Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

2 September 2010

Copyright Societies and the Copyright (Amendment) Bill, 2010

The Copyright (Amendment) Bill, 2010, aims to completely restructure the working of and the eligibility criteria for membership in copyright societies by various amendments to Chapter VII of the Copyright Act, 1957, which would make it possible for only authors of works to become members of copyright societies and to manage them. This is intended to significantly improve the current situation in the film industry, in particular, for the authors of the underlying works in films. This is because these authors currently have a peculiar status in copyright societies such as the IPRS since all rights are considered to accrue to producers as a result of the 1977 IPRS case, and a (mis)interpretation of the subsequent 1994 amendment to the Copyright Act.

However, the manner in which the proposed amendments are currently drafted could lead to their having precisely the opposite effect that they are intended to have: the Bill appears to have been drafted in such a manner that the statutory restrictions under the Act would only apply to “associations of authors”. Thus, other persons, including copyright owners, may be able to form their own copyright societies which would be able to function in a manner entirely independent of the regulatory regime proposed to be incorporated into the Act by the Bill. As such, it would only be associations of authors which would be in the unfortunate position of being precluded from ‘commencing or, carrying on the business of issuing or granting licences in respect of any work in which copyright subsists on respect or in respect of any other rights conferred by the Act except under or in accordance with the [copyright society] registration granted the Act’.

Although existing Copyright Societies would be deemed to be a copyright society for the purposes of the Act after the (anticipated) coming in force of the Bill, and every such society would be required to ‘get itself registered within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2010’, there appears to be no prohibition on additional societies being formed – societies which would not be required to obtain such a registration under the provisions of the Act as proposed to be amended.

Further, arrangements with copyright societies would have primacy: under the proposed Section 19(9), any assignment of any work including an underlying work in a film would be subject to the prior assignment which may have been made by the author of the work with a copyright society of which he was a member. Specifically, the Bill proposes to incorporate into the Act a provision which would state that ‘the assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void’.

In the case of the authors of underlying works in films, this means that authors of such works would be statutorily unable to assign to producers works which they had already assigned to a copyright society.

As there is nothing in the Act or the Bill which either proscribes or would proscribe assignments of future works, authors of underlying works could, in theory, assign all their future works to a copyright society. This would prevent them from being able to assign any work to a producer. Further, authors would also be able to assign the right to receive continued royalties to a copyright society. As such, arrangements could be made to ensure that the right to receive continued royalties, and the ownership of the work vested in the same person (i.e. the same Copyright Society). This would obviate the concerns regarding having ownership of a work vest in one person (i.e. the producer) as has been business practice, and having the right to receive continued royalties for out-film use vesting in another person (i.e. the author, his heirs or a copyright society) as would be mandated by the law.

(Read the entire paper on Films and the Copyright (Amendment) Bill, 2010 at SSRN.)
(This post is by Nandita Saikia and was first published at LawMatters.in.)

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