensated. Unfortunately, many producers add clauses in the contract that make the writers sign away their rights. 

Explaining the producers' point of view, Roy Kapur said, "The reason why a producer feels comfortable in that position is because they want to be able to deal with the film in the way that they want to because it is their investment. If we can take out all the roadblocks leading to that happening while still retaining the sanctity of the writer's rights, that is what we should be aiming for."

Aamir Khan agreed. "Filmmaking includes writing, the performing arts, fine arts... all arts in the world come under one umbrella in filmmaking. In that the DoP [director of photography] might suggest something or someone else from the team might. Practically speaking, every time a director or any other member of the team wants to make a change, you can't call the writer to ask for permission. One person needs to take the call. Usually that is the director, because he takes the responsibility of narrating what you have written. So the director is using all the different tools, inlcuding the actors, writers, cinematographers. If we don't give one person that charge, it will be complete chaos."

Saket Chaudhary, who wrote and directed the successful Hindi Medium (2017), was present in the audience. He put a question to Roy Kapur. "Why do producers still have an issue with the Copyright Act?" Chaudhary said. "To the point that we still get clauses where we have to write off the Copyright Act. Any right that is given to a writer in the future you are signing it off right now."

Roy Kapur agreed that a fair model contract which benefits both producers and writers is needed. 

"The Copyright Act was amended in 2012," he said. "But there has not been a dialogue between the unions. A proper discussion, therefore, about what changes we need to make in the model contract is needed. We should all take responsibility for that."

Roy Kapur, husband of actress Vidya Balan, noted that there is paranoia on both sides. "[Writers harbour] a feeling that the rights we now have are not being allowed to us," he said. "The other side is feeling that probably the rights we are letting go of are going to impede us from doing business properly."

"Currently, whoever has more leverage is able to get their legal points across. We need to come to an understanding where the writer feels that whatever amendment has been made as per the 2012 Act has been implemented and he is getting fairly compensated. At the same time the producer must feel that his or her ability to deal with the film as they want it and being able to make the film the way they want to is not impeded."

Newton (2017) writer-director Masurkar seconded the thought and added, "When you are a struggling writer with no connections and are not able to enter these studios, the producers you meet as a desperate writer are not that concerned. As someone who really needs to sell your script to earn a living, you end up signing away your rights. End up getting into contracts which your lawyer wonders how you even signed. It is purely out of desperation. And the only way we can protect a writer is by having a minimum wage or a model contract. And it needs to come from the SWA [Screen Writers Association]. And the entire industry has to accept it. It should be a rule that if you don't follow these you cannot release your film."

Rajabali, who has been an active part of the 'Progressive Writers Group' working to improve the lot of writers, and Khan then revealed that they are working on creating such a model contract, along with producer Ritesh Sidhwani of Excel Entertainment, a contract that makes both parties comfortable. 

"Me, Aamir and Ritesh had taken the responsibility of creating a model contract, with basic mandatory clauses that safeguard the interests of both parties, and then take it to Siddharth [who is also the president of the Film and Television Producers Guild of India]. We are going to come to you soon" he said, looking at Roy Kapur.

"Many like-minded people have been feeling this and it was waiting to happen," Khan said.

"One needs a bare minimum of a basic writing contract, which I know is being worked on, for those who have the least leverage," responded Roy Kapur. "It is not for those who have the most leverage. I can given you examples of writers who have huge leverage and are able to command what they want in the contract. If the producer has liked the script then obviously there is something of value that you are bringing to the table, and they must be protected.

"On behalf of the producers' guild, what I would like to say is that there is a basic minimum contract that one needs to work on that protects certain rights as far as both parties are concerned. And that is something we should work towards. There is no reason why there should not be protection for a writer who is bringing value to a project."