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.

14 June 2012

The Impact of the 2012 Amendments on the 1957 Copyright Act

This post examines the impact of the Copyright (Amendment) Act, 2012 on the Copyright Act, 1957 in extremely broad (and rough!) strokes. The amendments have been described in chronological order although some amendments pertaining to a subject which finds mention ‘early’ in the Act have been ‘shifted up’.

(1) Definition of ‘Commercial Rental’
    The 2012 Act introduces a new definition for the term ‘commercial rental’ in Section 2(fa); this term is used in Section 14 where it states that one of the exclusive rights of the owners of the copyright in computer programmes, films and sound recordings is ‘to sell or give on commercial rental or offer for sale or for such rental, any copy’ of these works.

(2) Definition of ‘Communication to the Public’
    The definition of ‘communication to the public’ in Section 2(ff) has been expanded. It now includes both works and performances (instead of just works as was the case prior to the coming into effect of the 2012 amendments i.e. 'earlier'). Also, the definition now explicitly states that it does not matter whether the communication is ‘simultaneous or at places and times chosen individually’. As such, it appears to include multicasting, narrowcasting and unicasting.

(3) Performers and their rights
    The performer’s right has been restructured; for the most part, the restructuring has not resulted in substantial changes although one striking difference is that performers are now ‘entitled for royalties in case of making of the performances for commercial use’ under the new Section 38A.
    Performers have also been accorded moral rights in the new Section 38B. These rights are similar to the moral rights accorded to authors and basically encompass the rights to paternity and integrity.
    An amendment to the definition of a ‘performer’ in Section 2(qq) means that, among film actors, only those performers credited in cinematograph films would be entitled to the performer’s right and to the right to integrity. All performers in cinematograph films, whether or not credited, however, are granted the right to integrity.

(4) Definition of ‘Visual Recording’
    The new Section 2(xxa) defines a visual recording to mean: ‘the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method’.

(5) Digital Rights Management (DRM)
    Three new Sections — 2(xa), 65A and 65B — deal with DRM.
    (a) Protection of technological measures
    Section 65A criminalises the circumvention of an effective technological protection measure which has been applied for the purpose of protecting any of the rights conferred by the copyright statute if the circumvention is performed with the intention of infringing rights conferred by the Act — unless it is carried out in one of the many circumstances in which the Act states that circumvention is permissible (such as for conducting any lawful investigation or taking measures necessary in the interest of national security).
    (b) Rights Management Information (RMI)
    Section 2(xa) defines RMI to mean the title or other information identifying a work or performance, the name of the author or performer, the name and address of the owner of rights, terms and conditions regarding the use of the rights, and any number or code that represents this information (although it does not include any device or procedure intended to identify the user). Section 65B not only criminalises certain acts relating to RMI but also states that rights owners would be entitled to avail of certain civil remedies. The prohibited acts include the unauthorised removal or alteration of RMI on copies of works, or the unauthorised and ‘knowing’ distribution, importation, broadcast or communication to the public of such copies of works.

(6) Copyright Board
    Section 11 has been substantially amended — the Copyright Board is to comprise a Chairman and two other members (as opposed to ‘not less than two or more than fourteen other members’ as was earlier the case).

(7) Meaning of copyright

    (a) Electronic and other storage 
    Copyright — in the case of artistic works, cinematograph films and sound recordings — includes the right to store works in any medium by electronic or other means. This amendment effected to Section 14 appears to be merely clarificatory in nature.
    (b) 3D-2D conversion of art
    Copyright in artistic works continues to include the right to convert works from three dimensions into two dimensions and vice versa. However, this is limited by a new provision in Section 52(1)(w) which allows 'the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device' without the permission of the copyright owner.
    (c) Film stills
    Section 14(d)(i)(A) explicitly states the reproduction of stills from a cinematograph film is one of the exclusive rights of the copyright owner of the film. This amendment too appears to be merely clarificatory in nature.

(8) Future technologies
    Section 18 has been amended to disallow the assignment of copyright in a manner which would allow the assignee to exploit the copyright assigned to it via unspecified ‘future technologies’ i.e. any medium or mode of exploitation of a work which did not exist or was not in commercial use when the assignment was signed.

(9) Authors of underlying works in cinematograph films and sound recordings
    Various amendments have been made to Sections 18, 19 and 33 to ensure that the authors of underlying works (i.e. music, lyrics and scripts) in cinematograph films and sound recordings have a continuing right to royalty for the non-theatrical use of their works in films, and for any use of their works in sound recordings. (Details here.)

(10) Disputes with respect to assignment of copyright
    The scope of Section 19A which deals with the resolution of disputes with respect to the grant of rights (caused by the unilateral insufficient exercise of the rights granted) has been limited to assignments (as opposed to assignments and licences, as was the case earlier).
    Disputes under the Section are now generally be settled within six months after the receipt of a complaint by the Copyright Board, and the Board may now also pass interim orders ‘regarding implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned’.

(11) Relinquishment of copyright
    Section 21 has been amended to allow for the relinquishment of copyright not only by way of notice to the Registrar of Copyrights but also by way of public notice.

(12) Term of copyright in photographs
    Photographs are now treated in the same manner as artistic works and instead of enjoying a sixty year post-publication term, the copyright in photographs now effectively subsists till sixty years after the death of the photographer.

(13) Signatures on licences
    The requirement that a licence be signed by the licensor has been deleted; Section 30 now only requires licences to be in writing.

(14) 'Expansion' of existing compulsory licences
    Sections 31 and 31A now apply to ‘any work’ instead of only to Indian works, and to ‘unpublished or published works’ instead of only to unpublished Indian Works, respectively. As such, their scope has been expanded. In addition to this, a Section 31 compulsory licence may now be granted by the Copyright Board to any qualified person and not just to the complainant.

(15) Provisions for the benefit of persons with disabilities

    (a) Exception to copyright infringement
    The new Section 52(1)(zb) facilitates access to copyrighted works by persons with disabilities provided that the reproduction of accessible formats is on ‘a non-profit basis but to recover only the cost of production’, and the organization ensures that the accessible copies are used only by persons with disabilities and takes reasonable steps to prevent the entry of the accessible copies into ordinary channels of business.
    (b) Compulsory licence
    In cases where the exception to copyright infringement does not apply, any person working for the benefit of persons with disability on a commercial basis may apply to the Copyright Board for a compulsory licence to publish a work in an accessible format for the benefit of persons with disability.

(16) Statutory licences
    The new Section 31C facilitates the making of cover versions five years after the first sound recording of the concerned work is made, and generally with royalty payable for a minimum of 50,000 copies during each year in which copies are made. It could be considered to be a substitute for the old Section 52(1)(j) which the 2012 amendments deleted from the copyright statute.
    The new Section 31D enables ‘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’ to do so by paying royalty to the copyright owner. (Details here.)
    The rates of royalty under both these statutory licences are to be fixed by the Copyright Board, and the Sections contain detailed procedures to be followed by those wishing to avail of these statutory licences.

(17) Copyright societies
    Both authors and owners may now be members of copyright societies, and a number of amendments have been made to attempt to ensure that the interests of both authors and owners are protected, and that copyright societies are not mismanaged. The new Section 33A also requires each copyright society to publish its Tariff Scheme.

(18) Miscellaneous exceptions to copyright infringement

    (a) Fair dealing
    Section 52(1)(a) now allows for fair dealing with respect to any work (except a computer programme), and fair dealing is not restricted to literary, dramatic, musical or artistic works other than computer programmes as was the case earlier. The purposes for which fair dealing is permissible has also been ‘expanded’ although the expansion may not actually bring in any substantive change from a practical point of view.
    (b) Defences to copyright infringement available to intermediaries
    Safe harbours have been introduced to protect intermediaries in cases of secondary copyright infringement, and a notice-and-take-down procedure has been incorporated into the statute to enable rights owners to have infringing content taken down for a minimum period of twenty one days. (Details here.)
    (c) Broadened exceptions to copyright infringement
    The exceptions to copyright infringement dealing with the reproduction of works for judicial, legislative and educational use now generally apply to any work, instead of only to literary, dramatic, musical and artistic works as was the case earlier.
    As far as the exceptions to copyright infringement for the benefit of academia are concerned, these exceptions have been broadened. For example, the publication of compilations for educational institutions in Section 52(1)(g) of the ‘old’ copyright statute has been deleted and the new Section 52(1)(h) which has replaced it allows the publication of compilations for ‘instructional use’ instead of just for educational institutions.
    (d) Archival storage and reproduction by libraries
    The new Section 52(1)(n) allows: ‘the storing of a work in any medium by electronic means by a noncommercial public library, for preservation if the library already possesses a non-digital copy of the work’, and the scope of Section 52(1)(o) has been restricted to allow only non-commercial public libraries to make not more than three copies of books unavailable for sale in India for their own use, as opposed to any public library as was the case earlier.

(19) Importation of infringing copies
    Section 53 has been completely restructured, and it now enables owners of any works or performance embedded in works to request -- by written notice to the Commissioner of Customs (or other authorised officer) -- that infringing copies be treated as prohibited goods for not more than one year under certain circumstances, by following the procedure laid down in the Section.

(20) Person deemed to be the author / publisher
    Section 55(1) now presumes that the person named as the author or publisher of not only a literary, dramatic, musical or artistic work but also a non-infringing film or sound recording is actually the author/publisher.

(21) Authors’ Moral Rights
    Section 57 has been amended so as to have the right to integrity subsist even after the expiry of copyright in the relevant work, and to enable not just the author but, now, also his legal representatives to exercise the right to paternity — presumably, this means that legal representatives may initiate legal proceedings if the author of a work is not credited as such.


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

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