Copyright Amendmet

7/31/2019 Copyright Amendmet

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ABU DHABI ATLANTA BANGALORE CHENNAI DELHI DUBAI GURGAON HYDERABAD

JEDDAH MUMBAI RIYADH SINGAPORE TOKYO (Representative Office)

3rd

Floor, Tower-B,

Technopolis Building,Sector-54,

DLF Golf Course Road,

Gurgaon - 122002, INDIA

Tel: +91 124 4545222

Fax: +91 124 4375596

E-mail: [email protected]

Introduction

The copyright act, 1957 governs the laws and acts as authority with regard to copyrights in India.

This act however, has been amended five times to meet the international requirements as well as

changes within the national sphere. Being a party to the TRIPS agreement, it was an obligation on

the part o the Indian government to make the Copyright act TRIPS compliant. To this effect, the

first set of amendments was brought about in 1999. Considering more room for improvement, the

Copyright (amendment) bill 2010 was introduced, which has now been passed as the Copyright

(amendment) act, 2012. This research paper seeks to investigate into the reasons behind this

amendment and its subsequent effects.

Copyrights amendment act, 2012

Following are the amendments brought about in the most recent act of 2012:-

1. Section 2a. Quite a few amendments have been brought about in this section by ay of omissions,

substitutions and insertions. A portion ofclause (f)has been omitted following which a clause

namely (fa)is to be inserted, which lays down certain situations in which commercial rental

is not to be applied. In clause (ff) a substitution has been made whereby the definition of

communication to the public has been expanded. A rider has been provided for clause (qq)

which defines performance. This rider has been introduced with the purpose of excluding

performances that are casual or incidental in nature from the definition. After clause (x), the

definition of Rights management Information has been inserted inclause (xa). After clause

(xx), Clause (xxa)has been inserted, which provides for the definition of Visual Recording.

2. Section 11a. This section essentially deals with the constitution of the Copyright Board. By this amendment,

a slight change has been introduced in the composition of the Board. Precisely, in sub-section 1,

instead of not less than 2 and not more than 14 members has been replaced by two other

members. Sub-section 2, which talks about the salary and allowances of the board has been


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broadened. The amendment is sub-section 4, has introduced terms on which the secretary of the

board is to be appointed.

3. Section 14a. This section provides the meaning for copyrights in the act. The amendment has modified

certain provisions within this provision to mould the law in furtherance of their intent.

4. Section 15a. In this section of the act, for the words and figures, Design act, 1911 has been substituted by

Design Act, 2000.

5. Chapter IV: Ownership of copyrights and the rights of the ownersa. Section 17

Clause 5 seeks to amend section 17 relating to the first owner of copyright, where under

producer and principal director shall be treated jointly as the first owner of copyright after the

commencement of the Copyright (Amendment) Act, 2010. In the case of a cinematograph film

produced before the commencement of the Act, the principal director shall enjoy the copyright

for a period of ten years after the expiry of the duration of copyright in the cinematograph film.

A proviso providing that in the case of a principal director, the copyright shall subsist until 70

years is proposed to be added to section 26 relating to term of copyright in cinematograph films.

b. Section 18A proviso has been added to Sub-section (1) of this section, which ensures that the right to

receive royalties on literary work, sound recordings and compositions shall not be waived. Also

any exploitation carried out by the assignee, shall not affect the rights of the copyright holder.

c. Section 19A very important amendment has been made in this section as; the framers have tried to make

royalties compulsory. Further 3 more subsections have been added. This section shall be dealt

with later in the paper.


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d. Section 19 AThis section deals with Dispute with respect to assignment of copyrights. The proviso tosubsection 2 has been modified as now the words provided further that, have been substituted

by "Provided further that, pending the disposal of an application for revocation of assignment

under this sub-section, the Copyright Board may pass such order, as it deems fit regarding

implementation of the terms and conditions of assignment including any consideration to be

paid for the enjoyment of the rights assigned". Also a sub-section has been added which

dictates terms on which a complaint received under sub-section 2 is to be dealt with.

e. Section 21This section talks about the right to relinquishment of a copyright by the respective author.

Before the amendment the intention of relinquishment was to be put forth the Registrar,

however, after the amendment, it can be done by way of public notice as well. Also, a new sub-

section has been added which talks about the time period within which the Registrar is to

publish such a notice on the website.

6. Sections 22, 25, 30 and 30AIn the abovementioned sections, minor omissions and substitutions have taken place.

7. Section 31 & 31AThis section talks about Compulsory license in works withheld from public. By the amendment,

the explanation to the section has been abrogated; further the words any Indian work have

been replaced by any work and other such minor amendments like granting the license not only

to the complainant but also any person who the government deems qualified. After section 31A,

Sections 31b, 31C a& 31D are to be inserted, which shall be discussed later in the paper.

8. Section 33This section deals with the Registration of copyright society. In sub-section 1, for the words

provided further, the following have been substituted. "Provided further that the business of

isuing or granting license in respect of literary, dramatic, musical and artistic works

incorporated in a cinematograph films or sound recordings shall be carried out only through a


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copyright society duly registered under this Act". After sub-section 3, the following sub-section

has been insertedby 3A. The registration granted to a copyright society under sub-section (3)shall be for a period of five years and may be renewed from time to time before the end of every

five years on a request in the prescribed form and the Central Government may renew the

registration after considering the report of Registrar of Copyrights on the working of the

copyright society under section 36, along with its provisos. Further, certain omissions have

been brought about in the later sub-sections. Furthermore, after section 33, section 33A has been

inserted which deals with the tariff scheme of copyright societies.

9. In sections, 34 and 34A, certain omissions and substitutions have been made.

10.Section 35This section deals with the control over the copyright society by the owner of the rights. The

words owner of rights have been substituted by author and other owners of right shall be

substituted. After sub-section 2 two more sub-sections are added, which deal with the governing

body of the copyright society and discuss equal membership rights.

11.In, Section 36A, which deals with the rights and liabilities of performing rights societies, certaincorrections have been made and certain terms have been replaced.

12.Section 37 deals with Broadcast reproduction rights, along with, certain situation in which thelicense had not been applied for and their consequences. Clause e of Sub-section 3 has been

substituted by the words- "sells or gives on commercial rental or offer for sale or for such rental,

any such sound recording or visual recording referred to in clause (c) or clause (d)". Further, in

section 38 sub-sections (3) and (4) have been omitted which deal with performers rights.

13.After Section 38, Sections 38A and 38B have been added, which talk about the performersright wherein. Once he has consented, by way of written agreement, to incorporate his

performance in a cinematographic film, he cannot object to the right of enjoyment of that right

by the producer, Also that he would be entitled to royalties if performance is put to commercial

use. Further Section 38B states that the performer shall have the right to claim damages in case


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of any distortion or mutilation of his performance that could be prejudicial to his performance.

Further, Section39A has been substituted by the following words- 39A. (1) Sections 18,19, 30,30A, 33, 33A, 34, 35, 36, 53, 55, 58, 63, 64, 65, 65A, 65B and 66 shall, with necessary

adaptations and modifications, apply in relation to the broadcast reproduction right in any

broadcast and the performers right in any performance as they apply in relation to copyright

in a work

14.In Sections 40, 40A &45 certain amendments have been brought about with respect to theirprovisos.

15.Section 52 & 52BThis is a very important and one of the longest sections of copyright act, as it deals with all

those acts that which cannot be classified as an infringement of copyrights. A substitution has

been brought about it almost each one of its sub-sections, which shall be dealt with later in the

paper, also, section 52B has been omitted.

16.Section 53 talks about the importation of infringing copies. The process as was mentionedbefore the recent amendment has completely been refurbished.

17.After Sections 65, Sections 65A & 65B have been inserted. Section 65A prescribes punishmentin the event of any person, with an intention to infringe certain rights, circumvents and effective

technological measure that is applied for the purpose of protecting any of the prescribed rights.

Further, Section 65B prescribes punishment for removing any rights management information

without authority or distributing copies of works without authority.

18.Section 78, which deals with the power to make rules with regards to copyrights, has beenamended in terms of certain substitutions.


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FOLLOWING ARE SOME OF THE CRUCIAL AMENDMENTS, WHICH ENDEAVOR TO UPLIFT THE

STANDARDS OF COPYRIGHT LAWS ININDIA.

Section 18 & 19

The amendments in these provisions are a result of the great debate pertaining to a

cinematographic lyricists right to receive royalty on the copyrights after the producer of the

film has been assigned the right. This debate was further brought to light following the ban on

noted lyricist, Javed Akhtar by the Film Federation of India, as they felt that his demands to

derive benefits from his works, which have been assigned to the producer, are not justified.

Since, the producers are the ones bearing all the risk, including the burden of losses, they

deserve rights over the works, is the argument advanced on behalf of producers. However, the

writers merely want a percentage in the total earnings as they are the ones who are majorly

responsible for the creation.

However, the amendments in section 18 & 19 have been made in order to protect the interests of

the writers of the work. A proviso has been added in sub-section 1 of section 18 which reads as

follows:-

Provided further that no such assignment shall be applied to any medium or mode of

exploitation of the work which did not exist or was not in commercial use at the time when

the assignment was made, unless the assignment specifically referred to such medium or

mode of exploitation of the work:

Provided also that the author of the literary or musical work included in a cinematograph

film shall not assign or waive the right to receive royalties to be shared on an equal basis with

the assignee of copyright for the utilization of such work in any form other than for the

communication to the public of the work along with the cinematograph film in a cinema hall,

except to the legal heirs of the authors or to a copy right society for collection and distribution

and any agreement to contrary shall be void:

Provided also that the author of the literary or musical work included in the sound recording

but not forming part of any cinematograph film shall not assign or waive the right to receive


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royalties to be shared on an equal basis with the assignee of copyright for any utilization of

such work except to the legal heirs of the authors or to a collecting society for collection anddistribution and any assignment to the contrary shall be void.

This proviso ensures restriction on lyricists to waive their rights to royalty payable to them. This

will prove to be major step in resolving this debate.

Further in section 19 the following amendments have been made in furtherance of the interest of

the composers.-

In sub-section 3, the words royalty paid, if any have been replaced by the words royalty and

other consideration payable. This has broadened the ambit of the benefits that the composers,

writers or lyricists are entitled to as it includes more than just royalties.

Further, 3 more sub-sections have been inserted within the provision which ensure that No

assignment of copyright in any work, whether to make a cinematographic film or sound

recording, shall affect the rights of the author to the work to claim an equal share of

royalties and considerations.

As a reaction to this amendment, the Indian entertainment industry has hailed as a historic

decision the parliamentary approval accorded to the Copyright Act (Amendment) Bill, 2012,

which strengthens the royalty claims of musicians, lyricists and those in similar fields.

Sections 31B, 31C & 31D

Many a times, authors to a work, refuse to extend their works to people and prefer to keep it

with themselves. In such cases compulsory licenses are granted to people to re-publish that

work authorized by a license granted by the government

Section 31B

In this section, certain guidelines have been provided regarding the working of compulsory

licenses for the benefit of disabled. This has been set up in order to publish works which have

been copyrighted, for the benefit of the disabled. To attain a compulsory license in this section,


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an inquiry would be conducted by the Copyright Board, on receipt of such an application. If the

copyright board is satisfied, after giving a chance to the owners of the copyright to be heard, itmay direct the Registrar of copyrights to issue a compulsory license if it deems fit.

Section 31C

This provision lays down guidelines for a statutory license for producing cover versions in

respect of any literary, dramatic or musical work. Such license has to be attained subject to the

consent of the owner of the copyright. The person producing the sound recording is to give prior

notice of his intention to produce the cover version. He is not permitted, by way of such license,

to make any alterations in the musical or literary work without the consent of the owner.

Royalty has to be made to the owner, only to the limit of the first 50,000 copies of each work

during each calendar year.

Section 31D

This provision lays down guidelines for a statutory license for broadcasting of literary or

musical works and sound recordings. Such license has to be attained subject to the consent of

the owner of the copyright. The person broadcasting organization is to give prior notice of his

intention to broadcast the work. He is not permitted, by way of such license, to make any

alterations in the musical or literary work without the consent of the owner. The rates of radio

broadcasting shall be different from television broadcasting. Also the copyright board may

require the broadcasting organization to pay an advance to the owner of the work. The name of

the authors of the works shall be mentioned in the broadcasts.

Section 52

Another important amendment incorporated in the Act is in the description of what does not

constitute infringement with respect to computer programmes. The existing provision (Section

52) of the act defines, as to what does not constitute infringement of copyright. While the

second amendment of 1994, brought in to exclude the re-using of computer programs, The

recent amendment in clause (a) has inserted that a fair dealing with any work for the purpose of

reporting of current events, including the reporting of lectures delivered on public stage shall

not constitute an infringement. Further clause (b) has been completely replaced by a provison


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stating that storage of work for the technical process of electronic submission would not

constitute an infringement. Same has been the fate of clause (c) as it has been completelyreplaced by the transient or incidental storage for the purpose of providing electronic links,

access or integration which has completely been denied by the owner of the work shall also not

constitute an infringement, along with a proviso. Further, clasue (d) has been replaced by the

earlier content present in clause (c). Another fresh assition to this section can be seen by the

newly amended clause (d), which now states that "the reading or recitation in public of

reasonable extracts from a published literacy or dramatic work".

Prepared by

Aakash narang

Intern at Kochhar & Co.

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Copyright Amendmet