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.

31 August 2011

The 2011 Copyright Bill on Copyright Societies

The 2011 version of the Copyright Bill proposes a number of changes to Chapter VII of the Copyright Act, 1957, in relation to the structure and working of these societies. Proposed changes which have been carried forward from the 2010 Bill have been marked as such in the text below.
The most important changes in the 2011 version are probably that it anticipates both authors of copyrighted works and owners of copyright being members of collective societies. Further, the proposals attempt to have all the rights of underlying works included in films administered by copyright societies.

The revised text of Chapter VII would read as follows of the amendment was passed:

 
33. Registration of Copyright Society.
(1)   No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994 commence or, carry 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 this Act except under or in accordance with the registration granted under sub-section (3):
Provided that owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society:
Provided further that the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act:;
Provided also that the performing rights society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a copyright society for the purposes of this Chapter and every such society shall get itself registered within a period of one year from the date of commencement of the Copyright (Amendment) Act, 1994.
(2)   Any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub-section (1) to the Registrar of Copyrights who shall submit the application to the Central Government.
(3)   The Central Government may, having regard to the interests of the authors and other owners of rights under this Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the relevant rights and the ability and professional competence of the applicants, register such association of persons as a copyright society subject to such conditions as may be prescribed:
Provided that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of works.
(3A) The registration granted to a copyright society under sub-section (3) shall be for a period of five years and may be renewed from time to time before the end of every five years on a request in the prescribed form and the Central Government may renew the registration after considering the report of Registrar of Copyrights on the working of the copyright society under section 36:
Provided that the renewal of the registration of a copyright society shall be subject to the continued collective control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of the right to receive royalty:
Provided further that every copyright society already registered before the coming into force of the copyright (Amendment) Act, 2011 shall get itself registered under this Chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2011.
(4)   The Central Government may, if it is satisfied that a copyright society is being managed in a manner detrimental to the interests of the owners of rights concerned, cancel the registration of such society after such inquiry as may be prescribed.
(5)   If the Central Government is of the opinion that in the interest of the owners of rights concerned, it is necessary so to do, it may, by order, suspend the registration of such society pending inquiry for such period not exceeding one year as may be specified in such order under sub-section (4) and that Government shall appoint an administrator to discharge the functions of the copyright society.
[As per the 2010 Bill, a proposal regarding the Tariff Scheme of Copyright Societies]
33A. (1) Every copyright society shall publish its Tariff Scheme in such manner as may be prescribed.
(2)   Any person who is aggrieved by the tariff scheme may appeal to the Copyright Board and the Board may, if satisfied after holding such inquiry as it may consider necessary, make such orders as may be required to remove any unreasonable element, anomaly or inconsistency therein:
Provided that the aggrieved person shall pay to the copyright society any fee as may be prescribed that has fallen due before making an appeal to the Copyright Board and shall continue to pay such fee until the appeal is decided, and the Board shall not issue any order staying the collection of such fee pending disposal of the appeal:
Provided further that the Copyright Board may after hearing the parties fix an interim tariff and direct the aggrieved parties to make the payment accordingly pending disposal of the appeal.
34. Administration of rights of owner by copyright society.
(1)   Subject to such conditions as may be prescribed,-
(a)   a copyright society may accept from an owner of rights exclusive authorisation to administer any right in any work by issue of licences or collection of licence fees or both; and
(b)   an author and other owners of rights shall have the right to withdraw such authorisation without prejudice to the rights of the copyright society under any contract.
(2)   It shall be competent for a copyright society to enter into agreement with any foreign society or organisation administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign country by such foreign society or organisation:
Provided that no such society or organisation shall permit any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and other works.
(3) Subject to such conditions as may be prescribed, a copyright society may-
(i)    issue licences under section 30 in respect of any rights under this Act;
(ii)   collect fees in pursuance of such licences;
(iii) distribute such fees among author and other owners of rights after making deductions for its own expenses;
(iv) perform any other functions consistent which the provisions of section 35.
[Deletion as per the 2010 Bill]
34A. Payment of remuneration by copyright society.
(1)   If the Central Government is of the opinion that a copyright society for a class of work is generally administering the rights of the owners of rights in such work throughout India, it shall appoint that society for the purpose of this section.
(2)   The copyright society shall, subject to such rules as may be made in this behalf, frame a scheme for determining the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work in circulation:
Provided that such scheme shall restrict payment to the owners of rights whose works have attained a level of circulation which the copyright society considers reasonable.
35. Control over the copyright society by the owner of rights.
(1)   Every copyright society shall be subject to the collective control of the author and other owners of rights under this Act whose rights it administers (not being author and other owners of rights under this Act administered by a foreign society or organisation referred to in sub-section (2) of section (34) and shall, in such manner as may be prescribed,-
(a)   obtain the approval of such author and other owners of rights for its procedures of collection and distribution of fees;
(b)   obtain their approval for the utilisation of any amounts collected as fees for any purpose other than distribution to the owner of rights; and
(c)   provide to such owners [the 2010 Bill had proposed changing the word “owners to “author” but this was not accepted in the 2011 version]regular, full and detailed information concerning all its activities, in relation to the administration of their rights.

(2) All fees distributed among the author and other owners of rights shall, as far as may be, be distributed in proportion to the actual use of their works.

36. Submission of returns and reports.
(1)   Every copyright society shall submit to the Registrar of Copyrights such returns as may be prescribed.
(2)   Any officer duly authorised by the Central Government in this behalf may call for any report and also call for any records of any copyright society for the purpose of satisfying himself that the fees collected by the society in respect of rights administered by it are being utilised or distributed in accordance with the provisions of this Act.

36A. Rights and liabilities of performing rights societies.

Nothing in this Chapter shall affect any rights or liabilities in any work in connection with a performing rights [As per the 2010 Bill] copyright society which had accrued or were incurred on or before the day prior to the commencement of the Copyright (Amendment) Act, 19942011, [As per the 2010 Bill] or any legal proceedings in respect of any such rights or liabilities pending on that day.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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