It has been proposed to amend Section 30 of the Copyright Act, 1957, so as to delete the word “signed” from it. If amended in this fashion, the primary part of the Section would state: “The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorised agent.”
It is extremely unclear how this Section would operate in practice. The Notes on Clauses do not clarify what the rationale behind this proposed amendment to the Act is. All that the Notes state is that “…It is proposed to amend the aforesaid section so as to do away with the requirement of signing by the owner of the copyright in such cases.” It is possible that the amendment was proposed considering that many contemporary copyright contracts are electronic, and it aims to do away with the requirement of a handwritten signature. However, this possible explanation does not change the fact that although such an amendment may address concerns online, it may also create problems offline.
The concern with regard to the proposed amendment is that by no longer requiring the licensor to sign the contract, it would be possible to misattribute a contract to a person – in other words, if a licence need not be signed, it is unclear how it would be possible to attribute it to the licensor. This could enable arbitrary persons could “create” their own contracts and falsely claim that they were written by a particular person whom they claim is the licensor. Although the Copyright Act is a substantive law and not a procedural law, there appears to be no cogent reason why substantive law should be framed in a manner which could drastically increase the chances that a purported agreement — in this case, a licence — is not valid.
The proposed amendment could cause the “apparition” of contracts which purported licensors know nothing of. Saying that a signature is not required could, entirely hypothetically, cause, say, a music company to print out a supposed licence agreement on a sheet of paper and then claim that, say, a lyricist had agreed to its terms. Requiring that the lyricist-licensor sign the agreement (as the current law does), would, in a way, afford some degree of protection to him. The proposed amendment would remove that protection if it were to become law, and I cannot think of a tenable reason why the Copyright Act should be amended in a manner which could potentially disadvantage an author it is (at least according to popular wisdom) supposed to protect.
One interpretation which was suggested was that the Act would, if amended as proposed, require licensors to write licence agreements by hand. In this day and age, considering not only how ubiquitous computers are but also how long the average licence agreement is, this interpretation appears to be insupportable.
Further, assuming that the intention of proposing such an amendment was to facilitate the formation of eLicences, it may have been preferable to craft an exception which would specifically apply to eContracts in the nature of: “Provided that nothing in this section shall be deemed to mean that a valid electronic licence must be in accordance with Section 3 of the IT Act.” Alternatively, instead of proposing to amend Section 30 of the Copyright Act, an amendment to the IT Act could possibly have served the purpose. The IT Act could have been amended to either (a) make it simpler or (b) to have Section 81 state in a second proviso: “Provided that nothing contained in this Act shall affect the validity of any licence agreement governed by Section 30 of the Copyright Act, 1957.”
Altogether removing the requirement, in Section 30 of the Copyright Act, that a licence be signed by the licensor may create more problems than it solves.
(Read the complete paper here at SSRN.)
(This post is by Nandita Saikia and was first published at LawMatters.in. It was revised on September 3, 2010 based on comments by Pranesh Prakash.)
It is extremely unclear how this Section would operate in practice. The Notes on Clauses do not clarify what the rationale behind this proposed amendment to the Act is. All that the Notes state is that “…It is proposed to amend the aforesaid section so as to do away with the requirement of signing by the owner of the copyright in such cases.” It is possible that the amendment was proposed considering that many contemporary copyright contracts are electronic, and it aims to do away with the requirement of a handwritten signature. However, this possible explanation does not change the fact that although such an amendment may address concerns online, it may also create problems offline.
The concern with regard to the proposed amendment is that by no longer requiring the licensor to sign the contract, it would be possible to misattribute a contract to a person – in other words, if a licence need not be signed, it is unclear how it would be possible to attribute it to the licensor. This could enable arbitrary persons could “create” their own contracts and falsely claim that they were written by a particular person whom they claim is the licensor. Although the Copyright Act is a substantive law and not a procedural law, there appears to be no cogent reason why substantive law should be framed in a manner which could drastically increase the chances that a purported agreement — in this case, a licence — is not valid.
The proposed amendment could cause the “apparition” of contracts which purported licensors know nothing of. Saying that a signature is not required could, entirely hypothetically, cause, say, a music company to print out a supposed licence agreement on a sheet of paper and then claim that, say, a lyricist had agreed to its terms. Requiring that the lyricist-licensor sign the agreement (as the current law does), would, in a way, afford some degree of protection to him. The proposed amendment would remove that protection if it were to become law, and I cannot think of a tenable reason why the Copyright Act should be amended in a manner which could potentially disadvantage an author it is (at least according to popular wisdom) supposed to protect.
One interpretation which was suggested was that the Act would, if amended as proposed, require licensors to write licence agreements by hand. In this day and age, considering not only how ubiquitous computers are but also how long the average licence agreement is, this interpretation appears to be insupportable.
Further, assuming that the intention of proposing such an amendment was to facilitate the formation of eLicences, it may have been preferable to craft an exception which would specifically apply to eContracts in the nature of: “Provided that nothing in this section shall be deemed to mean that a valid electronic licence must be in accordance with Section 3 of the IT Act.” Alternatively, instead of proposing to amend Section 30 of the Copyright Act, an amendment to the IT Act could possibly have served the purpose. The IT Act could have been amended to either (a) make it simpler or (b) to have Section 81 state in a second proviso: “Provided that nothing contained in this Act shall affect the validity of any licence agreement governed by Section 30 of the Copyright Act, 1957.”
Altogether removing the requirement, in Section 30 of the Copyright Act, that a licence be signed by the licensor may create more problems than it solves.
(Read the complete paper here at SSRN.)
(This post is by Nandita Saikia and was first published at LawMatters.in. It was revised on September 3, 2010 based on comments by Pranesh Prakash.)