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The Freefall of Freelancers

The lack of supportive laws and policies have multiplied the hardships of the art and culture sector in India during the pandemic.

Photo by Hans M on Unsplash

Things look grim for the arts and culture sector. Last month, the first Taking The Temperature report, released jointly by the British Council, Federation of Indian Chambers of Commerce and Industry (FICCI) and the Art X Company, said that six out of 10 MSMEs (micro, small to mid-size enterprises) in the creative sector have stopped functioning because of COVID-19-related restrictions. These include advertising, publishing, photography, design, performing arts and event management companies. Event managers are worst hit, with 90% of their work cancelled. The report says 88% of people in this sector work either in MSMEs or are freelancers, which makes it a part of the gig economy. Precarious times, few choices

‘Gig’ is slang for short-term engagements between organisations and employees. This kind of economy, in contrast with a conventional long-term employment jobs’ market, comprises part-time workers, freelancers, independent contractors, contract workers, and project-based workers and interns.

The gig economy model is hailed for its flexibility, and works in countries like the US, where federal minimum wage for freelance or independent workers is designated. However, in India, where no such checks and balances exist, it is potentially exploitative. A gig worker has unpredictable income, no job security, no benefits such as EPF, health & medical insurance, pension, and paid leaves.

Moreover, freelancers regularly contend with inordinately long payment cycles, irregular payments, and unresponsive clients. With the pandemic causing a severe financial crunch, even closure of commissioning organisations, these problems have grown. Yet they do little to challenge delayers and defaulters for fear of not getting work in the future. Beyond writing multiple follow up emails, making repeated calls, and in desperate cases, naming and shaming clients on social media, few are willing to take legal recourse. Such reticence on the part of culture sector employees and freelancers is not because of lack of enterprise or energy, but because there are few or no legal or policy frameworks in place.

Shrinking ground for arts organisations

The pandemic is the worst time for gig economy workers, as more sector spaces continue to close down. Event companies and museums are among those that have been badly hit. Classified as MSMEs in India, museums have stayed shut since the lockdown was imposed in March and many museum workers have lost jobs.

The Piramal Museum of Art in Mumbai is one such case. By mid-July, they had to let most of their staff go, retaining just their museum director, Ashvin E. Rajagopalan. About the rest of the staff, Rajagopalan says reassuringly, “As per their employment contract, they have been compensated and we’re providing the necessary connections and introductions to help them move forward.”

However, professionals who’ve faced the axe may need more than just reassurance. A Delhi-based ex-HR-professional, on condition of anonymity, said, “The situation is quite bad, especially in cultural organisations. Most organisations have implemented a pay cut of anywhere between 25% to 50%, and many more have been asked to go on leave without pay till the pandemic crisis tides over. I have a feeling that many organisations will misuse the situation to exploit employees further in the coming months. They will either be asked to fall in line, take salary cuts, forget incentives and promotions and generally be grateful for just having a job at a time when the world unemployment rates have risen phenomenally.” Summing up HR policies wryly, he adds, “HR is always anti-employee and pro-management.” Freefall for freelancers

If the case of institutional layoffs is bad, the deal is far worse for freelancers. Educator and storyteller, Sangeeta Goel (35) from Bengaluru says, “As the pandemic hit in March, I started losing all my training assignments. I was about to begin theatre training for children at a school, which also was cancelled.” Goel tries to maintain her empathy while making follow up calls every two weeks, but does it with consistency.

Chennai-based freelance photographer and graphic designer, Bharathee (29), says she has managed to get only three new projects since March, has lost out on her part-time job, and hasn’t received payments from some pre-lockdown assignments. Bharathee, who recognises her privilege of family support, chooses to wait it out.

Raja Ramesh (name changed on request), a 42-year-old television actor in Mumbai, is also disgruntled about the way actors are treated in the industry. Having placed all his bets on what was supposed to be a plum role in a daily soap created by one of Mumbai’s biggest production houses, he moved to the city earlier this year. But the pandemic caused the show to not just be delayed but also rumoured to be ending very soon. “Their original contract promised to shoot at least 25 days in a month with me. In the two months that I managed to work on the show, they did not shoot for even 10 days. To make matters worse, my role was cut short, and the contract was terminated without any prior notice or paperwork. It was very unprofessional and inhuman, with no regard for the artists in any way. It was a win-win situation for them, and now I'm forced to pack my bags and head back home,” he said.

The legal angle

For many artists, problems of non-payment are compounded by those of non-recognition/ attribution. This makes the legal issues faced by the sector two pronged: one related to labour protection and the other, to copyright.

The first is something of a lost cause. Sanjoy Ghose, a Delhi-based lawyer specialising in Labour and Employment Law, says that as per the Bharat Kala Kendra Case, the Supreme Case holds that artists are not workmen. Ergo, no protection of the Industrial Disputes Act is available to them. Which means, contracts are their only safeguards, unless they are employed by government or public sector undertakings (PSUs) such as Prasar Bharati employees.

Strong contracts, MoUs (Memorandum of Understanding) and NDAs (Non-Disclosure Agreement) would need the services of lawyers, a luxury gig-workers are unlikely to be able to afford. The contracts organisations give to artists or gig workers to sign are often disproportionately one-sided. In a session on legal awareness at the International Arts Summit (organised by the Women's Indian Chamber of Commerce and Industry Arts Leadership Council, and The Creative Arts on July 30 2020), Ishani Sahiwal Chandra, a lawyer specialising in Intellectual Property and Copyright laws, urged artists and culture workers to avail of contractual protection. The Arts Leadership Council, she said, has a network of law firms that offer pro bono support to artists. Shwetasree Majumder, Intellectual Property litigator, said that in addition to the Copyright Act, artists of the non-performing kind should be aware of laws such as the Designs Act, applicable in case of commodities’ creation and fine artists and authors should know about ‘moral rights.

If laws and protections seem inadequate and/or there is breach of contract, measures such as legal notices and civil lawsuits can be taken. Ghose clarifies that such legal remedies are available only when the commissioning body comes under the Shops and Establishments Act. “Maintaining basic records is important. Document every interaction through an email or WhatsApp message. Keep all proof of actual work as well as salary or fee paid. This would minimise any dispute on actual employment or engagement, duration and rate,” he adds. Unlearn-relearn

For centuries, the Indian artist was a nameless, faceless figure. Religion and tradition framed art as an act of piety and devotion, and hence one did not attach one’s name (and thereby ego) to it. This practice of creating, owning, and seeking recognition for one’s art is fairly new to the Indian artist, and needs a shift in the collective consciousness of the fraternity.

Right now, this is a sector where few legal or corporate safety nets exist. Hence the best bet for artists, freelancers, culture professionals, and gig workers, seems to be legal awareness and setting up safeguards for the self. Prudent use of resources such as free contract templates offered by organisations such as Contracts for Creators, and taking legal action when necessary is something workers from this sector need to start doing. It’s a view singer, Sona Mohapatra, who is known to be fiercely vocal about artists’ rights, shares. Speaking at the International Arts Summit, she said, “Often, artists who know and stand up for their legal rights are seen as ‘lesser artists’ and face hostility from the industry. But it is imperative that artists know them and seek what their due is.”

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