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INVESTING IN INDIA
KAITLYN ARNOLD MUIN-445 11-16-2010
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TABLE OF CONTENTS
Executive Summary………………………………………………………………………………6
I. Background ……………………………………………………………………………………...7 Geography Brief History Crown Jewel Independence & Coercion Cultural Divides People Current Population & Demographics Education & Literacy Culture Languages Religion Education National Identity Indian Diaspora Government Structure Political Parties Current Leaders Economic Reforms International Relations & Foreign Affairs Stability Human Rights Health Issues Corruption II. Economy…………………………………………………………………………………………..20 Currency GDP Unemployment Trade Imports Exports Growth Overview Challenges to Economic Growth II. Business………………………………………………………………………………………….28
Starting a Business
Relevant Laws Sectors Types of Incorporation
Business Climate
3
Government Influence Legal Considerations Business Practices Capital Sources Bank Loans Microfinancing Existing Foreign Investment IV. Consumer Market………………………………………………………………….37 Personal & Household Income Personal & Household Expenditures Durables VII. Intellectual Property: Copyright………………………………………………...41 Governing Law Background Types of Works Musical Works Sound Recordings Cinematographic Works Definitions Registration Copyright Enforcement Advisory Council Copyright Royalty Board Performers’ Rights Indian Performing Rights Society
Phonographic Performance Ltd. Broadcasters’ Rights Moral Rights Compulsory Licenses and Covers Fair Dealing Work-for-Hire Joint Authorship and Transferral of Copyrights Foreign Works Berne Convention Universal Copyright Convention Infringement Remedies Piracy The Indian Music Industry
VI. Technology…………………………………………………………………………..54 Consumer Electronics Internet/Broadband Mobile
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VIII. Entertainment & Media Industries…………………………………………….…….58 Music Indian Music Classical Musical Instruments Folk & Tribal Religious Bhangra Filmi Brief History of Filmi Music Business Recorded Music Physical Sales Marketing Non-Film Music Downloaded Music Radio Broadcast Licensing Live Performance Venues Outlook Film Television Advertising Internet Radio Television Print Out of Home IX. Immigration ………………………………………………………………………………….79
Employment Visa Business Visa Entry Visa X. Taxation………………………………………………………………………………………..82
Residency Non-Resident Resident Not Ordinarily Resident/Ordinarily Resident
Taxable Income Salary Income Self-Employment Income Social Security Taxes Corporate Tax Capital Gains Income Wealth Tax Withholding Tax
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Double Taxation Agreements Service Tax
VAT Entertainment Tax XI. Investment Recommendations…………………………………………………………….89 Infrastructure Technology Content X. Issues with Investment……………………………………………………………………....93 Tax & Royalty Considerations Macroeconomic Considerations Bibliography……………………………………………………………………………………...95
Appendices……………………………………………………………………………….……….98 A 99 B 101 C 102
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EXECUTIVE SUMMARY
As the second fastest growing economy in the world, India‘s rich and diverse culture is
making its presence felt through technological innovation, music, film, and impressive economic
reforms. Nearly every industry in India is growing at gathering speed as the unemployment rate
gradually decreases, wages and disposable income gradually increase, and the government works
to lower the number of its population at or below the poverty line. The Indian market is vast,
ready and willing to be developed; the government is slowly welcoming foreign investors and
business into the country to share its awesome growth potential in exchange for financing the
entrepreneurial spirit of Indian companies.
Although India‘s legal framework is relatively sound, lack of implementation and law
enforcement threaten India‘s prospect for growth. It is a country comprised of many different
ethnicities, ideas, and ambitions, and so its democracy is a slow process and hefty producer of
bureaucracy and corruption. As future generations of Indians shape the national identity—the
notion of what it means to be Indian—the government may be better suited to address its
weaknesses and create an infrastructure which can support the rapidly growing IT, mobile, and
wireless sectors which could very well be India‘s door to securing its place as a leading player on
the global stage.
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BACKGROUND
Geography
According to the U.S. State Department, India occupies a land mass that is 3.29 million sq. km.
(1.27 million sq. mi.), which is approximately about a third of the size of the United States. Its capital is
New Delhi, among other and more populated cities such as Mumbai and Kolkata. India‘s populations are
situated in terrains ranging from the Himalayas to river valleys, to deserts in the west of the country, so the
climate also varies from alpine to temperate to subtropical monsoon.
Brief History
Birth of Hindu and Islamic Culture
After the Kushan Empire defeated the Romans in the 2nd
century C.E., the region of what is now
northern India entered into commercial trade and began its climb to prosperity. The Empire reached the
height of its prosperity during the 4th and 5th centuries C.E. under the Gupta Dynasty. This period, now
referred to as India‘s ―Golden Age,‖ is the era in which Hindu culture and political administration
flourished.
Beginning early in the 7th
century C.E., Islam gradually took hold of the subcontinent over
approximately 700 years. The Islamic Arab Muhammad of Ghor successfully invaded India in the 12th
century, leading to the formation of the Delhi Sultanate, a series of dynasties under which India expanded
in its Islamic culture. By the 16th
Century, the Mughal Dynasty had ended the Sultanate, taking control
over vast areas of what is now southern India and more firmly establishing Muslim traditions. Although
political struggle did not generally effect much of Indian society, the culture of its courts ―evolved into a
unique blend of Hindu and Muslim traditions.‖ (U.S. State Department, par. 11)
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The Crown Jewel
The British established the East India Company in 1619, located on the northwestern
coast at Surat. By the 1850s, their influence had expanded its reach to present-day Pakistan, Sri
Lanka, Bangladesh, and the majority of India. After an unsuccessful attempt by Indian soldiers to
restore the Mughal Emperor in 1857, British Parliament transferred the East India Company‘s
political power to the British government. India later became known as the ―Crown Jewel‖ of the
British Empire.
Independence & Coercion
Through the Indian National Congress, Mohandas K. Gandhi led the party into a mass
movement against colonial rule. The British partitioned India with concerns of civil wars
between Hindus and Muslims, the Hindus remaining in India, and the Muslims moving to
present-day Pakistan. The newly forming Indian government negotiated accession agreements
with each state separately, ―bribing, threatening, and, in some cases, militarily coercing‖
(Zakaria, p. 163) about 500 rulers to join India. India became a Commonwealth of Great Britain
on August 15, 1947, and remained as such after it established its constitution in 1950.
Cultural Divides
The outbreak of World War II ended cooperation between Indian National Congress and
the Muslim League, competing constituencies in call for India‘s independence. When British
Viceroy declared war without consulting with the INC, many of its leaders campaigned against
the war effort, and were arrested and jailed as a result. The Muslim League took the opportunity
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to support the British, eventually using the leverage it gained with its loyalty, in combination
with violent threats, to call for a state of its own.
When the war ended, the INC demanded that the British leave behind a single state and
the opportunity for the constituencies to compete for power under a democratic rule. The Muslim
League feared it would be ―coerced and crushed‖ (Schaeffer, p. 212) in the name of democracy.
The British decided that partition was the most promising resolution to the conflict between the
parties, hoping that it would prevent civil war.
Over the following fifty years, India and Pakistan have engaged in four wars over
disputed territories and the rights of Muslims still living in India.
People
Current Population & Demographics
Boasting the world‘s second largest population, the U.S. State Department estimates
India‘s current population at 1.2 billion, and growing at a rate of approximately 1.4%. (par. 2)
Over all, the male to female ratio is about one to one. As of 2008, 29% of the population lived in
Urban areas comprising 200 towns and cities, the rate of urbanization increasing 2.4% each year.
(U.S. State Department, par.7) By 2030, 40.8% of India's population will be living in urban
areas. (U.S. State Department, par.7)
The Indian government defines urban areas as regions where 75% or more of males are
employed in some field which is not agricultural. (Euromonitor, p. 20) Analysts expect
urbanization to extend beyond the major cities of Delhi and Mubmbai to smaller cities and
satellite towns, due to the lessening quality of cosmopolitan infrastructure and growth of smaller
cities spurred by investment incentives in those areas.
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The remaining 71% of the population live in more than 550,000 villages. (U.S. State
Department, par.7) The service and industrial sectors employ more than half of rural population,
agriculture employing the remainder. In its consumer lifestyles report on India, Euromonitor
International proposes that ―as urban areas become increasingly competitive, rural areas will
represent the next frontier.‖ (Euromonitor, p. 12)
Education & Literacy
Although the government requires children to attend school from kindergarten through grade 10,
19.5% of the population has no education at all. This is often because children from low-income families
are forced into child labour. (Euromonitor, p. 19) In 1988, the National Literacy Mission was established
to achieve a 75% literacy rate by 2005; (p. 19) this figure has not been met, as the country‘s literacy rate
stands at about 61%.
After achieving independence, the government invested greatly in higher education, establishing
institutions such as the Indian Institutes of Technology and Management, which produced successful
businessmen and engineers in Silicon Valley, among other areas and prestigious global institutions. Those
able to boast higher education qualifications increased 183.5% to 13,982,000 by 2007. (Euromonitor,
p.19)
Through its ―Education for All‖ initiative, the Indian government has prioritized female education.
The initiative emphasizes the achievement of gender parity in an effort to curtail one of the highest
percentages of illiterate females in the world.
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Culture
“Over the thousands of years of its history, India has been invaded from
the Iranian plateau, Central Asia, Arabia, Afghanistan, and the West;
Indian people and culture have absorbed and modified these influences to
produce a remarkable racial and cultural synthesis.” (U.S. State
Department, par. 7)
Source: U.S. State Department
While the national census does not recognize racial or ethnic groups, it is estimated that there are more
than 2,000 ethnic groups in India.
Languages
Although the government has recognized 18 official languages, Indian language can be
generally segmented into three categories: Hindi, which is most widely spoken among the
population; English, which is spoken by and between government officials, and the
remaining other languages spoken by tribes or subcultures in India‘s 28 states and seven
territories.
Religions
Despite the British partition and the fact that 81% of its people are Hindu, India also hosts
138 million Muslims which is among the largest of Muslim populations. (U.S. State
Major Ethnic Groups in India
Dravidian
25%
Others
3%
Indo-Aryan
72%
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Department, par. 8) Smaller portions of the country‘s population include Christians, Sikhs,
Jains, Buddhists, and Parsis.
Education
The low female literacy rate in India is due greatly to the society‘s traditionalist attitudes
which allow for the subjugation of women; if a family can afford to send only one child to
school, the male child will be sent over the female child in most rural areas. However, urban
India is adopting a very progressive attitude towards female education and independence. The
2001 census indicated that the gap in male to female literacy decreased by 3.1% over a ten
year period.
National Identity
A nation of 28 states and countless languages, tribes, and cultures, India struggles to unify under a
common national purpose or ideology. As is often the case with post-colonialist nations, even the Indian
government struggles to define what it means to be Indian. ―So many times people think in terms of their
own state,‖ says one government official. ―Not that they are Indian, but that they are Bihari, etc. Only in
calamity do we have a national feeling.‖ (Lal, p. 72) An economist from Bihar explains, ―most
Indians…don‘t know the boundaries of the country…what concept [of national identity] there is that
exists in India is from the educated class.‖ (p. 72)
Diaspora
Those with whom the concept of national identity allegedly rings so true has led them to leave the
country to pursue higher education and business opportunities. The ―educated class‖ has led what is now
known as the Indian Diaspora. In 2002, India‘s Prime Minister established a High Committee to ―look
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after the affairs of overseas Indians.‖ (NIC, par. 3) The committee‘s website defines the Indian Diaspora
as ―a generic term to describe the people who migrated from territories that are currently within the
borders of the Republic of India‖ and their descendents, who ―have succeeded spectacularly in their
chosen professions by dint of their single-minded dedication and hard work. What is more, they have
retained their emotional, cultural and spiritual links with the country of their origin.‖ (par. 2) The
committee estimates the members of the Diaspora to total over 20 million. (par. 1)
Government
Structure
India‘s government is largely based on the United Kingdom‘s parliamentary system. 545
directly-elected members of the Lok Sabha and 250 indirectly-elected and appointed members of
the Rajya Sabha compose the Indian Parliament. The Lok Sabha, or ―House of the People,‖ is the
lower house, similar to the British House of Commons or American House of Representatives;
the Rajya Sabha, or ―Council of States,‖ is the upper house, much like the British House of Lords
or the American senate. Twelve members of the Rajya Sabha are nominated by the President,
and the remainder represent the states and Union Territories, totalling no more than 250
members.
The President holds executive power, and is to act on the advice given him or her by the
Prime Minsiter and Council of Ministers. All of the President‘s advisors are members of
Parliament, and are jointly and severally accoutnable to the Lok Sabha. Both houses of Indian
government hold ―votes of confidence‖ on a regular basis; should any individual minister or all
ministers receive a vote of no confidence, then each individual who receives the vote must resign
from his or her position.
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India‘s judiciary branch is comprised of the Supreme Court of India, as well as other
High Courts (state courts), District Courts and Session Courts (district and local courts). The
President appoints one Chief Justice and thirty associate justices to Supreme Court.
Political Parties
The two major political parties in are currently the left-wing Indian National Congress
(INC), and the right-wing, Hindu-nationalist Bharatiya Janata Pary (BJP).
Goals of BJP: national security & anti-terrorism; universal health & education; free
market. Goals of INC: welfare of the economically and socially disadvantaged sections of the
society; now adopted free market policies; nonalignment.
Current Leaders
Pratibha Devisingh Patil is the first woman to have been elected president. Her Vice
President is Shri Mohd. Hamid Ansari, and her Prime Minsiter is Dr. Manmohan Singh.
Economic Reforms
In 1991, the Indian government took drastic action to save itself from a balance of
payments crisis. The reform program shifted government policies toward fiscal deficit reduction,
infrastructure and social sector development, as well as new approaches to industrial and trade
policy, and agricultural policy. As a result of the reforms, most central government control over
industry has been removed, import licensing has been discontinued, a flexible exchange rate has
been implemented; foreign investors are now allowed 100% ownership in a vast number of
industries, and majority ownership in all industries except banking, insurance,
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telecommunications, and airlines. Complications arising from a new policy allowing private
companies to invest in and build the infrastructure India so desperately needs have prevented
those reforms from being successful.
The Indian Finance Secretary explained that ―26% [of the population] are below the
poverty line. We brought it down from 34%...in the past 10 years. We need to get them above the
poverty line. We need to get them employment.‖ (Lal, p. 73)
The motives behind the reforms were to maintain economic growth, become more
efficient, and be better position the country to compete in the global market, though some would
claim that the reforms were and continue to be politically motivated to earn popularity for the
governing party. In the long run, the government intends the economic reforms to enable India‘s
state sovereignty in respect to trade rules and human rights, such that the world recognizes it as a
developed country.
International Relations & Foreign Affairs
Seeking a permanent seat on the UN Security Council—a move endorsed by President Barack Obama
on his recent visit to India—India is focusing on reinforcing its commercial and political relationships
with China, the European Union, Iran, Japan, and the United States.
Indo-Pakistani Wars
Since the first Indo-Pakistani War over Kashmir in 1971, Pakistan and India have made a kind of
recurring and remitting progress toward stable relations. In June 1997, after the fourth Indo-Pakistani
War, the foreign secretaries of both states decided on eight "outstanding issues" around which
continuing talks would be focused. Disagreements over the regions of Jammu and Kashmir remain the
greatest barrier to peace.
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China
In 2006, bilateral trade totaled $24 billion (U.S. State Department, par. 76), making China India‘s
largest trading partner, second only to the United States. This is in great part due to the fact that both
countries have been working towards reduced tension along their borders over the past two decades.
Both countries are using their growing economic prowess to improve counterterrorism; although
border disputes persist, Sino-Indian relations remain strategically stable.
South Asian Association for Regional Cooperation (SAARC)
The members of SAARC include Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan,
and Sri Lanka, and are guided by People's Republic of China, Iran, Japan, European Union, Republic
of Korea, and the United States. Established in 1985, the purpose of SAARC is to promote cooperation
in the areas of agriculture and rural development, cultural appreciation, health, population control,
scientific and technological advancement, narcotics control, and anti-terrorism efforts among its
members. The intentional emphasis on these core issues is to avoid the contentions which tend to
divide the members rather than unite them.
United States
A rapidly growing democracy, the United States and India view each other as having much in
common on a strategic level. With the Next Steps in Strategic Partnership in January 2004,
the U.S. and India launched initiatives which include HIV/AIDS solutions, disaster relief, a
Trade Policy Forum, CEO Forum, and Energy Dialogue.
Stability
―Its society is open, eager, and confident, ready to take on the world. But its state—its
ruling class—is hesitant, cautious, and suspicious of the changing realities around
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it….India‘s society will stay ahead of the Indian state in the new global game.‖ (Zakaria,
p. 166)
Human Rights
In addition to the casualties perpetuated by Indo-Pakistani territory disputes, the Human
Rights Watch group reports that ―millions of children in India still have no access to
education and work long hours in the worst forms of child labour.‖ (Human Rights Watch, p.
275) Although child labour laws have been established in the past decade, ―without proper
implementation and adequate rehabilitation of child workers, [child labour laws] are of very
limited utility.‖ (p. 275)
Health Issues
According to HIV/AIDS advocacy group, Avert, India is spending about 5% of its health
budget on HIV and AIDS. In 1986, there were 20,000 cases of AIDS worldwide, none of
which were reported in India. (Avert, par. 4) Currently, 2.27 million people are living with
HIV/AIDS, (par. 1) making HIV more prevalent in India than in any other country and
leading the CIA world report to rank India at number four in comparison to the world for the
number of people living with aids.
The third stage of the National AIDS Control Programme was launched in the summer of
2007, and will continue to run until 2012. Two thirds of its $2.6 billion dollar budget is
supposed to be designated for AIDS prevention, and one sixth of it is supposed to be
allocated to treatment. (Avert, par. 36) Additional funds support local level initiatives and
raise awareness of HIV/AIDS through various national campaigns.
According to a report issued by the World Bank, India will have to spend 7% of its health
budget on AIDS by 2020 if it cannot curtail the epidemics spreading through New Delhi,
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Mumbai, the north and the north east of the country. As Avert states, ―this would put further
strain on a struggling health sector which, on top of HIV and AIDS, faces a growing
multitude of health challenges including malaria, diabetes, heart disease and cancer.‖ (Avert,
par. 63)
In addition to the HIV/AIDS outbreak of the past 25 years, the U.S. Central Intelligence Agency
reports that other major infectious diseases prevalent in India include food or waterborne diseases
such as hepatitis A and E, and typhoid fever; and vector borne diseases such as dengue fever,
Japanese encephalitis, and malaria. In its analysis of India‘s competitive advantage, the World
Economic Forum ranked India‘s health issues as follows:
Health & Primary Education
(Ranked out of 133)
Business Impact of Malaria 100
Malaria Incidence 103
Business Impact of Tuberculosis 87
Tuberculosis Incidence 99
Business Impact of HIV/AIDS 92
HIV Prevelance 69
Infant Mortality 108
Life Expectancy 100
Source: World Economic Forum
Corruption
One of the greatest obstacles businesses in India face is government corruption. In 2006, the
World Bank surveyed over 4,200 Indian companies to measure the amount and forms of
corruption they faced in conducting their activities; the survey was based on the following
concerns:
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A % of Firms Expected to Pay Informal Payment to Public Officials (to Get Things
Done)
B % of Firms Expected to Give Gifts to Get an Operating License
C % of Firms Expected to Give Gifts In Meetings With Tax Officials
D % of Firms Expected to Give Gifts to Secure a Government Contract
The amount of corruption reported in India is significantly greater than that reported by the rest
of the world on average. These reports of corruption come in spite of anti-corruption legislation
that the Indian government has enacted since the 1960s. Research hub Informa World proposes
that ―India's ineffective anti-corruption strategy can be attributed to the lack of political will of
its leaders and its unfavourable policy context, which has hindered the enforcement of the anti-
corruption laws.‖
0
10
20
30
40
50
60
A B C D
India
World
Source: World Bank
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ECONOMY
Currency
India‘s currency is the Indian National Rupee (INR). INR 100,000 is equivalent to one lakh,
while INR 10,000,000 is equivalent to one crore. The Economist Industrial Unit reported that the
rupee appreciated by 7.4% against the dollar from 2009 – 2010. This appreciation is represented
in the strengthening exchange rates between the rupee and the dollar, indicated in the chart
below.
Exchange Rates of Chief Trading Partners (EIU)
In October of 2009, India‘s foreign currency reserves were ―among the highest in the world‖
(Economist Intelligence Unit, p. 9), reaching as much as $285.52 billion.
Gross Domestic Product
In terms of its official exchange rate, India‘s GDP in 2009 was estimated by the U.S. State
Department at $1.236 trillion. However, when the GDP is measured taking into account
purchasing power parity1, the GDP more than doubles.
1 the amount of money the country could spend if transaction costs were not a factor
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Landing at $3.57 trillion for 2009, the GDP in terms of ppp has increased steadily from 2007 to
2009, despite a global recession.
Because of its large population, India‘s per capita GDP is relatively low compared to the rest of
the world, the State Department ranking $3,100 per person figure at 163. However, in
accordance with the GDP, this number is also increasing, indicating that the population is
working its way towards greater and (eventually) more disposable income. If growth rate of last
five years can be sustained, ―the average Indian will double his income in less than ten years.‖
India's GDP (ppp) 2007 - 2009
2.8
3
3.2
3.4
3.6
3.8
2007 2008 2009
Year
GD
P (
In T
rillio
ns)
Per Capita GDP (ppp)
2,600
2,700
2,800
2,900
3,000
3,100
3,200
2007 2008 2009
Year
Per
Cap
ita G
DP
Source: U.S. State Department
Source: U.S. State Department
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Trade
Imports
The U.S. Central Intelligence Agency reported that in 2009, India spent 17% less on
foreign goods than in 2008. Spending $268.4 billion, India earned itself a U.S. State Department
ranking of 14 in comparison to the rest of the world. Its major imports were crude oil, precious
stones, machinery, fertilizer, iron and steel, and chemicals, which it received from China, the
United States, Saudi Arabia, the United Arab Emirates, Australia, Germany, and Singapore.
Previous to August 2009, Foreign Trade Policy reforms enabled India to reach its goal of
doubling exports over a five-year period, resulting in new employment and lower transaction
costs. The Ministry of Commerce and Industry enacted a new policy, aiming to double India‘s
exports over the next five years yet again. The policy‘s objective is 15% annual growth rate in
exports until March 2011, followed by a 25% growth rate until 2014. (Economic Intelligence
Unit, p. 92)
India‘s import duties are generally on an ad valorem tariff basis2. The total duties on
imports are comprised of a .1 % basic duty (with an exception for farm and dairy products), as
2 Duty or other charges levied on an item on the basis of its value and not on the basis of its quantity, size,
weight, or other factor. (Businessdictionary.com)
Import Partners 2009
5.02%
5.18%
7.16%4.02%
5.36%
4.86%
U.S.
Saudi Arabia
UAE
Australia
Germany
Singapore
Source: Economic Intelligence Unit
23
well as additional duties equal to excise duties. (Economic Intelligence Unit, p. 92) In 2007, the
government brought down the peak rate of import customs duties from 12.5% to 10%; in 2009,
importers enjoyed an additional duty reduction on items such as bio diesel and cotton. (p. 92)
Although there are provisions for tariff concessions and exemptions, these are gradually being
sacrificed for lower tariffs overall.
Exports
Ranked 22 in the world, among India‘s most lucrative commodities are petroleum products,
precious stones, machinery, iron and steel, chemicals, vehicles, and apparel.
Its exports took a hit in 2009,
decreasing 19% from 2008 to $164.3 billion.
This is probably due to the global recession,
and the reluctance of India‘s second-largest
trading partner—the United States—to spend
on foreign goods in its struggling economic
climate.
In 2009, its top three trading partners were the United Arab Emirates, the United States,
and China.
The Economic Intelligence Unit reports that the only exports now subject to the 10%
export tax are goat, sheep, and bovine leathers. In 2000, India launched the Export Import
(―Exim‖) policy, based on a similar Chinese model, which designated special economic zones
(SEZs) that grant 100% foreign-equity rights to investors which promote exports. Through
amendments made to its Foreign Trade Policy in 2004, the Indian government also allows a
Export Partners
12.87%
12.59%5.59% United States
United Arab
Emirates
China
Source: Economic Intelligence Unit
24
special category of the SEZs known as free-trade and warehousing zones (FTWZs), whose
purpose is to create the infrastructure to facilitate the trading of goods and services. Units within
the FTWZ can trade without currency restrictions. The SEZs can be proposed by any state
government or corporate entity, and essentially render the area duty-free, foreign territories for
the purpose of trade operations.
The Exim Policy is made possible through a series of international trade agreements
―under which India is receiving tariff preferences for its exports.‖ (Exim Policy, section 2.21.1)
After obtaining a certificate of origin that includes ―details regarding the rules of origin, list of
items covered by an agreement, extent of tariff preference, verification and certification of
eligibility etc.,‖ (Exim Handbook) the export should qualify for preferential treatment under the
Exim Policy.
India requires that ―all export contracts must be denominated in freely convertible
currencies.‖ (Economic Intelligence Unit, p. 96) Export financiers can insure their commercial
and political risks through the government-owned Export Credit Guarantee Corp, or ECGC. The
ECGC covers buyer insolvency, protracted default, contract violation, war, expropriation and
natural disasters, and offers financial protection of up to 75% of losses resulting from export
financing. (Economic Intelligence Unit, p. 97) When bands use the ECGC to cover their entire
export lending the coverage increases to 85%. (p. 97)
Growth Overview
India‘s economy grew at a rate of more than 7% from 1997 to 2009. Foreign portfolio and direct
investment contributed to the $283.5 billion in foreign exchange reserves by December 2009.
25
(U.S. State Department, p. 48) A Goldman Sachs BRIC study projected that India‘s economy
will match Italy‘s by 2015, and Britain‘s by 2020.
Challenges to Economic Growth
Along with hyperinflation and a national distrust in the government and its officials, the greatest
challenge facing India‘s rapidly growing economy is its severe lack of infrastructure to support
brisk and vast changes in technology and market penetration. To address this challenge and
many others, the World Economic Forum held an Indian Economic Summit in 2009 to
collaborate with the Indian government. They propose the following solutions:
Eliminate the infrastructure deficit;
In 2009, the Indian government launched a pubic-private partnership to
spend $20 billion on six ―mega road projects‖ in the larger cities of Rajasthan,
Madhya Pradesh, Gujarat, and Maharashtra. The private sector is set to contribute
60% of the funding for this project. (World Economic Forum, p. 8)
Improve governance and maintain economic reforms;
The strength of India‘s government lies in its laws and legal frameworks,
but its weakness resides in it ineffective implementation of those laws and their
enforcement. The World Economic Forum report on India suggests that if the
government can expand its reforms to reduce the costs of starting up a business, it
can create jobs and ―realize India‘s enormous internal and external market
opportunities.‖ (World Economic Forum, p. 8)
Boost rural markets by focusing on their strengths.
26
―Escalating rural consumption is potentially the next big trigger of
growth.‖ (World Economic Forum, p. 8) In July 2010, the Indian government
announced it was contributing INR 180 billion (about $4.1 billion) to a project by
Indian telecom giant BSNL to bring wireless communication to rural India.
Use government subsidies or foreign investment in exportable products to continue
development of exports.
A World Bank Explore Economy survey found that it currently takes an
average of 15 days to clear direct exports through customs, more than twice as
long as the world‘s average of 6 days. 12% of Indian firms export, and about 10%
export directly; 18% of firms in the rest of the world are exporters.
The country needs to invest in education and training.
Of the 22 million children who attend school only 12% pursue a degree in
higher education. The government's goal is to raise the rate of those who attend an
institution of higher learning to 20% by 2020 (World Economic Forum, p. 14)
Closing the gender gap could unleash economic potential.
Education and employment of women could reduce the unemployment
rate and provide businesses with additional qualified workers. If society and
corporations can overcome old traditions, gender equality is achievable.
In September 2010, the BBC reported that changes in the way India‘s inflation rate is calculated
led it to drop to its lowest levels since January. Typically fueled by petroleum products, the new
price index upon which inflation is based includes a wider variety of products, such as
27
computers, scooters, and refrigerators. Under the new calculations, India‘s rate of inflation for
September was 8.5%. (BBC News, par. 1)
28
BUSINESS IN INDIA
Starting a Business
Sectors
The Companies Act of 1956 distinguishes between private and public companies in the
way they can be traded, not necessarily in that a public company is controlled by the government
and a private company is not.
Public
A public company, as defined in the Companies Act, has freely transferable shares to
which the public is free to subscribe; unlimited membership, with a minimum number of seven
members3; the word ―limited‖ or abbreviation ―Ltd‖ must be displayed at the end of its name.
Private
At its incorporation, the Companies Act requires a private company to adhere to certain
restrictions. These include restrictions on its shareholders rights to transfer shares; on the total
number of members which cannot exceed 50--excluding past or present employees who are
members of the company--and must be more than two; on invitations to the public to buy shares
or debentures of the company; on invitations or acceptance of any funds from anyone who is not
a member, director, or relative of a member or director. The words ―Private Limited‖ or
abbreviation ―Pvt Ltd‖ must be displayed at the end of its name.
3 As defined in the Companies Act of 1956, ―members‖ are owners of a company who are not entitled to stock in the
company.
29
Types of Incorporation
Sole Proprietorship
A sole proprietorship is the oldest and the most common form of business. It is an
organization where a sole individual owns, manages and controls the business. Although easy to
form, sole proprietorships have limited capital, a limited live (the life of the individual), and
unlimited liability. Through its website, the Indian government suggests that sole proprietorships
are best suited for businesses which face low to moderate risks, and require small financial
resources. The majority of Indian businesses are sole proprietorships.
Public Limited Company
A public limited company is a voluntary association of at least seven members which is
incorporated. Incorporation recognizes that the company has a separate legal existence from its
members, and the liability of the members is limited.
Private Limited Company
A private limited company is a voluntary association of not less than two and not more
than fifty members. Its legal existence is independent of its members, entailing that it will
continue to exist even if all of its members die or desert it. It also enjoys limited liability such
that members of the company may not be held liable for the financial or legal responsibilities of
the company. The shares designated to each of its members are not transferable between them,
and the private limited company is not permitted to offer stock to the public. It is not required to
report its earnings to the public.
30
Partnership Firm
On its business website, the Indian government defines partnership as ―a relation between two or
more persons who have agreed to share the profits of a business carried on by all of them or any
of them acting for all.‖ Individually, the owners are known as "partners;" collectively they are
known as the "firm". Partnerships are not recognized as entities separate from their owners, and
the liability of the partners is unlimited. The firm must be dissolved if any partner is unable or
unwilling to remain involved for any reason. Although the government does not require
partnerships to register formally, unregistered partnerships cannot take full advantage of the legal
benefits provided to businesses by the government. Partnerships are formed by either written or
oral agreements.
Joint Hindu Family Business
In certain parts of India, a family business may be eligible for recognition as a Joint Hindu
Family Business. The members of the family joined under the Karta (head of an undivided
estate) are known as ―Co-Parceners.‖ The co-parceners own the business.
Hindu law recognizes the joint Hindu family business, as opposed to being formed by a
contract, so the rights and liabilities of the co-parceners are determined by Hindu law. Those
family members of three successive generations of the Karta (grandparent, parent, son/daughter)
are co-parceners; relatives of co-parceners are eligible to join the Hindu family business at the
time of the co-parcener‘s death. There is no maximum limit on the number of co-parcenors.
The Karta alone has unquestioned authority, and the ability to secure loans and otherwise
manage the company. The Karta also has unlimited liability, while each of the co-parceners‘
liability is limited to value of their stakes in the company.
31
Limited Liability Partnership (LLP)
Limited Liability Partnerships (LLPs) are corporate structures enabled by the Limited
Liability Partnership Act of 2008. Like private companies, the firm must register with the state,
who recognizes the business as an entity separate from those partners who own it, and so it exists
even if one of the partners dies or deserts the firm. Like partnerships, the partners‘ rights and
responsibilities are governed by an agreement, either between the partners, or between the firm
and the partners. Its liability is limited to the total value of its assets, and each partner is liable
only for her contribution to the firm as per the partners‘ agreement.
Every LLP must have at least two partners and two designated partners, one of whom
must be an Indian resident. The LLP must file a statement of accounts and solvency with the
Indian Registrar on an annual basis. Unlimited liability firms, private companies, or unlisted
public companies may be converted into LLPs.
Co-Operatives
Most similar to the facilitation of unions in the United States, a co-operative organization
is a society whose objective is the promotion of the interests of its members, as opposed to
earning profits. It is a voluntary association of ten or more members who join together on the
basis of equality to fulfill economic or business interests. The liability of each member is limited
to his financial contribution, and all co-operatives must be registered.
32
Registration & Regulations
To register and incorporate, the company must file an application containing selected names for
the company, a Memorandum of Association, Articles of Association, and perhaps other
documents specific to the type of incorporation requested with the Registrar of Companies in the
state in which the company is to be incorporated. The state requires that each corporation adhere
to all environmental regulatory guidelines and parameters.
Business Climate
Government Influence
Although it generally opposes large-scale privatization of state-owned institutions such as
banks, the current government is continuing to pursue economic reform and the encouragement
of foreign investment. Government-controlled public companies are known as Public Sector
Undertakings, or PSUs, and are often characterized by low productivity and the inability to
maintain a profit. Though the government has said it is willing to offer 5-10% stakes in PSUs, it
will only consider privatization on case-by-case basis, and will refuse its own stake in public
banks to fall below 51%. (Economic Intelligence Unit, p. 10) The government owns up to 100%
stakes in 28 public-sector banks. (p. 12)
The media is largely controlled by the government. In 1999, the government granted 10-
year licenses in 40 cities to 28 private FM-radio broadcasting companies. (Economic Intelligence
Unit, p. 13) By November 2005, the government began allowing 20% foreign investment in FM-
radio, and starting in February 2006, it issued an additional 280 licenses in 91 cities to privatized
FM-radio broadcasting companies. (p. 13) Even so, private FM stations are not permitted to
cover news or current affairs.
33
In 2000, the government began allowing direct uplinks from India to both Indian and
foreign satellites and direct-to-home television services. Entertainment television channels up-
linking from India may be fully owned by foreign companies and investors, but there is a limit
on foreign equity in news channels at 26%. (Economic Intelligence Unit, p. 13)
The Economic Intelligence Unit‘s Commerce Report describes clarifications made by the
Indian government in 2003 to provisions regarding foreign investment in news channels: ―news
channels up-linking from India [have] to have one dominant Indian shareholder (an individual,
company or group of companies) with a holding of least 51%; that stakes held by financial
institutions [will] not be counted towards this 51%; and that any foreign-equity holding in the
Indian shareholder companies of the applicant company [will] be counted pro rata towards the
26% foreign-equity cap.‖ (p. 13) It also stressed that editorial materials and management ―had to
rest with Indians.‖
Legal Considerations
To avoid what in India may become a years-long arbitration process, foreign companies
build clauses into their contracts allowing for international arbitration. The Arbitration and
Conciliation Ordinance of 1996 has helped the Indian arbitration process, but the structure of
many local-level authorities remains indifferent to the progressivism of higher level official, and
can be a hindrance to settlement.
34
As demonstrated in the above chart included in the World Economic Forum‘s Global
Competitiveness Report from 2009, the greatest challenges India faces when it comes to
establishing its economy as a major player in the global market are part and parcel to its
government‘s effectiveness in governing. Lack of roads and other infrastructure segments the
country, keeping ―big city life‖ in the big city and agriculture in the rural areas. Bureaucracy,
corruption, and overburdening governmental regulations—then coupled with difficulty accessing
financing through government-controlled banks—prevents businesses from being as efficient
and productive as their global competitors. The strength of India‘s economic structure in spite of
the government‘s relative inefficiency may soon leave India‘s businesses in a conflict between a
developed economy and a developing nation. As Fareed Zakaria observes in his book, The Post-
American World, ―India‘s political system is weak and porous and thus not well equipped to play
its rightful role in this new world…If governance does not improve, the country will never fully
achieve its potential.‖ (Zakaria, p. 166)
35
.Business Practice
Capital Sources
Bank Loans
The State Bank of India provides finance options including corporate term loans, working
capital finance, and project finance. Corporate term loans support expenses arising from establish
new ventures, expansion, and renovation; working capital finance is umbrella financing for the
service sector; project finance provides funding for specific projects related to the nature of a
particular business.
Micro-financing
For those who are unable to secure loans from banks or other lending institutions, the
notion of microfinance has been gaining popularity across the globe. Lenders are individuals
who loan out relatively small amounts of money to small businesses. According to a
microfinance report by N. Srinivasan in 2008, the microfinancing industry increased by 11.15
million clients in 2007. (Srinivasan, p. 21)
Non-governmental organizations are considering turning their attention from volunteer
work with the poor to microlending, especially in urban areas. To date, much of India's
microfinance movement has grown largely in the southern states.
Existing Foreign Investment
Inflows of foreign direct investment (FDI) into India reached US$33.61bn in 2008/09,
according to the Secretariat for Industrial Assistance, an agency within the Department of
Industrial Policy and Promotion. FDI outpaced portfolio investment by a hefty margin; net equity
36
and debt investment by foreign institutional investors (FIIs) was negative. The sectors that
received the most FDI during 2008/09 were services ($6.11 billion USD), housing and real
property ($2.80 billion USD), telecoms ($2.55 billion USD) construction activities ($2.02 billion
USD), and computer software and hardware ($1.67 billion USD). (Economic Intelligence Unit,
p. 14) The top foreign countries investing in India during 2008/09 were Mauritius, Singapore,
the United States, Cyprus and the Netherlands. India considers FDI to be particularly
beneficial for infrastructure, energy, telecommunication services and software development.
37
CONSUMER MARKET
Personal & Household Income
Traditionally, households in both urban and rural areas consist of large joint families, sons
continuing to live with their parents even after being married. However, nuclear families are
growing in urban India—two to four person households comprise 38.8% of India‘s total
households. (Euromonitor, p. 35) The number of single-person households has grown the fastest,
at a rate of 121.8%. (p. 35) While households of five or more continue to constitute the largest
number of households, their growth rate is the lowest. Increased education and employment
opportunities for women, as well as urban migration, are the most likely contributors to shrinking
households.
Although the size of household has decreased, the increasing number of smaller
households, especially in the larger cities, has similarly increased demand for property. Growing
demand for items such as home furnishings, appliances, and consumer electronics led Frost and
Sullican India to project an annual growth rate for electronics manufacturing services of 30%,
totaling $2.5 billion by 2010.
The growth of India‘s economy over the past decade in hand with some successful
economic reforms has led to a significant increase in disposable income: 41.7% of households
had a disposable income of $1,000-$1,750 in 1995; by 2007, 31.3% had experienced an increase
in disposable income to $2,500-$5,000. (Euromonitor, p. 35) According to Euromonitor‘s
Consumer Lifestyle Report, ―the increase in disposable income made a strong impact across all
consumer markets.‖ (p. 36)
38
Personal & Household Expenditures
As disposable income increases, low-income families are abandoning home remedies for
medical services, and bicycles for motorbikes; Middle-income families have increased spending
on mobile phones and televisions; high-income families purchase more consumer electronics. In
fact, what Euromonitor attributes to ―a high desire for increased connectedness‖ (Euromonitor, p.
36) has allowed communication services to experience triple-digit growth.
Durables
Urban areas ushered the majority of growth for consumer durables from 1995-2007, but
the urban outskirts and rural areas are expected to drive growth by 2015. In 2007, the range
cooker was present in 62.3% of households; (Euromonitor, p. 37) as more women enter the
workforce, spending on items like vacuum cleaners and washing machines is expected to
increase.
39
India‘s low literacy rate has rendered television a vital source of information and
entertainment for those unable to read a newspaper or magazine. Present in 47.4% of households,
color televisions were the second most popular durable in 2007. (Euromonitor, p. 37) The cost of
a color television entails that urban families are the most likely to purchase one.
The third most popular durable was the bicycle, though analysts believe car ownership
will grow at a rate 5.13% as prices fall, (Euromonitor, p. 37) and disposable income and
financing rise, supposing that proper infrastructure could support the growth.
An increasingly popular durable is the phone. 14.4% of households owned a telephone in
2007; the mobile phone industry grew at a rate of 13.1% and is expected to continue growing.
(Euromonitor, p. 37) The style and design of handsets are contributing to their positions as status
symbols, with demand increasing for phones supporting mp3, radio, and camera functions. The
growth of mobile phones with multimedia features has slowed sales growth of portable mp3
players, digital cameras, and radio in the mass market. For instance, consumers are generally
choosing to upgrade their phones as opposed to purchasing a separate camera. Competition in the
mobile market is leading to reduced phone prices, making the phones more affordable, and also
more accessible to first-time buyers, especially in rural areas. In rural India, wireless phones are
considered basic necessities because of poor telecommunications infrastructure; telecom
companies are taking advantage of this necessity and collaborating with the government to
expand their reach into the rural market.
25-29 year-olds comprise both the largest and smallest proportion of the employed
population, and spend most of their discretionary income on ―consumer electronics, such as
televisions, videos games, digital cameras and iPods.‖ (Euromonitor, p. 48) Because music is a
centerpiece of Indian culture, mobile music players are incredibly popular with this
40
demographic; if the economy continues to grow, and businesses continue to hire these
technology-savvy individuals, the entertainment industry may stand to benefit from their
increasing amounts of disposable income.
41
INTELLECTUAL PROPERTY
Governing Law & Provisions
Background
Indian copyright law is laid out in the Copyright Act of 1957 and Copyright Rules of 1958. In
general, and Indian work is considered to be a literary, dramatic, or musical work, whose author
is, or was at the time of the work‘s creation, an Indian citizen or which was first published in
India. Although the Copyright Act covers an extensive array of works, we will focus on musical
works, sound recordings, and cinematograph films.
Types of Works
Musical Works
The Copyright Act defines a musical work as one which consists of music and includes
―any graphical notation of such work but does not include any words or any action intended to be
sung, spoken or performed with the music.‖ (Copyright Act of 1957, I.2.(p)) The author of the
work is called the ―composer,‖ who enjoys the exclusive rights of reproducing the work,
distributing copies of the work, performing the work, communicating the work to the public,
translating the work, making the work into a film or sound recording, or making any adaptation
of the work; the duration of these rights with respect to the musical work is 60 years after the
death of the composer.
42
Sound Recordings
As defined in the Copyright Act, a sound recording is ―a recording of sounds from which
sounds may be produced regardless of the medium on which such recording is made or the
method by which the sounds are produced.‖ (Copyright Act of 1957, I.2.(xx)) The author is
called the ―producer,‖ which the act defines for the purposes of authorship as ―a person who
takes the initiative and responsibility for making the work‖ .‖ (Copyright Act of 1957, I.2.(uu))
and whose exclusive rights include rights to duplicate the sound recording, to sell or offer for
sale any copy of the sound recording, to communicate the sound recording to the public. Should
anyone wish to use the sound recording in a public performance, the government requires
licenses from all rights owners of the recording, including the composer, the lyricist, and the
producer. The producer may exercise his rights for 60 years after the first date of publication of
the sound recording.
Cinematograph Film
A cinematograph film is ―any work of visual recording on any medium produced through
a process from which a moving image may be produced by any means and includes ―a sound
recording accompanying such visual recording,‖ and ―any work produced by any process
analogous to cinematography including video films.‖ (Copyright Act 1957, I.2.(f)) As with
sound recordings, the author is called the producer (which is defined the same) whose copyright
gives her the exclusive rights to make a copy of the film, including photographs of any images
contained therein, to sell or offer for sale a copy of the film, and to communicate the film to the
public for 60 years after the first publication of the film.
43
Definitions
Right of Reproduction
The right of reproduction commonly means that no person shall make one or more copies
of a work or of a substantial part of it in any material form… without the permission of the
copyright owner. Reproduction occurs in storing of a work in the computer memory. (Copyright
Handbook4)
Right of Communication to the Public
The right of communication to the public means making any work available for being seen or
heard or otherwise enjoyed by the public directly or by any means of display or diffusion. It is
not necessary that any member of the public actually sees, hears or otherwise enjoys the work so
made available…The fact that the work in question is accessible to the public is enough to say
that the work is communicated to the public. (Copyright Handbook)
Adaptation
Adaptation involves the preparation of a new work in the same or different form based
upon an already existing work. The Copyright Act defines the following acts as adaptations:
Conversion of a dramatic work into a non dramatic work
Conversion of a literary or artistic work into a dramatic work
Re-arrangement of a literary or dramatic work
Depiction in a comic form or through pictures of a literary or dramatic work
4 The government of India provides the Copyright Handbook through its official website, but does not delinate
sections or subsections, or page numbers. Please see bibliography for full citation of this source.
44
Transcription of a musical work or any act involving re-arrangement or alteration of an
existing work.
The making of a cinematograph film of a literary or dramatic or musical work is also an
adaptation. A work cannot be translated without permission of the copyright owner. (Copyright
Handbook)
Registration
In accordance with the requirements of the international copyright treaties to which India is a
party, copyright vests automatically with creation of a work. However, creators must register
their works with the Registrar of Copyrights in order to receive certain remedies from a court of
law for copyright infringement. The creator must file an application for each work they wish to
register, signed by the applicant or an authorized power of attorney, and pay a required fee. If a
registered work is also unpublished, the applicant may modify his application for an additional
fee.
The Registrar of Copyrights is vested with the powers of a civil court in respect to
matters such as ―summoning and enforcing the attendance of any person and examining him on
oath; requiring the discovery and production of any document; receiving evidence on affidavit;
issuing commissions for the examination of witnesses or documents; requisitioning any public
record or copy thereof from any court or office; any other matters which may be prescribed.‖
(Copyright Act of 1957, XV.74)
45
Copyright Enforcement Advisory Council (CEAC)
In 1991, the Indian government established the Copyright Enforcement Advisory Council
to periodically review the progress of the Copyright Act‘s enforcement. Each member of the
CEAC serves a three year term such that the CEAC is comprised entirely of different members
every three years. The members of the CEAC include the Director Generals of Police of several
major states and their governments; representatives of each of the Authors‘ Guild of India, the
Federation of Publishers and Booksellers Association, the Film Federation of India,
Phonographic Performance Ltd (PPL), the Indian Performing Rights Society (IPRS), and the
Cine Artistes Association; and the Secretary of Higher Education.
Copyright Royalty Board
The Copyright Royalty Board is a semi-judicial body composed of three to fifteen
members. The chairman of the board has powers equivalent to those of a High Court judge. The
Board has the authority to adjudicate certain cases pertaining to copyright, including hearing
appeals against the orders of the Registrar of Copyright; granting compulsory licenses to publish
or republish works (in certain circumstances), or to produce and publish a translation of literary
or dramatic work; and fixing rates of royalties in respect of sound recordings under the cover-
version provision.
Performers’ Rights
The Copyright Act defines a performer as an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, lecturer, or ―any other person who makes a performance;‖
(I.2.(qq)) the performer‘s rights in ―any visual or acoustic presentation made live by one or more
46
performers,‖ (I.2.(q)) which is considered the performance, include the right to make a sound
recording or visual recording of the performance; right to reproduce the sound recording or
visual recording of the performance; right to broadcast the performance; and the right to
communicate the performance to the public otherwise than by broadcast5. Unless she consents to
incorporate her performance in a cinematograph film, these rights belong to the performer for 25
years.
Indian Performing Rights Society (IPRS)
IPRS was established in 1969 to represent copyright holders such as composers, lyricists
and publishers. IPRS is the only association authorized to issue licenses for the use of
compositions to be sung, spoken, or otherwise performed along to music within India.
IPRS‘ governing Council of Directors is elected by its members. According to IPRS, the
Council is equally represented by publishers and writers from North and South India. The society
licenses compositions from its offices in Delhi, Chennai, and Kolkata.
Industry research conducted by Price Waterhouse Coppers reveals that composers often
do not receive royalty revenues from the music they compose for films. There is an amendment
in the Sabha which could give independent rights to the authors of literary and musical works in
films to ensure the authors receive royalties for commercial exploitation of their works.
Phonographic Performance Ltd. (PPL)
The performing rights society for sound recordings is known as PPL, and has been
conducting business since 1996. One of PPL‘s priorities is to negotiate licenses for the use of
5 There is an amendment before the Rajha Sabha to include some cable and satellite broadcasts in the Copyright Act‘s definition
of ―communication to the public.‖
47
sound recordings in connection with television, internet, mobile (ie ring tones), radio, and events
or public performance in clubs, restaurants, cinemas, etc. The licenses are usually on a blanket
basis, and PPL then regularly distributes royalties to the society‘s members based on the
proportion of performances against its database of sound recordings.
According to PPL‘s website, it administers performance rights on behalf of 137 recording
companies, including Sa Re Ga Ma India, Universal, and Sony Music.
Broadcasters Rights
In light of the Indian government‘s recent program to gradually privatize radio,
broadcasters‘ rights have become increasingly relevant to independent, private telecom and
broadcasting companies. The Copyright Act defines a ―broadcast‖ as a communication to the
public by an means of wireless diffusion, whether in one or more of the forms of signs, sounds or
visual images; or by wire. Broadcasting organizations have the right to re-broadcast; cause the
broadcast to be publicly communicated on payment of any charges; and to make any sound or
visual recording of the broadcast, reproduce any such sound or visual recording, and sell or offer
to sell to the public any such sound or visual recording. (Copyright Handbook) The broadcaster‘s
rights are in duration fro 25 years.
Moral Rights
The Copyright Act does provide for Moral Rights, stating that ―The author of a work has
the right… to restrain or claim damages in respect of any distortion, mutilation, modification or
other acts in relation to the said work…if such distortion, mutilation, modification or other act
would be prejudicial to his honour or reputation,‖ (Copyright Act of 1957, XII.54) although, the
48
act does clarify that a failure to display a work to the creator‘s satisfaction will not infringe on
her moral rights. A creator retains her moral rights even if she has assigned or transferred her
other rights, as they are independent of copyright.
Compulsory Licenses & Covers
Two years after a song has been published, it is eligible for a compulsory license. It is
stipulated that because of the popularity of Bollywood films and the fact that performers receive
royalties for public performance of sound recordings, the two year period allows for maximum
marketing and monetization of the song for its original purpose. (Sen, par. 5)
Fair Dealing
―Fair Dealing‖ is a term which is used to describe exceptions to the copyright law in a
similar manner as the United State‘s principle of fair use. In India, contenders for fair dealing
include: private use, such as research; criticism or review; use in the activities of a not-for-profit
club or organization; performance in connection with an amateur club or society, if the
performance is given to a non-paying audience, or for the benefit of a religious institution;
reporting current events, through any medium; reproduction in print, in an informative article
concerning current economic, political, social or religious topics; a public lecture; or duplication
of no more than three copies of a book.
Work-for-Hire
Works made-for-hire can fall under one of two categories: a work prepared by the
employee within the scope of his or her employment, or a work commissioned by a third party,
49
typically a publisher, rendering the author and independent contractor. To be considered an
independent contractor, the work must be created in connection with one of the following: a
collective work, such as a magazine or newspaper; a cinematograph film or audiovisual work; a
translation; a supplementary work, such as an introduction to another author‘s work; a
compilation; an instructional text; a test; answer material for a test; or an atlas. Only work-for-
hire agreements made in writing and signed by all parties concerned are considered binding.
In many cases, music written or recorded is done so in connection with a film, where the
production company is also the record label. In these, cases composers generally do not retain
the copyright to their works, and most never see royalties from public performance since they are
not often the performers of their works.
Valuable Consideration
In the case of a work created for valuable consideration at the instance of any person,
such person shall, in the absence of any agreement to the contrary, be the first owner of the
copyright therein. (Copyright Act of 1957, IV.17.(a))
Joint Authorship & Transfer of Copyright
A work of joint authorship is a work produced by the collaboration of two or more
authors in which the contribution of one author is not distinct from the contribution of the other
author or authors. (Copyright Act of 1957, I.2.(z))
Transfer of copyright must be in writing, identifying the specific works and rights
assigned, as well as the duration and territory of the assignment; royalties payable, if any, must
be specified also; the assignor or her duly authorized agent must sign the agreement. Should the
50
duration of the assignment not be identified, the law will recognize it as five years from the date
of the assignment; should the territory not be identified, the law will presume the territory is for
all of India. If the assignee does not exercise his rights within one year, the law will consider the
agreement expired. The author may transfer her rights in whole or in part by giving notice to the
Registrar of Copyrights.
Foreign Works
Because the Indian Copyright Act is valid only within the country itself, India has
become a member to several international copyright conventions and treaties to secure rights for
its creators outside of the country. These include the Berne Convention for the Protection of
Literary and Artistic works6; the Universal Copyright Convention
7; Convention for the
Protection of Producers of Phonograms against unauthorized Duplication of their Phonograms;
Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties; and the
Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
Foreign nationals whose countries are also members of the Berne Convention, Universal
Copyright Convention, and TRIPS agreements are protected in India through the International
Copyright Order. A list of these countries is provided in Appendix ___.
6 Britain‘s signing of the Berne Convention while India was still under its control has the Convention recogising India as a
signatory since 1928. All U.S. works protected under U.S. Copyright law after the U.S. became a Berne Member-State in 1989
are protected in India; 7 because India signed the UCC in 1957, all All U.S. works protected under U.S. Copyright law after 1957 are protected in India
as well.
51
Copyright Societies
IPRS, PPL, and SCRIPT are registered copyright societies, and have reciprocal
agreements with similar societies in foreign countries which are also members to the respective
international conventions. The societies obtain or issue licenses in India on behalf of the foreign
counterparts.
Infringement Remedies
Any person who knowingly infringes or encourages the infringement of copyright
commits a crime punishable by six months imprisonment and a minimum fine of INR 50,000
($1100 USD). (Copyright Handbook) Subsequent infringements are punishable by one year‘s
imprisonment and a fine of INR 100,000 ($2300 USD). (Copyright Handbook) Copyright
owners are entitled to injunctions, damages, and accounts, as deemed appropriate by the District
Court in whose jurisdiction the infringement occurred.
Should the event arise wherein a company has infringed copyright, the Copyright Act
provides that ―every person who at the time the offence was committed was in charge of, and
was responsible to the company for, the conduct of the business of the company… shall be
deemed to be guilty of such offence‖ (Copyright Act of 1957, XIII.69.(1)) along with the
company, and may face legal charges. For instance, if the owner of a for-profit venue allows his
hall to be used for a public communication of a work as defined by the Copyright Act, and public
communication infringes on the copyright of a work, he has committed a crime unless he was not
aware or had no reasonable grounds for believing an act of infringement was occurring.
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Piracy
The trade organization Indian Music Industry defines piracy as ―the unauthorized duplication of
an original recording for commercial gain without the consent of the rights owner.‖
The Indian Music Industry
The Indian Music Industry (or IMI) is India‘s equivalent to the United States‘ Recording
Industry Association of America (or RIAA). The IMI was first established in 1936 as the Indian
Phonographic Industry (IPI); in 1994, IPI changed its name.
Claiming to be among the world‘s second oldest music companies' associations, IMI is
not-for-profit organization affiliated with the International Federation of Phonographic Industry
(IFPI). Its priorities are to defend, develop, and preserve the rights of the producers of sound
recordings, and ―actively [promote] and [encourage] advancement of creativity and culture
through sound recordings. ― (IMI, par. 1) IMI‘s members include Sa Re Ga Ma, Universal, and
Sony BMG, as well as other national and regional labels ―that represent over 75% of the output
in [India‘s] legitimate recordings.‖ (IMI, par. 2)
In 2000, IMI established its internet anti-piracy initiative. Shortly thereafter, IMI claims
to be responsible for the closure of 500 sites. It attributes this success to functions of its
initiatives, which include indentifying manufacturers and retailers of pirated materials; training
police and assisting law enforcement in conducting raids; and providing necessary
documentation for investigations into infringement cases.
In 2007, Euromonitor‘s Consumer Lifestyle Report found that music piracy accounted for 56%
of the acquisition of media. Forrester research recently reported that Indian consumers spend an
53
average of 9.2 hours per work online, and that those who are online generally use the internet as
means of communication and creating content. 24% of India‘s online consumers have uploaded
video, audio, or music clips, the majority of which were uploaded to video sites like Youtube,
rather than being created by the users themselves. (Klevchuk, p. 9) Despite IMI‘s restless appeals
against illegal downloading, the United States-India Business Council published a report in
March of 2009 claiming that up to INR 16,000 crores ($36 million USD) and 80,000 jobs in the
entertainment industry are lost to piracy. (CITE ME- Internet & Society)
But given low internet penetration of the country, piracy of physical product is more
prevalent. The BBC suggests that ―half of the music sold on the streets is illegal, while 60% of
movies sold in India are allegedly fakes.‖ It goes further to estimate that foreign businesses lose
about $500 million per year in India due to rampant piracy. Indian-based companies such as
Moser Baer are trying to work with the financial needs of pirates and production companies to
cut back on piracy‘s effects. A prominent manufacturer of blank recordable CDs and DVDs,
Moser Baer began selling large quantities of DVDs with content for only slightly higher prices
so ―reformed‖ pirates can still make a profit while the production company shares in the
revenues.
While Internet & Society claims that India is ―the fourth largest global hub on online film
piracy,‖ it still has to overtake Canada, Britain, and the United States before it can take the
number one spot.
54
Technology
Consumer Electronics
Datamonitor estimates that consumer electronics generated revenues of $4 billion in 2009, with a
compound annual growth rate of 8.6% for four years previously which is expected to continue
through 2014. In comparison, China and Japan‘s markets grew at 10.4% and 4.5% respectively,
achieving values of $28.1 billion and $22.3 billion by 2009. (Datamonitor, p. 8)
Despite the coupling of rampant piracy and relatively low revenues for the consumer
electronics market as a whole, 98.9% of its revenues were generated by audio visual equipment,
(Datamonitor, p.8) indicating a growing willingness of Indian consumers to invest in
entertainment. The remaining 1.1% was generated by games consoles. (p. 8)
Compact Discs and audio cassettes remain the formats of choice in the category of
physical music players. However, the increasing penetration of internet and mobile carriers has
slowed both the sales of these players and the music they are able to play.
Internet/Broadband
The internet access
market has been
growing at double-digit
rates—between 2005
and 2009, the number
of Indian internet
subscribers increased
by approximately 25%,
55
totaling 13.5 million and generating $3 billion by the end of 2009. (Datamonitor, p. 7)
By 2014, the number of subscribers is expected to reach 28 million. (p. 7)
The Indian government declared 2007 as the ―Broadband Year.‖ (Euromonitor, p. 91)
State-owned telecoms account for 69% of internet subscriptions, although two private-sector
companies share 84% of the market with the other two government of the top four Internet
Service Providers (ISPs). (Datamonitor, p. 13) Euromonitor‘s Consumer Lifestyle Report claims
that ―Favourable broadband policy and other initiatives by the IT and Telecom Ministry have
encouraged Internet use by the masses.‖ (Euromonitor, p. 93)
Internet subscriptions range from individual consumers to large companies, price
depending on certain factors, such as the required speed of the connection. Oftentimes
consumers change ISPs when they believe it results in better value for their money. Some
companies offer internet as a standalone service, others bundle it, usually with cable TV or
telephone lines. Though internet penetration is quite low (5% of Indian population, and about 7%
56
of the Asia-Pacific internet access market), (Datamonitor, p. 2) and the disparity between urban
and rural areas is vast, its growth is rendering the technology vital for businesses and convenient
for consumers.
Indians use the internet for a number of activities, namely email, chatting, job searches,
and banking, although they are increasingly using the internet or gaming, news, blogging, and
research. As e-commerce also continues to grow, consumers use the internet more for ticketing
and shopping. The Internet and Mobile Association of India (IAMAI) reports that in 2007, 33%
of India‘s intern users were working, and 11% were working women, while 21% were college
students; the remaining 35% were older men, nonworking women, and school-aged children.
The introduction of computers into schools has increased internet access there, and while most
users access the internet through cybercafés, the cybercafé is becoming less popular as more
people are able to access the internet from their offices—especially considering the growth of
India‘s IT sector.
Pricewaterhouse Cooper‘s suggests that barriers to the growth of India‘s internet market
include the initial costs of owning a computer as well as computer illiteracy, in some cases, a
lack of interest, and a definite lack of infrastructure. But by providing entertaining content in
local languages, it is possible to develop segments outside of currently specific segment of young
and wealthy males who speak English.
Mobile
In 2007, the Telecom Regulatory Authority of India (TRAI) claimed India was home to 185
million mobile phone users. (Euromonitor, p. 94) From 2005 to 2007, mobile penetration by
household grew an estimated 19.5% and the phone replacement cycle shortened to every two
57
years for about 65% of users. (p. 91) The increase in mobile phone popularity is due in great part
to their increasing affordability and accessibility to low-income and rural families. Bundling
products and services is becoming standard, and more manufacturers are expected to increase
their manufacturing capabilities to better serve the demand of the mobile market more quickly
and cheaply.
The traditional PDA market is declining, thanks to growing sales of smart phones and
businesses which prefer voice-enabled devices. For certain segments of the population, the
growth of smart phones has slowed growth of sales for items such as digital cameras portable
mp3 players, and radios. Mobile commerce currently consists of ringtone, game, and video clip
downloads, and pre-paid card recharges.
Pricewaterhouse Cooper‘s claims that the activities conducted on mobile phones are very
similar to those conducted on personal computers. While consumers do use their phones for non-
internet activities such as games and music listening, they are increasingly involved in online
activities like checking sports news and updates. Service provider, PayMate, launched a service
in 2007 that connects banks, retailers and customers using SMS. PayMate‘s customers primarily
use the service to buy items like flowers and movie tickets. (Euromonitor, p. 95)
58
ENTERTAINMENT & MEDIA INDUSTRIES
Music
Much of India music has evolved out of various interactions between India‘s numerous
ethnicities and cultures. The foundation of Indian music is sangeet, a combination of vocal
music, instrumental music, and dance. The musical system is composed of rag and tal, or the
melodic and rhythmic forms, respectively. Rag is a scale system of seven notes, and tal is based
on repeating patterns of beats.
Classical
The two most prominent realms of classical music are north Indian Hindustani Sangeet
and south Indian Carnatic sangeet. Though similar, the traditions differ in nomenclature and
performance.
Musical Instruments
Though the most famous instruments of India are likely the sitar and the tabla, Indian
classical music performers employ a wealth of other instruments in their performances, including
woodwind-like instruments such as the nadaswaram, plucked-string instruments such as the
sarod, and even the western violin.
Folk & Tribal
Due to India‘s wealth of cultural diversity—especially in rural areas—folk and tribal
styles of music are seeming endless; in fact, each region has its own unique style. Folk music is
generally considered a ―rustic reflection‖ of Indian society, while tribal music is representative of
59
cultures in particular. Some traditions of tribal music are thousands of years old. In villages,
music is learned through experiencing it; every wedding, harvest, and birth has a live
soundtrack. Most fold and tribal musicians fashion their own instruments, and the instruments of
these traditions vary, sometimes widely, from their classical counterparts.
Religious Music
Qawwali is the prominent form of Islamic devotional song, linked to the sufi tradition which
instructs observers to remember God either silently or vocally. The aim of the song is to invoke a
trance-like state which enlightens the listener by repeating the lyrics until they seem to lose their
meaning. As films gained popularity, there was a period when qawwali was a mandatory factor
in Hini films‘ formulae. The very nature of a cinema inhibits direct interaction between the
performing artist and his audience, setting a precedent for the detached quality of modern
qawwali performances.
Other forms of religious and devotional genres include Bhajan and Kirtan, which are
Hindu devotional songs sung in praise of God through the languages of farmers, merchants, and
other members of the working class. Bhajan is typically performed solo, while Kirtan are
centered around a call and response with the audience.
Bhangra
Originating in folk song and dance, this genre now comprises Indian‘s urban commercial
genre, most popular with the youth and diasporic Indians. The dance component of Bhangra
originated in rural Punjab. Bhangra developed in the 1970‘s as an international genre in Great
Britain where the Indo-Pakistani emigrants felt the severe lacking of a cultural identity. Though
60
they could no longer relate to a changing India or Pakistan, they could not assimilate into the
traditional British society. Bhangra became ―an important symbol of their self-identity,‖
(Courtney, par. 2) evolving into a subculture and lifestyle, similar to the West‘s embracing of
disco. At present, the once folk-like music of Punjuab has embraced elements of rap, hip-hop,
and other forms of Western commercial music.
Filmi & Bollywood
Filmi sangeet is widely considered to be the most popular musical genre in India at
present. Generally, the genre is termed Bollywood, although traditionally Bollywood films refer
to those Hindi films produced in Mumbai. In India, filmi is comparable to Western Top 40.
Brief History of Filmi
India‘s first motion picture with sound was titled ―Alam Ara‖ and premiered in 1931.
Shortly thereafter, Mumbai, Kalkotta, and Chenai became the film centers of the country.
Mumbai generally distributed its films nationwide, while Kalkotta and Chenai focused on
regional films. In the 9 years following the release of India‘s first ‗soundie,‘ 931 Hindi films
were produced, featuring an average of 10 songs each. During this period, the actors and singers
were one in the same.
For the ten years to follow, India‘s independent film business evolved. Ironically, the
influx of new talent led distributors to streamline their process into the formula prevalent in films
today, determined by a certain number of lead actors, songs, dances, etc. They also introduced
the ―playback singer,‖ who pre-records the songs to which the actors sing and dance.
61
Though television came to Indian households in the 1970s, it was not until the 1980‘s that
the government began privatizing channels. Cinema attendance was slightly effected, but
producers made use of the new outlet for their musical productions.
Traditionally monopolized by Mumbai, the Hindi film industry controlled the majority of
India‘s film music until rising costs of production and increased unionizing led producers to
Madras where conditions were more favorable for them. Madras-based musical directors include
A.R. Rahman, whose music featured in the Academy Award-winning film Slumdog Millionaire
has earned him world-wide recognition.
Satellite TV has facilitated the recent increase in popularity of Hindi films around the
world. As music and films become more widely accessible outside of theatres, decreasing
attendance and increasing entertainment taxes are making it difficult for some cinemas to remain
profitable. (Courtney, par. 16)
The Music Business
Pricewaterhouse Cooper‘s defines India‘s music market as consumer spending on physical
goods8, mobile VAS
9, and online downloads
10, as well as ad revenues generated by radio
broadcasters11
and royalties earned by public performance.12
(Pricewaterhouse Coopers, p. 80)
Estimated at INR 7.5 billion ($168 billion USD) in 2009, the value of the music industry grew
8.5%. (p. 80)
The increasing adoption of satellite television over the past twenty years has led the
music industry to shift away slightly from relying on film and devotional music to highlighting
8 CDs and cassettes through distributors and retailers who operate through modern retail and online.
9 Products including ringtones, songs, and ring-backs.
10 Music downloaded via internet, not including pirated or other illegal downloading.
11 Includes government radio stations and private FM stations, satellite, and performance royalties
12 Measured by royalties paid by event organizers to use music in public places
62
non-film albums and remixes. The Indian Music Industry (IMI) alleges that new local companies
are centering around ―high-end classical devotional [music] and other niche genres‖ rather than
film music. The Hindi language dominates the physical music market, followed by Tamil and
Telugu.
Recorded Music
Physical Sales
Traditionally, CDs and cassettes are the primary income stream for
music companies. According to Pricewaterhouse Coopers, physical
sales contributed 53% of total revenues in 2009, a decrease from
76% in 2008. (p. 82) The downward trend has been maintaining for
several years, and is expected to continue as digital revenue streams
such as mobile and the internet gain momentum, and piracy
continues to run wild.
CDs account for the majority of
physical sales, film music being the most
popular genre. Though film music is the
most popular genre in general, devotional
music accounts for 12% of physical sales,
(PwC, p.82) the popularity arising from
demand by housewives and religious places.
63
As retail continues to organize in India, CDs sales are expected to rise slightly, although
sales of cassettes are expected to continue decreasing. Pricewaterhouse Coopers suggests that the
competition of piracy could drive price points lower.
Marketing non-film music
The music industry relies on the film industry for 62% of its revenues. (PwC, p. 83) The Indian
Music Industry explains that companies selling non-film music, however, develop brands and
charge premium prices to build loyalty among consumers in an effort to sell a lifestyle and
―implement aspirational products.‖
Downloaded Music
Although internet music downloading is a huge market, Pricewaterhouse Cooper‘s
estimates that only 5-10% of downloads around the world are legal. However, as internet
becomes more accessible and Government initiatives are implemented, PwC expects
downloaded music to increase at a compounded annual growth rate of 52% over the next five
years. (p. 84)
Euromonitor‘s consumer lifestyle report alleges that for Indian consumers, shopping is
―an experience in itself.‖ (p. 94) The draw of e-commerce is in its convenience and oftentimes its
discounts. A study by the Internet and Mobile Association of India revealed that the three
primary factors contributing to the growth of e-commerce are time-savings, convenience, and the
availability of a variety of products. Because of the limited reach of physical distribution outlets,
online shopping is the only way for consumers in small towns to obtain the goods they desire.
The consumer lifestyle report also stated that from 2000 to 2007 the number of internet users
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searching for entertainment and information decreased by 15%, although e-commerce users
increased by 5%. (p. 94) Audiovisual retailers slowed expansion in 2007 due to increased piracy
and the growing popularity of mp3s. MusicWorld maintained its position as the most prominent
music store, boasting 350 outlets and a market share of 34% in 2007. (p. 99)
As featured in the Wall Street Journal, Google recently launched a music service aimed
at helping internet and e-commerce users to search for legal online streaming and downloads.
Users type a song into the Google search bar, and several links appear at the top of the page from
Google‘s partners. The links lead to a pop-up player whereby users can stream music for free.
India‘s largest label, Saregama has said that it is giving users access to 94,000 tracks from its
catalog.
Icon Group reports that the potential demand for downloadable music was estimated at $657.3
million in 2009, with Maharashtra, Uttar Pradesh, ad Gujarat leading the rest of the country by
most potentially profitable regions. (IconGroup, p. 15) These cities account for 33.43% of the
growth potential for India‘s downloadable music sector. (p. 15)
Radio Broadcast
As phase III of the government‘s plan to privatize radio companies continues,
Pricewaterhouse Cooper‘s estimates that 700 new stations will be added across India. This phase
will focus on bringing radio to tier II13
and tier-III14
cities, boosting penetration in less urban
areas. The most recent figures indicate that radio currently contributes 13% of the music
industry‘s total revenue, (PwC, p. 84) which is not expected to change. Still, in 2009 during the
13
Cities with a population of less than 1 million. 14
Cities with a population of less than 100,000.
65
hours of five to seven in the morning and nine to twelve in the evening, radio listeners increased
the most. Pricewaterhouse Coopers attributes the growth to the proliferation of the radio
capabilities of cell phones.
According to EconTrends Analysis, the top five grossing radio broadcasting companies in
2009 gathered a combined market share of 61%, with Zee Entertainment Enterprises leading the
pack with a market share of almost 19%.
Radio operators must pay a performance royalty based on the per-needle-hour to PPL and
IPRS; until August of 2010, the rate was INR 661 ($15 USD) per needle hour regardless of the
category of the city or number of listeners, (PwC, p. 75) and for stations in smaller cities with
respectively few listeners, the rate is quite harmful to revenues. Accordingly, a dispute has arisen
between radio companies and music companies over the rate. The radio companies wish to lower
the rate because they believe that radio helps to promote labels‘ artists and music, and because
the amortization of the stations‘ One Time Entry Fee over the license period can range from 25%
66
to 100% of revenues. (p. 75) Rather than a royalty model, the Association of Radio Operators of
India is seeking a revenue-sharing model based on stations‘ advertising revenue potential.
To avoid the music royalty costs and freshen the listening experience, radio stations have
begun airing talk shows, game and quiz shows, like Radio One‘s Music Ka Shahenshah. The
show quizzes listeners about composers, music, singers, songs, etc. to dub India‘s ―most
passionate music lover.‖ (PwC, p. 73) Musicale-Azam is a live music festival broadcast over the
radio with performances, interviews, merchandise, and meet-and-greet opportunities for
listeners.
In August of 2010, the radio stations‘ wish was granted when India‘s Copyright Royalty
Board eliminated the performance royalty rate that radio stations must pay to music companies in
exchange for sharing 2% of net advertising revenues. (Business Standard, par. 1) The CRB did
this with the hopes that greater affordability would spur growth of phase-III of privatization in
the coming months. In addition to the changing royalty scheme, radio operators are also lobbying
to offer news and current affairs (currently only broadcast by government stations), tradability of
licenses, and permitting a single operator to broadcast across multiple channels in one city.
Because of India‘s wealth of diversity, regional radio stations represent the greatest
potential growth of radio broadcasting. With region-specific content and adequate support from
government policies, radio can shift away from being a purely urban phenomenon to a national
phenomenon.
Mobile Music
Mobile music is the fastest growing segment of the music industry as reported by
Pricewaterhouse Cooper‘s. An increasing base of radio listeners, radio stations such as Radio
67
Mirchi have collaborated with mobile carriers to create subscriptions services that allow users to
stream the stations‘ broadcasts on their phones. The subscription prices are incredibly low—for
INR 10 ($0.22 USD) per week, subscribers can stream 100 minutes of radio. (PwC, p. 73)
Television companies are also working with mobile carriers to provide portable content.
UTV@play is a catalogue of Bollywood and international music videos available on mobile
phones provided by BSNL, MTNL, and Vodafone, India‘s largest carriers.
In 2009, Reliance Communications launched what it calls a ―mobile jockey portal‖ which
enables users to call in to a live mobile radio jockey 24 hours per day from any location to
discuss anything from celebrity gossip to current events and recipes. ―Music Box‖ is another
service offered by Reliance that enables users to download several songs, bundled in various
―boxes.‖ Vodafone provides subscribers value-added services (VAS) such as ringback tones, as
well as ―Mobile Box Office,‖ a service which offers dialogue from or the synopsis of films or
songs, and teasers of upcoming films.
Icon Group estimates that the potential demand for India‘s mobile music sector to be
around $277.4 million.
Licensing
Because most Indian music is created on a work-for-hire basis for the film companies
utilizing it, synchronization licensing is not a large source of revenues for the industry.
Mechanical royalties account for 10% of the market, (Butler, par. 3) but foreign publishers tend
to have a difficult time obtaining their share. Indian record companies generally claim that the
law is ambiguous regarding mechanical royalties, that such royalties are voluntary and only paid
to local publishers as a courtesy. There is also disagreement between publishers and record
68
companies about how mechanical royalties should be calculated, whether as a percentage of the
published price to dealer or the retail price. The managing director of BMG India estimates that,
if publishers and labels can, in fact, work out a solution, the Indian publishing business could
generate upwards of $25 million annually. (par. 9)
Live Performance
Pricewaterhouse Cooper‘s reports that Live Performance is emerging as a promising
industry, estimated at about INR 130 billion ($3 billion USD) in 2008, and is expect to grow at a
compound annual growth rate of 23% until 2014. (PwC, p. 84) Event management companies
are collaborating more with advertising firms and professional firms, the latter wishing to
minimize regulatory issues. Event management companies bargain with PPL and IPRS to
determine how much of their revenues for each performance will be paid into the music industry;
PwC reports that it is currently ―a small contributor to the industry.‖ (p. 84)
Outside of corporate events, religious festivals very often incorporate devotional music
and dance, and many live performers are classical musicians who play more traditional halls.
Dance performers seem to be the most popular performers, most likely because of the range of
cultures across India‘s many regions.
IPRS charges a fee to what it deems—as per its website—to be ―traveling showmen
moving around without any fixed place of Performance or in connection with roundabouts,
riding devices, side shows etc. on open spaces or temporary fairgrounds by way of radio, tape,
television, video or any other mechanical means or by live means.‖ Most likely applicable to
circus-like performers, some festival performers may also fall into this category.
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A number of widely witnessed live performances are broadcast in the form of awards
shows. After the International Indian Film Academy‘s 2010 awards show, India Today reported
that the show was ―is not just about the awards anymore, it's about which star is performing on
the stage.‖ (IndiaToday, video)
However, while some international artists have stopped in India on their world tours, the
visits are few and far between. Although U2 claimed the title for highest-grossing tour in 2009,
their endless traveling did not include a performance in India, despite a Facebook group petition;
nor did Bruce Springsteen‘s tour, which came in close behind U2‘s. India‘s lack of infrastructure
makes it difficult to organize a large tour of the country, as does its lack of large venues.
Venues
The Hard Rock Café has three locations in India, among them HRC Mumbai, which
features two stages for performances; and New Delhi, its newest location, with a single stage and
a facility targeted at its relatively high-class clientele. Blue Frog is another popular venue in
Mumbai for contemporary musicians, but it is more than just a performance venue. Blue frog is a
project which also includes four recording studios, a music production house, an independent
record label, and an artist management service.
In addition to an Entertainment Tax payable to the Indian government, venues are subject
to pay IPRS a minimum royalty of INR 75,000 ($1,700 USD) per show for a commercial
exploitation of the show, whether or not admission is charged, and may be charged a royalty of
INR 75 ($1.70 USD) per seat with a minimum capacity of 40%. (Delhi Entertainments and
Betting Tax Act of 1996, section 6) Performances including those by a celebrity are considered
70
premium events, and are subject to higher royalties. Discounts are available to those venues
which secure licenses at least eight days prior to the event.
Outlook
Pricewaterhouse Cooper‘s expects global consumer spending on recorded music to
decrease slightly in 2010, but rebound thereafter as growth of the digital market offsets declining
physical sales. The recorded music market is expected to increase at a compound annual growth
rate of 1.1% between 2011 and 2014, to reach $27.9 billion. (PwC, p. 85) Asia-Pacific is
expected to be the fasted growing region, however, growing at a compound annual growth rate
of 4.3% to $10.4 billion and surpassing EMEA (Europe, Middle East, Africa) to become the
largest region in 2011. (p. 85)
While physical distribution is expected to decline in each region, the digital market will
be propelled by new digital stores and mobile streaming services, as well as increased
penetration of broadband and smart phones. Internet Service Providers to users have begun
issuing threats to stop service if it is being used to share files, which has significantly helped
deter piracy in those territories where
the warnings are implemented.
The music industry is expected
to grow at a compound annual growth
rate of 29% to INR 26.5 billion ($594
million USD) in 2014, growing at a
faster pace as the proportion of non-
71
physical sales overtakes the proportion of physical sales. (PwC, p. 86) While physical sales
currently account for 53% of recorded music revenues, PwC estimates that the physical format
will contribute only 9% of revenues by 2014. (p. 86)
Film
Pricewaterhouse Cooper‘s defines filmed entertainment as ―consumer spending at the domestic
and overseas box office in the form of ticket sales, home filmed entertainment…and ancillary
revenues from broadcast syndication rights, mobile VAS,‖ (p.54) and other new media related to
films.
Films are produced in a number of genres and languages. 235 Bollywood films were
released in Hindi in 2009, and an additional 1,053 films were released in Tamil, Telugu, and
several other Indian languages. (CITE ME) The time period that a film is in production varies
from six to eighteen months. According to the Indian Independent Film Association, 23 million
people see a film every day.
PwC estimates the Indian film industry in
2009 at about INR 95 billion ($2.13 billion USD), a
decrease of 11.3% from 2008. (p. 56) The decline
can be explained by a multiplex strike which
resulted in an absence of new releases for eight to
ten weeks in 2009, as well as a swine flu outbreak
which drove audiences away from theatres. In
2009, PwC estimates there were 3 billion viewer admissions at the domestic box office, mostly
to Hindi Bollywood films, generating INR 70 billion ($1.6 billion USD) in revenue. (p. 59) PwC
Source: PwC
72
divides overseas distribution into three territories: the United States, the United Kingdom, and
rest of the world. The United States contributes the greatest revenues to overseas distribution.
Overseas box office sales were INR 8 billion ($180 million USD), (p. 59) down from 2008
because of the recessions abroad.
The multiplex strike was the result of a disagreement between cinemas and film
producers over the revenue sharing system. Producers sought an equal revenue share from films
regardless of their success, while cinemas wanted to continue linking revenue shares to the box
office performance. The strike cost the film industry INR 3.5 billion ($78.4 million USD) and
caused nearly 450 theatres to shut down in an effort to control costs. (PwC, p. 54)
Broadcast syndication and mobile are emerging as the two largest contributors to the
ancillary revenue stream. Broadcast Syndication consists of pre-recorded, live action, and
animation content. 85% of broadcast syndication is comprised of film content aired on television
channels. (PwC, p. 60) High acquisition fees in 2008 led to a stalemate in 2009 when
broadcasters were not willing to pay such high prices for expensive films produced and released
in 2008, contributing to a lull in the segment. With respect to mobile distribution, telecom
operators anticipate using the grater bandwidth provided by 3G to provide services in the form of
VAS such as Airtel Talkies, a service providing access to a film‘s soundtrack, storyline, and even
dialogue clips before its release.
73
The Indian Film Company Limited is an investment fund attempting to establish a library of
intellectual property rights for film in a variety of formats, such as satellite, home video, and
mobile. It aims to generate returns on investments in a portfolio of Indian films generally
targeted at the Indian audience.
Television
A $5.8 billion industry, Pricewaterhouse Cooper‘s defines the television market in terms
of distribution (subscription revenues from broadcasts), advertising (revenues from ad space sold
by programs and service providers), and content.
According to Euromonitor‘s consumer lifestyle report on India, 47% of the population
owned a colour television in 2007. (Euromonitor, p. 91) Subscriptions contribute 62% of
revenues to television‘s total in 2009, up 10% from 2008. (PwC, p. 24) Households which pay
for television are those who have cable, satellite, or a service provided through internet protocol
television15
(IPTV). In 2009, six satellite broadcasters controlled an estimated 35% of the market
with 14 million subscribers, and are progressing quickly in rural India. (PwC, p. 25) Because
high-speed broadband connections are not numerous, IPTV remains a niche market with a wealth
of potential, as it bundles entertainment, internet, e-government, and video streaming for the
consumer in her own home. MTNL, BSNL, and Bharti currently control the IPTV segment.
Carriage fees are typically paid in a negotiated agreement between the broadcaster and
the subscriber as a fee for services. The fee depends on broadband speed for digital carriers and
the number of channels the subscriber wishes to view. There are currently 461 television
15
Live television over an internet connection
74
channels in India, an increase of 18.5% from 2008. (PwC, p. 29) Most of the growth is
attributable to regional channels, broadcasters beginning to cater to regional customers‘ interests.
The majority of channels are general entertainment channels (GECs). Reality television
has seen the greatest surge in television content since 2008, although daily soap operas remained
at 60.4% of content generated by GECs, (PwC, p. 31) though storylines have moved away from
unrealistic depictions of the characters to focus on positivity, family values, and more realistic
plotlines. Many channels went global in 2009 to take advantage of the Indian diaspora. NDTV,
after entering the US, UK, Middle East, and North African markets, has arranged to enter
Canada.
Sports channels have increased many times over, thanks in great part to India‘s love for
cricket. The value of the rights for the 2010 World cup increased from $8 million in 2006 to $42
million. (PwC, p. 121) Many channels are also in the
process of launching sports news channels.
Most prominent music channels rebranded
themselves or changed content offerings in 2009, as
they increasingly offer non-music programs. The cost
of acquiring music for television has increased
significantly—up to INR 4,000 ($90 USD) per song,
per airing16
, (PwC, p. 35) in combination with the
marginal costs of airing in certain markets. Each
channel has a separate deal with each of the music owners, generally with an annual term, in
addition to high carriage fees. It is likely that the content on these channels will continue to shift
towards non-music with a time slot for pure music.
16
Compared to INR 1,000 ($22 USD) several years ago
75
Pricewaterhouse Coopers expects the television industry to grow by 12.9% from 2010 to 2014, to
reach INR 488 billion ($10.9 billion USD). (PwC, p. 41) The growth will be driven by
digitization and the expansion of the rural market, as well a continued expansion of GECs into
the global television market.
Advertising
Internet
One of the fastest-growing segments of India‘s entertainment and media industry,
components of the Indian internet advertising market include displays, classifieds, paid searches,
and videos. Growing by 20% in 2009, internet advertising hit INR 6 billion ($133.5 million),
(PwC, p. 90) growth fueled by a similarly growing internet user base. Coupled with increasing
reach of broadband penetration and mobile internet capabilities, projections indicate internet
advertising to grow at an even faster rate.
The effectiveness of advertisements are measured in cost per impression (CPI or CPM
per 1000 impressions) in which advertisers pay for a certain number of impressions, cost per
click (CPC) in which advertisers pay on the
number of times the advertisement is actually
clicked, or cost per acquisition (CPA) in which
advertisers pay if a user both clicks the
advertisement and completes at least one step in the sales process.
Online video ads are gather momentum; AC Neilson reports that 85% of users recall
online video ads, as opposed to the 54% who are able to recall the same ads on television. (PwC,
76
p. 92) Mobile phone advertisements lead the product categories advertised with online videos,
closely followed by bank loans, then entertainment sites, job sites, and investment options.
To realize its full growth potential, internet sites must overcome their own images. A
survey by the Indian Internet and Mobile Association revealed that 70% of internet users feel
that online information is inaccurate, (PwC, p. 90) and advertisers generally distrust the
effectiveness of online advertisements because the effectiveness of the ads are difficult to
measure. But as broadband households increase, there can be little doubt that online
advertisements have a larger audience. By 2014, the internet advertising segment is expected to
generate INR 15 billion ($333.9 million USD) in revenues. (PwC, p. 94)
Radio
In 2009, radio
generated INR 9 billion
($200.3 million) and
represented 4.3% of the
total advertising industry. (PwC, p. 68) Television channels spend the most in advertising on
radio, followed by mobile phone service providers. By 2014, PwC projects the radio advertising
industry will be worth INR 16 billion ($356.1 million USD). (p. 68)
Television
Although advertising rates decreased in 2009, volumes
increased, leading to a growth of 6%, despite less
spending by corporations having financial difficulties, hitting INR 89 billion ($1.9 billion USD),
77
and is expected to grow to INR 170 billion ($3.5 billion USD) by 2014. (PwC, p. 22) Mobile
phones service providers and manufacturers cut advertisement spending, while toilet soaps,
shampoos and toothpastes increased it.
Regional markets—especially regional newspapers—are expected to contribute
significantly to print advertising in the next five years. Local advertisements grew up to 20% in
2009. (PwC, p. 44) Online advertisements are next expected to produce serious competition for
print media over the next five years, as online print market is limited to e-newspapers and e-
magazines. English newspapers account for the bulk of print advertisement revenues—about
51%. (p. 44) Education and services make most use of the print advertising medium, contributing
49% of revenues in 2009. (p. 44)
Advertisements will continue to drive 67% of revenues in the print sector, (PwC, p. 52)
but the overall proportion of print advertisements is decreasing in relation to total advertising
revenues.
Other Venues for Advertising
The Out-of-Home sector includes billboards, bus advertisements, bench (or street
furniture) advertisements, and other signage. Billboards are being replaced with digital billboards
upon which clients can upload their ads from their offices; some buses and elevators display
content that can be updated in real time; the government is making use of street furniture to sell
ad rights for a period of seven years (currently). The OOH market declined 17% in 2009 to INR
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12.5 billion ($278.2 million USD), but is expected to grow to INR 21 billion ($467.4 million
USD) by 2014 as advertisers participate in more interactive forms of OOH media. (PwC, p. 101)
79
IMMIGRATION
The Indian government requires all foreign nations who are visiting the country to be in
possession of ―a genuine and valid national passport or any other internationally recognized
travel document establishing his/her nationality and identity,‖ (India Visa Centre) which must be
accompanied by the foreigner‘s photograph. Nepal and Bhutan nationals are not required to have
passports to access India, so long as they enter the country from the border; they are still
required to carry proof of identity.
Visas are available in different categories, depending on the reason the foreigner wishes
to enter the country, and issued by the Indian Consulate in the applicant‘s territory. The visa
issued to the foreigner lists specific numbers of entries allowed, as well as his permitted duration
of stay. Should the foreigner not be in possession of a visa upon his landing in India, an
immigration officer may grant him a Temporary Landing Permit (TLP), which allows him to
stay in the country for 72 hours. TLPs are issued for an additional fee, provided that the foreigner
has a confirmed ―onward journey‖ within the 72 hour period, and that he is not a national of a
non-eligible TLP country. Visas are valid from the day they are issued.
If a foreigner is planning to stay in India for more than 180 days, he must register in-
person with the Registration Officer in his area within a specified period denoted on his visa.
Registration facilities are not located at airports, but are located throughout India‘s major
townships and cities.
A foreigner may be denied entry if he is not in possession of a valid passport and visa; is
insane; is suffering from an illness which could be contagious and a danger to the health of the
80
general public; is involved in or has committed a crime wherein he can be extradited; or he is
prohibited entry by the Central Government.
Employment Visa
Also known as a Work Permit, employment visas17
are issued to foreign nationals who are
employees or paid interns of Indian companies, or volunteers with Non-governmental
organizations (NGOs). Employment visas are generally granted for up to one year, and may be
extended for up to five years in one-year increments. To qualify for an employment visa, the
foreigner must command an annual salary at least $25,000.
Should the foreigner arrive on a Long-Term Employment Visa18
, she must register within
14 days of her first arrival in India. To register, the employment visa-holder must furnish the
Registrar with an original passport; three copies of her registration form; a copy of her
employment contract or appointment letter; income tax papers for durations of more than one
year; notarized lease agreement, hotel confirmation, or other proof of residence; and a request
letter and an undertaking19
on company letter head ―duly stamped and signed by an authorized
signatory.‖ (India Visa Centre)
Business Visa
Business Visas are reserved for foreign nationals who are establishing20
contracts, etc. on behalf
of countries outside of India. Though visas can be valid for more than one year with multiple
17
Pricewaterhouse Cooper‘s states that income received in India cannot be repatriated unless the emigrant holds a
valid employment visa. 18
Duration of stay exceeding 180 days 19
See appendix C. 20
The Indian government requests that applicants who are employed in projects or contracts should apply for
employment visas.
81
entries, the period of stay per each visit may not exceed six months. Foreigners who have
established or who intend to establish joint ventures in India may be eligible for visas which are
valid for up to ten years.
Should the foreigner also need to register, he must provide the Registration Officer with
his visa; a valid passport; proof of a residential address; documentation of the business purpose
as well as permission from the Reserve Bank of India and Indian government in the cases of joint
ventures; and an undertaking on company letterhead.
Entry Visa
The government states that ―if the applicant does not meet any other visa type standards, they
should apply for an Entry visa.‖ (India Visa Centre) The Indian Ministry of External Affairs
grants entry visas under circumstances in which the applicant is a person of Indian origin, or who
has held Indian nationality or is a child or grandchild of a person who has held Indian
nationality; is a spouse or child of a person of Indian origin; is a spouse or dependent of a foreign
national entering the country on a long-term employment, business, research, or student visa, in
which case the duration of the entry visa is granted co-terminus with that of the principal visa
holder.
82
TAXATION
Tax payers are required to have a Permanent Account Number (PAN), for which a foreigner can
also apply. The tax year is designated as the ―previous year,‖ or the year during which income
subject to tax is computed; and the ―assessment year,‖ or the year during which the previous
year‘s tax is calculated. The Indian tax year runs from April 1 to March 31, where March 31 is
the end of the previous year, and April 1 is the beginning of the assessment year.
Residency
Residency for tax purposes is dependent on the intended length of stay; staying longer than
intended could effect residency status. If a foreign national spends more than an aggregate of 182
days in India during any previous year, she will be considered a resident.
Non-Resident
If an individual has been in India for more than 60 days, but less than 182 days; and if
the foreign national has not been in India for an aggregate of 365 days over the four years
preceding the previous year, she will not be considered a resident.
Resident
Should an individual stay in India more than 182 days of the previous year; or more than
60 days in any previous year and an aggregate of 365 days during the 4 years preceding the
previous year, she will be considered a resident.
83
Not Ordinarily Resident / Ordinarily Resident
If an individual has been a non-resident for nine of 10 years preceding the previous year;
if she has been in India for less than 729 days during the seven years preceding the previous
year, she will be considered ―resident but not ordinarily resident,‖ or RNOR. If an individual
cannot be classified as RNOR, or a non-resident will be classified as a ―resident and ordinarily
resident‖ (ROR).
An ROR‘s worldwide income is taxable in India, whereas non-residents or RNORs are
only taxable on income they earned or received in India.
Taxable Income
Salary Income
Salary income for employment in India is subject to tax if services or employment were
rendered in India. Any other income received, accrued, or arising from activities in India will
also be subject to income tax. All amounts arising from employment or an office are considered
taxable income.
Additionally, and employer will deduct and contribute 12% of an international worker‘s
salary—including basic wages, but excluding bonuses— toward India‘s Provident Fund. The
contribution is subject to a maximum INR 100,000 ($2,200 USD) per year. (PwC, p. 20)
Common remuneration items are allowances, personal expense reimbursement, cost of
education, and employee benefits. Housing benefits are usually taxed at 15% of either the rent
paid or the salary paid, whichever is less. (PwC, p. 7) Hotel accommodations may be taxed at the
lesser of 24% of salary or amount paid to hotel. (p. 7) If the employer provides a car and driver,
84
the facilities are taxable at INR 1,800 to INR 2,400 ($40 USD - $54 USD) if they are available
for both professional and personal use. (PwC, p. 7)
Resident women who earn an income of up to INR 190,000 ($4,200 USD) and
individuals older than 65 who earn an income of up to INR 240,000 ($5,400 USD) are not
required to pay income tax. (PwC, p. 20) For an income of between INR 160,00 and INR
500,000 ($3,600 - $11,100 USD), a tax of 10% is generally applied; for an income of INR
500,000 to INR 800,000 ($11,100 - $18,000 USD), a 20% tax is applied to income as well as a
tax of INR 34,000 ($760 USD) on income less than 500,000; for income greater than INR
800,000 ($18,000 USD), a tax of 30% is applied in addition to an INR 94,000 ($2,000 USD) on
income less than INR 800,000. (p. 20)
An education-cess of 3% of the tax will be applied regardless of income level.
Even if compensation for services rendered in India are paid to a bank account outside of India,
the compensation for those services is taxable in India. Pricewaterhouse Coopers suggests that
when arranging a transfer within a company, an employee should bear in mind: ―where salary
should be delivered; if salary is to be paid outside India, would it be charged back to the Indian
entity; current exchange control regulations for delivering salary; corporate tax implications
Source: PwC
85
(permanent establishment exposure), withholding tax, the transfer pricing regulations and service
tax implications.‖ (PwC, p. 11)
Self-Employment Income
Profits or gains from activities of self-employment which are conducted within India are
subject to tax regardless of residency status; Indian residents will be subject to Indian tax on
profits or gains resulting from their self-employment regardless of where they conduct their
business.
Social Security Taxes
As of November 1, 2008, all International Workers working in an Indian establishment
which employs more than 20 people are required to register for social security unless the worker
is a national of a country with which India has a Social Security Agreement21 or the
establishment is ―engaged in an exempted activity.‖ (PwC, p. 9)
Corporate Tax
The government proposed a new tax law in August of 2009 expected to go into effect
sometime in 2011. The new law replaces the current Income Tax Act, and would bring corporate
tax rates down to 25% from the present 30%. (Economic Intelligence Unit, p. 66) Foreign
companies pay a 40% tax rate at present, but may pay the 25% rate Indian companies are
expected to pay under the new law. (p. 66)
21
So far, India has signed social security agreements with Belgium, France, Germany Luxembourg , Netherlands, Switzerland,
Hungary, Denmark, although the agreements with Belgium and Germany are the only one to have been made operational.
86
Capital Gains Income
Capital assets situated in India and subject to capital gains tax include all forms of
property, stocks, shares, buildings, and goodwill transferred or sold in the previous year, but do
not include personal effects. Assets held for more than three years are known as ―longterm
capital assets,‖ and capital gains from long-term capital assets are subject to a 20% flat tax rate.
(PwC, p. 6) Foreign nationals and non-residents are prohibited from making investments in
―immoveable property‖ (p. 6) in India before obtaining approval from the Reserve Bank of India.
Wealth Tax
Only income greater than INR 3 million ($67,000 USD) is subject to a wealth tax of 1%,
valuated as of March 31 of each year. (PwC, p. 6)
Withholding Tax
Employers are required to withhold tax on salary earnings for services rendered in India,
whether or not the employer is based in India. If the employer fails to do so, it is the employee‘s
responsibility pay to the government the advance tax payments, which, if late, may be charged
interest. Refunds can be claimed in the annual income tax return.
Double taxation agreements
India has double taxation agreements with various countries in which a resident of one
country is exempt from tax on employment income in India if her stay in India is for less than
183 days of the tax year. A list of countries with which India has double taxation agreements is
given in Appendix B.
87
Service Tax
Section 66 of Indian tax law provides that a service tax may be levied against services received
by individuals from businesses outside of India. According to Indian tax law, the maximum
service tax which can be charged is INR 1,000,000 ($22,300 USD).
Entertainment & Media Industries subject to Service Tax
Broadcasting services
Sound Recording Studio or Agency Services
Copyright Services
Event Management Services
Value-Added Tax (VAT)
VAT is based on the value of the goods added to a product at every level of production
(or the aggregate value of goods added to the final level of production if vertically integrated),
not just the profit. VAT is typically charged to the consumer, much like sales tax.
Entertainment Tax
Large-scale entertainment shows, privately sponsored festivals, movie tickets, video
game arcades, amusement parks, etc. are subject to an entertainment tax in India. The tax is
typically accounted for in the price of the ticket or product, and runs at about 25%-30%,
depending on the kind of entertainment.
Source: PwC
88
Promoters or venues for live performances must obtain permission from the
Entertainment Tax Department before producing commercial shows. Hotels, restaurants, and
clubs are generally subject to an entertainment tax on any tickets, meals, or refreshments served
in connection with a performance ―organized on a special occasion…with a view to attract
customers.‖ (Entertainments and Betting Tax Act of 1996, Section 7)
Performances ―wholly of educational character;‖ (Entertainments and Betting Tax Act of
1996, 14.1.(a)) for non-profit scientific purposes (14.1.(b)), and for non-profit societies
promoting public health and interest, may be exempt.
Generally, a ticket-seller may stamp tickets to denote payment of the tax. The tax is
typically paid in a consolidated payment of a percentage of the gross income the seller receives
for admission.
89
INVESTMENT RECOMMENDATIONS
India‘s low literacy rate, increasing disposable income, and incredibly large market make
the country a prime entertainment investment opportunity. Illiterate Indians rely on audio visual
programming for news and entertainment; as more literate, and generally younger, Indians are
employed, they spend their disposable income on consumer electronics, music, and films; as
technology expands into the more rural regions of the country and new distribution outlets
emerge, the demand for entertainment will flourish.
To facilitate its growth and capitalize on the vast opportunities emerging in the Indian
market, it is recommended that the following areas be reviewed for an investment of $1.2 billion:
Infrastructure
It is recommended that 10% of the funds allocated to the Indian market be invested in
supplementing government programs to develop city and rural infrastructure.
As consumer and household income increases, car sales are expected to overtake bicycle
sales. However, the extent of growth in the automobile industry depends on whether roads within
and between cities, currently in desperate need of repair or even existence, can support it. It is
likely that those with the income to purchase cars are also purchasing music and electronic
devices, which could potentially lead to sales of music with increased penetration of in-car audio
systems.
Additionally, increased infrastructure could make live performance tours more feasible,
especially for international acts. The number of potential ticket-buyers in each of India‘s highly
populated major cities is staggering; facilitating travel between cities could open up further the
90
most recently emerging segment of the music industry, which is the live performance and event
market.
To help realize IconGroup’s estimate of potential demand of mobile music at $277 million,
it is recommended that 15% of the funds allocated to the Indian market be invested in
financing technological infrastructure for wireless and broadband penetration in India’s
rural regions.
With 72% of India‘s population of 1.2 billion living in non-metropolitan areas, the
market for technology is vast and underdeveloped, as broadband and wireless penetration have
yet to extend to the reaches of many of these areas. Indian telecom giant, BSNL, and the Indian
government began a multi-billion dollar project in 2009 to build wireless towers across rural
India. As BSNL‘s competitors seek to expand into rural regions, financing additional projects
could lead to large returns on investment as rural populations adopt wireless technology, such as
3G.
Technology
It is recommended that 35% of the funds allocated to the Indian market be invested in
companies providing internet service for broadband and wireless access.
5% of the Indian population generated $3 billion in subscription revenues in 2009. At this
rate, the potential growth of the internet access market is $57 billion. The number of subscribers
is expected to more than double by 2014, then valuing the market at more than $6 billion,
assuming the proportion of total penetration to subscription revenues remains the same.
91
It is recommended that 15% of the funds allocated to the Indian market be invested in
existing radio broadcasting companies, and 5% be invested in radio broadcasting
companies which receive licenses during phase III privatization.
As phase III of the Indian government‘s plan to privatize radio unfolds, the growth of
radio is expected to increase by $122 million in 2014. However, this estimate by
Pricewaterhouse Cooper‘s could be rendered inaccurate by the Indian Copyright Royalty Board‘s
recent decision to eliminate performance royalties in lieu of sharing revenues, which the CRB
decided knowing and intending to give radio stations the upper-hand, indicating that the segment
could be more profitable than currently projected.
Content
Given the expected rise in mobile and internet technology over the next four years,
Pricewaterhouse Cooper‘s projects that the Indian music industry will grow to approximately
$594 billion by 2014. Developing content which incorporates India‘s film music-centered
business model as well as emerging digital distribution channels will be the key to reaching
PwC‘s projection.
In addition to potential licensing revenues from ringtone sales, it is suggested that 20% of
funds allocated to the Indian market be invested in content development such as:
applications for use with smart phones which can be tied in with music and video
downloads or subscription-based streaming; users can have access to an entire catalogue
of content or periodic selections such as ―videos-of-the-week;‖
10 to 15-minute Bollywood-like short films which can be streamed online or via mobile
92
phone as webisodes, with an option to purchase songs at the end of each webisode as well
as options to purchase season packages;
―Making the Video‖ reality series broadcast on television and online which takes
audiences behind-the-scenes of their favorite music videos or scenes from upcoming
films, and can be tied into video-of-the-week applications, song and video bundles, and
streaming or purchasing of songs featured during the season.
93
ISSUES WITH INVESTMENT
Tax & Royalty Considerations
If adequate infrastructure could enable increased touring, the venues hosting performers
may face increased entertainment taxes and IPRS performance royalties, which could drive up
ticket costs and likely hurt attendance. To counteract this potential setback when artists do tour
more actively, it would be wise to encourage venues to pressure the government to either
decrease or restructure the entertainment taxes it charges some venues, and to renegotiate their
terms with IPRS as to how they must pay performance royalties.
Macroeconomic Considerations
Although India‘s recent economic growth has been instigated by government reforms,
government policies remain the greatest hurtle to overcome in taking up business in India, and
despite sound legal frameworks, a general lack of implementation and law enforcement
continues to hold India back. The questionable efficiency of the Indian government ultimately
rests on the idea that India is a democracy serving quite literally a billion voices, ideas, and needs
without a clear unifying goal or sense of national purpose. A nation of 2,000 ethnic groups,
India‘s cultural disorganization is as much its greatest liability in the marketplace as its greatest
asset. As incumbents are rarely re-elected, the constant overturn of government policies and
reforms makes significant long-term change difficult to achieve.
In trying to pull 25% of its population out of poverty, the government‘s priorities may
often conflict with those of music companies or composers. The reality is that democracy moves
slowly, and India‘s democracy moves slower. Though its economy is growing quickly,
94
government policies struggle to keep up, ultimately causing an increase in the costs and
disadvantages of doing business in India.
As for most self-determining nations, it is likely that as India‘s population gradually
defines itself on a national, rather than regional, scale, more consistent governmental
administrations and policies can enhance the government‘s efficiency and enable the
infrastructure which would make sustainable growth possible.
95
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98
APPENDICES
99
APPENDIX A
List of Countries included in the International Copyright Order, 1999
I. Berne Convention Countries which have ratified/accepted/acceded to the 1971 Text of the
Convention
Albania, Argentina, Australia, Austria, Bahamas, Bahrain, Barbados, Belarus, Benin, Bolivia,
Bosnia & Herzogovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon, Cape Verde,
Central African Republic, Chile, China, Colombia, Congo, Costa Rica , Cote d‘Ivoire, Croatia ,
Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican
Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gabon,
Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti,
Holy See, Honduras ,Hungary, Iceland, Indonesia, Italy, Jamaica, Japan, Kenya, Latvia, Lesotho,
Liberia, Libya, Lithuania , Luxembourg, Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius,
Mexico, Monaco, Mongolia, Morocco, Namibia, Netherlands, Niger, Nigeria, Norway, Panama,
Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Russian
Federation, Rwanda, Saint Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines,
Senegal, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname ,Sweden, Switzerland,
Thailand, The Former Yugoslavia Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia,
Turkey, Ukraine, United Kingdom, United Republic of Tanzania, United States of America,
Uruguay, Venezuela, Yugoslavia, Zambia, Zimbabwe (Total - 116 Countries)
II. Berne Convention Countries which are yet to ratify/accept/accede to the 1971 Text of
Convention
Belgium,Canada,Chad,Fiji,Ireland,Israel,Lebanon,Liechtenstein,Madagascar,New
Zealand,Pakistan,Romania
III. Universal Copyright Convention Countries which have Ratified/Accepted/Acceded to the
1971 Text of the Convention Convention
Algeria, Australia, Austria, Bahamas, Bangladesh, Barbados, Bolivia, Bosnia &Herzegovina,
Brazil, Bulgaria, Cameroon, China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic,
Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Guinea, Holy
see , Hungary, Italy, Japan, Kenya, Mexico, Monaco, Morocco, Netherlands, Niger, Norway,
Panama, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Rwanda, Saint Vincent
and the Grenadines, Saudi Arabia, Senegal, Slovakia, Slovenia, Spain, Sri Lanka, Sweden,
Switzerland, Trinidad and Tobago, Tunisia, United Kingdom, United States of America,
Uruguay, Yugoslavia,
100
IV. Universal Copyright Convention Countries which are yet to Ratify/Accept/Accede to the
1971 Text of the Convention
Andorra, Argentina, Belarus, Belgium, Belize, Cambodia, Canada, Chile, Cuba, Fiji, Ghana,
Greece, Guatemala, Haiti, Iceland, Ireland, Israel, Kazakhistan, Lao People‘s, Lebanon, Liberia,
Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, New Zealand, Nicaragua, Nigeria,
Pakistan, Paraguay, Philippines, Tajikistan, Ukraine, Venezuela, Zambia Democratic Republic
Source: http://copyright.gov.in/Documents/handbook.html
101
APPENDIX B
Source:
Pricewaterhouse
Cooper’s
102
APPENDIX C
Format of Undertaking:
We take full responsibility for the activities and conduct of Mr./Mrs/Ms__________National
of______________during his/her stay in India. If any thing adverse come to notice during this
period, we undertake to repatriate him/her at our own cost.