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 Out-film Royalties

Among the most talked about provisions in the Copyright (Amendment) Bill, 2010, were those which dealt with the entitlement of musicians and lyricists to royalties for the out-film use of their works. The proposed amendments which dealt with this in Sections 18 and 19 of the Copyright Act have now been revised in accordance with the recommendations of the Parliamentary Standing Committee, which means that they would affect not only film music but also non-film music on sound recordings. If the Bill is passed, this is how the provisions would read:


18. Assignment of copyright.
(1)   The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:
Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.
[As per the 2010 Bill, retained in the 2011 version] Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work:
[As per the 2011 version which substituted the third proviso suggested in the 2010 Bill with this proviso and the next, using text almost identical to the PSC recommendations — the changes in the text have been marked herein] Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void:
Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive [n.b. the words “or waive” were not included in the PSC recommendations] the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the [the PSC recommendations included the word “author’s” here although it was redundant] legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.
(2)   Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.
(3)   In this section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

19. Mode of assignment.
(1)   No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.
(2)   The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.
(3)   The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
(4)   Where the assignee does not exercise the rights assigned to him under any of the other sub-sections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.
(5)   If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6)   If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7)   Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
(8)   [As per the 2010 Bill, retained in the 2011 version] 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.
(9)   [As per the 2011 version which substituted sub-section (9) suggested in the 2010 Bill with this sub-section and the next, using text identical to the PSC recommendations] No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
(10) No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form.

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

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