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.

30 August 2011

The 2011 Version of the Copyright (Amendment) Bill

This post focusses on the difference between the 2010 Copyright Bill, and the 2011 version of the Bill. To read about the impact of the Copyright (Amendment) Act, 2012, on the Copyright Act, 1957, please visit this post: here.



A few weeks ago, a revised version of the Copyright (Amendment) Bill, 2010, received Cabinet approval after being amended with the recommendations of the Parliamentary Standing Committee (the "PSC") being taken into account.

Following this, the Bill was scheduled to be debated in the Rajya Sabha on August 29, 2011, although no such debate took place. Remarkably, the revised version of the Bill did not appear to be easily available although the Indian IP blog SpicyIP published a copy of the revisions proposed to be made to the Bill on August 30, 2011.

This document (available here) attempts to capture the changes made to the Copyright (Amendment) Bill, 2010 by the 2011 version of the Bill. The revised version of the Bill appears to follow the letter of the PSC recommendations as far as films and music are concerned. However, some of the changes appearing in other parts of the Bill do not appear to be entirely in consonance with the PSC recommendations.

The principal changes (between the August 2011 version of the Copyright Bill and the 2010 version) appear to be:

1. Section 2(m)
The revised version of the Bill omits the contentious amendment proposed to be made to Section 2(m) of the Copyright Act, 1957. [More on the 2(m) book debate is available here at SSRN.]

2. Commercial Rental
The proposal to define the term "commercial rental" has been retained although, perhaps in order to address the concerns of rights holders, it was explained that ‘a non-profit library or non-profit educational institution’ means a library or educational institution which receives grants from the Government or exempted from payment of tax under the Income-Tax Act, 1961.

This clarifies the situation with respect to Section 14(b)(ii) of the Copyright Act which says that, in the case of computer programmes, one of the exclusive rights of the copyright owner is the right to 'sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental'.

3. The Principal Director of a Film
All references to the principal director of a film being a joint author of a film (along with the producer) and, consequently, a joint owner have been deleted in the 2011 Bill;

4. Lyricists' and Musicians' Rights wrt Out-Film Use
(Ref.: A mark-up of the relevant provisions.)

The Bill now specifies that the authors of underlying works and those they assign the works to are each entitled to an equal share of the royalties received for the out-film use of those works, (with "out-film use" being defined as "non-theatrical use"). This clarifies one of the ambiguities in the 2010 version of the Bill. Pertinently, an analogous provision has also been made in respect of sound recordings, and the revisions made by the 2011 Bill in this regard are almost identical to the recommendations of the PSC.

5. Copyright Board
(Ref.: A mark-up of the relevant provisions.)

The Bill proposes to amend Sections 11 and 12 of the Copyright Act dealing with the Copyright Board through proposed amendments which had not earlier made an appearance. The Board will, if the Bill is passed, comprise a Chairman and two other members. Also, the requirement that each Bench of the Board comprise not less than three members has been proposed to be deleted.

6. Dispute Resolution under Section 19A
(Ref.: A mark-up of the relevant provisions.)

The Bill now stipulates a time-frame within which disputes should be determined by the Copyright Board: six months.

7. Accessibility to Copyrighted Works by Disabled Persons
The Bill had earlier proposed to achieve ensuring accessibility to copyrighted works by disabled persons through a compulsory licence and a exception to copyright infringement. The scope of the exception has been considerably broadened in this version of the Bill.

Further, the fact that the compulsory licence was virtually useless as very few were eligible to apply for it has been addressed. The current version of the Bill omits stringent eligibility criteria and simply states that any business or person working for the benefit of persons with disabilities may apply for a licence. What is interesting is that the proposed 2010 amendment which would have allowed the Copyright Board to determine how many copies could be published without the payment of royalties has been deleted; presumably, the proposed 2011 compulsory licence no longer contemplates "free copies".

8. Statutory Licences for Radio Broadcast in the proposed Section 31D
The anomaly which had the text of the Bill allude to "any broadcast" and the marginal note refer to "radio broadcast" has been corrected with both now referring only to "radio broadcast".

9. Copyright Societies
(See: A mark-up of the relevant provisions.)

The concern that the restrictive provisions of the copyright statute with regard to collecting societies would apply to only authors has been addressed with the provisions now applying to both the authors and owners of protected works. Also, the 2011 Bill stipulates that the underlying works used in films may only be licensed through a copyright society.

10. The Intermediary Safe Harbour
The revised version of the Bill evinces the "strengthening" of the proposed so-called safe harbour clauses with reference now being made to "transient OR incidental storage" as opposed to the earlier "transient AND incidental storage" possibly being exempt from liability for infringement. Further, the notice-and-take-down procedure has been tightened, and the earlier requirement to get a court order within 14 days (which caused much consternation) has now been changed to 21 days.
(This post is by Nandita Saikia and was first published at Indian Copyright.)

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