Dr.

Ram Manohar Lohiya National

Law University

FINAL DRAFT
Intellectual Property Rights

Copyright Societies in the Aftermath of 2012

Amendments

SUBMITTED TO: SUBMITTED BY:

Dr. Vikas Bhati Pranav Bhansali
Asst. Professor (LAW) B.A. LL.B. (Hons.)
RMLNLU, Lucknow Semester 7th
Roll. No. 109
Section – B

Signature.................. Signature....................

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 CONCEPT OF COPYRIGHT SOCIETIES
Collective administration of copyright by societies is a concept where management and
protection of copyright in works are undertaken by a society of authors and other owners of
such works. No authors and other owner of copyright in any work can keep track of all the
uses others make of his work. When he becomes a member of a national copyright society,
that society, because of its organisational facilities and strength, is able to keep a better vigil
over the uses made of that work throughout the country and collect due royalties from the
users of those works.

Therefore, it is in the interests of copyright owners to join a collective administration

organisation to ensure better protection to the copyright in their works and for reaping
optimum economic benefits from their creations. Users of different types of works also find it
easy to obtain licences for legal exploitation of the works in question, though the collective
administrative society.

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COPYRIGHT SOCIETIES IN INDIA

A copyright society is a registered collective administration society under Section 33 of the
Copyright Act, 1957. Such a society is formed by authors and other owners. The minimum
membership required for registration of a society is seven. Ordinarily, only one society is
registered to do business in respect of the same class of work.

A copyright society can issue or grant licences in respect of any work in which copyright
subsists or in respect of any other right given by the Copyright Act. The business of issuing
or granting license in respect of literary, dramatic, musical and artistic works incorporated in
a cinematograph films or sound recordings shall be carried out only through a copyright
society duly registered under this Act. This is a kind of compulsory collective licensing for
managing of performing rights.

The registration granted to a copyright society shall be for a period of five years and may be
renewed from time to time before the end of every five years on a request in the prescribed
form and the Central Government may renew the registration after considering the report of
Registrar of Copyrights on the working of the copyright society under section 36. The

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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. Every copyright society already
registered before the Copyright (Amendment) Act, 2012 came into existence shall get itself
registered under this Chapter within a period of one year from the date of commencement of
the Copyright (Amendment) Act, 2012.

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FUNCTIONS OF A COPYRIGHT SOCIETY

Condition subject to which a copyright society may issue licences, collect fees
and distribute such fees.

(1) A copyright society may issue licences and collect fees in accordance with its Scheme of
Tariff in relation to only such works as it has been authorised to administer in writing by the
authors and other owners of rights and for the period for which it has been so authorised.

(2) The distribution of fees collected shall be subject to a deduction not exceeding fifteen per
cent of the collection on account of administrative expenses incurred by the copyright
society.

Administration of rights of owner by copyright society (Section 34)

(1) A copyright society may accept from an author and other owner of rights exclusive
authorisation to administer any right in any work by issue of licences or collection of licence
fees or both

(2) It shall be competent for a copyright society to enter into agreement with any foreign
society or organisation administering rights corresponding to rights under this Act, to entrust
to such foreign society or organisation the administration in any foreign country of rights
administered by the said copyright society in India, or for administering in India the rights
administered in a foreign country by such foreign society or organisation

(3) Subject to such conditions as may be prescribed, a copyright society may-

(i) Issue licences under section 30 in respect of any rights under this Act;

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(ii) Collect fees in pursuance of such licences;

(iii) Distribute such fees among author and other owners’ of rights after making deductions
for its’ own expenses;

(iv) perform any other functions consistent which the provisions of section 35.

Control over The Copyright Society By The Authors And Other Owner Of
Rights-(Section 35)

(1) Every copyright society shall be subject to the collective control of the author and other
owners of rights under this Act whose rights it administers (not being author and other
owners of rights under this Act administered by a foreign society or organisation referred
to in sub-section (2) of section (34) and shall, in such manner as may be prescribed,
 Obtain the approval of such owners of rights for its procedures of collection and
distribution of fees;
 Obtain their approval for the utilisation of any amounts collected as fees for any
purpose other than distribution to the owner of rights; and
 Provide to such owners regular, full and detailed information concerning all its
activities, in relation to the administration of their rights.

(2) All fees distributed among the owners of rights shall, as far as may be, be distributed in
proportion to the actual use of their works.

(3) Every copyright society shall have a governing body with such number of persons elected
from among the members of the society consisting of equal number of authors and owners’
for the purpose of the administration of the society as may be specified.

(4) All members of copyrights society shall enjoy equal membership rights and there shall be
no discrimination between authors and owners of rights in the distribution of royalties.

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 OVERVIEW
India’s Copyright Act, 1957 has been significantly amended. In May 2012, both houses of the
Indian Parliament unanimously placed their seal on the Copyright Amendment Bill, 2012,
bringing Indian copyright law into compliance with the World Intellectual Property
Organization “Internet Treaties”.

The Copyright Act, 1957 had been amended five times prior to 2012, once each in the years
1983, 1984, 1992, 1994 and 1999, to meet with the national and international requirements.
The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties –
the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty
(WPPT).

Also, while introducing technological protection measures, the amended law ensures that fair
use survives in the digital era by providing special fair use provisions. The amendments have
made many author-friendly amendments, special provisions for disabled, amendments
facilitating access to works and other amendments to streamline copyright administration.

The changes made by the Copyright Amendment Act are discussed below. The purpose of
this paper is to narrate the changes. Wherever possible a brief rationale for the amendment as
culled out from the notes on clauses of the Copyright Amendment bill and from the report of
the standing committee of parliament, is provided.

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 Amendments To Rights In Artistic
Works, Cinematograph Films And Sound
Recordings
Section 14 relating to the exclusive rights in respect of a work has been amended. The
amendments clarify the rights in artistic works, cinematograph films and sound recordings,
by providing that the right to reproduce an artistic work, to make a copy of a cinematograph
film or embodying a sound recording now includes ‘storing’ of it in any medium by
electronic or other means. In the case of literary, dramatic and musical works, the right to
reproduce already includes ‘storing of the work in any medium by electronic means’. The
present amendment in effect only extends this inclusive language to artistic works,
cinematograph films and sound recordings.

The right to store the work is of particular importance in a digital environment due to the
special nature of transmission of digitized works over the internet where transient copies get
created at multiple locations, including over the transmitting network and in the user’s
computer. In a manner of speaking, it can be stated that copyright has been extended to the
‘right of storing’ of works.

The definition of the Cinematograph Film (Section 2(f)) has also been amended. The
amended definition reads: Cinematograph Film means any work of visual recording and
includes a sound recording accompanying such visual recording and “cinematograph” shall
be construed as including any work produced by any process analogous to cinematography
including video films.

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 WCT & WPPT Related Amendment To
Rights
COMMERCIAL RENTAL

The obligation under Article 11 of the TRIPS Agreement, Article 7 of WCT and Article 9 of
WPPT is to provide for ‘commercial rental’ rights for computer programmes and
cinematograph films. This right was introduced in section 14 by using the word ‘hire’.

The term ‘hire’ in Sections 14 (d)&(e) with regard to cinematograph film and sound
recording, respectively, is replaced with the term ‘commercial rental’. The primary reason
behind the replacement is to curtail the possibility of interpreting the term ‘hire’ to include
non-commercial hire and also to keep in sync with the replacement (1999 amendment) of the
term ‘hire’ to ‘commercial rental’ with respect to computer programme in section 14(b). The
Amendment Act 2012 has also introduced a definition of the term ‘commercial rental’ in
section 2(fa) with the objective of expressly clarifying that the right is not applicable to non-
commercial activities of giving on ‘hire’ including the activities of libraries and educational
institutions.

PERFORMERS’ RIGHTS

Section 38(A) provides for performer’s right as an exclusive right to do or authorize the
doing of any of the acts in respect of the performance without prejudice to the rights
conferred on authors. The proviso to the section enables performers to be entitled for
royalties in case their performances are subjected to commercial use. This is a welcome
development as earlier the performers were not entitled to royalties because they only had a
negative right to prohibit ‘fixation’ of their live performances. The negative right has now
been converted to the positive rights.

Along with the above, the Amendment Act 2012 has also sought to amend the definition of
‘Communication to Public’ (Section 2 (ff)) extending the right to performances. The rights
under this head hitherto limited to authors have been extended to performers by the present
amendment. This is consequential to the grant of new rights to performers. The right of

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‘communication to public’ is essential to protect the work on the internet and such protection
hitherto available for ‘works’ now extends to ‘performances’.

A new section 38(B) grants moral rights to performers in line with Article 5 of WPPT. Moral
rights have been extended to performers, considering the possibility of digital alteration of
performances in a digital environment. The ‘explanation’ to the section clarifies that editors
are free to perform their tasks without the fear of legal consequences.

Another significant amendment in line with Article 9 of WCT is regarding the duration of
protection of photographic works. The term of copyright in a photograph has been made at
par with other artistic works, namely, until sixty years after the death of the author.

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Author-Friendly Amendments On Mode Of

Assignment And Licenses
ASSIGNMENT OF RIGHTS
 Section 18(1) provides that the owner of a copyright in any work or prospective
owner of a future work may assign the copyright, and the proviso to this sub-section
clarifies that in the case of future work, assignment will come into force only when
the work comes into existence. Another proviso under S. 18(1), inserted through
Amendment Act 2012, provides 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.
 Section 19 relates to the mode of assignment. Sub-section (3) has been amended to
provide that the assignment shall specify the ‘other considerations’ besides royalty, if
any, payable to the Assignor. Therefore, it is not necessary that only monetary
compensation by way of royalty could lead to assignment.
 Sub-section (8) has been inserted making the assignment of copyright void if
contrary to the terms and conditions of the earlier assignment to a copyright society in

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 which the author of the work is a member. This amendment is an attempt to
streamline the business practices.
 Sub-section (9), by providing claim to royalties from the utilization of the work used
to make a cinematograph or sound recording irrespective of any assignment of the
copyright in the same, is an attempt to rationalize the business practices prevalent in
the film industry.

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Amendments to Facilitate Access to

Works

COMPULSORY LICENSES

Section 31 deals with compulsory licenses of works withheld from public. The amendment
amplifies the applicability of this section from ‘Indian work’ to ‘any work’. The word
‘complainant’ is also replaced with the words ‘such person or persons who, in the opinion of
the Copyright Board is or are qualified to do so’. In continuum, sub-section (2) is omitted so
as to enable the Copyright Board to grant compulsory license to more than one person.

STATUTORY LICENSES

A new Section 31C provides for statutory license to any person desiring to make a cover
version of a sound recording in respect of any literary, dramatic or musical work. The
amendment provides that the person making the sound recording shall give to the owner prior
notice of his intention in the prescribed manner, provide the copies of all covers or labels
with which the version is supposed to be sold, and pay in advance the royalty at the rate fixed
by the Copyright Board. Such sound recordings can be made only after the expiration of 5
years after publication of the original sound recording. There is a requirement of payment of
a minimum royalty for 50,000 copies of the work during each calendar year.

ADMINISTRATION OF COPYRIGHT SOCIETIES

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Sections 33, 34 and 35 relate to the registration and functioning of a copyright society. These
have been amended to streamline the functioning of the copyright societies. All copyright
societies will have to register afresh with the registration granted for a period of five years.
Renewal is 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. In Section 35,
the phrase ‘owners of rights’ has been substituted with ‘authors and other owners of right’.
The section has been amended to provide that every copyright society shall have a governing
body with such number of persons elected from among the members of the society consisting
of equal number of authors and owners of work for the purpose of the administration of the
society. Section 35(4) provides that all members of a copyright society shall enjoy equal
membership rights and there shall be no discrimination between authors and owners of rights
in the distribution of royalties.

SPECIAL PROVISION FOR ACCESS TO THE DISABLED

Compulsory License for the Disabled Section 31B provides for compulsory license in
works for the benefit of the disabled. The Copyright Board, on an application for a CL by any
person working for the benefit of persons with disability on a profit basis or for business shall
dispose such application within a period of two months from the date of receipt of
application. The CL issued must specify the means and format of publication, the period
during which the compulsory license may be exercised and the number of copies that may be
issued including the rate or royalty.

Fair Use Rights for the Disabled The new clause (zb) added to section 52(1) providing for
fair use of the work for the benefit of the disabled, facilitates adaptation, reproduction, issue
of copies or communication to the public of any work in any accessible format, for persons
with disability to access works including sharing with any person with disability for private
or personal use, educational purposes or research.

EASIER RELINQUISHMENT OF COPYRIGHT

Section 21 deals with the right of author to relinquish copyright. The amendment facilitates
relinquishment of copyright by way of public notice. Sub-section (1) now provides

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relinquishment of copyright either by giving notice to the Registrar of Copyrights or by way
of public notice.

Strengthening Enforcement and

Protecting against Internet Piracy
STRENGTHENING OF BORDER MEASURES

Section 53, dealing with importation of infringing copies, has been substituted with a new
section providing detailed border measures to strengthen enforcement of rights by making
provision to control import of infringing copies by the Customs Department, disposal of
infringing copies and presumption of authorship under civil remedies.

PROTECTION OF TECHNOLOGICAL MEASURES

The new section 65(A), introduced for protection of technological protection measures
(TPM) used by a copyright owner to protect his rights on the work, makes circumvention of it
a criminal offence punishable with imprisonment. As a result, any person who circumvents
an effective technological measure applied for the protection of any of the rights, 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. The rationale is to prevent the possibility of high
rate infringement (digital piracy) in the digital media.

Digital Rights Management Information

Section 65(B) has been introduced to provide protection of rights management information,
which has been defined under clause (xa) of section 2. This amendment is intended to prevent
the removal of the rights management information without authority and distributing any
work, fixed performance or phonogram, after removal of rights management information. As
a result, any unauthorized and intentional removal or alteration of any rights management
information is a criminal offence punishable with imprisonment, which may extend to two
years and fine. The rationale of the protection emanates from the practice in the digital world
of managing the rights through online contracts governing the terms and conditions of use.

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The protection of technological measures and rights management information were
introduced in WCT and WPPT as effective measures to prevent infringement of copyright in
digital environment.

Reform of Copyright Board

The Copyright Board during the last decade has changed significantly. Considering the
diverse nature of issues being dealt with by the Copyright Board, Section 11 relating to the
constitution of the Copyright Board has been amended to make it a body consisting of a
Chairman and two members. A provision has also been introduced for payment of salaries
and allowances to the members of the Board. This reformist approach is timely, looking at
the multifarious responsibilities the Copyright Board is now called upon to discharge.

The nature of activities, in the past decade has also changed significantly. Many issues go
beyond mere registration of copyright. It extends to compulsory licenses in areas such as
broadcasting requiring sufficient knowledge and skill.

CONCLUSION

The Amendment Act was aimed to be an access-enabling, technology friendly dynamic

enactment, however 2 years down the lane it remains legislation yet to be fully implemented.
Many of the provisions are simply inoperable due to a non-existent Copyright Board, while
some are not being followed in true spirit by different categories of stakeholders.
Furthermore, some provisions are already under judicial scrutiny while some are considered
too vague to warrant any implementation without clarification from legislation or judiciary.
Judicial interpretations and pronouncements in the near future are likely to clear the mist
around many provisions brought in the statute book through 2012 Amendment Act.

Broadly the amendments strengthen the rights of the authors, streamline the process of
assignment and grant of licenses, facilitate better access to works, and extend fair use
provisions, in general and in particular to the internet. The changes made in the provisions of
assignment and licensing and in copyright societies are expected to streamline business

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practices but has an underlying concern about protecting authors’ interests. There are also
welcome reforms to administration of copyright societies and the Copyright board. Overall
the amendments have the reformist approach.

BIBLIOGRAPHY
Web Links

 https://www.ip-watch.org

Articles

 An Overview of changes to the Indian Copyright Law, By- Zakir Thomas

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