Limits on compulsory licencing

by drisya surendran And

harithashobha

The enshrined sections of The Copyright Act,1957 s . 31, 31A,32, 32A,32B,deal about compulsory liscencing

Copy right Rules 9,11(D),11C(4) Conventions under international level Art 9 (2) , 11 (2) bis of the Berne

Convention. Art 13 of TRIPS .

INTRODUCTION

The provisions of compulsory license is a kind of a legislative compromise where the legislature has tried to convey a balance between the absolute monopoly by the copyright holder and tried to preserve the incentive justification aswell.....

COMPULSORY LISCENCE A LEGISLATIVE COMPROMOSE?

S.31of the Copy Right Act, 1956 deals with compulsory license in works with held from “Indian work”.

S.31A deals with compulsory license in unpublished Indian work.

S. 32 says that license to produce and publish translations.

S. 32 A reads that license to produce and publish works for certain purposes.

S. 32 B deals with termination of a compulsory license where it is issued under S. 32 (1A).

R. 9 of copyright rule mentions the manner to determine royalties payable to the owner for a translation.

R. 11C(4) provides that when there are more than one parties to apply for compulsory license then the permission for such publication or translation shall be given only to one person.

INDIAN COPYRIGHT REGIME AND compulsory LISCENCING

S. 31 of the act deals only with compulsory licensing in case of an Indian work and it has not dealt with in case of a foreign work.

Under R 11C(4) to the copyright rule asks the copyright board to give license only to one applicant. Thereby loosing the other applicants opportunity to publish or make the translation of the work.

Enquiry under S. 32 by copyright board does not specify that the whether the complainant had filed the application in good faith or not.

The sections in the act only specifies the word “license to the complainant” but it should have been replaced to such person or persons who are eligible in this behalf.

Draw backs of these provisions.

Musical work

Producers right

Broad casting right

Literary works transmitted

through internets

Limits on compulsory licensing on various works

2 (p) deals with copy right over musical work, provisions in the copy right Act are not broad enough to incorporate the growing rights of radio, TV.

While comparing these provisions with regard to English and American provisions there is a need for implementing British provisions.

Music rights can also be attached to the music that is being transmitted through internet.

Legislatures need to implement regulations with regard to the issues of jurisdiction arising out of compulsory licensing.

Limits on compulsory liscensing on musical work

Section only dealt with the work which is other than an Indian work.

In other types of compulsory license the licensed work can be used for commercial purpose but in case of broad casting it cannot be used for commercial purpose

He is using this by giving a specified amount as royalty. Hence he can make use of it for commercial purposes.

Limits on compulsory liscencing in broadcasting rights

Literary works transmitted through internet Strict provisions The license granted to the

publishing of the works through internet contain many difficulties.

These publishing's through internet cannot be controlled easily

In these publishing's many international convention provisions are violated

There is uniform Law for the control and regulation of these types of publishing. But it is very difficult to incorporate, and it will take more time also

There is no protection for publishing the works through internet without the consent of the owner

One group of amendments reflected the concern expressed by Justice Krishna Iyer in his concurring judgment in Indian Performing Rights Society Vs. Eastern Indian Motion Pictures Association & Ors. (AIR 1977 SC 1443). Since the Copyright Act 1957 as then in force, retained an archaic definition of “musical work” as the mere written notation of music, Indian musicians had no effective rights, either as composers or as performers. The Act, as it then stood, did not take into account the fact that notation in the Western style is not universal in Indian music, nor that in Indian classical music every performance is simultaneously a composition. The Act as amended, simplifies the definition of a “musical work” to mean simply what the term is commonly understood to connote: a “work consisting of music”; no statutory definition of “music” per se being considered necessary. Additionally, the insertion of a performer’s right in section 38, giving the performer the exclusive right to authorise recordings of his live performances, provided additional protection to such classical musicians.

Decisions

The courts have been responsive in granting injunctive relief against infringements. The Supreme Court has accepted the necessity of injunctive relief for copyright (as well as trade mark) infringement because infringement of such rights, inherently, causes irreparable damage (Midas Hygiene Industries P. Ltd & Anr.Vs. Sudhir Bhatia & Ors; 2004 (28) PTC 121(SC)).

decision

In the Ten Sports Channel case (Tej Television Ltd. Vs. Rajan Mandan & Ors; 2003 F.S.R. 22), the Delhi High Court granted a “John Doe” order of injunction against unknown persons in relation to broadcasts of the World Football Cup. In this landmark decision, which was reported internationally, the court recognised the exigency in which no other remedy could provide effective relief to a TV channel to protect its investment in a valuable live broadcast

decisions

In the Mangal Pandey case, the Delhi High Court held in favour of the film makers in a defamation suit against the historical film The Rising, upholding the producer’s right to make a fictional depiction of a historical character. This will be of great importance in the context of the artistic, technical and commercial compulsions of the cinematographic medium.

Broadcasting, both on television and FM broadcasting, have given rise to new issues.  The advent and multiplication of commercial FM channels dependent on music have given rise to litigation on compulsory licensing, leading to the decision of the Supreme Court in the Entertainment Network case (Entertainment Network (India) Ltd. Vs.. Super Cassette Industries Ltd; 2008(37) PTC 353(SC)). Whilst deciding in favour of the broadcasters, that more than one compulsory licence may be granted in favour of broadcasters, the apex court also acknowledged the role of copyright societies in administering their members’ rights. Citing this decision, an appellate division of the Delhi High Court in the Hotel Regency case (Phonographic Performance Ltd. Vs. Hotel Gold Regency & Ors.; 2008(37)PTC 587(Del)) rejected the contention that a copyright society’s role is limited to licensing and confirmed the society’s right and duty to enforce the rights it administers.

decisions

The question of fair dealing with copyrighted materials in telegraph channels is under consideration of the Delhi High Court in two pending cases, filed by Super Cassettes and Yash Raj Films against India TV.  On the whole, it may fairly be said that the courts have been very effective in granting injunctive relief against the unauthorised broadcast of copyrighted materia

The recent judgment of the Copyright Board in Music Broadcast Pvt. Ltd vs. Phonographic Performance Ltd seems to suggest that the Buggles may have been a tad too hasty in predicting the untimely demise of the radio. In an order that covered nine cases, the Board held in favour of granting compulsory licences under Section 31 (1) (b) of the Copyright Act, 1957 to complainants FM radio providers against music providers such as Phonographic Performance Limited (PPL).

decisions

compulsory liscence provisions under TRIPS The words of ART 13 is as follows “Members shall

confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.

This provision gives a limited scope to compulsory licensing.

Hence here compulsory licensing can be granted only if “Three step test” are satisfied this further limits the scope of compulsory licensing.

WHETHER COMPULSORY LISCENCE GRANTED WITHOUT REWARDING IPR HOLDER ?

IPR rights holders are given royalties when compulsory licensing is given to an applicant. Here it is not given by the state without payment of royalties.

It is only an action by the state to acquire the rights when the IPR rights holders are unable to make available the work to public at a reasonable price ,and also without prejudicing the rights of the IPR holders.

Whether rights of the public or rights of individual shall prevail…? In the conflict between the rights of

individual and public the rights of public will prevail and hence granting compulsory license to the complainant shall prevail over the individual rights of IPR holder.

This enables compulsory licensing but the provision under TRIPS reduce the scope for this .

CERTAIN SPECIAL CASES.

the requirement of “certain special cases.”According to the Panel, the condition implies that “an exception or limitation in national legislation must be clearly defined” (which corresponds to the requirement of a “certain”case) and then that it has “an individual or limited application or purpose” (which corresponds to the requirement of a “special” case). Whereas the Panel adopts a quantitative approach,asking for a quantitative restriction of allowed uses.

Article 13 requires that a limitation or exception in national legislation should be clearly defined and should be narrow in its scope and reach” in a quantitative as well as a qualitative sense. That does not mean, however, that every situation to which the limitation could apply needs to be explicitly identified, provided that the scope of the limitation is known and particularised.

WHETHER COMPULSORY LISCENCE GRANTED WITHOUT REWARDING IPR HOLDER ?

NO CONFLICT WITH NORMAL CASE.This approach, although not uncontested in the legal academic

literature, is to prefer as it, inter alia, allows the consideration of possible technological and market developments. That is to say, because it is, of course, difficult to qualify new forms of exploitation as “usual” or “typical” in the mere empirical sense of the term “normal

DO NOT UNREASONABLY PREJUDICED WITH THE LEGITIMATE EXPLOTATION.

the third step contains an important proportionality test in the way that the harm to the right-holders has to be reasonably related to the users' benefits. In other words, the prejudice has to be proportionate. Hence, lawmakers should, inter alia, opt for the least onerous of all suitable measures. The WTO Panel rightly noted that within the realm of the proportionality test the payment of “equitable remuneration” can serve as a means to avoid that the prejudice reaches an unreasonable level. It remains unclear though, what “equitable remuneration” exactly means.

As the provisions of The Copy Right Act,1957 relating to compulsory licensing suffering from many drawbacks. It has to be suitably Amended.

The provisions under TRIPS are limiting the scope of compulsory licencing there by interest of the general public is affected and it affects the development of the nation negatively

In the future, the three-step will continue to play a decisive role in international copyright law, especially due to the fact that it is formulated independently from technological advances

conclusion