While the Indian government is considering the proposed amendments to the Copyright Act, 1957, it becomes imperative to test the waters for the implementation of these amendments in the present-day Indian IP market. . .
Under the Indian law, Copyright is a protection given to an intangible property that are the creation of the mind, popularly known as ‘intellectual property’ subsisting in original literary works, artistic works, musical works, dramatic works, cinematographic films and sound recordings.
Under the Copyright Act, 1957 (the Act), copyright owners enjoy a wide range of rights including the basic right to reproduce their work in any material form or the different dimensions as prescribed by the Act. It is interesting to note that the Act has undergone significant amendments in 1983, 1984, 1992, 1994 and 1999.
As far as its legislation on copyright is concerned, India is a member of the Berne Convention and complies with the provisions of the Rome Convention as well, although it is not a member of the same yet. Although registration of work created is optional, however, it is always advisable to opt for registration for better protection.
Access to knowledge and cultural goods is critical to ensure full participation of the public in political and cultural life and to ensure benefit to them from any scientific and technological advancement. The copyright system seeks to promote the efficient dissemination of knowledge in the public domain by maintaining a balance between enabling rewards to producers of knowledge on one hand and access to these copyright goods for the public on the other. It is, therefore, critical that laws pertaining to copyright in any country be drafted in a manner that best ensures an ideal balance between public and private interest. This article focuses on the latest amendments proposed by the Copyright Office sometime in 2006 that are being considered and re-framed by the Ministry of Human Resource Development (HRD) and are likely to be brought into force in the coming months.
There is a speculation that the amendments are being driven by the music industry which is trying to use the Act to consolidate its financial position. According to newspaper reports, the Indian Broadcasting Association (IBA) has represented to the government that the music companies led by the copyright society, namely, the Phonographic Performance Limited (PPL), is demanding exorbitant charges for clippings of 1 to 2 minutes from the broadcasters. It is pertinent to mention that the issue of enforcement of copyright in music is not only an issue of concern to the IBA, but to every individual. It is true that in the US, the music industry claims US $ 80,000 per song from violators who download digital musical files from the internet in violation of Copyright License. The consumers of Indian music in our country should recognise that such a development can take place in India as well.
Rakesh Nigam CEO, Indian Performing Rights Society (IPRS) Ltd. , Mumbai
The proposed amendments should try and balance between the interests of the copyright owners and users of music, keeping in mind the Indian scenario for monetisation of music, as we are different in terms of consumption and sampling of music by users.We have low disposable incomes compared to western countries. The international models of revenue sharing or payments by users should not be adopted or applied in India as a bench mark, as the social and economic conditions are different.
It is too early to speak on the impact in protecting the intellectual property rights (IPR) regime in India, unless we actually see the proposed amendments. However, I believe that our laws will be and should be more pro-IPR owners as the Indian economy is primarily service-oriented and export income is primarily software and services driven and both fall under the Copyright Act, 1957 (the Act) for protection. Also, India is one of the few countries in the world where local music or films (be it Hindi, Tamil, Telugu, Bengali, Marathi and Punjabi) is enjoyed by and forms part of the major market (around 95 per cent). On the other hand, international music and films are still a minority (around five per cent); this is due to protection under the Act and the local culture.
The proposed amendments in the way we understand from the press note, have the potential to completely change the way music business is being done currently in the country, especially film music.
Another important suggestion is that all people belonging to the music or film industry, be they authors, composer, music companies or producers, should be united and sink their differences when their works are being used by major users, be they broadcasters – television, radio and internet or mobile companies.
As today the major users are dividing the copyright owners or using one against the other, in the end, the owners are being paid a very small share from revenues generated from usage of their copyrighted content. However, as an owner or creator, we should not fight amongst ourselves to get a larger share from the royalty cake but focus on increasing the cake multiple times as charge from or to the users, so that every stakeholder can get a share larger than the original cake itself.
About amendments to the Copyright Act, 1957 I think, there is no doubt that the proposed deletion of section 52 (1) (b) (i) & (ii) is likely to bring in dramatic changes as far as the publishing, news and the broadcasting sector in India is concerned. The legal effect of such proposed deletion is that publishing, news and the broadcasting sectors will now no longer be able to reproduce sections of original literary, dramatic, musical or artistic works for the purposes of reporting current events as a fair usage. This will continue to have a prejudicial impact till such time commercial terms are settled between the owner or authors of such original works and the newspapers, magazines, periodicals or broadcasting houses.
I distinctly believe that this deletion is likely to negatively impact the growth of media in the country. It will not only hamper the free and fair reporting of current events but would also give an undue handle in the hands of owners of original literary and artistic works vis-à-vis their works in relation to media, print, electronic and broadcast.
Another aspect is that the government seems to have noted that invariably, producers of Indian films and music industry execute blanket buyout agreements with artists and composers without paying them any separate royalty on their work. It has been proven time and again that in case of a film becoming a hit, it is primarily so because of, amongst other things, its music and also the content of the film. As such, the new amendments to the extent that it empowers by granting independent rights to such composers and artists, is attempting to bring in a level playing field for all and is likely to give rise to healthy tradition of providing royalty on a continuing basis to such composers and artists. When one looks at the overall scheme of thing under the proposed amendments, it is very clear that the proposed amendments are seeking to empower and strengthen the hands of the creative artists and performers. Given the fact that the proposed amendments now provide that the assignment of copyright in any work shall also specify any consideration payable, including royalty to the author or his legal heirs, royalty has, therefore, been made a mandatory part of the consideration.
I think the legislation has not provided for adequate measures in the direction of curbing piracy. The proposed amendments need to be debated in the Parliament. The quantum of punishment for piracy needs to be increased from two years to minimum seven years in order to provide any deterrent mechanisms or deterrent effect.
If the PPL starts taking the law into their own hands and their representatives start calling on birthday parties and marriage parties, the situation will turn miserable for party-organisers. There is also a probability that anti-social elements may take advantage and start calling on individuals and misrepresent themselves as PPL officials and start harassing people who may be listening to music through their iPods of MP3 players.
At the same time, when one buys a music CD, the license will only entitle the buyer to listen the music in terms of name reflected in the bill. If one lends a CD to a friend or plays music loud enough to be heard by others, one may be running the risk of being held liable.
Music companies have to print boldly on the CD, “Buying of the CD entitles only the buyer to listen to the music and transfer of content in any form to others through lending, playing loud or copying is considered an offence under the Copyright Act, 1957 and the offender is liable to be prosecuted”.
The Definition of Cinematograph Film: One of the major amendments proposed is in the definition of ‘cinematograph film’ in section 2 (f) of the Act, which according to the proposed definition means any work of visual recording and includes a sound recording accompanying such visual recording and the term ‘cinematograph’ shall be construed to include any work produced by any process analogous to cinematography, including video films. The expression “…on any medium produced through a process from which a moving image may be produced by any means…” which was part of the earlier definition in the Act has been dropped from the definition, thereby restricting the right of public to see and hear without payment to copyright holder. In this way the horizon of cinematograph film has been widened by this proposed amendment.
Communication to the Public: The expression “communication to the public” in section 2 (ff) has been changed to mean 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 otherwise than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
The explanation appended to the expression runs as ‘For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. Under this proposed amendment, the right of copy holder has been increased in the sense that work or performance of copyholder can’t be seen or heard other than by having physical copy of it.’ The following proviso has been added at the end of the expression:-
Provided that in a cinematograph film, if an ‘extra’, i.e., a person whose performance is casual or incidental in nature and, in the normal course of industry practice, is not acknowledged anywhere including in the credits of the film, he or she shall not be treated as a performer except for the purpose of clause (b) of section 38B of the Act.
Definition of Visual Recording: Visual recording has been modified to entail the recording in any medium, by any method including the storing of it by electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.
Artistic Work: Furthermore, in case of an artistic work, copyright means the right to reproduce the work in any material form including depiction in three dimension of a two dimensional work or in two-dimensions of a three-dimensional work. The proposed amendment adds “storing of it in any medium by electronic or other mea ns” which entails that storing such works in the manner prescribed is also now a matter of exclusive right of the copyright holder in an artistic work.
Copyright in Cinematograph Films: Under section 14 (d) of the Act, entailing the rights in cinematograph films, apart from the right of the copyright holder to make a copy of the film, including a photograph of any image, sell or give on commercial rental such work, the amendment proposed to includes “storing of it in any medium by electronic means.” For the purpose of this clause “commercial rental” shall 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.
Performer’s Rights: Instead of the previous section 38 (3) and (4), the amendment proposed to add section 38 A (1) which entails that “performer’s right” means the exclusive right, subject to the provisions of the Act, to do or authorise the doing of any of the following acts in respect of the performance or any substantial part thereof namely:-
The explanation to this sub-clause says “commercial rental” shall not include the rental, lease or lending of a lawfully acquired copy of a sound recording or a visual recording for non-profit purposes by a non-profit library or non-profit educational institution.
Jagdish Sagar Consultant with Anand & Anand
Copyrights (all copyrights, not just those of literary works) have to be enforced by the courts and the police. All a ministry can do, which it has been working at with some success over the years, is to create awareness. It has organised a lot of training, promoted Intellectual Property Rights (IPR) studies in the law colleges, and set up a Copyright Enforcement Council in which senior state government officials, particularly police officers, participate and are sensitised. We still have a long way to go but there is really much more copyright awareness now than a couple of decades ago. Industry groups have also played a major role in creating this.
This is only a historical legacy.Within the living memory of a senior citizen like myself, copyright was thought of as basically and most importantly involving books and the print media. Hence, it got tagged on to the Education Department. Now, given how the world has changed, not least the world of copyright, there is a strong case for having a single ministry, or at least a department of intellectual property.
The draft as currently in circulation does not make sense to me. Firstly, it is proposed to abolish the present limitation of moral rights to the term of copyright, making moral rights eternal. In other words, (since moral rights can be exercised by an author’s heirs) after this amendment, anyone claiming to be a descendant of, say, Kalidasa or Shakespeare (or, more realistically, Charles Dickens or Rabindranath Tagore) would now be able go to a court claiming infringement of his moral rights. (The descendants of Charles Dickens might, for example, seek an injunction against the musical Oliver.)What is the need for that? Has there been any demand for it? Once enacted would it not be another potential and needless threat to cultural freedom? The effect of the second proposed amendment , as drafted, is that the legal representatives of a deceased author will now be able not only to object to distortion of their deceased forbear’s works , but will also be able to claim themselves authorship of his works. I know that is not the intention, but if you read the draft that is the effect.
I feel that there should have been more debate and discussion not only about identifying policy objectives (which is in the end, the prerogative of the Parliament) but also so that unintended, anomalous consequences are avoided.
Fortunately, the draft Bill is expected to be referred to a Joint Select Committee. One hopes that it will provide an opportunity to cut, refine and polish what is, perhaps, the rough diamond of a landmark amending Bill.
( The views of Jagdish Sagar are his personal views and not connected to Anand & Anand).
These proposed amendments can bring tremendous change so the Indian government has to ponder over co-operation and coordination with Copyright Office to pass these proposed amendments and should maintain the balance between the public right and the private right of copyright in the interest of the society at large.
The proposed amendment would have a long lasting adverse effect on Indian society as dramatic, musical and artistic works would not be free in the public domain. To seek knowledge and entertainment, one would be required to pay even though one is not interested in enjoyment or let others enjoy the same. Home recording of copyrighted music will not be allowed, on-line file sharing of the products through peer-to-peer net work would be stopped. Once a CD is played on a consumer’s home computer, he or she will not be able to play the same CD on his or her DVD player in the next room or on his or her computer in the office. Moreover, reformatting songs into MP3 files and burning copies or making them available on file-sharing systems will be stopped. There will not be any second-generation copy made from the first-generation copy of digitally recorded work.
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