RESEARCHPROJECT SUBMISSION INTELLECTUALPROPERTY RIGHTS “ANANALYSIS OF THE COPYRIGHT (AMENDMENT) ACT 2012” Submittedto: Prof. V.K. Ahuja,Professorof Law,DelhiUniversitySubmittedby: Aayush Tripathi INTRODUCTIONTheCopyright Amendment Act (hereinafter, referred to as ‘The Act’) enacted in theyear 1957 is the oldest piece of legislation in India on Intellectual PropertyRight. Like many other Indian legislations, the Act when initially enacted hada tone of colonial hangover to it as it was heavily borrowed from the CopyrightAct of 1956 of United Kingdom.1 It has been amended sixtimes in total to meet various national and international guidelines, mostrecently being 2012.
The Amendment in 2012 was affected primarily due to tworeasons; the first reason being the incessant lobbying by the Indian filmindustry to protect the authors of underlying works incorporated in Indiancinematographic films such as lyricists, music composers, screenwriters etc.2 The process for initiatingthis amendment started in the year 2006 itself when an initial draft was postedon Copyright Office website. Subsequently, a press release on the 24thof December 2009 was posted by the government on the website of PressInformation Bureau which stated the objectives of the Amendment. It statedthat-“Amendment is proposed to give independentrights to authors of literary and musical works in cinematograph films, whichwere hitherto denied and wrongfully exploited, by the producers and musiccompanies. An amendment is proposed to ensure that the authors retain theirright to receive royalties and the benefits enjoyed through the copyrightsocieties. Another amendment ensures that the authors of the works,particularly songs included in the cinematograph film or sound recordings,receive royalty for the commercial exploitation of such work.
“3Thesecond reason as to why this treaty was brought in was to comply with WIPOPerformers and Phonograms Treaty of 1996 (WPPT) and WIPO Copyright Treaty of1996 (WCT).45 The Internet Treaties werebrought about to address the wave of digitization that had swept across theglobe. The coming of the Internet or the World Wide Web posed significantchallenges to the concept of Copyright and Intellectual Property as variousforms of literary and musical works became easily accessible to the public atlarge.6 Also, the definitions of’literary, musical and dramatic’ needed to be broadened since Internet hadbroadened the various forms of Intellectual Property. It was under thisbackdrop that the WIPO Internet Treaties were enacted in the year 1996. India,on the other hand, enacted two amendments to the Act during this period, one inthe year 1994 to address the challenges posed by digitization, though it wasable to do so only partially.7 Further, in 1999, the Actwas amended to comply with the provisions of the TRIPS Agreement.
Theauthor here in this paper will deal with the analysis of major amendmentsbrought about by the 2012 Amendment Act. This paper will be divided into 5chapters. The first chapter will deal the amendments related to the authors ofliterary, musical and dramatic works incorporated in cinematograph films. Thesecond chapter will deal with amendment provisions dealing with Compulsory andStatutory Licensing. The third and the fourth chapters will delve into theprovisions relating to Digital Rights Management and Technological measuresbrought about for compliance with the WIPO Internet Treaties. The fifth and thefinal chapter will deal various miscellaneous but important amendmentprovisions incorporated by the 2012 Act. RIGHTS CONFERRED UPON THEAUTHORS OF WORKS IN CINEMATOGRAPHIC FILMTheterm cinematograph film as defined in Section 2(f) of the Copyright Act is-“Anywork of visual recording and includes a sound recording accompanying suchvisual recording and “cinematograph” shall be construed as including anyproduced by any process analogous to cinematography including video films.”8Indianfilm industry is the largest producer of cinematographic films in the world.
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Amulti billion order industry, battling the plague of piracy since a long time,has a complex set up.9 A film is made not just bydirectors and actors but by different participants who render their services atspecific points during the making like screenwriters, composers, lyricists,cinematographers, makeup, costume and set designer etc. After the film is shotby the director, everything is brought together by the producer who acts as thecaptain of the ship. The people behind the entire process of film making can becategorized into two categories; performers, that include screenwriters,lyricists, composers, sound recorders, cinematographers etc and secondly, thepeople who put money behind the project like the producers, distributors andfinancers.10Historically, the convention has been to pay the performers a lump sum amountin advance based on their reputation as artistes and their success in therecent past. The profits made by the film are not shared amongst theseperformers.11Moreover, this convention has led to exploitation of authors of literary,artistic and dramatic work by the producers where they have not been paidadequately. Further, to add to their misery, they have to assign their work inthe cinematographic film to the producer without being eligible for royaltiesarising out of that particular work in the future as a result of its subsequentuse.
The profits made on those works accrue to the producer of the film due tothe work being assigned as a part of a contract made prior to the publicationof the work or as in this case, the release of the film of the work is a partof.Further,in the case of IPRS v. Eastern IndianMotion Pictures Association and Ors12it was held that it is the producer of the cinematograph film with whom thecopyright of the work incorporated in the film subsists and not the author ofthe literary, musical or dramatic work until and unless there is an agreementto the contrary. In this particular case, the Copyright Board gave the decisionin favor of the authors and ruled that the authors of the work incorporated ina cinematograph film will sustain the copyright of their work.
The High Court,later set aside the ruling of the Board by interpreting clauses (b) and (c) ofSection 17 of the Act read with Section 13(4) that the copyright of the workincorporated in a cinematograph film rests with the producer of thecinematograph film since it is a work made in course of employment under acontract of service.1314 Therefore, once alyricist or music composer or a writer sanctions the producer to incorporatehis or her work in the film, he cannot later claim infringement of his rightsby the producer. The provision in question here was clause (c) of Section 17 ofthe Act which clearly authorized the producer of being the owner of copyrightin case of a cinematographic film.15 This, read with Section1816 provided an impetus tothe producers to exploit the authors of literary, dramatic and musical works bypaying a onetime lump sum amount and keeping the royalties accruing out thesaid work. It was due to the clout enjoyed by these handful numbers ofproducers in the industry. A new entrant trying to make his or her mark wouldpart away with his or her rights just in the expectation of beingrecognized. The2012 amendments, a well intentioned piece of legislation was brought forth bythe Parliament after a lot of debate and deliberations.
It is pertinent tomention a Parliamentary Standing Committee Report on the proposed amendmentswhich took into account points from both the parties. The report titled as the227th Parliamentary Standing Committee Report on the Copyright Bill2010 stated the objections raised by various music company associations andProducer guild associations. One of the objections as raised by South India Music Companies Associationwas that the said amendments are inviolation of Article 19(1)(g) of the Constitution of India as they take awayany scope reserved for private negotiations with respect to assignment for theright to exploit in the future.
17 RPG Enterprises-Saregama raised the issue that such amendments ifput into effect would nullify all the existing contracts from the pre-Amendmentera and would threaten the very survival of the entire Indian Music Industry.18 Further, it was thecontention Indian Performers RightsSociety that in an era where technology is growing at a rapid rate, it wasimpossible for copyright owners to deduce or know as to what the chief modes ofexploitation would be in the next five to ten years time.19 TheParliament rejected these contentions and as a result of intense lobbying bythe author’s society the Copyright Amendment Act was brought in the year 2012.The Act added two provisos in Section 18 of the Act.20 The first proviso statesthat the author of literary or musical work shall not waive his or her right toreceive royalties accruing out of their work which is incorporated in acinematographic film to the assignee of the copyright other than forcommunication of the work to the public.21 Further, the fourthproviso to the section was incorporated according to which the author of aliterary or musical work which was part of the sound recording but notincorporated in the cinematographic film shall not assign or waive his or herright to receive royalties to be shared on an equal basis with the assignee.22 Also, a proviso was addedin Section 17 of the Act which rendered the authors of the literary anddramatic work incorporated in a film as the first owner of the copyright.
23 COMPULSARY AND STATUTORYLICENSESCopyrightlicenses have been categorized into voluntary and non-voluntarily. In the former,the owner voluntarily enters into an agreement as the licensor and in thelatter, it is imposed on him. The latter is also called a compulsory license ora statutory license. The amendments of 2012 inserted certain new kinds ofnon-voluntary licenses which were absent in Act.
24Earlier,four provisions dealt with compulsory licenses among which, the scope ofSections 31 and 31A have been widened. Additionally new non-voluntary licenseshave been inserted in the following areas:· Creation of cover versions25· Broadcasting26· Making accessible copies ofcopyrighted works for the benefit of disabled persons27Thesewere earlier mentioned in the 2010 Bill but the provision on creation of coverversions is the only provision which has been retained as in the 2010 Bill.Compulsory licenses which were present in the earlier Act mirrored theprovisions in the Appendix of the Paris Act of the Berne Convention. Therefore,speculations were made regarding the amendments leading to violation of India’sobligations under the Berne Convention. However, Article 9(2) provides a widescope for States to adopt domestic legislation which allow reproduction incertain special cases where the reproduction does not i. Conflict with a normalexploitation of the work ii. Unreasonably prejudice thelegitimate interests of the authorSection31 was earlier a restricting section whereby, a copyright owner could put ablanket prohibition on the republication or performance of her/ his work unlessa charge was paid.
Complaints could be filed against these withheld works tothe Copyright Board wherein, the Board could decide issues on thereasonableness of the price charged by the owner for broadcasting the same.However, the amendment to this provision made two sweeping changes to thisprovision: i. A compulsory licence could begranted under Section 31 not only in respect of Indian work but also in worksof other jurisdictions; and ii. The grant of compulsory licenceis allowed under the Section not only to the complainant but to any otherperson(s), who, as per the opinion of the Copyright Board, were or arequalified to publish the work.Section31A discusses the grant of compulsory license with respect to unpublishedIndian works. The amendment to this Section widens the ambit of the Section toIndian and foreign unpublished works which can be granted compulsory licenses.Incontemporary times, creation of cover versions of parts of movies has gainedtraction.
A well-thought out non-voluntary license was created with respect tothis. A statutory license has been created relating to this by Section 31Csimilar to the license under Section 52(1)(j) of the earlier Act. Section52(1)(j) which existed earlier, was deleted with the amendment since the numberof litigations relating to creation of cover versions only went on to highlightthe ambiguity in the impending provision.
While, it seemed like the Sectionallowed the creation of cover versions without the consent of the copyrightowner, this was not the intention of the legislature.Section31C clarifies this by seeking to provide statutory license to persons who wishto make cover versions of sound recordings of literary, dramatic or musicalworks. This is with respect to works that have been made with or by the consentof the copyright owner of the work in the same medium as the last recording.The medium can be changed if the medium of the last recording is no longer anexisting commercial use.Section52(1)(j) was in the form of an exception while Section 31C is a creation of astatutory license. 31C also requires the creator of the cover versions to keepa full account of the existing stock which may be inspected by the copyrightowner.A CLhas also been created for the benefit of disabled persons.
Works may be madeavailable under compulsory license for the benefit of disabled persons. This isfacilitated by an application by an eligible organization with the CopyrightBoard for the aforementioned purpose. This must be disposed expeditiously, andthe Board must consciously attempt to dispose it within two months from thedate of application after conducting an inquiry into the good faith andcredentials of the applicant. The copyright owner must also be given a fairchance to be heard before deciding on the matter.On thesubjective satisfaction of the Board as to the requirement of issuing of thelicense for the benefit of the disabled persons, the licensee must specify themeans and format of publication the period for which the license may beutilized and if it is a case of issue of copies, the number of copies which maybe issued. The Board may specify the number of copies that may be made withoutpayment of royalty and fix the rate of royalty for the remaining copies. TheBoard also has the power to extend the period of such licensed and to allowissue of more copies.
WIPO AND WPPT· Performer’sRightTheAmendment Act has added a proviso to the definition of a ‘performer’ in Section2(qq) and thereby modifying the concept of performer with respect to the Act.According to it, any person whose performance in a cinematographic film isincidental or casual to the film and his or her name isn’t included in thecredits of the film will not be considered a performer with respect to thatparticular cinematographic film.28 Further, a new provisionhas been added29according to which a performer has a right over his performance with respectto- “(a) To make a sound recording or a visual recording of theperformance, including- (i) Reproductionof it in any material form including the storing of it in any medium byelectronic or any other means; (ii) Issuanceof copies of it to the public not being copies already in circulation; (iii) Communicationof it to the public; (iv) Sellingor giving it on commercial rental or offer for sale or for commercial rentalany copy of the recording; (b) Tobroadcast or communicate the performance to the public except where theperformance is already broadcast.” 30 · MoralRightsTheAmendment Act has provided for moral rights of the authors in two places;namely Article 38B and Article 57 of the Act. Under the former, even if aperformer has assigned the copyright of his performance to someone else, he orshe can “claim to be identified as the performer of his performance exceptwhere the omission is dictated by the manner of use of his performance.”31 Further, under clause(b), the performer has the right against distortion of his work whereby he orshe can claim damages in case if his performance has been mutilated which willbe detrimental to his or her reputation as a performer.32 The latter provision hasbeen amended to comply with Article 5 of the WPPT33 whereby moral rights havebeen given to the author due to the threat of digitization which can lead toalteration of their work.
However, the explanation of the section gives freedomto the editors to do their without any hassle.34 Further, the rightsprovided under this section can be claimed even by the legal representatives ofthe author.35 1 Anand Nair, Royalties and Right sharing in Film Industry in India PostCopyright Amendment Act 2012- Impact on Contractual Freedom : A ComparativeStudy with the US and the UK Copyright Regime, https://poseidon01.ssrn.
com/delivery.php?ID=024094113006076083067094083093004102099074018037042059108092069004025002107091097074121060123119021098114122084002090083103117027080071064004076004082113006081110059087060118019010093115117114088031121117026089091124085007124072123003118095088029124&EXT=pdf (Last accessed on 15thNovember, 2018 at 12:30 P.M.)2 Nandini Saikia, Film Music and IndianCopyright Law (2010 to 2012) (Available on https://poseidon01.
ssrn.com/delivery.php?ID=333026086024085029030080028069124093053092066027063087014082077064068075100107098006097025058123057012116084116120094095078071122015029086009004081004000120080092119090058007100015099090124112127014026069107123066107086104004007019112122004122027022105&EXT=pdf) (Last accessed on 12thNovember, 2018 at 11:55 P.
M.)3 Ibid4 Also known as WIPO Internet Treaties.5 Zakir Thomas, Overview of the changesto the Indian Copyright Law, Journalof Intellectual Property Rights, Vol 17, July 2012, pp 324-334 at page 324.
6 Ibid7 Ibid8 Section 2(f), The Copyright Act, 1957.9 Supra, note 1 at page 6.10 Supra, note 1 at page 6.11 Though this is not entirely true sincebig actors like Aamir Khan, Shahrukh Khan, Salman Khan, Akshay Kumar etc. jointhe film not just as actors but also as producers and take a share in profitsof the film. However, it is the background performers like lyricists, composersand screenwriters who are the actual sufferers since they have to part withtheir copyright on their works by way of assignment and thereby get no accessto the royalties accruing out of their work incorporated in the film in thefuture. 12 IPRS v. Eastern Indian MotionPictures Association and Ors 1977 AIR 1443.
13 Section 17(c), The Copyright Act,1957 (Pre 2012 Amendment).14 In a ‘Contract of Service’, the employerenjoys a master-servant relationship with the employee as unlike a ‘Contractfor Service’ where the employee is treated as a mere independent contractor.15 Supra, note 12.16 Section 18 of the Act deals with theassignment of copyright. It is under this section that the lyricists,screenwriters and music composers assigned their copyright to the producer. 17 Department Related ParliamentaryStanding Committee on Human Resource Development, Two Hundred Twenty SeventhReport on The Copyright (Amendment) Bill, 2010, November 2010 on Page 23.18 Ibid at Page 24.
19 Ibid at Page 24.20 Proviso 3 and 4, Section 18(1), TheCopyright Act, 1957.21 Proviso 3, Section 18(1), TheCopyright Act, 1957.22 Proviso 4, Section 18(1), TheCopyright Act, 1957.23 Section 17, The Copyright Act, 1957.24 Supra note 2, at page 33.
25 Ibid.26 Ibid. 27 Ibid.
28 Proviso to Section 2(qq), The CopyrightAct, 1957.29 Section 38A, The Copyright Act, 1957.30 Section 38A, The Copyright Act, 1957. 31 Section 38B(a), The Copyright Act,1957.32 Section 38B(b), The Copyright Act,1957.33 Section 5 of WPPT contains Moral Rightsof Performers.34 Section 57, The Copyright Act,1957.35 Ibid.
