Introduction

With globalization, IPR has emerged as an important tool for socio-economic development and a key determinant of the economic relations between nations. India is in the process of reinforcing its IPR regime in tune with international standards and commitments. Accordingly, amendments have been recommended in the existing Copyright Act, 1957 (“Act”) in the Copyright Amendment Bill (“Bill”). The proposed amendments in the Act are meant to achieve two objectives firstly, to gain better clarity, to remove operational difficulties and to address the newer issues that have emerged in the context of digital technology and the internet. Secondly, to bring the Act in conformity with international conventions such as the World Intellectual Property Organisation (“WIPO”) Internet Treaties, namely WIPO Copyright Treaty (“WCT”) and World Performances and Phonograms Treaty (“WPPT”) which have set the international standards in these spheres.

This bulletin focuses on the latest amendments proposed by the Bill and seeks to examine the implications these amendments are likely to bring when the Bill will be passed by the Parliament. Finally, the bulletin shall also discuss certain other aspects which have been missed in the Bill as well.

1.0 Significant Amendments suggested in the Bill

The significant amendments proposed in the Bill to bring the Act in conformity with WCT and WPPT are –

• The scope of performers’ right has been enlarged by providing the performers’ the exclusive rights to make a sound recording or a visual recording of the performance or to reproduce it in any material form including storing it in any medium by electronic or any other means, issue its copies or communicate to public, sell or give on commercial rental or offer for sale or  for commercial rental any copy of the recording and broadcast or communicate the performance to the public except where the performance is already a broadcast performance.

• “The Moral Rights of Performer” has also been introduced.

• The term of copyright in photographs¹ has been expanded to lifetime of the author plus 60 years instead of only 60 years.

Other significant amendments to protect the music and film industry, rights to authors and the concerns of the physically challenged include –

The definition of “communication to the public”² has been broadened to include making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion.

• The concept of storage and exclusion of non-commercial rental/lease or lending by non-profit  library/educational  institution  has  been  introduced  in  cinematograph  film  and sound recording.³

• The producer and the principal director has been treated as the first owners of the copyright and the term for their “joint authorship” for films fixed to 70 years for principal director which also extends the copyright term for the producer for another 10 years provided he enters into an agreement with the director.

• Compulsory license in works shall now be withheld from public.⁴ Copyright Board vested with the discretion to grant compulsory license to all such persons as are qualified and competent to republish, perform, or communicate the work to the public.

• The creators can now demand a share in royalties, if their works are exploited by producers in new “mediums” or “contexts.” ⁵

• Certain acts not to be infringement of copyright⁶ includes a fair dealing with any work not being a computer programme for the purpose of: (i) private and personal use, including research, (ii) criticism or review, whether of that work or of any other work, (iii) the reporting of current events, including the reporting of a lecture delivered in public.

2.0 Implications of the amendments

Understandably, the proposed amendments have been received with mixed reactions. The music companies have strongly opposed the independent authorship and royalty issue. The provision regarding royalty is radical in the sense, that the current Bollywood practice where lyricists, composers and script writers typically assign away all rights in any medium of exploitation (whether known or invented later) will no longer hold good. Rather, if the producer of the film exploits the film in any new medium for example, its music as a ringtone, the music composer can claim a share in the royalties.

Further, the proposed amendment in section 52 the term “any work” can include a cinematograph film and sound recoding. Hence, one can now go to a theatre or a performance of an artist and make a recording of the same. This recording can easily be sold to a commercial outfit who can then make millions from additional copies. This provision if enacted will encourage piracy. The ‘fair dealing’ provision on personal copying of DRM-protected content will definitely harm copyrights. Indian Broadcasting Foundation has been against the amendment which they presume is on the behest of the Copyright societies and the broadcasting sector has been completely ignored.

The amendment in case of cinematograph film and sound recording categorically separates commercial rentals from non-commercial rentals. It clarified that “commercial rental” will not include the rental, lease or lending of a lawfully acquired copy of a cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution. The separation of commercial rentals from non-commercial rentals facilitates the non-commercial rental of films for broad educational and non-profit purposes.

The grant of additional rights to performers will enable them to register a copyright collecting society and receive royalties. The amendment further clarifies that the societies can only be formed by the authors and not by the owners. It is proposed to include protection of “Right Management Information” i.e. names of the author/performer, name and address of the owner of rights, terms and conditions of use of works and any number or code which identifies the work and any attempt to remove this without authority or by distributing the work, fixed performance or phonogram is liable with 2 years punishment and fine.

The proposed amendment extending the term of copyright in photographs violates the terms for copyright in relation to the photographic works which is 25 years from the making of such a work as prescribed in Article 7(4) of the Berne Convention, to which India is a signatory. This amendment unnecessarily proposes a copyright term for photographic works which is far in excess of the minimum requirement. In our view, the existing section 25 should be retained with an amendment to the copyright term, i.e. 60 years should be deleted and change to 25 years, to be in line with Berne Convention.

The amendment regarding grant of compulsory license seems as a positive move as now the grant of license will not be hindered by the restriction of section 31(2) of the Act. The existing section restricts the grant of license and provides that it can only be granted to the complainant for complaints made on the ground that the owner has refused to re- publish or allow the re-publication of the work who in the opinion of the Copyright Board would best serve the interests of the general public. It restricts the grant of license to any available eligible persons. Now by not limiting the license for use only by the complainant, and extending it to a broader class of individuals and organizations as judged competent to republish, perform or communicate the work to the public, the amendment will allow broader participation by ordinary users and creators in the copyright system.

Finally, the proposed changes addresses the concerns of the physically challenged and will promote access to copyright material in specialized formats such as Braille text, talking books, electronic text, large print etc. for people with disability. Additionally, a separate compulsory licensing provision has been proposed to allow for publishing copyright works in other formats other than specifically suited for the physically challenged.

Conclusion

The Bill is the most comprehensive endeavor to amend the Act which will have far reaching implications for the music and file industry. If the Bill is enacted, authors, especially lyricists will get royalties and other benefits from the commercial exploitation of their work. It will provide independent rights to lyricists, composers and singers as the authors of literary and musical works in films.

The Bill also proposed to introduce statutory licensing which is a copyright license to user content under reasonable and non-discriminatory terms to broadcasting organizations to access literary and musical works and sound recordings. For example, radio companies will not require permission from copyright holders to play a song, but must pay usage fees to the copyright holders based on how often a particular song is played. To sum up, the amendments once enacted will definitely bring a wave of change in the existing Copyright regime.

Authored by: Sunaina Kapoor

1 Section 25 of the Act.

2 Section 2 (ff) of the Act – It means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

3 Section 14 (d)&(e)) of the Act.

4 Section 31 of the Act.

5 Section 19 of the Act

6 Section 52 of the Act.