"It
is a step in the right direction in protecting the interest of the lyricists,
who create wonderful songs,"[1]
Introduction
Prior
to 2012, the Copyright Act, 1957 has been amended five times. Of these, the
amendment of 1994 is perhaps the most significant because it partially dealt
with issues relating to digitisation of copyrighted works.
The
Copyright (Amendment) Act, 2012 (‘the Amendment Act’) is popularly concerned a
boon, due to progressive amendments such as ‘right to royalty’ and exceptions
for persons with disabilities, which received large media coverage. However,
there are also a few
regressive amendments which have not received much public attention. Also, many important issues, particularly those with regard to the dissemination of copyrighted material over digital networks, have not been sufficiently addressed by these amendments.
regressive amendments which have not received much public attention. Also, many important issues, particularly those with regard to the dissemination of copyrighted material over digital networks, have not been sufficiently addressed by these amendments.
The
Amendment Act received the assent of the President on 7 June, 2012 and was
officially notified, as coming into force as the law of the land, by the
Central Government on 21 June, 2012[2].
Although the Amendment Act sought to make Indian Copyright Law conform to the
World Intellectual Property Organisation (WIPO) Copyright Treaty, or WCT, 1996
and the WIPO Performances and Phonograms Treaty (WPPT), 1996[3] it
has gone far beyond these international treaties.
Commissioned Works and Works under Contract of
Employment
According
to Section 17 of the original Act, the author is the first owner of copyrights
in a work unless such work is commissioned by another person or is created
under a contract of service or employment, in which cases the employer or the
person commissioning the work is the owner. A new proviso has been added to the
section providing that the logic or notion of commissioned work or work created
under employment does not accord ownership to the employer where such work is
incorporated in a cinematograph film[4].
Therefore,
a production house will not own the copyrights created by its employees during
the course of their employment. Interestingly, this provision does not apply to
works incorporated in a ‘sound recording’ and therefore, a record label can
still own the works created by its employees or commissioned authors.
Assignment of Copyrights and Right to Royalties
Under
section 18 of the original Copyright Act, author of a literary, artistic or
musical work could assign the copyright to the producers for incorporation in a
film. Such assignment could broadly be for both current and future modes of
exploitation. The amendment has added three new provisos to Section 18[5]:
Firstly, an
assignment made under this section is not applicable to any medium or mode of
exploitation that is not in existence at the time of the assignment unless
specifically mentioned in the assignment agreement.
Secondly,
the author of a literary or musical work incorporated in a cinematograph film
cannot assign or wave his right to receive ‘equal share of royalties’ from the
‘assignee’ for utilisation of such work in any form other than communication to
the public in a cinema hall. The only exceptions are copyright societies and
legal heirs to whom an author may assign the right. Therefore, producers should
now share the non theatrical exploitation royalties equally with the script
writers, lyricists and composers. The proviso clarifies that any amendment to
the contrary would be void;
Prior
to the amendment the authors did not have the right to receive any royalty for
exploitation of the works. Where such right existed, it could be transferred or
waived.
Thirdly,
the author of a literary or musical work incorporated in a sound recording
shall not assign or waive his right to receive equal share of royalties from
the ‘assignee’ for utilisation of such work in any form. The permitted
exceptions are copyright societies and legal heirs to whom an author may assign
the right.
The
introduction of the above provision would make it necessary to specify in
agreements of assignment that such assignment will apply in relation to a mode
‘whether in commercial use or not’. Further, the agreements will have to be
carefully drafted taking into account possible technological advances since the
amendment to section 18 also disallows the assignment of copyright in a manner
which would allow the assignee to exploit the copyright assigned to it via
unspecified ‘future technologies’ i.e. any medium or mode of exploitation of a
work which did not exist or was not in commercial use when the assignment was
signed.
It is not clear
whether this proviso would also apply retrospectively, i.e. to the agreements
of assignments entered prior to the Amendment. Although it is very unlikely
that the amendment is to be interpreted so as to
have retrospective application, as such provision would have the effect of
rendering all agreements entered into in the past void, which would create
havoc in the entertainment industry. However, if it is held that it does
so apply, then all earlier assignments will have a limited application and if
the intention of parties was to grant complete assignments, the parties would
have to consider entering into amendment agreements.
Though,
this amendment comes with a noble intention of granting royalty rights to the
authors, the language of the amendment is so ambiguous that it does more harm
than good. The words ‘equal share of royalty from exploitation of works’ has a large
scope of interpretation. The amendments do not specify how the amount of
royalty share is to be computed. There is no possible way to determine the
share of royalty accrued from the lyrics of one song, in an entire film. If it
is to be computed on the basis of ratio of length of the song to length of a
movie then all the songs together could entitle the music director and other
authors to 8-10% of revenue of a movie which can run into several crores. Computing
the share of royalty is even more difficult in case of smaller projects such as
telefilms, television serials, programs, music album videos, etc., which also
qualify as cinematograph films.
Furthermore, the language of the provisos is
far-reaching, to include ‘utilization (of the work)... in any form’. The
royalty sharing principle includes any form of exploitation of the full film
other than theatrical exploitation such as those accrued from DVDs sales,
satellite broadcast, airing of the films
on television or pay per view. The copyright of the Producers of cinematograph
films has been drastically undermined by these new provisions.
 |
| Javed Akhtar giving a speech in Parliament on the requirement of amendments to the Copyright Act 1957 |
On
the hand, in view of the new provisions the producers will not be willing to
pay large up-front payments to composers. Also, if the film does not become a
success, the composer will have worked for almost free. This increases the
pressure on lyricists or composers to create songs which have a huge commercial
following. Even artists who would want a single-shot payment will not given
this option by record companies, as the companies would throw up their hands
and say such payment would be illegal under the amendment.
Also,
it is not appropriate to apply the western system of revenue sharing to Indian
cinema. Unlike Hollywood, in the Indian films, the work of lyricist or composer
is based on the plot, storyline, the lead actors of the film, the situation in
the film during which the song is to be played, etc. The director and producer
have considerable inputs on the final outcome of the songs.
Further,
the agreements cannot run contrary to the rules of any copyright society of
which the author forms part of. However, the Amendment Act does not specify if
this include only the Indian copyright society or also the international copyright
societies.
Provisions for Persons with Disabilities
The
amended section 52(1)(zb) allows any person to facilitate access by persons
with disabilities to copyrighted works without any payment of compensation to
the copyright holder, and any organization working the benefit of persons with
disabilities to do so as long as it is done on a non-profit basis and with
reasonable steps being taken to prevent entry of reproductions of the
copyrighted work into the mainstream. Earlier s.52(1)(zb) dealt only with
formats that were “special designed only for the use of persons suffering from
visual, aural, or other disabilities”. Due to the amendment it now covers “any
accessible format”. Even for-profit businesses are allowed to do so if they
obtain a compulsory licence on a work-by-work basis, and pay the royalties
fixed by the Copyright Board.
This
exception is a progressive one which very few countries have till date adopted
and the Indian legislatures must be commended for incorporating the same.
Digital Rights Management (DRM)
Prior to the amendment the United States
had shown its eagerness for a change in India’s copyright laws in order to
match the U.S. copyright laws. This is evident from the Special 301 report of
U.S. in the year 2009 wherein it stated; “The
United States encourages India to enact legislation in the near term to
strengthen its copyright laws and implement the provisions of the WIPO Internet
Treaties.”[6]
DRM
includes measures that amount to a 'digital lockup' of content and networks by
right-holders/service providers. The most commonly deployed measures include
encryption, metadata, watermarking or fingerprinting.[7]
They can be used to simply restrict access or even to protect copyrighted
material.
The
reason for implementation of anti-circumvention laws may not only be because of
pressure from other countries. According to a BSA-IDC
Global Software Piracy Study, in 2008 global
software manufacturers lost an estimated $2.76 billion to software piracy in
India[8].
In 2009 the Indian government suffered revenue losses of $866 million in 2009
due to the high rate of illegal software trade in the country[9].
The Indian film, entertainment and media industry has also been hit heavily due
the increasing rate of piracy.
Section
65A(1)[10]
seeks to make circumvention of “effective
technological measure” on copyrighted material a criminal offence, with
imprisonment for a maximum period of two years. The word “effective” is rather
vague and can also be interpreted to mean that circumvention of technological
measures which are easy to circumvent. Based on the usual doctrines applied in
intellectual property laws, the courts may adopt an interpretation along the
lines of; if a common man who has no special skills which enable her/him to
circumvent such technological measures, manages to do so, then such technological
protection measures cannot be said to fall within the purview of “effective
technological measures”. In modern times, professional hackers and crackers are
generally youngsters with no special training, so determining whether a person
has ‘special skills’ or not may sometimes become difficult to prove.
Section
65A (2), however, provides various exceptions, enumerating permissible acts of
circumvention. These exceptions include:-
·
doing anything
necessary to conduct encryption research using a lawfully obtained encrypted
copy; or
·
conducting any lawful
investigation; or
·
doing anything
necessary for the purpose of testing the security of a computer system or a
computer network with the authorization of its owner or operator; or
·
doing anything necessary
to circumvent technological measures intended for identification or
surveillance of a user; or
·
taking measures
necessary in the interest of national security[11].
When
compared to the anti-circumvention provision in the U.S. Digital Millennium
Copyright Act (DMCA), section 65 (A) seems to be more consumer friendly and far
more balanced. However, this provision does not disallow certain DRM systems
which prohibit the common man from exercising any of the fair use exceptions.
It only gives the common man the legal right to circumvent in case of such
exceptions. Therefore, the dilemma of the legality of DRM systems restricting
fair use still remains. It was for this reason that Yahoo India had suggested
deletion of Section 65A.[12]
The Indian Broadcasting Federation (IBF) had recommended an increase in the
imprisonment term from 2 years to 3 years for first offence, 5 years for second
offence and all offences to be treated as cognizable and non-bailable was the
first suggestion made[13].
It was also recommended by IBF that any person found circumventing the
technology should be deemed to have circumvented it with the intention to
infringe copyright. This way the burden of proof would fall on the
circumventer. Also, copyright owner should be entitled to seek damages from the
offender. Google India suggested that illegal circumvention be only a civil
offence and not a criminal offence[14]. MediaNama also advocated deletion of
this section, as consumers buy the right to listen to music, this right cannot
be restricted to particular devices or a medium.
The
newly added section 65B provides for protection of Rights Management
Information (RMI)[15]. The purpose of section 65B is to
make the Indian copyright laws in compliance with the WIPO Copyright Treaty
(WCT), article 12 of the treaty in particular[16].
The Amendment Act even defines RMI at Section 2(xa).[17]
The
Standing Committee, after taking these suggestions under consideration
concluded that it would be better to give only limited legislative guidelines
for anti-circumvention and allow the judiciary to evolve the law based on
practical situations[18].
It
is also worth noting that the Amendment Act does not list the type or class of
goods or services for which circumvention applies. This may lead to an overlap
with the ‘right to information’ or ‘freedom of speech’ or other laws calling
for accountability.
Limited Protection to Some Internet Intermediaries
The
amendments to section 52, which provide some level of protection to 'transient
or incidental' storage of a work or performance either purely in the technical
process of electronic transmission or communication to the public, or for the
purpose of providing electronic links, where such link has not been expressly
prohibited by the right holder, unless the person responsible is aware or has
reasonable grounds for believing that such storage is of an infringing copy.
This provision would protect search engines which provide hyperlinks to other
websites.
Procedures Simplified
The
amendment to section 21 of the Copyright Act, which deals with the right of
authors to relinquish copyright, allows the author to relinquish the copyright
by a simple public notice. Earlier, the author relinquish parts of one’s
copyright by submitting a form to the Registrar of Copyrights Additionally,
s.30 of the Act, which required licences to be in writing and signed, now only
requires it to be in writing. This puts Creative Commons, the GNU Public
Licence, and other open licensing models, on a much surer footing in India.
The
newly added section 31D will also has also simplified the procedure for
obtaining statutory licenses for public broadcasting.
Protection of Moral Rights
The newly added section 38B safeguards
moral rights of the performer of a performance even
after assignment. The
performer is entitled to claim identification as the performer of the
performance. The performer can also restrain
or claim damages in respect of any distortion, mutilation or other modification
of the performance that “would be prejudicial to his reputation”. To protect
‘fair use’, the explanation to the provision clarifies that mere removal of any
portion of a performance for the purpose of editing, or to fit the recording
within a limited duration, or any other modification required for purely technical
reasons shall not be deemed to be prejudicial to the performer’s reputation[19].
Conclusion
The
Copyright (Amendment) Act, 2012 has added some provisions to Indian Copyright
Law which have not yet been incorporated in several developed countries. It is
a boon to authors of copyrights as well as users of the copyright. The clarifications
on what amounts to infringement have relieved those, who have always advocated ‘fair
use’, but feared allegations of infringement.
Also,
Other than the disability rights groups, which had campaigned very hard for the
amendment to section 52(1)(zb), the Parliamentary Standing Committee did not
invite any non-industrial groups for deposition before it. It is perhaps for
this reason that the amendments do not focus on rights of small-time lyricists,
writers or composers. The Standing Committee should have deposed persons from
all the relevant groups. Provisions affecting the rights of libraries were
passed without even calling a single person running a library or working in
one.
Section
65A relating to DRM should be amended so as to replace or delete or explain the
word “effective”. There is indeed a need for laws which restrict the adoption
and use of DRM systems on certain classes of copyrighted material. However, it
should also provide that it be compulsory for the manufacturers who are using
DRM to make freely available their contact information, in case any user wishes
to seek permission to break the DRM system for legal use.
How the authors, copyright society and,
ultimately, the Courts will compute ‘equal share of royalty from exploitation
of works’ for different types of works is yet to be seen. A large amount of
litigation may crop up on this issue itself.
-------------------------
[1] Sushma Swaraj, as
reported by Prakash Belawadi, Producers face the music, Bangalore Mirror (May 25, 2012)
[2] Gazette of
India, Extraordinary, Part-II, Section-1, dated
the 8th June, 2012:
[3] Zakir
Thomas, Overview of Changes to the Indian Copyright Law, Journal of
Intellectual Property Rights, Vol 17, July 2012, pp 324
[4] Amendment
No. 7 of the
Copyright (Amendment) Act, 2012- “In
section 17 of the principal Act, in clause (e), the following proviso shall be
inserted at the end, namely:
Provided
that in case of any work incorporated in a cinematograph work, nothing
contained in clauses (b) and (c) shall affect the right of the author in the
work referred to in clause (a) of sub-section (1) of section 13;”
[5] Amendment No. 8 of the Amendment Act – ‘8. In section 18 of the principal Act, in
sub-section (1), after the proviso, the following provisos shall be inserted,
namely:
"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 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 and distribution and any assignment to the contrary
shall be void.”’
[6] Office of the United
States Trade Representative 2009 Special 301 Report , April 30, 2009
[7]
Herman, B.D., 'Breaking and Entering My Own Computer: The Contest of Copyright
Metaphors', (2008) Communication Law and Policy 13(2) 231-274, p231
[8] The Economic Times, ‘Software piracy in India down by a notch; losses up at $2.7
bn’, New Delhi, May 12, 2009
[9] The Hindu, ‘Software piracy
caused $866-m tax loss in 2009: Study’ Pune, June 4, 2012
[10]Section
65A (1) “Any person who circumvents an effective technological measure applied
for the purpose of protecting any of the rights conferred by this Act, with the
intention of infringing such rights, shall be punishable with imprisonment
which may extend to two years and shall also be liable to fine.”
[11] Section 65A (2), the
Amendment Act
[12] Department-Related
Parliamentary Standing Committee On
Human Resource Development, Two Hundred
Twenty-Seventh Report On The Copyright (Amendment) Bill, 2010,
presented to the Rajya Sabha On 23rd November, 2010, laid On The
Table Of Lok Sabha On 23rd November, 2010, 20.4
[13] Ibid., 20.3
[14] Ibid.
[15]
Section 65B of the Amendment Act “Protection of Rights Management Information Any
person, who knowingly
(i)
removes or alters any rights management information without authority, or
(ii)
distributes, imports for distribution, broadcasts or communicates to the public
, without authority , copies of any work, or performance knowing that
electronic rights management information has been removed or altered without
authority, shall be punishable with imprisonment which may extend to two years
and shall also be liable to fine;…”
[16] Article 12
of WCT: Obligations concerning Rights
Management Information: (1)
Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts knowing, or with
respect to civil remedies having reasonable grounds to know, that it will
induce, enable, facilitate or conceal an infringement of any right covered by
this Treaty or the Berne Convention:
(2) As used in this Article, “rights management
information” means information which identifies the work, the author of the
work, the owner of any right in the work, or information about the terms and
conditions of use of the work, and any numbers or codes that represent such
information, when any of these items of information is attached to a copy of a
work or appears in connection with the communication of a work to the public.
[17] Sec
2 (xa) of the Copyright Amendment Act, 2012- “Rights
Management Information”, means‐ the title or other information
identifying the work or performance; (ii) the name of the author or performer;
(iii) the name and address of the owner of rights; (iv) terms and conditions
regarding the use of rights; and (v) any number or code that represents the
above information; but does not include any device or procedure intended to
identify the user.
[18] Ibid.
[19] Section
38B of the Amendment Act
[20]
Section 107 A of the Indian Patent Act, 1970 – “Certain acts not to be considered as infringement
[Certain acts
not to be considered as infringement. For the purposes of this Act,—
(a) any art of
making, constructing, [using, selling or importing] a patented invention solely
for uses reasonably relating to the development and submission of information
required under any law for the time being in force, in India, or in a country
other than India, that regulates the manufacture, construction, [use, sale or
import] of any product;
(b) importation
of patented products by any person from a person [who is duly authorised under
the law to produce and sell or distribute the product], shall not be considered
as an infringement of patent rights.]”
[21] Section 30(3) of Trademarks
Act, 1999- “Where the goods bearing a
registered trade mark are lawfully acquired by a person, the sale of the goods
in the market or otherwise dealing in those goods by that person or by a person
claiming under or through him is not infringement of a trade by reason only of—
(a) the registered trade mark having been
assigned by the registered proprietor to some other person, after the
acquisition of those goods; or
(b) the goods having been put on the
market under the registered trade mark by the proprietor or with his consent.”
Copyrights are not effective enough to protect the video that are published in internet.
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