Volume II Issue III

Copyright Amendment Act, 2012 – A major breakthrough in the protection of creative works Author By: Suhail Khan | Volume II Issue III |

January 23, 2020

Abstract

The Indian Copyright Act, 1957 is one of the oldest Intellectual Property legislation when it comes to registration of the copyrights of the authorized works under the same. It is in strict conformity with the Berne Convention and Universal Copyright Convention. The Act of 1957 was further amended in the years 1983, 1984, 1992, 1994, 1999 and 2012. As a consequence of the following amendments, the copyright regime in India has undergone major changes and the year 2012 was the breakthrough among all the amendments that have been made till date. The various amendments in the aforementioned years were to achieve parity with WTO-TRIPS and other international legal obligations mostly was which India was a signatory. The Copyright Amendment Act of 2012 was brought into effect to bring the existing Act of 1957 in coherence with the WCT (WIPO Copyright Treaty) and WPPT (WIPO Performers and Phonograms Treaty). The amendment goes much beyond the various internet treaties and has introduced various profound changes in the Copyright Act, 1957.

There have been various amendments in relation to the artistic works, cinematograph films and sound recordings, toeing the line with WCT and WPPT in relation with rights, author friendly amendments on the mode of assignment of copyright and licenses to rationalize business and trade practices, various amendments to necessitate the access to the works that form the scope of copyright law by the grant of compulsory and statutory licenses, administration of copyright societies, granting the access of copyright to the disabled and its relinquishment. It also includes the strengthening the enforcement and protecting the copyrighted works against Internet piracy including WCT and WPPT related provisions; the amendments in the area of the reform of Copyright Board is also remarkable. The amendments have been made to clarify and expand the rights in artistic work, cinematograph films and sound recording. The various technical issues of the “storage” of such works have been addressed in the same amendment of 2012.

Introduction

A copyright is a creature of the statute. No person at all is entitled to a copyright protection except under the Copyright Act, 1957.[1] In essence, the copyright law is concerned or connected with the certain negative rights of prevention of the copying or doubling of the physical or material work especially in the field of literature and arts. The main object is to protect the owner of the copyright from any unauthorized reproduction or the exploitation of his works; it is also extendable to the exercising of any authority or other form of right attached to the copyrighted work. It is very pertinent to note that the copyright was first kind of intellectual property to be recognized, it is also one of the seven constituents of the “intellectual property” as recognized by the TRIPS Agreement. It encourages the authors, artists, and composers to create original works by giving them an exclusive right for a fixed period of time and when this period expires, the copyrighted work falls into the public domain and in turn benefits the public good and welfare as whole. The doctrine of ubi jus ibiremedium is the soul of the copyright law, which means that where there is a right, there is a remedy. The copyright law is mostly territorial in nature, there is no complete or absolute law in international terms relating to the copyright protection.

The Indian Copyright Act, 1957 is one of the oldest Intellectual Property legislation when it comes to registration of the copyrights of the authorized works under the same. It is in strict conformity with the Berne Convention and Universal Copyright Convention. The Act of 1957 was further amended in the years 1983, 1984, 1992, 1994, 1999 and 2012. As a consequence of the following amendments, the copyright regime in India has undergone major changes and the year 2012[2] was the breakthrough among all the amendments that have been made till date. The various amendments in the aforementioned years were to achieve parity with WTO-TRIPS and other international legal obligations mostly was which India was a signatory. The Copyright Amendment Act of 2012 was brought into effect to bring the existing Act of 1957 in coherence with the WCT (WIPO Copyright Treaty) and WPPT (WIPO Performers and Phonograms Treaty). The amendment goes much beyond the various internet treaties and has introduced various profound changes in the Copyright Act, 1957.

Rights in artistic Works, Cinematograph Films and Sound Recordings

The amendments have made certain feasible changes in the clarification of rights in the various works such as artistic works, cinematograph films and sound recordings. These amendments which were given effect to put the resolution to the most important issue of “storage” of the works mentioned above that form the scope of copyright protection in terms of vesting of the exclusive right. This in turn also addresses some of the difficulties and lags that are often faced by these kinds of works very often in the digital era passively mandated by WCT and WPPT.

Section 14(c)[3] relates to the exclusive rights relating to the owner or author of the artistic work. The clause (i) of this sub-section grants the right to the author of the work to reproduction in any material form. This clause is amended in order to expand the scope of right to reproduction of work in any material form as including ‘the storing of it in any medium by electronic or any other means’. This clause has been drafted again so as to number it in sub-clauses the rights which already exist in the form of the depiction of the three-dimensional work in two-dimensional work and that of a two-dimensional work in a three-dimensional form of work; the overall effect of the amendment is on the issue of storage which includes the storing of the work in an electronic or any other form.

Section 14(d)[4] deals with the exclusive rights in relation of the cinematograph films. The sub-clause that already exists (i) provides to the owner of the copyright, the right to make a copy of the film including a photograph of the same of any image forming the part thereof. The sub-clause has been amended by the virtue of the 2012 amendment to include the storage of the work by extending his right of accumulation of the work in electronic or any other form. The Act has also amended the definition of ‘cinematograph film’ under section 2(f). The amended definition reads as: cinematograph film means any work of visual recording on any medium. Similar amendments have been made in the context of the sound recordings under section 14(e) to enhance the existing provision of making the copies of the sound recordings so as to ensure that the storage of the work in electronic or any other means is dealt with.

The expression ‘electronic or any other means’ was considered so as to keep in view the evolution of the technology in the near future as a possibility. It would have also been very reasonable if the same kind of criteria was also adopted in the case of literary, dramatic and musical works under the section 14(a)(i).[5] It is also very relevant to note that the expression ‘electronic or any other means’ could just have been replaced by ‘any means’ but this was not considered so as to decrease the exclusivity of the copyright and its mismanagement and making it more of a right with certain reasonable limitations and not a mere absolute or arbitrary right.

III. Right of Commercial Rental: WCT and WPPT related Amendments

Within the ambit of section 14[6] relating to the meaning of copyright, the amendment provides the right of ‘commercial rental’ to cinematograph films and sound recordings by replacing the provision of ‘hire’ to ‘commercial rental’ in the existing clauses relating to the cinematograph films and sound recordings under clauses (d)(ii) and (e)(ii) providing for the right to sell or give on commercial rental or offer for the sale for the copy of such rental, any copy of the film or the sound recording.

‘Commercial rental’ does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purpose by a ‘non-profit library’ or ‘non-profit educational institution’ means a library or educational institution which receives grants from the Government or is exempted from the payment of taxes under the Income Tax Act, 1961.[7]

The term ‘commercial rental’ is added to the clauses of the cinematograph films and sound recordings with an objective to ensure that the work is not related to non-commercial activities of ‘hire’ including the activities of libraries and educational institutions; in other words it can be asserted that this amendment has worked for the better facilitation of works. The word ‘hire’ has been replaced by ‘commercial rental’ and the expression ‘regardless of whether such copy has been sold or given on hire on earlier occasions’ is also deleted so as to ensure that the ‘doctrine of first sale’ in the exhaustion of these works is there and it relates to the efficacy of dealing with these works.

Performer’s Right

The amendment has ensured the affirmative and favorable Performer’s rights by making some major changes in the existing section 38[8] which granted certain negative rights only by prohibiting certain acts in the sub sections (3) and (4) making the scope of the concept retarded and myopic. These sub-sections have now been omitted and the new section 38-A[9] is included in the pursuit of adding value to the spirit of performer’s rights, making them more exclusive and giving the performer the right to do or authorize the doing of any of the acts with respect to the performance, without prejudice of the rights that are conferred on the authors and they are as follows:

To make a sound recording or a visual recording (within the meaning of the Act) of the performance or to certain acts in the respect of such recordings.
To reproduce it in any material form including the right of storage of itin any medium by electronic or any other means.
To issue copies of the work not being the ones which are already in circulation.
To communicate it to the public.
To sell or give on commercial rental or to offer for sale or give on commercial rental, any copy of the recording; and
To broadcast or communicate the performance to the public except where the performance is already a broadcast performance.

The above stated section has provided exclusivity in terms of rights provided to the performers to make it compatible with articles 6 to 10 of the WPPT. Previously the performers only had a right of fixation, which was a negative right in the context of live performances when it came to the grant of performer’s rights but now with the amendment, performers can enjoy the exclusive rights in regard to the earning of royalties which is a boon for the performers.

Right to communicate to Public

It is well established that the right of ‘communication to public’ was introduced in the 1994 amendment to the extension of the copyright to the Internet. These rights were limited to the authors earlier but now they have been extended to performers as well. The definition of communicating to the public in the statute has been amended and a new definition has been inserted, extending the right of performances by adding the words ‘performances’ and ‘physical copies’ in the existing section 2(ff)[10] of the Act. The definition is so amended by adding the words ‘or performance’ after ‘work’ and extending communication to the public simultaneously or at places and times chosen individually, which has significance for the performers.

Moral Rights of Performers

The Copyright Act, 1957 has provided for the moral rights to authors under section 57[11] termed as ‘author’s special rights’, though it did not use the term ‘moral rights’ in the act but the rights so included are largely moral in nature. Article 5 of the WPPT covers the moral rights of the authors and composers and the amendment in this area is in correspondence with the same article. The concept of moral rights has also been extended to the performers considering the possibility of the alteration in digital forms of a performance and the digital environment. However, some amount of alteration can be done for the purpose of the editing and so on. The explanation of the section clarified that editors are free to perform their tasks without fearing the legal consequences and so on. Also, a new section 38-B[12] grants moral rights to the performers on their performance as follows: the performer of the performance shall, independently of his right after assignment, either wholly or partly of his right, have the right.

To claim to be identified as the performer of his performance except where omission is dictated by the manner of the performance; and
To restrain or to claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.

VII. Term of Copyright in Photographs

The term of a copyright in photographed works has been made at par with the other artistic works within the meaning of the Act, namely, until sixty years after the death of the author, by deleting ‘other than photographs’ in clause 22 and deleting section 25[13] which provided for a special term for photographs (of sixty years from publication). This amendment is in accordance with the Article 9 of WCT regarding the duration of protection of the photographed works.

VIII. Assignment of Rights

Section 18(1)[14] of the Act provides that the owner of a copyright in any work or the prospective owner of a future work which has come into existence or is yet to come to existence may assign the copyright. The proviso which has been attached to this section provides further information regarding the copyright assignment which further clarifies that in case of a future work, the assignment of a copyright will come to existence only when the work comes into being or comes into existence. Another proviso named as the second proviso further provides that no assignment at all would be applied to the mode of exploitation that did not exist or was not known in commercial use when the assignment of such copyright was made. The other proviso attached to it also states that the author of a literary or musical work incorporated in a cinematograph film or sound recording shall not assign the right to receive royalties in any form other than as a part of the film or sound recording. The intention behind this proviso is to straighten the conferment of the royalties when it comes to the performer’s or composer’s right as the right to gain royalties can only exist as a part which arises out of the cinematograph film or the sound recording, also the this right is meant to be exclusive that generates royalties out of the scope of the copyrighted work.

The various amendments that are stated above strengthen the position of the author even if the new modes of exploitation of the works come into being. Though it is still possible that the advent of high speed bandwidths and internet telephony, new modes of exploitation of the work which are not yet realized by the authors of the work and so on may yet come into the scene and it might be difficult for the lawmakers to accommodate them but the legislations relating to the copyright and its amendments are drafted in such a way that the changes in exploitation in new terms can now be settled and included in the existing law.

Section 19[15] of the Act relates to the mode of assignment of copyright. The sub-section (3) of the section has been amended to provide that the assignment shall specify the ‘other considerations’ except than the royalty, if any of them exist at all, are payable. Thus, it is not necessary that only the monetary compensations by the way of royalties could lead to the assignment of a copyrighted work. The amendment of 2012[16] has also inserted a new sub-section (8) in the section 19 of the existing Act that any assignment of the copyright in any work contrary to that of the terms and conditions of the rights already assigned to a copyright society in which the author of a work is a member, shall be deemed to be void. A new sub-section (9) provides that no assignment of the copyright in any work to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties in the case of utilization of the work in any form other than as part of cinematograph film or sound recording.

Compulsory Licensing

Section 31[17] of the Act deals with the compulsory licenses of the works withheld from public; the main motive of the compulsory licensing is to ensure that the person who is enjoying the benefits of the copyright is authorized to use the work in such a manner prescribed under the Act so as to prevent the world as a whole from using or exploiting the copyright of such work. This section provides that if the owner of the copyright in any work that is ‘Indian’ has refused to republish or allow the republication or has refused the performance in public of the work and withheld the work from public or has refused to allow communication to the public by broadcast of the work recorded in sound recording, the Copyright Board may, on the basis of a complaint received and after such inquiry as it may deem necessary, direct the Registrar of Copyrights to grant to the complainant, a licence.

The application of this section is enhanced and amplified from ‘Indian work’ to ‘any work’ extending the amplitude of the work so copyrighted. ‘Explanation’ relating to the definition of ‘Indian work’ is also omitted in the dealing of the works related to the copyright. The word which was later used as the expression ‘complainant’ has been replaced with the words as follows, ‘such person or persons who, in the opinion of the Copyright Board, is or are qualified to do so.’ Sub-section (2) is omitted so as to enable the Copyright Board to grant compulsory licence to more than one person.

By the virtue of the amendment, compulsory licenses can be obtained from ‘any work’ withheld from the public and not just ‘Indian work’ and the licence can be granted to such persons as the Board may decide. Section 31-A[18] relates to compulsory licences in unpublished “Indian works.” The section has been amended to allow compulsory licences to any unpublished work or any work published or communicated to the public where the work is withheld from the public in India and in cases where the author is dead or unknown or the owner cannot be traced.

Special provisions have been provided for compulsory licencing of the works for the disabled by inserting the section 31-B.[19]

Fair Use Provisions

Section 52[20] of the Act encapsulates the acts that do not and will not amount to the infringement of the copyright. These are popularly known as the fair use provisions and the constituents of the doctrine of fair dealing. Certain changes in the form of extensions of the acts that form the part of the fair use have been made for the efficiency of dealing of the copyrighted work and the welfare of the general public. The existing clause (1)(a) of the section provides for the fair dealing of literary, dramatic, musical and artistic works only. This particular clause has been amended in such a way that it accommodates the fair dealing of any kind of work protected under the copyright law, for the reasons of private and personal use. By the virtue of this amendment the kinds of works which are namely, cinematograph films and musical works are also included in the ambit of the fair use. The conception of fair dealing also covers any kind of work for reproduction in the course of judicial proceedings [clause (d)], reproduction or publication of any work prepared by secretariat of a Legislature [clause (e)] and the copies can be in the form of certified versions of the same as per law [clause (f)].

New clauses such as the 52(1)(w) has been added that deals with the making of a three-dimensional object from a two-dimensional work, for instance, a technical drawing for the application of the industries of any purely functional part would not amount to the infringement of the copyright. This helps in the reverse engineering of the mechanical devices. Another clause 52(1)(zc) has been included to the Act for the importation of the literary or artistic works such as labels, company logos or promotional or explanatory material that is incidental to products or goods being imported shall not constitute in the infringement of copyright. This clause further supports the parallel import provisions which are present in the TradeMarks Act, 1999.[21]

Fair Use Rights for Disabled

The clauses (zb) and (zc) have been added to the section 52(1) for the fair dealing of the works that are copyrighted for the benefit of the disabled persons as they have been entitled to the use of these works without it being the infringement of copyright. The clauses provide for the adaptation, reproduction, issue of copies or communication to the public of any work in any form that accessible, to benefit and facilitate the persons with disability to access the works including sharing with any person with disability, for private or personal use, educational purpose or research. These rights can also be availed by the person or any organization working for the benefit of the persons who are disabled. The proviso that is attached to the clause maintains that the copies of the works in the formats that are accessible to the persons as whole are made available to the persons with disabilities on the basis of not accruing the profits and only recovering the costs of production. Such organizations have a kind of duty imposed upon them to take reasonable steps to prevent their entry into the ordinary conduits of business.

XII. Enforcement and Protection against Internet Piracy

Section 53[22] of the Act that dealt with the importation of infringing copies has been substituted with a new section that provides border details in general to further strengthen the enforcement of the rights making provision to control import of infringing copies by the Customs Department, disposal of infringing copies and presumption of the authorship under civil remedies.

The section provides that the owner of a copyrighted work or any performance embodied in such work or his duly authorized agent, may give notice in writing to the Commissioner of Customs, or to any other officer authorized in this behalf by Central Board of Excise and Customs requesting the Commissioner for a period specified in the notice, not exceeding one year, to treat infringing copies of the work are expected to arrive in India at a time and a place specified in the notice. After the examination of evidence so furnished the Commissioner may pass such order treating the infringing goods as prohibited goods. When any such goods are detained, the Custom Officer shall inform the importer as well as the person who gave the notice of detention of such goods within 48 hours of that detention. The Custom Officer shall release the goods, if the person who gave notice does not produce any order from a court having jurisdiction as to the temporary or permanent disposal of such goods within 14 days from the date of their detention.

A new section 65-A[23] has been introduced in the realm of Copyright law in India, dealing with the management of digital rights by protecting the technological measures used by a copyright owner in order to protect his work and rights relating to it. If any person who circumvents any effective technological measure that is employed for the protection of such right, coupled with the intention of infringing such rights shall be punishable with imprisonment which may extend to extend to a period of two years and shall also be liable to fine.

XIII. Copyright Societies

Sections 33[24], 34[25] and 35[26] of the Act relate to the registration and functioning of a copyright society. Amendments have been pitched in and enforced in these following sections in order to rationalize the functioning of the copyright societies. All the copyright societies will have to register afresh under these provisions by the virtue of the amendments.

Every copyright society that is already registered before the advent of the Copyright Amendment Act, 2012 shall get itself registered under the new provision within a period of one year from the date of commencement of the Copyright Amendment Act, 2012. The registration that is granted to a copyright society under the section 33(3) of the Act shall be for a period of five years and can be made renewable from time to time. The renewal of the registration of a copyright society shall be subject to the continued collective control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of the right to receive royalty.

There are specific amendments to protect the interests of the authors and composers of the copyright protected works. In the section 35 of the Act, the phrase used, ‘owners of rights’ has been substituted and replaced with the phrase ‘authors and other owners of right’. The section has been amended to lay out that every copyright society shall have a body that governs it with certain numbers of persons elected within the members of the society which comprises of the equal number of persons who are creators of the copyright or their owners for the purposes of the administration of the society and its proceedings. Section 35(4) provides that all the members of the copyright society shall enjoy equal membership rights and there shall be no discrimination on any ground between the creator of the work and the owner of the copyright in the distribution of the royalties.

XIV. Copyright Board

If we take a look at the working of copyright boards in India, in the past few decades, the nature of the activities handled by them has changed significantly and there has been a huge trend in the dynamic nature of the works handled by the same. There are many issues which are dealt by the Copyright Boards which go beyond the mere functions of the registration of copyright and so on. The Copyright Boards in the Indian Copyright law regime extends up to the assignment of copyright to the grant of compulsory licences and various complex areas of broadcasting requiring abundant knowledge and skill. When the Copyright Amendment Bill in 2010 was being discussed in the Rajya Sabha, the nature of the working of Copyright Board as a diverse body with the responsibility of discharging various functions was being called upon and there is a reformist approach that has to be applied shortly in this context.

Section 11[27] that relates to the constitution of the Copyright Board which has been amended to be a body that consists two members headed by a Chairman. Before the amendment, the Board used to be a body consisting of up to 14 members. Various provisions have also been helmed by the recent amendment that also introduces the payment of salaries and allowances to the members of the Board, which is a very practicable change. The current practice includes and involves the appointment of the Law Secretaries from the State Governments, some Directors of National Law Schools on a rotation basis. The practice does not lead to the development of specialization.

Conclusion

The amendments in the Copyright law that have been there during all these years have been the ones which have been welcomed greatly. These changes in the copyright law regime in the Indian context would lead to the strengthening the rights and interests of the authors, composers or creators of the works and those of the copyright owners as well at the same time; it would also turn out to be very achievable for the functioning of the assignment of the Copyrights when it comes to its efficacy and scope. The access of the persons to the works that are the subjects of copyright or they are copyright protected is more streamlined and well-run as compared to before. The extension of the fair use or the concept of fair dealing is to be well ensured so as to promote various instances of criticism and review of the work, the personal and private use in order to work for the purposes of education and research and also to ensure that the reporting of current affairs and events is done in a proper and judicious manner; especially in the area of internet, the fair use provisions need widening to give effect to the resolution of various contemporary issues relating to the fair dealing of the content on web.

There are also various suggestions and recommendations which have turned out to be beneficial and would turn out to be the one that would favor the whole regime of Copyright law as a whole are coming from the end of Copyright Board and Copyright Societies. Overall, there is an ardent need for all the amendments that come in the area and realm of the copyright to be of the reformist approach and many of the changes have continued to be of the reformist approach by and large.

One major issue relating to the copyright law is that of the parallel imports, this is the issue that has been discussed a lot and has not been provided any resolve yet is the same. The Amendment Bill in its initial stages contained the provisions of international exhaustion that called for the enabling of parallel imports. The Standing Committee in its report stated the relevance of this provision which was highly recommended. The Human Resource Minister who pitched the Bill made a statement on this issue of parallel imports that he has commissioned a study on the impact of parallel imports by the National Council for applied Economic Research and that he shall get back to the house after studying its report. This one issue is pending in the Copyright law. However there are some fair use provisions helping to facilitate the issue of parallel imports in the Indian Patent Act, 1970[28] and the TradeMarks Act, 1999.

Overall, the amendments which have been introduced in the Copyright law from the very time of its inception have contributed a lot in keeping up with the changing trends of time and practicable functioning in all forms, the most meaty one in the list of amendments is the Copyright Amendment Act of 2012 that has helped the Indian Copyright law to reach the state of zenith if an international point of view is taken in account. In the long run, this amendment would surely allow the Copyright Act, 1957 to retain its position to be one of the best copyright legislations in the world.

[1] The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[3]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[4]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[5] Id.

[6] Id.

[7] The Income Tax Act, 1961, No. 43, Acts of Parliament, 1961.

[8]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[9] Id.

[10]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[11] Id.

[12]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[13] Id.