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Decoding the good from the bad in the Copyright Amendment Bill, 2009

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IP firm Lall, Lahiri and Salhotra partners Anuradha Salhotra and Rahul Chaudhry wrap up and critique the proposed amendments to the Copyrights Act shortly before the upcoming parliamentary sessions.

The Indian Cabinet had approved the Copyright Amendment Bill on 24 December 2009 and it is proposed to be presented before the Parliament during the upcoming budget session in 2011.

The proposed amendments have been made in order to clarify, remove operational difficulties and address the newer issues that have emerged in the context of digital technology and the internet.

Some of the proposed amendments seek to bring the Act in conformity with the World Intellectual Property Organization (WIPO) Internet Treaties, namely WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

These amendments are a welcome move in many aspects as they seek to promote greater access to knowledge and information to the physically challenged and have been able to address the concerns of the music and film industry.

Some of the amendments include enactment of anti-circumvention laws, statutory licensing to ensure that the public has access to musical works (particularly benefiting broadcasters) and a proposal to ensure that lyricists receive royalty for the commercial exploitation of their songs.

Not-for-profit film rentals

With the proposed amendment of Section 14(d), there shall be a separation of commercial from non-commercial rental of films. There are many non-profit libraries which acquire copies of cinematograph films and this amendment will facilitate the rental of films for educational and non-profit purposes.

Statutory licensing for broadcasters

The amendment of Section 31 seeks to provide statutory licensing which would particularly benefit all broadcasters who operate broadcasting stations. This amendment would allow wider participation of the ordinary users and creators as it would not limit the license ensuing under the existing Section 31 for the use of copyrighted work only by the 'complainant', but would extend it to a broader class of individuals or organisations that are judged competent to republish the work and perform the work in public or communicate the work to the public.

Also, the proposed amendment to delete clause 2 of Section 31 would no longer hinder the grant of compulsory license to only one person but would be made available to all those eligible. This amendment could be traced back to an order of the Copyright Board in Music Broadcast Private Limited (MBPL) vs. Phonograph Performance Limited (PPL) dated 19 November 2002 in which the Copyright Board held PPL's interpretation that only one person may be granted license was untenable and contradicted the interim orders of the Delhi and Bombay High Courts on the meaning of 'complainant' in Section 31(2).

However, the amendment would necessitate an amendment of Rules framed under the Copyright Act, especially Form IIA in the context of music broadcasters that contemplates a fee of Rs 200 per Indian work to be paid at the time of making an application for a license. For radio stations to pay Rs 200 per work in its extensive repertoire of musical works or sounds recordings would prove to be a very expensive affair and the said form is not relevant in respect of licenses for broadcasters.

Boon for artists

The proposed amendment to delete Sections 38(3) and 38(4) and replace it with the new Sections 38A and 38B would give independent rights to the authors of literary and musical works in cinematograph films, which were hitherto denied. This has been hailed by many artists as it would provide succour to the entertainment industry and also mitigate the possibility of being exploited by the producers, music companies and music directors.

Enabling access

The Amendment Bill also seeks to allow the production of copyrighted material in special formats by the addition of Section 52 (1)(za). The physically challenged require access to copyrighted material in specialised formats such as the Braille text, the talking text, the electronic text, large print etc for the visually challenged and sign language for the aurally challenged.

The cost of production of material in such formats is very high and with additional requirement of royalty payments, the costs become even higher. Therefore, this amendment would bring about much needed succor to the disabled and promote access to knowledge and information for people with a disability.

An amendment to the new Section 53 includes border- enforcement measures that would act as a deterrent to the import of infringing copies of the copyrighted materials. The new Sections 65A and 65B have been proposed to protect the right holders against circumvention of effective technological measures applied for the purpose of protection of his rights while maintaining an appropriate balance between the interests of the right holders on the one hand and of technology innovators, researchers and educational institutions on the other.

Too long: lifetime + 60

While many of the proposed amendments aim to bring much needed clarity and relief to the creative community and take care of public interest, there are however, some shortcomings with a few of the proposed amendments. For example, the amendment to expand the term of copyright in photographs to the lifetime of the author plus sixty years appears to be an unnecessary proposal. Article 7(4) of the Berne Convention which is binding on India has set out the minimum term for copyright in photographic works that specifies the minimum term of 25 years from the making of such a work. This proposal unnecessarily exceeds the minimum term prescribed under the Berne Convention.

Tariff scheme

It is proposed that a new Section 33A would be inserted to delete the existing 34A relating to the publication of tariff scheme by copyright societies. The proviso to Section 33A may cause hardship to the aggrieved person as there is no standard of keeping a check on the tariff scheme and it would result in arbitrary tariff schemes. Such an aggrieved person is not given any remedy to seek suspension of the scheme during the pendency of the appeal and has no option but to continue paying the fee as per the tariff scheme.

Versions of sound recordings

The proposed Section 52(1)(j) relating to version recordings could pose some problems. The stipulation that a period of five calendar years must have expired since the first sound recording of the work before a version recording can be made is very lengthy and may seriously impact the right to carry on business of version recordings.

This proposed amendment also stipulates that a royalty for a minimum of 50,000 copies of the work is to be paid annually and it would be unfeasible as generally version recordings cater to smaller audiences. While it is clarified in the proposed amendment that the Copyright Board may 'fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works', this proposed amendment would make it difficult or impossible for small music companies or individuals to produce music in marginalised languages and dialects.

Further, this proposed amendment permits the Copyright Board, on a complaint brought before it, to grant an ex parte order to direct the person making the sound recording to cease from making further copies or may further order for payment of royalty. In view of the economic rights of the copyright holders, this provision could be potentially misused and would cause tremendous economic loss and damage to such persons making the sound recordings. Also, the amendment provides no clarification as to whether any formal permission is required from the copyright owner or that sending a notice of the intention to make the version recording could be deemed as adequate conformity. In the absence of such a clarification, it may possibly create unnecessary litigation on this issue.

Anuradha Salhotra and Rahul Chaudhry are Gurgaon-based partners at IP boutique firm Lall, Lahiri and Salhotra.

photo by phonogalerie.com

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