21 May 2010

Non-Voluntary Copyright Licences: Current Law and the Proposed Amendment

Copyright licences may be either voluntarily entered into by the copyright owner (i.e. the licensor) or be imposed on him. If the licence is not voluntarily entered into by the copyright owner, it is referred to as a non-voluntary licence, and it may assume the form of either a compulsory licence or a statutory licence.
It has been proposed to amend the provisions which deal with compulsory copyright licenses as well as to insert into the Copyright Act provisions which would create new kinds of non-voluntary licenses.

Compulsory Licences

There are currently four sections in the Copyright Act, 1957 which deal with compulsory licenses. It has been proposed to amend some of the provisions of these sections to widen their scope, as well as to insert into the Act a new compulsory licence for the benefit of disabled persons.

Section 31

Section 31 of the Copyright Act, 1957 deals with the grant of compulsory licenses in respect of certain works withheld from the public. Under this section, if the owner of the copyright in an Indian work refuses to republish or allow the republication of such work or if he refuses to allow the performance of the work in public, and, if by reason of such refusal, the work is withheld from the public, a complaint may be made for the grant of a compulsory license.

Similarly if the copyright owner has refused to allow a work including one recorded in a sound recording to be communicated to the public by broadcast on terms which the complainant considers reasonable, a complaint may also be made. Thus, the Copyright Board may only go into such issues as whether the price is too high in respect of works which are broadcast, and not in other cases.

Once a complaint is made, the Copyright Board would be required to give the copyright holder reasonable opportunity of being heard and, on the basis of an inquiry, the Board may direct the Registrar of Copyrights to grant to the complainant a compulsory license.

It has been proposed to amend Section 31 of the Copyright Act so that a compulsory license may be granted under this Section in respect of not merely an Indian work but in respect of any work. Considering that a compulsory license may be granted in respect of any work, it has been proposed to delete the explanation which defines what an Indian work is for the purposes of this Section. Further, it has been proposed to allow for the grant of a compulsory license under this Section not specifically to the complainant but to any person(s) who, in the opinion of the Copyright Board, is or are qualified to publish the concerned work. In order to do this, it has also been proposed to delete subsection (2) of Section 31 so as to allow for a compulsory license to be granted by the Copyright Board to more than one person.

Section 31A

Section 31A of the Copyright Act, 1957 deals with the grant of compulsory licenses with respect to unpublished Indian works. It has been proposed to amend section so as to considerably widen its scope. It has been proposed to do this by substituting the existing Section 31A(1) with a new provision which would read as follows:
Where, in the case of any unpublished work or any work published or communicated to the public and the work is withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish or communicate to the public such work or a translation thereof in any language.
Some compulsory licensing provisions were inserted into the Copyright Act, 1957 pursuant to the adoption of the Appendix of the Paris Act of the Berne Convention. In fact, the language of some of the licences provided in Chapter VI of the Copyright Act, 1957 could be considered to mirror the Articles of this Appendix.

The Appendix was drafted for the purpose of allowing and enabling developing countries to enact into their own statutes compulsory licensing provisions. However, in order to avail the facility granted by the Appendix, a country was required to deposit a notification with the Director General of the World Intellectual Property Organization.

Although India had deposited such Notifications, it appears that the permission granted to the country to avail of the allowances made by the Appendix expired on October 10, 1994.1 However, despite this, developing countries have found that it may be preferable to avoid the cumbersome procedure laid out in the Appendix by using Article 9(2) of the Berne Convention to enact provisions which would allow for the grant of non-voluntary licenses.2 This Article states:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
As such, fears that India may be violating its obligations under the Berne Convention by enacting, and in fact, proposing to widen, provisions for the grant of compulsory licenses appear to be unfounded.

The Compulsory Licence for the Benefit of Disabled Persons

(The text of this Part has been reproduced from “Disability and the Indian Copyright Amendment Bill, 2010” by Nandita Saikia.)

It has been proposed to insert into the Copyright Act, 1957 an exception to copyright for the benefit of disabled persons (in Section 52(1)(zb)). In addition to this, it has been proposed to insert into the Act, a compulsory licence which would apply to situations which the exception in the proposed Section 52(1)(zb) did not cover. However, there are several causes of concern with respect to this proposed amendment.

The proposed Section 31B under which a compulsory licence may be obtained states who may apply for a compulsory licence in its first sub-section. This sub-section, Section 31B(1) itself has two major causes of concern. Firstly, the proposed amendment does not allow disabled persons themselves to apply to the Copyright Board for a compulsory licence. On the contrary, it allows only an extremely limited number of organisations which satisfy a number of criteria to apply for such licences to make available copyrighted works in accessible formats.

To be eligible to apply for a compulsory licence to publish any work in which copyright subsists for the benefit of disabled persons in cases where the accessibility exception to copyright does not apply, an organisation must:
  1. Be registered under Section 12A of the Income Tax Act, 1961;
  2. Work primarily for the benefit of persons with disability; and
  3. Be recognised under Chapter X of The Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995.
There are very few organisations in India which would satisfy these criteria. As such, by making the eligibility requirements to apply for a compulsory licence under this proposed Section 31B so limited, the scope of the provision has been severely limited.

Secondly, there is no time limit within which the Copyright Board is required to dispose of applications for the grant of a compulsory licence. The Copyright Board is only enjoined to dispose of such applications “as expeditiously as possible” and to attempt to dispose of them “within a period of two months from the date of receipt of the application”.

Further, it is entirely unclear from the proposed provision what factors the Copyright Board would consider while granting a compulsory licence under this proposed section. Of concern to rights holders, is the fact that this lack of clarity also includes a lack of clarity with regard to the factors which would be used to determine not only how many copies of a work in an accessible format may be published without the payment of royalty but also with regard to how the rate of royalty would be fixed for the remaining copies.

Statutory Licences

It has been proposed to introduce into the Copyright Act, two statutory licenses: one for cover versions, and the other for radio broadcasting of literary and musical works and sound recordings.

Statutory Licence for Cover Versions

It has been proposed to introduce into the Copyright Act, 1957, a statutory licence for cover versions which would state:
31C. (1) Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section:
Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.
(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.
(3) The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings:
Provided that such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.
(4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made:
Provided that the Copyright Board may, by general order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works.
(5) The person making such sound recordings shall maintain such registers and books of account in respect thereof, including full details of existing stock as may be prescribed and shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such sound recording:
Provided that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this section, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty.
Explanation.—For the purposes of this section “cover version” means a sound recording made in accordance with this section.
 The statutory license for cover versions proposed to be provided for in Section 31C  is very similar to the “license” provided for in Section 52(1)(j) of the current Copyright Act, 1957 [which latter Section the Amendment Bill proposes to delete]. According to the Notes on Clauses, the proposed provision ‘seeks to provide statutory licence to any person desiring to make a cover version of a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the consent of the owner of the right in the work in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use’.

The person making a cover version of the sound recording must give prior notice of his intention to the owner of the copyright in the recording and provide to the owner, in advance, copies of all covers or labels with which the sound recordings are to be sold. Cover versions made under this provision cannot be sold or issued in any form of packaging which could mislead or confuse the public with regard to their identity. In particular, they must not contain the name or depict any form of an earlier sound recording of the same work or any cinematograph film in which the sound recording was incorporated. In addition to this, cover versions made under Section 31C must necessarily state on their cover that they are cover versions made under this section of the Copyright Act.

The person making a cover version is not permitted to alter the literary or musical work in the way in which it has not been altered previously either by or with the consent of the copyright owner unless the alteration is technically necessary for the purpose of making the sound recording, and such cover recordings may not be made until five years have expired from the end of the year in which the first sound recording of the work was made.

The person making the recording must also pay royalties in respect of all the copies to be made by him to the copyright owner in advance. The rate at which royalties must be paid is the rate fixed by the Copyright Board in this behalf, and the person making the cover version must pay royalty for a minimum of 50,000 copies of each work during each calendar year in which copies of it are made. The Copyright Board has, however, been granted the discretion to fix a lower minimum number by general order in respect of works in a particular language or dialect in consideration of their potential circulation.

The proposed section also mandates that the person making cover versions maintain registers and books of account in respect of the cover versions which include full details of the existing stock. He must also allow the owner of rights or his duly authorized agent/representative to inspect all such records and the books of account.

A complaint may be brought before the Copyright Board that the person making cover versions has not paid, in full, the amount contemplated by this proposed provision. If the Copyright Board is prima facie satisfied that the complaint is genuine, it may pass an ex parte order directing the person making cover versions to seize from doing so and, after making an inquiry as it considers necessary, the Copyright Board may ask for the orders which include an order for the payment of royalty.

Statutory Licence for Radio Broadcasting of Literary and Musical Works and Sound Recording

The proposed Section 31D deals with statutory licensing of the broadcast of literary works, musical works and sound recordings. It states:
31D. (1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the broadcasting organisation to pay an advance to the owners of rights.
(4) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast.
(5) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.
(6) The broadcasting organisation shall —
(a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.
(7) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2010.

Under this section, a broadcasting organization which desires to communicate to the public a published literary work, musical work or sound recording may do so if the communication is by way of broadcast or by way of performance. The broadcasting organization is required to give prior notice to the copyright owner stating the duration and territorial extent of the broadcast.

The names of the authors and principal performers of the work must be announced with the broadcast. The broadcasting organization is proscribed from making any fresh alteration of any literary or musical work unless that alteration is (i) technically necessary for the purpose of broadcasting, or (ii) comprises only a shortening of the work for the convenience of the broadcast, or (iii) has been made with the consent of the copyright owner(s).

The broadcasting organization must pay royalties to the copyright owner in each work at the rate fixed by the Copyright Board, and the Copyright Board may require that these royalties be paid in advance. It is required to maintain records and books of account, and to render to the copyright owners such reports and accounts in accordance with the rules associated with the Act. The broadcasting organization is also required to allow the copyright owner or his duly authorized agent/representative to inspect all records and books of account related to the broadcast.

This proposed section, however, shall not affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2010.

References:

(This post is by Nandita Saikia and was first published at LawMatters.in.)

No comments:

Post a Comment

Credit

This site is supported by FrontierNxt.