This article has been written by Shivendra Nath Mishra.

Introduction

Copyright is a type of intellectual property protection granted by Indian law to creators of original works of authorship such as literary works (including computer programmes, tables, and compilations, as well as computer databases expressed in words, codes, schemes, or some other kind, including a machine-readable medium), dramatic, musical, and artistic works, cinematographic films, and so on.

Rather than protecting concepts themselves, copyright legislation covers representations of ideas. Copyright rights are granted to fictional works, theatrical works, musical works, experimental works, cinematograph films, and sound recordings under Section 13 of the Copyright Act 1957. Books and computer applications, for example, are protected as fictional works under the Act. Copyright is a collection of proprietary privileges granted to the holders of copyright under Section 14 of the Act. 

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These privileges may only be exercised by the copyright owner or any other individual who has been properly allowed in this respect by the copyright owner. These privileges include the right to adaptation, replication, printing, translation, and public correspondence, among others. The original literature, visual, theatrical, dramatic, cinematograph, and sound recording works are granted copyright protection. The term “original” refers to a work that has not been replicated from another source. Copyright security begins when a work is made, and it is voluntary to register it. However, getting registration is still recommended for better security. Copyright registration does not grant certain rights; it is merely prima facie evidence of an entry in the Copyright Register held by the Registrar of Copyrights regarding the job.

Indian perspective on copyright protection

In India, the Copyright Act of 1957 protects copyright. It protects the author’s copyright in two ways: (A) his or her economic rights, and (B) his or her moral rights.

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Economic Rights

Original literature, dramatic, theatrical, and creative works, as well as cinematography and sound records, are protected by copyright. Under Section 14 of the Act, the holders of the copyright of the above works have economic privileges. In the case of literary, dramatic, and musical works, the rights are primarily to reproduce the work in some material form, including storing it in any medium through electronic means, to provide copies of the work to the public, to perform or communicate the work in public, to make any cinematograph film or sound recording in the work, and to make an adaptation of the work. 

With computer software, besides the above privileges, the creator has the freedom to sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of whether that copy has been sold or gave on hire. An author has the freedom to replicate an imaginative work in any material shape, including representation in three dimensions of a two-dimensional work or two dimensions of a three-dimensional work, to communicate or issue copies of the work to the public, to use the work in any cinematograph work, and to allow any modification of the work.

With a cinematograph film, the author has the freedom to create a copy of the film, including a photograph of any picture that is a part of it, to sell or employ some copy of the film, and to transmit the picture to the public. Similarly, the maker of a sound recording has these protections. Besides the above privileges, whether the creator of a picture, sculpture, sketch, or manuscript of a literary, dramatic, or musical production was the first owner of the copyright, he is entitled to a share of the resale price of such original copy if the resale price reaches rupees 10 thousand.

Moral Rights 

The two basic moral rights of an author’ are specified in Section 57 of the Act. There are paternity rights and  dignity rights. The privilege to paternity applies to an author’s right to assert authorship of his fiction as well as his right to prohibit others from doing so. The author’s right to dignity allows him to prohibit the fabrication, mutilation, or other modifications to his writing, as well as any other behaviour related to it, that may be detrimental to his honour or prestige. The provision to Section 57(1) states that the author cannot enjoin or seek liability for any adaptation of a computer programme that falls under Section 52(1)(aa) (i.e. reverse engineering of the same). It should be remembered that failure to show work or to display it to the author’s satisfaction is not considered a violation of the rights granted by this clause. Other than the right to assert authorship of the work, the legal representatives of the author can exercise the rights bestowed on an author of a work by Section 57(1).

Registration & Enforcement of Copyright 

In India, copyright registration is not needed since it is regarded as merely a record of a fact. The registration does not grant or establish any additional rights, and it is not used to take legal measures against infringers. The Indian courts have supported this viewpoint in a series of rulings. The enforcement agencies in India have a poor level of knowledge of intellectual property (IP) laws, and most IP litigation takes place in major cities. About the fact that copyright registration is not needed in India and is protected by the  International Copyright Order 1999, it is recommended that copyright be registered since the copyright registration certificate is recognised as “evidence of possession” in courts and by police officials, and is operated upon smoothly by them. In India, the law of copyright not only provides civil remedies such as permanent injunctions, damages or accounts of profits, delivery of infringing material for destruction, and legal costs, but it also makes copyright infringement a cognizable offence punishable by imprisonment for a term of not less than six months but not more than a year. 

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Under the Copyright Act, there are guidelines for increased fines and penalties for second and third offences. The (Indian) Copyright Act, 1957 empowers police authority to file a complaint (First Information Report, or FIR) and act independently to apprehend the defendant, check his or her property, and recover the infringing content without the need for court interference. The International Copyright Order, 1999 protects the copyright by “works” of foreign nationals whose countries are members of Convention Countries of which India is a signatory against any violation of their “works” in India. 

The Indian courts have also been proactive in protecting international writers’ and owners’ copyright, which involves applications, motion pictures, including screenplays, and databases. The Indian government is also working with industry players to fight piracy in the tech, film, and music industries through trade groups and organisations such as NASSCOM (National Association of Software and Service Companies), NIAPC (National Initiative Against Piracy and Counterfeiting), and others. 

The copyright owner or his properly authorised agent may only grant or authorise copyright in any work, current or potential, in writing. The period of copyright in the case of original literature, dramatic, creative, and creative creations is the author’s or artist’s lifespan, plus 60 years from the year of the author’s death. Cinematograph videos, sound records, posthumous publications, unauthorised and pseudonymous publications, works of government, and works of foreign organisations are all covered for 60 years, beginning the year after the date of publishing.

Copyright Amendment Rules, 2021

“The Government of India has notified Copyright (Amendment) Rules, 2021 vide Gazette notification under reference G.S.R. 225(E) dated 30th March 2021. In India, the copyright regime is governed by the Copyright Act, 1957 and the Copyright Rules, 2013. The Copyright Rules, 2013 were last amended in the year 2016.” (See here)

The changes were made to get the current rules into compliance with other applicable laws. It seeks to ensure seamless and error-free enforcement in the modern age by using electronic means as the dominant form of contact and function in the Copyright Office. 

A new clause has been introduced regarding the publishing of a copyrights article, excluding the need for publication in the Official Gazette. The said journal will be accessible on the Copyright Office’s website. New provisions have been adopted to promote responsibility and fairness when dealing with undistributed royalty sums and the usage of electronic and traceable payment systems when collecting and distributing royalties. A new rule has been adopted to strengthen accountability in the workings of copyright societies, requiring them to prepare and publish an Annual Transparency Report for each financial year. The revisions brought the Copyright Rules in line with the terms of the Finance Act of 2017, which combined the Copyright Board with the Appellate Board.

The compliance conditions for registering software works have been greatly shortened, with the user currently having the option of filing either the first ten and last ten pages of source code, or the full source code if it is fewer than twenty pages, with no blurred out or censored parts. The time for the Central Government to react to an application for registration as a copyright society filed with it has been increased to 180 days to allow for a more thorough examination of the application. It seeks to ensure seamless and error-free enforcement in the modern age by using electronic means as the main form of contact and function in the Copyright Office.  Let’s analyse all the main key provision which are amended by this official gazette. (See here)

Key Changes in the Copyright (amendment) rules, 2021

• Replacement of the words in Chapter II, for the title “THE COPYRIGHT BOARD” with the title “THE APPELLATE BOARD”.

• Rule 3 of the 2013 Copyright Rules has been replaced by the following:

“Appellate Board– The Chairman and other members of the Board shall be appointed as per the provisions of the Trade Marks Act, 1999;

Provided that the Technical Member of the Board for the Act shall have the qualifications as specified in the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other conditions of the Service of Members Rules, 2020”

• In Rule 55(ii) after sub-rule (2), the following sub-rule shall be inserted, namely: 

“(3) The copyright society concerning the collection of royalty under sub-rule (1) and distribution of royalty under sub-rule (2) of this rule, shall create a system of payment through electronic modes and shall establish a system through which the payments so made are traceable.”

• In the principal rules, in Rule 58, after sub-rule (10), the following sub-rules shall be inserted, namely: 

“(11) A copyright society must ensure that where the royalty cannot be distributed within the time specified in sub-rule (8) as the relevant author or another owner could not be identified or located; such royalties are kept separate in the accounts of the copyright society.

(12) A copyright society must take all necessary measures to identify and locate the authors and other owners and must publish on its website, at the end of every quarter, the following information: (a) the title of the work; (b) the name of the author and other right owners of the work, as available; and (c) any other relevant information available which could assist in identifying the right holder.

(13) In case the royalty due to the author and other owners remains undistributed at the end of the period of three years from the end of the financial year in which collection of the royalty occurred, the copyright society shall transfer such amount to the welfare fund of the copyright society.”

• In Rule 59, for sub-rule (7), the following sub-rule shall be substituted, namely:

“(7) The Chairman and other members of the Governing Council shall be elected for a term of two years and shall be eligible for re-election”

• In Rule 62, after clause (viii), the following new clause shall be inserted, namely: –

“(ix) The annual transparency report as provided under rule 65A”.

• A new Rule 65A has been inserted by the Copyright (Amendment) Rules, 2021:

“65A. Annual transparency report. — (1) The copyright society must draw up and make public a special report to be referred to as the annual transparency report for each financial year within six months following the end of that financial year. The copyright society shall publish on its website the annual transparency report and ensure that the annual transparency report remains available on its website for at least three years.

(2) The annual transparency report must contain the following information, namely: 

(a) report on the activities in the financial year;

(b) number of refusals to grant a licence;

(c) financial information on total royalties collected;

(d) the total royalties paid to the author and other owners;

(e) the total royalties collected but not yet attributed to the author and other owners;

(f) the total administrative deductions made from royalty collected;

(g) the details and use of the amounts deducted for the activities conducted under the welfare scheme as provided under Rule 67; and

(h) Information on amounts received from and paid to the foreign societies or organisation.”

• For Rule 82, the following rule shall be substituted, namely: 

“82. Mode of Communication by the Copyright Office, etc.— Every written intimation from the Board, the Copyright Office or the Registrar of Copyrights shall be deemed to have been duly communicated to any person if such intimation is sent to the known address of such person through electronic means or by registered post.”

• For Rule 83, the following rule shall be substituted, namely: 

“83. Fees. – (1) The fees to be paid in respect of applications or any other matters under the Act and the Rules shall be those as specified in the Second Schedule.

(2) Where in respect of any matter, a fee is required to be paid under the rules, the form or the application or the request of the petition thereof, it shall be accompanied by the prescribed fee.

(3) Fees may be paid electronically or by demand draft or Banker’s Cheque in favour of the Registrar of Copyrights drawn on a scheduled bank at New Delhi.

(4) Where a fee is payable in respect of filing of a document and where the document is filed without such fee or with an insufficient fee, such document shall be deemed not to have been filed for any proceedings under these rules.

(5) No fee is required to be paid for taking extracts from the Register of Copyrights or indexes for official purposes by the Central Government or the State Government”.

These are the key provisions of the Copyright Act 2021 (See here) which amended the Copyright Act, 2013 to bring more transparency and accountability.

Critical analysis

Since it enriches a country’s national cultural heritage, copyright legislation is regarded as an integral law of security. However, the greater the degree of security afforded to literature, theatrical, musical, or artistic work in every region, the greater the number of intelligent creations, and hence the greater their renown. 

Our Copyright Act is neither very rigid nor very flaccid. It allows owners to get their works registered in the Copyrights Register only if they want to do so but at the same time recommend getting it registered for prevention from facing any kind of problem in the near or far future. The Copyright Act helps the owner get fair pay for their work done and also recognition among the masses not only when they are alive but even after their death. It does not allow any other individual to copy the work but allows the owner to replicate their own work in any form of material that they want. The Copyright Law allows for civil punishment as well as imprisonment of a minimum of six months in case of violation of copyright rules. Fines are also charged as per the infringement of the copyright rules.

The amendments which came in the Copyright Act in the year 2021 have been made to make a more transparent and electronically equipped system. The ease done by refraining from putting everything in Official Gazette rather than publishing it in a Copyright article which has to be shown on Copyright Office’s website has made the functioning more viable. There has been laid down instructions regarding the payment of royalty which will prevent any type of corruption. The Annual Transparency report which came through this amendment will serve as a boon for owners of the copyrights. The only problem is the increase in the burden on courts due to the change from Copyright Board to Appellate Board.

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