Copyright Act 1957 & Copyright Bill 2010

Copyright Act 1957 and Copyright (Amendment) Bill 2010

The Copyright Act, 1957 defines the rights of authors of creative works such as books, plays, music, films and other works of art, and computer software. Such authors are the original owners of copyright in these works and have a ‘bundle of rights’ such as the right to distribute, perform, translate and adapt the work. These rights can also be assigned to others. The Act provides for copyright societies, which issue licences for copyrighted works and collect royalties on behalf of authors or rights holders.

Copyright in literary, dramatic, artistic and musical works lies with the author and his heirs till 60 years after his death. Copyright in photographs, films and sound recordings persist for 60 years after the work is made.

The Act also defines the limits of authors’ rights and the extent to which users can make ‘fair use’ of a work without infringing copyright. It prescribes penalties for infringement of copyright. It provides for a registrar of copyrights as well as a copyright board, which shall adjudicate disputes under the Act.

The amendment Bill seeks to make changes to the rights of authors, as well as those of users. It also seeks to bring relevant provisions of the Act in line with the World Intellectual Property Organisation (WIPO) Copyright Treaty and Public Performances and Phonograms Treaty, ‘to the extent considered necessary and desirable’.2 India has not signed these treaties as yet. It is a signatory to the Berne Convention, 1886, under which countries recognise copyright of authors from other member countries.

The Indian Copyright Act, 1957 has been designed from the perspective of a developing country. It has always attempted a balance between various kinds of interests. It has always sought to ensure that rights of authors of creative works is carefully promoted alongside the public interest served by wide availability and usability of that material. For instance, our Copyright Act has provisions for:

· compulsory and statutory licensing: recognizing its importance in making works available, especially making them available at an affordable rate.

· cover versions: recognizing that more players lead to a more vibrant music industry.

· widely-worded right of fair dealing for private use: recognizing that individual use and large-scale commercial misuse are different.

These provisions of our Act have been lauded, and India has been rated as the most balanced copyright system in a global survey conducted of over 34 countries by Consumers International.

The Indian Parliament has always sought to be responsive to changing technologies by paying heed to both the democratisation of access as well as the securing of the interests of copyright holders. This approach needs to be lauded, and importantly, needs to be maintained.²

Proposed Amendments

Some positive amendments

· Fair Dealings, Parallel Importation, Non-commercial Rental: All works (including sound recordings and cinematograph films) are now covered the fair dealings clause (except computer programmes), and a few other exceptions; parallel importation is now clearly allowed; and non-commercial rental has become a limitation in some cases.

· Persons with disabilities: There is finally an attempt at addressing the concerns of persons with disabilities. But the provisions are completely useless the way they are currently worded.

· Public Libraries: They can now make electronic copies of works they own, and some other beneficial changes relating to public libraries.

· Education: Some exceptions related to education have been broadened (scope of works, & scope of use).

· Statutory and compulsory licensing: Some new statutory licensing provisions (including for radio broadcasting) and some streamlining of existing compulsory licensing provisions.

· Copyright societies: These are now responsible to authors and not owners of works.

· Open licences: Free and Open Source Software and Open Content licensing is now simpler.

· Partial exemption of online intermediaries: Transient and incidental storage of copyrighted works has been excepted, mostly for the benefit of online intermediaries.

· Performer’s rights: The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.

· Enforcement: Provisions on border measures have been made better, and less prone to abuse and prevention of legitimate trade.³

Some negative amendments

· WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights.

· Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.

· Technological Protection Measures: TPMs, which have been shown to be anti-consumer in all countries in which they have been introduced, are sought to be brought into Indian law.

· Version recordings: The amendments make cover version much more difficult to produce.

· Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.

Missed opportunities

· Government-funded works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act.

· Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.

· Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement.

· Libraries and archives: The exceptions for ‘public libraries’ are still too narrow in what they perceive as ‘public libraries’.

· Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.

· Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.

· Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.

· Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

The Copyright Act, 1957 was enacted to amend and consolidate the law relating to copyrights in India. The Act has been amended five times, since then, once each in the years 1983, 1984, 1992, 1994 and 1999 to meet with the national and international requirements. Though the amendments in the year 1994 were quite comprehensive, only minor changes were introduced through the amendment made in the year 1999 to comply with the obligations under the Trade Related Aspects of Intellectual Property Rights (TRIPS). The Copyright (Amendment) Bill, 2010 was introduced in Rajya Sabha on 19 April, 2010 and referred to the Department-- related Parliamentary Standing Committee on Human Resource Development on 23 April, 2010 for examination and report thereon within two months.

The Copyright (Amendment) Bill, 2010 seeks to amend the Copyright Act, 1957 with certain changes for clarity, to remove operational difficulties and also to address certain newer issues that have emerged in the context of digital technologies and the Internet. The Bill also seeks to bring the provisions of the Copyright Act, 1957 in conformity with the two World Intellectual Property Organization (WIPO) Internet Treaties, namely, WIPO Copyright Treaty (WCT), 1996 and WIPO Performances and Phonograms Treaty (WPPT), 1996 to the extent considered necessary and desirable. The WCT and the WPPT were negotiated in 1996 to address the challenges posed to the protection of copyrights and related rights by digital technology, particularly with regard to the dissemination of protected material over digital networks such as Internet. The WCT deals with the protection for the authors of literary and artistic works such as writings, computer programmes, original data-bases, musical works, audio-visual works, works of the fine art and photographs.

The WPPT protects certain “related rights” which are the rights of the performers and producers of phonograms. In order to extend protection of copyright material in India over digital networks such as Internet and other computer networks in respect of literary, dramatic, musical and artistic works, cinematograph films and sound recordings works of performers, the Copyright (Amendment) Bill, 2010 seeks to harmonise the Copyright Act, 1957 with the two WIPO Internet Treaties.

As enumerated in the Statement of Objects and Reasons appended to the Bill, besides amendments in various provisions, a number of new provisions are proposed to be included in the Act. The most significant amendments seek to:-

(i) make the provisions of the Act in conformity with World Intellectual Property Organization’s

WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT);

(ii) provide for definition of new terms, namely “commercial rental”, “Rights Management

Information” and “visual recording” and to amend the existing definitions of the terms “author”,

“cinematograph films”, “communication to the public”, “infringing copy”, “performer” and “work of joint authorship”;

(iii) make provision for storing of copyrights material by electronic means in the context of digital technology and to provide for the liability of internet service providers;

(iv) give independent rights to authors of literary and musical works in cinematograph films;

(v) clarify that the authors would have rights to receive royalties and the benefits enjoyed through the copyright societies;

(vi) ensure that the authors of the works, in particular, author of the songs included in the

cinematograph films or sound recordings, receive royalty for the commercial exploitation of such

works;

(vii) allow the physically challenged persons to access to copyright material in specialized formats;

(viii) introduce statutory licensing for version recordings of all sound recordings to ensure that while making a sound recording of any literary, dramatic or musical work the interest of the copyright holder is duly protected;

(ix) introduce a system of statutory licensing to broadcasting organizations to access to literary and musical works and sound recordings without subjecting the owners of copyright works to any disadvantages;

(x) make provision for formulation and administration of copyright societies by the authors instead of the owners;

(xi) make provision for formulation of a tariff scheme by the copyright societies subject to scrutiny by the Copyright Board;

(xii) provide for continuous payment of royalties by aggrieved party pending the appeal before the Copyright Board and the Copyright Board may fix interim tariff pending appeal on the tariff scheme; and

(xiii) strengthen enforcement of rights by making provision of control of importing infringjng copies by the Customs Department, disposal of infringing copies and presumption of authorship under civil remedies.

Keeping in view, the very comprehensive amendments proposed by the Department in the Copyright Act, 1957, extensively affecting the rights of a large number of entities, the Committee decided to seek opinion of all concerned. Accordingly, a Press Release inviting memoranda/suggestions on various provisions of the Bill from all the stakeholders involved in copyright work was issued on 21 May, 2010. The Press Release elicited tremendous response from the stakeholders. Out of the 68 memoranda received, prominent were from the Film Industry, (Film and Television Producers Guild of India, Mumbai, Indian Motion Picture Producers’ Association, Mumbai, South Indian Film Chamber of Commerce, Chennai, Motion Picture Association and Film Federation of India); Music Industry (RPG Enterprises-Saregama, Kolkata, Indian Music Industry, Mumbai, South India Music Companies Association, Chennai and Phonographic Performance Ltd., Mumbai); Publishing Industry (Association of Publishers in India, New Delhi, Federation of Indian Publishers, New Delhi and Indian Reprographic Rights Organisation, New Delhi); Organizations/Associations representing visually impaired (Inclusive Planet, Kochi and Xavier’s Resource Centre for the Visually Challenged, Mumbai); News Broadcasting Associations (News Broadcasters Association, New Delhi and Indian Broadcasting Foundation, New Delhi); Association of Radio Operators in India, Author’s organizations (Authors’ Guild of India and CISAC); lyricists/music composers (Sh. Javed Akhtar, Smt. Shubha Mudgal and others); Artists organizations (Indian Performing Right Society Limited, Mumbai); Internet service providers (Yahoo India, Google India, Ebay India) and other organizations such as Internet and Mobile Association of India, Business Software Alliance.

The Committee started its deliberations with a preliminary discussion with the Secretary, Department of Higher Education on 26 May, 2010. The Committee was informed that India has been a member of the World Intellectual Property Organisation (WIPO) since 1975. The two WIPO Internet Treaties, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which were negotiated in 1996, address the challenges posed to the protection of copyrights and related rights by digital technology, particularly with regard to the dissemination of protected material over digital network such as the Internet.

The member countries of the WIPO agreed on the utility of having the Internet Treaties in the changed global technical scenario and adopted them by consensus. In order to sign these treaties, a country has to amend its domestic legislation and fulfill the treaty obligations before signing these treaties. It was clarified that conformity with the WCT and WPPT provisions did not warrant any major overhauling of the national laws of the countries which were signatory to the Berne Convention, 1971 and TRIPS, India being one such country. The Secretary apprised the Committee that the proposed amendments, besides bringing the Act in conformity with the WCT and WPPT could be categorized as those addressing the concerns of music and film industry; specific amendments protecting the physically challenged; and those protecting the interests of authors and amendments relating to operational difficulties and enforcement of rights. The Secretary, further apprised the Committee about the main features of the Bill.

Subsequent to preliminary interaction with the Secretary, Department of Higher Education, the Committee held a series of meetings with a number of organizations/associations/NGOs/legal experts as well as some renowned artists concerned with different aspects of copyright law having a direct impact on their domain of work. Besides holding extensive deliberations with all these stakeholders, the Committee also received detailed memoranda from them. Keeping in view the wide-ranging impact of proposed amendments touching upon very complex issues, all these memoranda were forwarded to the Department for ascertaining its views. Not only this, based on its interactions with different stakeholders, detailed questionnaire was also sent to the Department on four occasions along with few pertinent issues raised by some Members. The Committee also held a final meeting with the officials of the Department on some core issues relating to the Bill. Feedback received from the Department has proved to be of immense help to the Committee in formulating its views on various provisions of the Bill.