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.

9 September 2012

The Draft Copyright Rules v1.0: Preliminary Concerns

INTRODUCTION

The Draft Copyright Rules v1.0 (i.e. the ‘Draft Rules v1.0’) were made available on the website of the copyright office, and comments were solicited in relation to them by September 21, 2012. At first glance, they seem to paraphrase large portions of the Copyright Act as in force from Jun 21, 2012, and to add some new procedural requirements.

There do, however, appear to be some inconsistencies in the Draft Rules v1.0, as well as some provisions which deserve special consideration. This post attempts to superficially overview the most striking concerns in Draft Rules v1.0 with reference to the primary industries which would be affected by them. It begins by considering cross-industry issues (including those pertaining to copyright societies), and then moves on to the broadcasting, film & music industries, the publishing industry, the online and internet service provider industries, and the software industry.

The post does not attempt to paraphrase or explain the Rules themselves, only to highlight preliminary concerns.

CROSS-INDUSTRY ISSUES (INCLUDING COPYRIGHT SOCIETIES)

The Draft Rules v1.0 appear to be intended in Rule 1(3) to come into force from the date the 2012 Copyright (Amendment) Act (i.e. the ‘2012 Act’) itself came into force, and not from a later date. Presumably, this means that once notified, the Draft Rules v1.0 will have retrospective effect.

Further, the Draft Rules v1.0 seem to contemplate calculating dates from the time the 2012 Act came into force — there does not seem to be a mechanism to do so from a later, separate date (such as the date on which the Rules are actually notified). This is of particular concern with relation to existing copyright societies as, under Rule 46(1), they would have to submit an application for re-registration by April 2013.

The precise words of the Rule are:
‘A Copyright society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 2012 (27 Of 2012) and desirous of carrying on the business as a copyright society under the Act shall submit an application for re-registration in Form VIII to the Registrar of Copyrights as early as possible but not later than ten months from the date of commencement of the said Act.’
Unless the Copyright Rules are notified expeditiously, for all practical purposes, the amount of time available to existing copyright societies to re-register would be cut down. Rule 46(1) also appears to be inconsistent with Section 33(3A) of the Copyright Act which states:
‘Provided further that every copyright society already registered before the coming into force of the copyright (Amendment) Act, 2012 shall get itself registered under this Chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012.’ [Emphasis added.]
As such, the Draft Rules v1.0 appear to allow existing copyright societies an even shorter length of time for re-registration than the Copyright Act allows — to be precise, about two months less.

This is, however, not the only provision relating to copyright societies which may give rise to concern. Among other concerns are which apply both to copyright and performing rights societies — although only the former have been referred to in deference to brevity — are:

Rule 48(1)(ii) appears to negate the possibility of there being more than one copyright society for the same set of rights by stating that an application for the registration of a society may be rejected if: ‘there exists another copyright society registered under the Act for administering the same right or set of rights in the specific categories of works and it is functioning well’, and Rule 53(4) appears to support this prohibition as far as the film and music industry is concerned by stating:
‘The right to receive royalty included in the cinematograph film shared on 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 shall not be assigned to any copyright society other than the society for which it is intended to be registered.’ [Emphasis added.]
Apart from the fact that Rule 48(1)(ii) may be inconsistent with the proviso to Section 33(3) of the Copyright Act which states: ‘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,’ this also means that authors could get ‘stuck’ to one specific copyright society even if they do not want to register their works with it (except, possibly, in cases where the society is mismanaged). The Copyright Act does not absolutely prohibit more than one copyright society doing business in respect of the same class of works, although Rule 48(1)(ii) may have the effect of creating such a prohibition in for all practical purposes.

This is of particular concern as Rule 45(2) states (without the proviso which pertains to bilateral arrangements):
‘The applicant [copyright society] shall not carry out the business by way of sub-licensing or transferring the rights of collection and distribution of royalties in respect of a right or set of rights in specific categories of works to any other agency or copyright society.’ [Emphasis added.]
The fact that there appears both to be a prohibition on sublicensing and a lack of clarity regarding what the term ‘agency’ actually means, this Rule could potentially have the (presumably unintended) effect of requiring that all grants of rights by authors to a copyright society be assignments and not licences. In such circumstances, the effect of Section 34(1)(b) of the Copyright Act which states that 'an author and other owners of right shall have the right to withdraw such authorisation without prejudice to the rights of the copyright society under any contract' is unclear.

Further, Rule 53(1)(a) now requires the agreements which copyright societies enter into with authors and owners of works to specify ‘the quantum of royalty agreed to’. The Draft Rules v1.0 also deal with a Tariff Scheme in Rule 55 (also referred to Section 33A of the Copyright Act), a Distribution Scheme in Rule 57, permissible administration fees allowed as per Rule 54, and a Welfare Scheme in Rules 54 and 66. There does not, however, appear to be any mechanism to ensure that the amounts contemplated by all these Rules are consistent with each other. As such, if Rule 53 intends to have the quantum payable to authors actually quantified in the relevant agreement — without merely referring to the Distribution, Tariff and Welfare Schemes along with permissible administration fees — it would appear that the quantification would require significant accounting skills, especially since, apart from the Rules, there now exist provisions in the Copyright Act which contemplate statutory licences.

Pertinently, the proviso to Rule 55(5) prohibits copyright societies from receiving a ‘minimum guarantee from a licensee whose royalty payments are based on actual use which are to be settled with the society at the end of the licence period’. This flies in the face of current industry practices, and makes it impossible for a copyright society to accurately anticipate what its licence fees would be.

It isn’t only copyright societies and authors/owners of works who have reason to be concerned though. With reference to those who license works from copyright societies, Rule 56(3) which deals with an ‘Appeal to the Copyright Board on Tariff Scheme’ states: ‘The appellant shall pay to the copyright society any fee as may be prescribed that has fallen due before making an appeal [relating to the tariff scheme] 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.’

Apart from the fact that Rule 56(3) may be inconsistent with Rule 56(4) which latter Rule contemplates an interim tariff stating:
‘The Copyright Board may after hearing the parties fix an interim tariff and direct the appellant to make the payment accordingly pending disposal of the appeal.’ [Emphasis added.]
it also appears that Rule 53(3) is extremely onerous as far as licensees are concerned.

Setting disputes aside, and coming to the structure of copyright societies themselves, Rule 58(1)(b) contemplates: ‘a Governing Council with a Chairman and twelve other members’. Section 35(3) of the Act contemplates an equal number of authors and owners in the Governing Council, as do Rules 43(2) and 52(c)(2). However, unless the ‘equal number’ only applies to members other than the Chairman — as Rule 58(5) appears to imply — it would seem that there exists, in the Draft Rules v1.0, a mathematical impossibility, as the total number of members including the Chairman is 13, and as such, there cannot be equal number of authors and owners.

Further, Rule 59(6) states: ‘The copyright society shall not amend any approved Scheme except with the approval of the General Body’. It is unclear what ‘approval of the General Body’ means, and whether it could be interpreted to mean that unanimous approval (by all the members of the copyright society) is necessary. Due to this, it would probably be worth amending Rule 59(6) to contemplate ‘approval by a majority of such members present in person and voting’ so that it cannot be construed to mean that. (Pertinently, Rule 60(7) states: ‘Quorum for meetings of the General Body shall be one third of the total members’.)

Further, Rule 48(3)(b) could conceivably have the effect of restraining a copyright society from appointing additional officers or other staff after its registration. This is because, in pertinent part, the Rule contemplates that the society shall have ‘proper infrastructure such as office building and necessary officials for management such as Chief Executive Officer, licensing officers, legal officers and accountants and other required staff appointed at the time of applying for registration’. [Emphasis added.]

Finally, with respect to the members of copyright societies, Rules 63(i) and 64(ii) involve making authors’ and owners’ addresses virtually publicly available. It is possible that these provisions could have the effect of violating the privacy of members of copyright societies, in particular in cases where the members are individual persons.


Leaving aside copyright and performing rights societies, with reference to Fees: Rule 81 has a numbering problem. The second Rule 81(4) states: ‘Payment by bank drafts shall not be valid unless the amount of bank commission is included therein.’ This assumes that the person making the payment would know what the bank’s commission is, and imposes an additional burden on him — both by way of having to pay additional fees and by way of having to find out what the bank’s commission would be.

BROADCASTING, FILM & MUSIC INDUSTRIES

Rule 2(b) defines ‘copyright business’ in the following terms:
“copyright business” means the business of issuing or granting licence in respect of a right or set of rights in specific categories of works as conferred by the Act and includes the functions referred to in sub-section (3) of section 34;
There is also a reference to a ‘copyright business’ in the second proviso to Rule 33(1) (although not using the term) which states:
‘Provided further that the business of is[s]uing 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;’  [Emphasis added.]
The reference in the Act is not entirely clear regarding whether or not “the business of is[s]uing or granting license” includes individuals dealing with the works they themselves author — and the definition in the Rule 2(b) is also susceptible to interpretation on the same ground.

While, it may not be entirely impossible to infer from Rule 43(1) along with other Rules and the Copyright Act that a business involves seven or more authors and owners dealing with copyrighted works / dealing with the works of seven or more authors, such an interpretation would require considerable legerdemain as Rule 43(1)  itself only states:
‘Any association of persons, whether incorporated or not, comprising seven or more authors and other owners (hereinafter referred to as “the applicant”) formed for the purpose of carrying on the business of issuing or granting licences in respect of a right or set of rights in specific categories of works may file with the Registrar of Copyrights an application in Form VII for submission to the Central Government for grant of permission to carry on such business and for its registration as a copyright society.’
As such, the Draft Rules v1.0 should ideally be amended to ensure that what is meant by a copyright business is clear.

PUBLISHING INDUSTRY

Some of the provisions of the Draft Rules v1.0 could have the effect of adversely affecting the publishing industry. The Rules which are relevant to the industry are:

1. Chapter IV: Licences for translations
2. Chapter V: Compulsory licence for publication, translation and reproduction of work
3. Chapter VI: Compulsory licence in unpublished or published works
4. Chapter VII: Compulsory licence for benefit of disabled persons
5. Chapter IX: Statutory licence for broadcasting of literary and musical works and sound recordings
6. Chapter X: Copyright Societies
7. Chapter XIII: Storage of transient or incidental copies of works
8. Chapter XIV: Making or adapting the work by organizations working for the benefit of persons with disabilities

Of these, Chapters X and XIII pertaining to copyright societies, and the storage of transient or incidental copies of works, respectively, have been dealt with in this post with reference to cross-industry issues, and issues which pertain to intermediaries, as their effect is not specific to the publishing industry.

Compulsory Licences (Chapters IV To VII)

Chapter IV deals with licences for translations and appears to be unchanged in comparison to the Copyright Rules currently in force i.e. the ‘Old Rules’.

Chapter V deals with ‘Compulsory licence for publication, translation and reproduction of work’ while Chapter VI deals with ‘Compulsory licence in unpublished or published works’ — the subject matter of Chapter IV-A of the Old Rules appears to have been split into Chapters V and VI of the Draft Rules v1.0.

One concern with Chapter VI is that although it deals with deals with works which are ‘withheld from the public in India’ (in addition to orphan works as per Rule 23(1)), it does not appear to contain any provision to give the copyright owner a mandatory hearing before the grant of a licence in respect of a work. While this makes sense as far as orphan works are concerned, it is unclear what the underlying rationale is in the case of works which are merely alleged to have been ‘withheld from the public in India’ and whose copyright owner may be known.

As far as the compulsory licence for the benefit of persons with disabilities is concerned, Rule 29(5)(d) requires every licence for the benefit of persons with disabilities to specify 'the rate at which royalties in respect of the copies of such work sold to the disabled persons shall be paid to the owner(s) of the copyright in the work'. [Emphasis added.] The corresponding ‘parent’ provision in the Copyright Act, i.e. Section 31B, contains no restriction which limits the sale of copies of works in accessible formats to persons with disabilities. As such, the Rule seems inconsistent with the Copyright Act, and could be conceivably construed of having the effect of narrowing its scope.

Another plus point for rights owners which the Draft Rules v1.0 have introduced pertains to the cancellation of a compulsory licence which has been granted for the benefit of persons with disabilities. It has found mention in Rule 32(d), which specifies the following is a ground of cancellation of a licence:
‘the owner of the copyright has satisfied the requirement of the disabled person by publishing in the same format with same or lower price for which compulsory licence was granted’
This ground upon which a licence granted under Section 31B could be cancelled does not find mention in the Copyright Act at all. As such, although it may not be inconsistent with the Copyright Act, it is possible that it goes beyond the scope of the Act.

Finally, with reference to all of the compulsory licences dealt with in the Draft Rules v1.0, there is no clarity relating to what would happen to any of existing stock upon the cancellation of the licence. Presumably, the sale of existing stock of copies made lawfully during the subsistence of the licence could continue unimpeded — however, the Draft Rules v1.0 do not explicitly state this.

Accessible Formats for the Benefit of Persons with Disabilities

An Explanation to Rule 76, which pertains to the exception in Section 52(1)(zb), states:
‘For the purpose of this Chapter the term "accessible format" shall include Braille, Daisy, large print, talking books, digital formats such as MS Word, pdf, epub etc. and all other formats that can be used by persons with disabilities.’
This Explanation appears to be merely clarificatory in nature, and given the numerous safeguards in the remainder of the Rule to prevent the misuse of Section 52(1)(zb) of the Copyright Act — which allows for making copyrighted works accessible to persons with disabilities —, it may not be problematic for rights owners. While it is unclear why formats like MS Word, pdf, and epub have found specific mention in Rule 76, given that Section 52(1)(zb) clearly contemplates any accessible format, Rule 76 is unlikely to have any substantive effect on the excising provision in the Copyright Act.


INTERMEDIARIES: OSPs AND ISPs

Rule 74(2)(d) — which pertains to the storage of transient or incidental copies of works — states a complaint must, among many other things, contain ‘Details of the place where transient or incidental storage of the work is taking place’. It appears that this means that the specific URLs where copies of infringing copies are located must be identified in a complaint, and merely giving the intermediary the name of a work for take-down will not suffice.

Pertinently, only Section 52(1)(c) of the Copyright Act contains a statutory notice-and-takedown procedure at all, and it is not entirely impossible to interpret it to mean that identification of specific URLs was not required, and that only a work needed to be identified. Rule 74(2)(d) could, however, make it far more difficult to reach such a conclusion.

Rule 74 also contains several requirements in relation to the storage of transient or incidental copies of works, and, in particular, the notice-and-takedown procedure for infringing copies of works, none of which requirements find mention in the Copyright Act and which also have a distinctly DMCA-like flavour. In its entirety, the Rule reads as follows:
(1) Any owner of copyright may give a written complaint to a person who has facilitated transient or incidental storage of work for providing electronic links, access or integration to restrain from such storage of work.
(2) The written complaint shall contain the following details:
(a) The description of the work with adequate information to identify the work;
(b) Evidence to show that the complainant is the owner of copyright in the work;
(c) Evidence to show that the copy of the work which is the subject matter of transient or incidental storage is an infringing copy of the work owned by the complainant and that the allegedly infringing act is not covered under section 52 or any other act that is permitted by the Act;
(d) Details of the place where transient or incidental storage of the work is taking place;
(e) Details of the person who is responsible for uploading the work infringing the copyright of the complainant; and
(f) Undertaking that the complainant shall file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the directions from the court within twenty one days from the receipt of the notice.
(3) On receipt of the written complaint, the person responsible for the storage of the copy, if satisfied from the details provided in the complaint that the copy of the work is an infringed copy, take measures to refrain from facilitating such access for a period of twenty-one days from the date of receipt of the complaint or till he receives an order from the competent court restraining him from facilitating access whichever is earlier.
(4) The person responsible for storage shall restore the storage of the work in case the complainant failed to produce direction from the court restraining him from facilitating access
(5) In case the complainant failed to produce the court directions within the stipulated period, the person responsible for storage shall not be obliged to respond to any further notice sent by the same party on the same work.’

It is unclear whether some of these provisions of in Rule 74 which would be read in conjunction with Sections 52(1)(b) and (c) of the Copyright Act are ultra vires the parent Act or whether they merely clarify procedural mechanisms in relation to the existing provisions in the Copyright Act which (it could be argued) are primarily substantive in nature.


SOFTWARE INDUSTRY

The Draft Rules v1.0 are likely to have the effect of changing existing practice by making it mandatory to have every application for the copyright registration of a computer programme be accompanied by its source and object code as per Rule 69(4). While this appears to merely be a procedural requirement, it could have the (presumably unintended) effect of adversely affecting members of an industry where secrecy, particularly with regard to source codes, is of paramount importance for those who follow the proprietary software business model.

With regard to semi-conductor integrated circuits, the entire circuit need not be revealed under the SIC Act, and it may be worth incorporating an analogous provision in the Copyright Rules which allows for part of the source code of software to be hidden for the purpose of copyright registration, so as to address confidentiality concerns of authors and owners of protected software.


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

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