COPYRIGHT LAWPROJECT REPORT

COMPULSORY LICENSING

Submitted by:Tushar mathurBba.llb (h)A3221512003

CONTENTS

INTRODUCTION3NEED FOR LICENSING4COMPULSORY LICENSING IN INDIA4BASIS OF GRANT OF COPYRIGHT5COMPULSORY LICENCE IN WORKS WITHHELD FROM PUBLIC6COMPULSORY LICENCE IN UNPUBLISHED INDIAN WORKS7LICENSE TO PRODUCE AND PUBLISH TRANSLATIONS IN ANY LANGUAGE8LICENSE TO PRODUCE AND PUBLISH WORK AT A REASONABLE PRICE.9SHORTCOMINGS OF THE STATUTORY LICENSING IN INDIA9CONCLUSION11BIBLIOGRAPHY12

INTRODUCTION

Meeting of points are, in effect, what copyright licensing is all about. A Miltonic definition is required between liberty and justice.[footnoteRef:1] [1: John Davies, Publishers and copyright licensing, Interlending and document supply 60, Vol.27 Iss: 2 (1990) ]

Copyright is a bundle of right. A copyrighted work may be used in numerous ways. So for these different uses there is a need of different licenses for such uses. For example a picture of a flower can be used on a bed sheet, on a mug or even on a notebook. The owner of the copyright has the right to restrict the use only on bed sheets and not mugs or notebooks by way of licensing. Copyright license is an undertaking by the owner of the copyright that the licensee may exploit the copyright work without fear of infringement.Licensing is the most important activity that will take place in the life of copyright. The concept of copyright license brings to the mind the association with activities like book publishing, film making, and music recordings etc. Such activities largely depend on copyright licensing which have become highly specialized.

NEED FOR LICENSING

The owner of the work may grant any interest in his copyrighted work to some other person though the way of licensing. It should be duly signed by the owner or by his authorized agent. Licensing allows copyright holders to choose the rights a licensee may exploit without passing title. A copyright owner can choose to grant a license for one or all exclusive rights or grant more limited licenses based on geographic territories or other criteria. Each license can enumerate an array of terms, conditions, limitations, and royalty arrangements as agreed upon in a licensing contract. Licenses, therefore, can produce significant financial income for copyright owners

Non voluntary licenses are necessary in India for public interest. If the owner of the copyright holder denies republishing or if he denies communicating the same to the public without any reasonable grounds then the complaint can be made against the same in public interest.

In voluntary licensing, the problem which arises is regarding to the unreasonable terms and conditions set by the owner of the copyright work or the copyright societies. This pulls the attention of the courts towards the compulsory and statutory licensing. For the hassle free work or for the reduction in the litigation and negotiation the concept of non- voluntarily license has been introduced. Earlier it was just compulsory licensing now it is extended to the statutory licensing as well.

COMPULSORY LICENSING IN INDIA

Compulsory license is the term generally applied to a statutorily license to do an act covered by an exclusive right, without the prior authority of the right owner. Compulsory license provisions afford the facility of using protected material in certain circumstances, as provided by statute, without seeking the prior permission of the right owner. Some of the terms (for instance those regarding rates of payment) may be fixed by the court, or a tribunal, outside the provisions of the statute. Article 9 of the Berne Paris Text provides the basis for the provisions concerning compulsory licensing. This provision provides the Conventions exclusive basis for equitable remuneration and provides for the conditions which should be met before a member country can entirely excuse a use which includes the equitable remuneration and not prejudicing the reasonable interests of the author. Under the Copyright act 1957 section 31C deals with the statutory licensing to make cover versions and rules 23 -28 of the Copyright Rules, 2013 talks about the procedure which need to be followed to get the license . The recording can only be made after the expiration of the year after the publication of the copyrighted original work and for the person should need to disclose his intention to produce the same in a prescribed manner, copies are supposed to be provided and the royalty which is fixed by the copyright board need to be paid in advance and the royalty for the minimum of 50,000 copies are need to be pay during each calendar year.

Section 31D[footnoteRef:2] provides for statutory licensing with regard to the broadcasting of the literary, musical work and sound recording and Copyright Rules, 2013 (rules 29-31) has been disclosed the procedure by which one can get the statutory license.

It gives the right to the broadcasters. If any institution or organization wants to broadcast a work which might include sound recording can do the same but for that they are required to give the prior notice to the owner and need to pay royalty in advance which is fixed according to the copyright board. The announcement of the performers or authors name shall be done during the broadcasting. Records and book of account need to be maintained and shall be presented to the owner when required. [2: Copyright act 1957]

BASIS OF GRANT OF COPYRIGHT

Under the act the registrar of the copyright grants compulsory licenses on the direction of the copyright board. In general, the basis of the grant of license is: An independent inquiry by the copyright board as to suitability of the licence Payment of royalty is determined by the copyright board A fee may be charged by the copyright board for granting compulsory license. The copyright board may not grant the license Suo moto; it is on the basis of a complaint application by an interested person. The owner of rights is generally given an opportunity of being heard.

COMPULSORY LICENCE IN WORKS WITHHELD FROM PUBLIC

The copyright board has been vested with the power to grant compulsory license when Indian works are withheld from public unreasonably by their owners. Any person making a complaint to the copyright board regarding an Indian work[footnoteRef:3] during its term of copyright, which has been published or performed in public and apply for compulsory license on terms which he considers reasonable. If the copyright board is satisfied that the ground of refusal of a license by the owner is not reasonable and: [3: Section 2(l) Copyright Act 1957]

The work is withheld because the owner has refused to republish or allow to republication of the work, or the owner of the work has refused to allow the performance in the public; or The owner has refused to allow communication to the public by broadcast of such work or in the case of sound recording, the work recorded in such sound recording, on terms which the complainant considers unreasonableThen the board: After giving the owner a reasonable opportunity of being heard; and After holding such inquiry as it may deem necessaryMay direct the registrar of copyright to grant a compulsory license to the complainant to republish the work, perform the work in public or communicate the work to public by broadcast, subject to payment to the owner of the copyright such compensation and subject to such other terms the copyright board may decide.[footnoteRef:4] [4: Section 31(1) copyright act 1957]

It is possible that two or more persons make a complaint and apply for the compulsory license for the same right in a work under section 31. The reading of section 31(2):Where two or more persons have made a complaint under sub-section (1), the license shall be granted to the complainant who in the opinion of the copyright board would best serve the interest of the general public.Suggests that a compulsory license may only be granted to one person, the basis of selection being public interest.Though copyright board cannot take a suo moto action to issue compulsory licences under section 31 of the act, it is nevertheless a watchdog of public interest- for it is under obligation to select that complainant who would serve best for public interest. Therefore, the orientation of section 31 is the furtherance of public interest[footnoteRef:5] [5: Ramman Mittal, Licensing Intellectual Property: Law & Management]

COMPULSORY LICENCE IN UNPUBLISHED INDIAN WORKS

In case of an unpublished Indian work whose author is dead or untraceable or whose owner cannot be found, any person may apply to the copyright board for issuance of a compulsory license to publish such work.[footnoteRef:6] [6: Section 31A(1), copyright act 1957]

Before making such application, the applicant shall publish his proposal in one issue of a daily newspaper in English language having circulation in major parts of the country.[footnoteRef:7] [7: Section 31A(2), copyright act 1957]

Where any such application is made under section 31A, the board may, after holding such inquiry as necessary, direct the registrar to grant a licence to publish the work or to make a translation subject to the payment of such royalty and subject to such other terms and condition the Board may determine.[footnoteRef:8] Such royalty must be deposited by the registrar to the public account of India or any other account the board may decide so as to enable the untraceable owner or his heirs to claim such royalty at any time.[footnoteRef:9] [8: Section 31A(3), copyright act 1957] [9: Section 31A(4), copyright act 1957]

LICENSE TO PRODUCE AND PUBLISH TRANSLATIONS IN ANY LANGUAGE

A licence to publish any translation to any work in any language may be obtained by the copyright board by an applicant in certain circumstances and certain terms and conditions after a period of 7 years from the first publication of the work.The circumstances necessary are as follows:[footnoteRef:10] [10: Section 32 copyright act 1957]

1. The application should be filed after a period of seven years, three years or one year as the case maybe, from the first publication.2. A translation of the work has not been published by the author or any person authorised by him in the last 7, 3 or 1 year as the case maybe, or if a translation has been published it is out of print now.3. The applicant had requested and denied authorisation by the owner to produce and publish such translation, or the applicant after due diligence was unable to fund the original owner.4. Where the owner is untraceable and the applicant has sent his request via registered air mail post to the publisher not less than 2 months before such application is filed5. A period of six or nine months has elapsed from the date of making the request or from the date of sending the request.6. The Applicant is competent to publish a translation of the work and has the means to pay the royalty fixed by the board7. The author has not withdrawn circulation of the work.

LICENSE TO PRODUCE AND PUBLISH WORK AT A REASONABLE PRICE.

The copyright amendment act 1983 has introduced a new provision for issuing compulsory licence for reproduction of an edition of a literary, scientific or artistic work where copies are not available in India or where the work has not been put on sale in India after expiry of prescribed time periods. [footnoteRef:11] The following conditions must be satisfied for grant of license: [11: Section 32A copyright act 1957]

1. Where copies are not available in India or where the work has not been put on sale in India after expiry of prescribed time periods.2. The application must be for reproduction and publication of work in printed analogous form at a price at which such edition is sold or at a lower price.3. The application must be done in a prescribed form and must state the proposed retail price of the copy.4. The applicant along with application must deposit the prescribed fee.5. Only a non-exclusive license may be granted.6. The applicant should pay to the owner, royalties in respect of copies sold at a rate determined byte board.7. The license granted will not extend to the export of such copies.8. An opportunity of being heard must be given to the owner of the copyright.

SHORTCOMINGS OF THE STATUTORY LICENSING IN INDIA

According to the new amended law two specific sections 31C and 31D has been added which attracts a lot of attention due to some shortcomings under the law. These two sections have been specifically added to look over the matter of licensing. But instead of solving the existing problem, the new amendment raises the eyebrows of many. There are still few problematic areas which has not been addressed, few of them has been discussed below To decide the royalty rates, the power has been given to company board, but on what principles the board will decide the royalties for statutory licensing has not been discussed. This will definitely reduce the expensive and lengthy conversation, negotiation or litigation with the copyright society or the rights owner. But still from a sensible point of view there should be some criteria which need to look over while deciding the royalties for statutory licensing. Will it be according to the nature of the work, according to the different territorial basis or suggestion from the stakeholders will be invited to decide the same. Broadcaster will be more in the favour of the copyright board then the tariff scheme after the amendment as it gives more power to the copyright board, by not letting the parties to negotiate which in result neglecting the rights of the rights owner. Further to challenge the rate fixed by the board for statutory licensing, no procedure is expressly mentioned under the amended Act.

Another problem which has been faced by the Community Radio Rules stations in India is that there are different kinds of broadcasters are active but neither in Copyright Amendment Act,2012 nor in Copyrights Rules the distinction is mentioned. Which is becoming very crucial in present situation? There are basically two kinds of stations - Corporate owned FM radio stations and Community radio stations. Both work differently. No express distinction has been made between the commercial radio broadcasters and the community radio broadcasters. They both have different functions and motive behind broadcasting. Corporate owned station or commercial radio are basically profit oriented and the business is depends upon the paid programs and advertisement. Whereas the community radio stations are different in both ways, in terms of purpose and operating sense and provided only to non-profit legal entities such as krishi vigyan Kendras and educational institutions. The content is basically development. These stations normally struggle for financial sustainability and depend upon small donations from the state, communities and specific agencies. But this is not the same case with the commercial radio stations.

There are also complaints regarding the insufficient compensation/royalty provided to the copyright owner in exchange of their copyright work. The rights of the copyright owners have been denied. The term exclusive right which is the basis of the Copyright Act has lost its significance.

CONCLUSION

As the music industry faces declining profits, the dispute between radio stations and music companies relating to royalties is yet to see a final outcome. With multiple appeals pending in this regard, there is a need for the legislature to ensure that the Copyright Board is constituted as per certain minimum legal standards, so that the questions on its integrity come to rest. This is essential as the dispute has continued for almost a decade now, and its conclusion will have impact on a large number of interests in the industry, as well as the general public.

The growth of such statutory tribunals in India has been sporadic, and devoid of a uniform pattern. The decisions given by these tribunals as well as their constitutional validity have been questioned in a number of cases. This has led to doubts being raised about the transparency in their working as well as fairness in the approach adopted by these tribunals. The method of appointment of the members as well as the structure of the tribunals has been struck down by the Courts from time to time. However, efforts must be made to regularise the procedures, compositions, and review/ appeal of decisions of tribunals. The qualifications for the membership for these tribunals must be laid down so as to ensure their independence from the executive.

BIBLIOGRAPHY

P. Narayanan, Intellectual property law, third edition, eastern law house http://www.indialawjournal.com/volume5/issue_4/article4.html Deepika Zaveria, Intellectual property rights and statutory licensing in India critical analysis. Ramman Mittal, Licensing Intellectual Property: Law & Management

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