This article has been written by Saransh Srivastava, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
A Copyright is a type of Intellectual property through which a person can claim ownership or get exclusive right to use that work. The basic purpose of Copyright is to protect the interest of the creator and to reap some economic benefit out of his unique creation. Therefore, it’s the discretion of the copyright owner to earn money exploiting his work alone or to share it with others and make mutual benefits. For making such benefits the Copyright Act of India provides 2 ways through which this can be done i.e., assignment and licensing of copyright. This article tends to explain how the licensing of copyright is done
What is licensing of copyright?
The copyright owner may grant a license to a third party (distributor, promotor) to legally exploit the creation upon which he(owner) has the exclusive right. There are basically 3 types of licensing;
- Voluntary license,
- Compulsory license,
- Statutory license.
Voluntary license
Section 30 of the Copyrights Act talks about voluntary license as the name suggests, the owner of the copyright having exclusive right on his creative work has the right to grant the license to any person just by signing a license with him (copyright owner) or an authorized agent appointed by him. The license can be granted to both existing work and future work; however, licenses with respect to future work take effect only when the work comes into existence.
If the period of the license is not specifically mentioned it will be considered as 5 years and in case the licensee (the party who licenses the work from the copyright owner) expires the economic benefit will automatically pass to the legal representatives of the copyright licensee provided if there is no provision to the contrary. Voluntary licenses can be subdivided into 5 different parts:
- Exclusive license- This means the licensee has exclusive rights over the copyrighted material therefore the licensor agrees not to grant such license with the same rights to any other. Section 2(j) of the Copyright Act explains Exclusive rights. The licensee of the copyrighted material can initiate legal proceedings against the infringing person.
- Non-exclusive- Non-exclusive license merely allows the licensee to exploit the copyrighted material but unlike Exclusive right, the licensee does not confer the right of exclusion. Therefore, the licensor remains free to exploit the said copyright material to any number of licensees.
- Co-exclusive- These licenses are basically a mixture of exclusive and non-exclusive, Although the licensor can grant a license to more than one licensee he can only provide a license to a limited number of licensees.
- Implied license– License created without agreement between the parties. The objective of this license is to allow the licensee to use the copyrighted work only to the extent of the copyright owner requirement. Generally, the custom and practice of the community are used to determine the scope of the implied license
Compulsory license
The Berne Convention of the protection of literary and artistic work was an international agreement governing copyright. Which is commonly known as Berne Convention and India being a member country has to comply with the norms laid by the convention. One of the norms is to provide compulsory license for Indian work in the public interest, but only in certain circumstances.
Works withheld from public
Section 31 of the Indian Copyright Act provides for the grant of compulsory license of the work already existing (published) or performed in public. The Registrar can grant a license only if the Appellate board is satisfied by the grounds claimed by the Appellant, or has fulfilled either of the prerequisites of Section 31. Therefore Compulsory license allows the use of already existing (protected ) Copyright without the prior permission of the owner
In the case of Super Cassette Industries Ltd v. Entertainment Network(India), the interpretation of Section 31 of the Copyright Act has been addressed. On 19.11.2002 the Copyright board of Hyderabad on application from various Radio Stations granted a Compulsory license to all Radio Stations under Section 31(1) (b) of the Copyright Act and also set the standard rate of the remuneration for a term of 2 years. Super Cassette was not the party in the above judgment. However, on 28.1.2003, the Appellant (Entertainment network) filed an application to the copyright board to grant a compulsory license under Section 31(1)(b) against Super Cassette Industries. Super Cassette Industries filed an objection contending that there was already a suit of infringement pending in the Delhi High court but on an application filed by the appellant the High court clarified that the respondent is free to file their submission to the copyright board.
The oral evidence presented by the respondent was declined by the board thus granting a compulsory license to the Appellant. Appellant then filed an appeal in the Bombay high court in regards to the rates of compensation, to which the Bombay high court opined that the terms of Section 31 of the Act and grants compulsory license on reasonable remuneration are permissible. On the other hand, the Delhi high court gave its judgment in the favour of the respondent by sending the matter back to the Copyright Board for reconsideration. The Delhi High court also put an injunction on the broadcasting sound recording of the respondent. The matter was then taken to the Supreme Court of India as the 2 folds of judgment from Delhi High court and Mumbai High court were conflicting with each other. The Supreme Court on 16 may 2008 opined that the copyright board had to maintain a balance between private rights and grant of compulsory copyright license for the public interest. The honorable court did not approve the manner in which the board had dealt with the matter and thus remitted the matter back to the copyright board for fresh consideration.
Compulsory License in unpublished or published work (Section 31-A)
The above section talks about the copyrighted work whose author is dead and cannot be traced (missing for a long time). If the owner of the copyrighted work cannot be found, then any person may apply to the Copyright Board for a license to publish such work or translation thereof in any language. By making an application under the above section the applicant must adhere to some prerequisites, such as publishing the proposal in a daily newspaper in the language in which the original copyright accompanied by the prescribed fees.
License for the benefit of disabled persons (Section 31-B)
The above section is solely for the person who works for the person with a disability can seek a compulsory license from the copyright board. The Board after hearing the real owner of the creative work grant license for the benefit of disabled persons, they can even extend the period of compulsory license and can also issue more copies if it deems fit.
Statutory License for cover versions (Section 31-C)
The above section particularly talks about sound recordings made in accordance with Section 31C. Any person desirous of making a cover version of any creative work already existing in the public domain with the consent or license from the original owner of the work can do so. There are some conditions precedent to the above section i.e.
- The person making the cover version must give prior notice to the real owner.
- The person making the cover is also required to register his copyrighted work at least 15 days in advance of publishing the cover version.
- The applicant desirous of obtaining the cover version should ensure that it is not mistaken as the original version as the owner of the work and changes are not made to lyrics or music unless technically necessary.
- The Delhi High Court in Star India Pvt Ltd v. Piyush Aggarwal stated that sound recording included a subsequent original sound recording made from the musical and literary work and which was called a version recording i.e. a sound recording made after a first sound recording was made by use of the musical work and literary work.
Statutory Licensing for Broadcasting of Literary and Musical Work and Sound Recording (Section 31-D)
The above section was introduced in the Indian Copyright Act 1957 in the year 2012 in compliance with Article 11(2) of the Indian Constitution and Article 9(1) of the trips agreement. It enables the broadcasting organization desirous of communicating already published work to the public. These organizations, after giving prior notice to the original owner of the work, can broadcast musical /lyrical work and sound recording. Rates of television broadcasting are different from the rate fixed with respect to radio broadcasting. At the time of fixing the rate of royalty, the Copyright Board may ask the broadcasting organization to deposit some amount of money in advance to the owner. In the case of Warner Chappell Music Limited V. Spotify AB in 2019, Spotify, an audio streaming platform, was launched in India. Before launching the app the company started contacting Indian music companies for the license over the various music labels including Warner Chappell Music limited over licensing rights. Although Spotify failed to strike a deal with Warner Chappell Music Limited on the safe side Spotify invoked Section 31D of the Act as they sought to secure streaming over the Internet. After filling a public notice under Section. 31D with IPAB and depositing 528000 Euros to the Copyright Office as an advance royalty Spotify was able to launch its internet audio broadcast and streaming services in India that also included WCM owned works
License to produce and publish a translation of literary or dramatic work in any language (Section 32)
On the expiry of 7 years from the first publication on any registered copyright literary or dramatic work any person may apply to the board for a license to produce and publish a translation of work. . Where the work is not Indian work, any person may apply to the Board for a license to produce and publish a translation in the printed or analogous form of reproduction of a literary or dramatic work in any language in general use in India after a period of three years from the first publication of such work, if such translation is required for the purpose of teaching, scholarship or research. But where the translation is in a language not in general use in any developed country, such application may be made after the period of one year from such publication.
License to reproduce and publish works for certain purposes (Section 32-A)
The above section provides a license to reproduce and publish any scientific, artistic, or literary work after the expiration of the relevant period from the date of first publication or edition of such work. Only if the copies of such edition are not made available in India or such copies have not been put on sale in India for a period of six months to the general public or in connection with systematically instructional activities at a price reasonably related to that normally charged in India for comparable works by the owner of the right of reproduction or by any person authorized by him in this behalf. The period prescribed are:
- Seven years for work related to fiction, poetry, drama, music, or art
- Three years for works related to natural science, physical science mathematics, or technology
- Five years for any other work
Conclusion
The entire purpose behind the compulsory licensing is to ensure that the copyrighted material must be made available for the work which has been withheld from the public domain for any reason. Section 31 of the Copyright Act provides protection to the creative work of artists, writers, etc so that they can get benefits from the result of their hard work but the work should be made available or accessible for fair use of other individuals. Thus the clause of the Compulsory license was introduced with only the motive of free flow of ideas and information without infringing the rights of the copyright owner.
References
- https://www.mondaq.com/india/licensing-syndication/607436/compulsory-license-of-copyright-work#:~:text=Under%20 Section%2031 B%20of%20the,the%20 benefit%20of%20disabled%20 persons.
- https://www.hg.org/legal-articles/supreme-court-allows-appeal-of-entertainment-network-india-ltd-radio-mirchi-and-refers-matter-back-to-copyright-board-for-compulsory-license-5506#:~:text=reconsideration%20on%20 merits.-,M%2Fs%20Entertainment%20Network%20(India)%20owner%20of%20FM%20Radia,of%20the%20Copyright%20Act%2C%201957.&text=An%20appeal%20there%20against%20was%20preferred%20before%20Bombay%20High%20Court.
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