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Compulsory Licensing Not a Certain Remedy to the Possible Loss of LPEs

There has been much discussion about the proposed amendment to Section 2(m) of the Copyright Act, 1957. Among other assertions which have been made is the assertion that it would destroy Indian Editions (which are priced lower than Editions in other parts of the world). In other words, the fear is that it would result in international publishers not voluntarily granting licences for low priced Indian reprints to be made. Whether or not this fear is legitimate has been widely debated.

One of the counters to the assertion that the low-priced edition programme would be destroyed is that it does not matter if publishers were to refuse to voluntarily grant licences for the publication of a low priced Indian Edition because the compulsory licensing provisions of Section 32A could be invoked to force the grant of a licence.

However, one concern about the viability of this “remedy” for the destruction of voluntarily published Indian Editions is that it is possible that Section 32A would not be applicable because it requires that various conditions be satisfied before a compulsory licence may be granted. And those conditions may not exist even if licences are not granted for low priced Indian reprints to be made.

For example, (a simplified interpretation of the Section) is that one of the grounds on which a compulsory licence may be granted in respect of a literary work is if it is not made available to the Indian public. However, presumably, even if a low priced Indian edition were not printed, a foreign edition would be imported into the country. So even though a low priced edition would not be available, the book itself would still be available in the Indian market, albeit at a higher price.

In addition to this, there is nothing to stop a copyright owner from granting a licence for the publication of an Indian edition at the same price as, say, the UK edition. While this would, without doubt, kill the low priced edition programme in India, it could also prevent the grant of a compulsory licence. This is because although the compulsory licensing provisions in Section 32A do speak of reasonable pricing of literary works, that reasonable pricing is based on a comparison with the prices of comparable works. That is to say that a compulsory licence may, in some cases, be granted if the work in respect of which it is sought has not been put on sale in the Indian market at “a price reasonably related to that normally charged in India for comparable works by the owner of the right of reproduction or by any person authorised by him in this behalf”.

As such, the compulsory licensing provisions of Section 32A, may prove to be a poor remedy for the possible destruction of the low priced edition programme in India. At any rate, it is definitely not certain that they would allow for the grant of compulsory licences in respect of those works for which low priced editions were not made available in the Indian market by copyright owners.

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