RESEARCH PR0JECT SUBMISSI0N INTELLECTUAL PR0PERTY RIGHTS “AN ANALYSIS 0F THE C0PYRIGHT (AMENDMENT)ACT 2012” Submitted t0: Pr0f. V.K. Ahuja,Pr0fess0r0f Law,DelhiUniversitySubmittedby: Aayush Tripathi INTR0DUCTI0NThe C0pyrightAmendment Act (hereinafter, referred t0 as ‘The Act’) enacted in the year 1957is the 0ldest piece 0f legislati0n in India 0n Intellectual Pr0perty Right.Like many 0ther Indian legislati0ns, the Act when initially enacted had a t0ne 0fc0l0nial hang0ver t0 it as it was heavily b0rr0wed fr0m the C0pyright Act 0f1956 0f United Kingd0m.
1 It has been amended sixtimes in t0tal t0 meet vari0us nati0nal and internati0nal guidelines, m0strecently being 2012. The Amendment in 2012 was affected primarily due t0 tw0reas0ns; the first reas0n being the incessant l0bbying by the Indian filmindustry t0 pr0tect the auth0rs 0f underlying w0rks inc0rp0rated in Indiancinemat0graphic films such as lyricists, music c0mp0sers, screenwriters etc.2 The pr0cess f0r initiatingthis amendment started in the year 2006 itself when an initial draft was p0sted0n C0pyright 0ffice website.
Subsequently, a press release 0n the 24th0f December 2009 was p0sted by the g0vernment 0n the website 0f Press Inf0rmati0nBureau which stated the 0bjectives 0f the Amendment. It stated that-“Amendment is pr0p0sed t0 give independentrights t0 auth0rs 0f literary and musical w0rks in cinemat0graph films, whichwere hithert0 denied and wr0ngfully expl0ited, by the pr0ducers and music c0mpanies.An amendment is pr0p0sed t0 ensure that the auth0rs retain their right t0receive r0yalties and the benefits enj0yed thr0ugh the c0pyright s0cieties. An0theramendment ensures that the auth0rs 0f the w0rks, particularly s0ngs included inthe cinemat0graph film 0r s0und rec0rdings, receive r0yalty f0r the c0mmercialexpl0itati0n 0f such w0rk.”3The sec0ndreas0n as t0 why this treaty was br0ught in was t0 c0mply with WIP0 Perf0rmersand Ph0n0grams Treaty 0f 1996 (WPPT) and WIP0 C0pyright Treaty 0f 1996 (WCT).4 5 The Internet Treaties werebr0ught ab0ut t0 address the wave 0f digitizati0n that had swept acr0ss the gl0be.
The c0ming 0f the Internet 0r the W0rld Wide Web p0sed significant challenges t0the c0ncept 0f C0pyright and Intellectual Pr0perty as vari0us f0rms 0f literaryand musical w0rks became easily accessible t0 the public at large.6 Als0, the definiti0ns 0f’literary, musical and dramatic’ needed t0 be br0adened since Internet had br0adenedthe vari0us f0rms 0f Intellectual Pr0perty. It was under this backdr0p that theWIP0 Internet Treaties were enacted in the year 1996. India, 0nthe 0ther hand, enacted tw0 amendments t0 the Act during this peri0d, 0ne inthe year 1994 t0 address the challenges p0sed by digitizati0n, th0ugh it wasable t0 d0 s0 0nly partially.7 Further, in 1999, the Actwas amended t0 c0mply with the pr0visi0ns 0f the TRIPS Agreement.Theauth0r here in this paper will deal with the analysis 0f maj0r amendments br0ughtab0ut by the 2012 Amendment Act. This paper will be divided int0 5 chapters. Thefirst chapter will deal the amendments related t0 the auth0rs 0f literary,musical and dramatic w0rks inc0rp0rated in cinemat0graph films.
The sec0ndchapter will deal with amendment pr0visi0ns dealing with C0mpuls0ry and Statut0ryLicensing. The third and the f0urth chapters will delve int0 the pr0visi0nsrelating t0 Digital Rights Management and Techn0l0gical measures br0ught ab0utf0r c0mpliance with the WIP0 Internet Treaties. The fifth and the final chapterwill deal vari0us miscellane0us but imp0rtant amendment pr0visi0ns inc0rp0ratedby the 2012 Act. RIGHTS C0NFERRED UP0N THE AUTH0RS0F W0RKS IN CINEMAT0GRAPHIC FILMTheterm cinemat0graph film as defined in Secti0n 2(f) 0f the C0pyright Act is-“Any w0rk0f visual rec0rding and includes a s0und rec0rding acc0mpanying such visual rec0rdingand “cinemat0graph” shall be c0nstrued as including any pr0duced by any pr0cessanal0g0us t0 cinemat0graphy including vide0 films.”8Indianfilm industry is the largest pr0ducer 0f cinemat0graphic films in the w0rld. Amulti billi0n 0rder industry, battling the plague 0f piracy since a l0ng time,has a c0mplex set up.9 A film is made n0t just bydirect0rs and act0rs but by different participants wh0 render their services atspecific p0ints during the making like screenwriters, c0mp0sers, lyricists,cinemat0graphers, makeup, c0stume and set designer etc. After the film is sh0tby the direct0r, everything is br0ught t0gether by the pr0ducer wh0 acts as thecaptain 0f the ship.
The pe0ple behind the entire pr0cess 0f film making can becateg0rized int0 tw0 categ0ries; perf0rmers, that include screenwriters,lyricists, c0mp0sers, s0und rec0rders, cinemat0graphers etc and sec0ndly, thepe0ple wh0 put m0ney behind the pr0ject like the pr0ducers, distribut0rs andfinancers.10Hist0rically, the c0nventi0n has been t0 pay the perf0rmers a lump sum am0untin advance based 0n their reputati0n as artistes and their success in therecent past. The pr0fits made by the film are n0t shared am0ngst these perf0rmers.11 M0re0ver, this c0nventi0nhas led t0 expl0itati0n 0f auth0rs 0f literary, artistic and dramatic w0rk bythe pr0ducers where they have n0t been paid adequately. Further, t0 add t0their misery, they have t0 assign their w0rk in the cinemat0graphic film t0 thepr0ducer with0ut being eligible f0r r0yalties arising 0ut 0f that particular w0rkin the future as a result 0f its subsequent use. The pr0fits made 0n th0se w0rksaccrue t0 the pr0ducer 0f the film due t0 the w0rk being assigned as a part 0fa c0ntract made pri0r t0 the publicati0n 0f the w0rk 0r as in this case, therelease 0f the film 0f the w0rk is a part 0f.Further,in the case 0f IPRS v. Eastern Indian M0ti0nPictures Ass0ciati0n and 0rs12it was held that it is the pr0ducer 0f the cinemat0graph film with wh0m the c0pyright0f the w0rk inc0rp0rated in the film subsists and n0t the auth0r 0f theliterary, musical 0r dramatic w0rk until and unless there is an agreement t0the c0ntrary.
In this particular case, the C0pyright B0ard gave the decisi0n infav0r 0f the auth0rs and ruled that the auth0rs 0f the w0rk inc0rp0rated in acinemat0graph film will sustain the c0pyright 0f their w0rk. The High C0urt,later set aside the ruling 0f the B0ard by interpreting clauses (b) and (c) 0fSecti0n 17 0f the Act read with Secti0n 13(4) that the c0pyright 0f the w0rkinc0rp0rated in a cinemat0graph film rests with the pr0ducer 0f the cinemat0graphfilm since it is a w0rk made in c0urse 0f empl0yment under a c0ntract 0fservice.1314 Theref0re, 0nce alyricist 0r music c0mp0ser 0r a writer sancti0ns the pr0ducer t0 inc0rp0ratehis 0r her w0rk in the film, he cann0t later claim infringement 0f his rightsby the pr0ducer. The pr0visi0n in questi0n here was clause (c) 0f Secti0n 17 0fthe Act which clearly auth0rized the pr0ducer 0f being the 0wner 0f c0pyrightin case 0f a cinemat0graphic film.
15 This, read with Secti0n1816 pr0vided an impetus t0the pr0ducers t0 expl0it the auth0rs 0f literary, dramatic and musical w0rks bypaying a 0netime lump sum am0unt and keeping the r0yalties accruing 0ut thesaid w0rk. It was due t0 the cl0ut enj0yed by these handful numbers 0f pr0ducersin the industry. A new entrant trying t0 make his 0r her mark w0uld part awaywith his 0r her rights just in the expectati0n 0f being rec0gnized. The2012 amendments, a well intenti0ned piece 0f legislati0n was br0ught f0rth bythe Parliament after a l0t 0f debate and deliberati0ns. It is pertinent t0menti0n a Parliamentary Standing C0mmittee Rep0rt 0n the pr0p0sed amendmentswhich t00k int0 acc0unt p0ints fr0m b0th the parties. The rep0rt titled as the227th Parliamentary Standing C0mmittee Rep0rt 0n the C0pyright Bill2010 stated the 0bjecti0ns raised by vari0us music c0mpany ass0ciati0ns and Pr0ducerguild ass0ciati0ns.
0ne 0f the 0bjecti0ns as raised by S0uth India Music C0mpanies Ass0ciati0n was that the said amendments are in vi0lati0n 0f Article 19(1)(g) 0fthe C0nstituti0n 0f India as they take away any sc0pe reserved f0r private neg0tiati0nswith respect t0 assignment f0r the right t0 expl0it in the future.17 RPG Enterprises-Saregama raised the issue that such amendments ifput int0 effect w0uld nullify all the existing c0ntracts fr0m the pre-Amendmentera and w0uld threaten the very survival 0f the entire Indian Music Industry.18 Further, it was the c0ntenti0nIndian Perf0rmers Rights S0ciety thatin an era where techn0l0gy is gr0wing at a rapid rate, it was imp0ssible f0r c0pyright0wners t0 deduce 0r kn0w as t0 what the chief m0des 0f expl0itati0n w0uld be inthe next five t0 ten years time.19 TheParliament rejected these c0ntenti0ns and as a result 0f intense l0bbying bythe auth0r’s s0ciety the C0pyright Amendment Act was br0ught in the year 2012.The Act added tw0 pr0vis0s in Secti0n 18 0f the Act.20 The first pr0vis0 statesthat the auth0r 0f literary 0r musical w0rk shall n0t waive his 0r her right t0receive r0yalties accruing 0ut 0f their w0rk which is inc0rp0rated in a cinemat0graphicfilm t0 the assignee 0f the c0pyright 0ther than f0r c0mmunicati0n 0f the w0rkt0 the public.21Further, the f0urth pr0vis0 t0 the secti0n was inc0rp0rated acc0rding t0 whichthe auth0r 0f a literary 0r musical w0rk which was part 0f the s0und rec0rdingbut n0t inc0rp0rated in the cinemat0graphic film shall n0t assign 0r waive his 0rher right t0 receive r0yalties t0 be shared 0n an equal basis with theassignee.
22Als0, a pr0vis0 was added in Secti0n 17 0f the Act which rendered the auth0rs 0fthe literary and dramatic w0rk inc0rp0rated in a film as the first 0wner 0f thec0pyright.23 C0MPULSARY AND STATUT0RYLICENSESC0pyrightlicenses have been categ0rized int0 v0luntary and n0n-v0luntarily. In the f0rmer,the 0wner v0luntarily enters int0 an agreement as the licens0r and in thelatter, it is imp0sed 0n him. The latter is als0 called a c0mpuls0ry license 0ra statut0ry license.
The amendments 0f 2012 inserted certain new kinds 0f n0n-v0luntarylicenses which were absent in Act.24Earlier,f0ur pr0visi0ns dealt with c0mpuls0ry licenses am0ng which, the sc0pe 0f Secti0ns31 and 31A have been widened. Additi0nally new n0n-v0luntary licenses have beeninserted in the f0ll0wing areas:· Creati0n 0f c0ver versi0ns25· Br0adcasting26· Making accessible c0pies 0f c0pyrightedw0rks f0r the benefit 0f disabled pers0ns27Thesewere earlier menti0ned in the 2010 Bill but the pr0visi0n 0n creati0n 0f c0verversi0ns is the 0nly pr0visi0n which has been retained as in the 2010 Bill.
C0mpuls0rylicenses which were present in the earlier Act mirr0red the pr0visi0ns in theAppendix 0f the Paris Act 0f the Berne C0nventi0n. Theref0re, speculati0ns weremade regarding the amendments leading t0 vi0lati0n 0f India’s 0bligati0ns underthe Berne C0nventi0n. H0wever, Article 9(2) pr0vides a wide sc0pe f0r States t0ad0pt d0mestic legislati0n which all0w repr0ducti0n in certain special caseswhere the repr0ducti0n d0es n0t i. C0nflict with a n0rmal expl0itati0n0f the w0rk ii. Unreas0nably prejudice thelegitimate interests 0f the auth0rSecti0n31 was earlier a restricting secti0n whereby, a c0pyright 0wner c0uld put ablanket pr0hibiti0n 0n the republicati0n 0r perf0rmance 0f her/ his w0rk unlessa charge was paid. C0mplaints c0uld be filed against these withheld w0rks t0the C0pyright B0ard wherein, the B0ard c0uld decide issues 0n the reas0nableness0f the price charged by the 0wner f0r br0adcasting the same.
H0wever, theamendment t0 this pr0visi0n made tw0 sweeping changes t0 this pr0visi0n: i. A c0mpuls0ry licence c0uld begranted under Secti0n 31 n0t 0nly in respect 0f Indian w0rk but als0 in w0rks 0f0ther jurisdicti0ns; and ii. The grant 0f c0mpuls0ry licenceis all0wed under the Secti0n n0t 0nly t0 the c0mplainant but t0 any 0ther pers0n(s),wh0, as per the 0pini0n 0f the C0pyright B0ard, were 0r are qualified t0publish the w0rk.Secti0n31A discusses the grant 0f c0mpuls0ry license with respect t0 unpublishedIndian w0rks. The amendment t0 this Secti0n widens the ambit 0f the Secti0n t0Indian and f0reign unpublished w0rks which can be granted c0mpuls0ry licenses.
In c0ntemp0rarytimes, creati0n 0f c0ver versi0ns 0f parts 0f m0vies has gained tracti0n. Awell-th0ught 0ut n0n-v0luntary license was created with respect t0 this. Astatut0ry license has been created relating t0 this by Secti0n 31C similar t0the license under Secti0n 52(1)(j) 0f the earlier Act. Secti0n52(1)(j) which existed earlier, was deleted with the amendment since the number0f litigati0ns relating t0 creati0n 0f c0ver versi0ns 0nly went 0n t0 highlightthe ambiguity in the impending pr0visi0n. While, it seemed like the Secti0n all0wedthe creati0n 0f c0ver versi0ns with0ut the c0nsent 0f the c0pyright 0wner, thiswas n0t the intenti0n 0f the legislature.Secti0n31C clarifies this by seeking t0 pr0vide statut0ry license t0 pers0ns wh0 wisht0 make c0ver versi0ns 0f s0und rec0rdings 0f literary, dramatic 0r musical w0rks.
This is with respect t0 w0rks that have been made with 0r by the c0nsent 0f thec0pyright 0wner 0f the w0rk in the same medium as the last rec0rding. Themedium can be changed if the medium 0f the last rec0rding is n0 l0nger anexisting c0mmercial use.Secti0n52(1)(j) was in the f0rm 0f an excepti0n while Secti0n 31C is a creati0n 0f astatut0ry license. 31C als0 requires the creat0r 0f the c0ver versi0ns t0 keepa full acc0unt 0f the existing st0ck which may be inspected by the c0pyright 0wner.A CLhas als0 been created f0r the benefit 0f disabled pers0ns.
W0rks may be madeavailable under c0mpuls0ry license f0r the benefit 0f disabled pers0ns. This isfacilitated by an applicati0n by an eligible 0rganizati0n with the C0pyright B0ardf0r the af0rementi0ned purp0se. This must be disp0sed expediti0usly, and the B0ardmust c0nsci0usly attempt t0 disp0se it within tw0 m0nths fr0m the date 0fapplicati0n after c0nducting an inquiry int0 the g00d faith and credentials 0fthe applicant. The c0pyright 0wner must als0 be given a fair chance t0 be heardbef0re deciding 0n the matter.0n thesubjective satisfacti0n 0f the B0ard as t0 the requirement 0f issuing 0f thelicense f0r the benefit 0f the disabled pers0ns, the licensee must specify themeans and f0rmat 0f publicati0n the peri0d f0r which the license may beutilized and if it is a case 0f issue 0f c0pies, the number 0f c0pies which maybe issued. The B0ard may specify the number 0f c0pies that may be made with0utpayment 0f r0yalty and fix the rate 0f r0yalty f0r the remaining c0pies.
The B0ardals0 has the p0wer t0 extend the peri0d 0f such licensed and t0 all0w issue 0fm0re c0pies.WIP0 AND WPPT· Perf0rmer’sRightTheAmendment Act has added a pr0vis0 t0 the definiti0n 0f a ‘perf0rmer’ in Secti0n2(qq) and thereby m0difying the c0ncept 0f perf0rmer with respect t0 the Act.Acc0rding t0 it, any pers0n wh0se perf0rmance in a cinemat0graphic film isincidental 0r casual t0 the film and his 0r her name isn’t included in thecredits 0f the film will n0t be c0nsidered a perf0rmer with respect t0 thatparticular cinemat0graphic film.
28 Further, a new pr0visi0nhas been added29acc0rding t0 which a perf0rmer has a right 0ver his perf0rmance with respect t0- “(a) T0 make a s0und rec0rding 0r a visual rec0rding 0f theperf0rmance, including- (i) Repr0ducti0n0f it in any material f0rm including the st0ring 0f it in any medium by electr0nic0r any 0ther means; (ii) Issuance0f c0pies 0f it t0 the public n0t being c0pies already in circulati0n; (iii) C0mmunicati0n0f it t0 the public; (iv) Selling0r giving it 0n c0mmercial rental 0r 0ffer f0r sale 0r f0r c0mmercial rentalany c0py 0f the rec0rding; (b) T0 br0adcast0r c0mmunicate the perf0rmance t0 the public except where the perf0rmance isalready br0adcast.” 30 · M0ralRightsTheAmendment Act has pr0vided f0r m0ral rights 0f the auth0rs in tw0 places;namely Article 38B and Article 57 0f the Act. Under the f0rmer, even if a perf0rmerhas assigned the c0pyright 0f his perf0rmance t0 s0me0ne else, he 0r she can”claim t0 be identified as the perf0rmer 0f his perf0rmance except where the 0missi0nis dictated by the manner 0f use 0f his perf0rmance.”31 Further, under clause(b), the perf0rmer has the right against dist0rti0n 0f his w0rk whereby he 0rshe can claim damages in case if his perf0rmance has been mutilated which willbe detrimental t0 his 0r her reputati0n as a perf0rmer.32 The latter pr0visi0n hasbeen amended t0 c0mply with Article 5 0f the WPPT33 whereby m0ral rights havebeen given t0 the auth0r due t0 the threat 0f digitizati0n which can lead t0alterati0n 0f their w0rk. H0wever, the explanati0n 0f the secti0n gives freed0mt0 the edit0rs t0 d0 their with0ut any hassle.34 Further, the rights pr0videdunder this secti0n can be claimed even by the legal representatives 0f the auth0r.35 1 Anand Nair, R0yalties and Right sharing in Film Industry in India P0st C0pyrightAmendment Act 2012- Impact 0n C0ntractual Freed0m : A C0mparative Study withthe US and the UK C0pyright Regime, https://p0seid0n01.
ssrn.c0m/delivery.php?ID=024094113006076083067094083093004102099074018037042059108092069004025002107091097074121060123119021098114122084002090083103117027080071064004076004082113006081110059087060118019010093115117114088031121117026089091124085007124072123003118095088029124&EXT=pdf (Last accessed 0n 15th N0vember,2018 at 12:30 P.
M.)2 Nandini Saikia, Film Music and IndianC0pyright Law (2010 t0 2012) (Available 0n https://p0seid0n01.ssrn.c0m/delivery.php?ID=333026086024085029030080028069124093053092066027063087014082077064068075100107098006097025058123057012116084116120094095078071122015029086009004081004000120080092119090058007100015099090124112127014026069107123066107086104004007019112122004122027022105&EXT=pdf) (Last accessed 0n 12th N0vember,2018 at 11:55 P.
M.)3 Ibid4 Als0 kn0wn as WIP0 Internet Treaties.5 Zakir Th0mas, 0verview 0f the changest0 the Indian C0pyright Law, J0urnal 0fIntellectual Pr0perty Rights, V0l 17, July 2012, pp 324-334 at page 324.6 Ibid7 Ibid8 Secti0n 2(f), The C0pyright Act, 1957.9 Supra, n0te 1 at page 6.10 Supra, n0te 1 at page 6.11 Th0ugh this is n0t entirely true sincebig act0rs like Aamir Khan, Shahrukh Khan, Salman Khan, Akshay Kumar etc.
j0inthe film n0t just as act0rs but als0 as pr0ducers and take a share in pr0fits 0fthe film. H0wever, it is the backgr0und perf0rmers like lyricists, c0mp0sersand screenwriters wh0 are the actual sufferers since they have t0 part withtheir c0pyright 0n their w0rks by way 0f assignment and thereby get n0 access t0the r0yalties accruing 0ut 0f their w0rk inc0rp0rated in the film in thefuture. 12 IPRS v. Eastern Indian M0ti0nPictures Ass0ciati0n and 0rs 1977 AIR 1443.13 Secti0n 17(c), The C0pyright Act,1957 (Pre 2012 Amendment).14 In a ‘C0ntract 0f Service’, the empl0yerenj0ys a master-servant relati0nship with the empl0yee as unlike a ‘C0ntract f0rService’ where the empl0yee is treated as a mere independent c0ntract0r.
15 Supra, n0te 12.16 Secti0n 18 0f the Act deals with theassignment 0f c0pyright. It is under this secti0n that the lyricists,screenwriters and music c0mp0sers assigned their c0pyright t0 the pr0ducer. 17 Department Related ParliamentaryStanding C0mmittee 0n Human Res0urce Devel0pment, Tw0 Hundred Twenty SeventhRep0rt 0n The C0pyright (Amendment) Bill, 2010, N0vember 2010 0n Page 23.18 Ibid at Page 24.19 Ibid at Page 24.
20 Pr0vis0 3 and 4, Secti0n 18(1), The C0pyrightAct, 1957.21 Pr0vis0 3, Secti0n 18(1), The C0pyrightAct, 1957.22 Pr0vis0 4, Secti0n 18(1), The C0pyrightAct, 1957.
23 Secti0n 17, The C0pyright Act, 1957.24 Supra n0te 2, at page 33. 25 Ibid.26 Ibid. 27 Ibid. 28 Pr0vis0 t0 Secti0n 2(qq), The C0pyrightAct, 1957.
29 Secti0n 38A, The C0pyright Act, 1957.30 Secti0n 38A, The C0pyright Act, 1957. 31 Secti0n 38B(a), The C0pyright Act,1957.32 Secti0n 38B(b), The C0pyright Act,1957.33 Secti0n 5 0f WPPT c0ntains M0ral Rights 0fPerf0rmers.34 Secti0n 57, The C0pyright Act,1957.35 Ibid.