This article has been written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with copyright societies.
Intellectual property rights are the rights that are given to a person for their creations in artistic, musical, filmography, scientific, etc fields. Intellectual property is a product of the human intellect or creative minds. The scope of intellectual property is expanding very fast with the passing of each year. The term intellectual property has been recognised internationally through different types of law like patents, industrial designs, copyright, trademarks, etc. The intellectual property of whatever species is usually found like the intangible in copyright property. The law relating to intellectual property is based on certain basic concepts.
Like in copyright, the concept is based on originality, reproduction of the work, etc. Copyright is a type of intellectual right the importance of which has increased enormously in recent times due to the rapid technological development in the field of music, printing, communication, etc. Copyright is a type of right where the owner of a certain work enjoys exclusive rights over the work which the person had created. The object of copyright law is to encourage authors, composers, and artists to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain. Through this article, we will be understanding the concept of copyright societies.
Copyright: An overview
The foundation of copyright law is that when any person without any permission from the owner, uses someone else’s work for one’s benefit, which the owner has created by labour, skill, or capital, then the law comes to protect the rights of the owner. The copyright law prevents the exploitation of the copyrighted work by any other person. In ancient times, the importance of copyright was not so prevalent, as copying or stealing of other’s work was laborious and expensive. However, with the invention of the printing press, the world started to witness the reproduction of one’s work without permission. Therefore, the importance of copyright protection laws was recognised.
Copyright is a creation of statute. Copyright cannot be entitled to every work under the sun. It is only entitled to such works which are provided under the Copyright Act. Its main objective is to protect the creator of the original work from unauthorised reproduction for exploitation of his work. The right also extends to prevent others from exercising without authority any other form of right attached to copyright. The rights can be either assigned or licensed to the work in whole or separately.
Copyright can be only entitled to such original work. The term ‘original’ denotes any work which has been created with its labour and skill and not copied from any other work. Work, in order to be entitled to copyright protection, need not have to pass any test of intelligence, good or bad, etc. However, copyright is not entitled to any form of idea. For example, if any person in their mind themselves had thought of an idea, which he had conveyed to any other person, and that person has incorporated that idea in the material form, then the person who had created the work in the material form will be allowed to have protection and not the person with an idea. Copyright protection is also not available to any live events, or on any such work which is illegal, defamatory, seditious, etc.
What is known as a copyright society?
Copyright societies can be referred to as a legal body whose object is to protect or safeguard the interest of owners of the work in which copyright subsists.
The functions of a copyright society are to grant a licence of the copyright in original work for the reproduction, performance, issuing copies of the work to the public, locate infringement of the copyright, and initiate any legal proceedings if required.
Evolution of copyright society
Before the commencement of the Copyright (Amendment) Act, 1944, Section 33 to Section 36 used to deal with the performing rights societies. This society used to carry on the business of issuing or granting licences for the performance in India of any work in which copyright subsisted. However, the ambit of such a society’s power was limited to the field of literary, dramatic, musical work. In 1994, after the commencement of the Copyright (Amendment) Act, 1994, provisions relating to copyright societies were stated in the said Act.
Reason for the development of copyright societies
It has been usually observed that the authors of creative works are not business-minded, or interested in financial resources and are often prone to the exploitation of their work. For example, if an author has created an original piece of literary work, then the author might get a monetary benefit by reproducing copies of his work and selling them to the public at large. However, this is only possible if the work is licensed to a publisher. It is also extremely difficult for the owner of the work to prevent infringement of the work. At times, it has been also observed that they are unable to keep track of all the uses others make of their work. Therefore, to overcome such difficulties, owners of copyright works decided to form copyright societies to licence their works for performance or communication to the public. The societies are authorised to do such work based on payment.
Indian perspective of the copyright society
In India, now a copyright society is governed under the Copyright Act, 1957. A copyright society, as stated above, is formed by authors and other owners. The minimum membership for the registration of a copyright society is seven. There are different kinds of societies assigned for different classes of work. For example, a copyright society is especially dedicated to literary work. The registration granted to the copyright society is almost for 5 years. It can be renewed from time to time at the end of every five years through a request. However, the acceptance of such a request will only be declared by the central government after analysing certain reports. There had also been an amendment to the Copyright Act in 2012. For those copyright societies who had already registered themselves before this act came into existence, they will themselves get registered under this act within one year from the date of commencement of the Copyright (Amendment) Act, 2012.
Provisions for the registration of copyright societies
The provisions for registration of copyright societies are stated in Section 33 of The Copyright Act, 1957. The Section states that no persons or body of persons or associations are permitted to carry on the business of issuing or granting of licenses for any work in which copyright subsists as mentioned in Section 13 of this Act. However, those associations or bodies of persons or persons will be exempted from this provision who had registered themselves under Section 33 of this Act. The Section further states that the owner of any copyrighted work in his capacity will continue to have the power to grant licenses regarding his work with his/her obligation, if any, as a member of the registered copyright society. According to this Section, any kind of business of issuing or granting license in respect to the aspect of literary, dramatic, musical, and artistic work incorporated in a cinematograph film or sound recording will only be carried out through a registered copyright society.
As we already know, before copyright society, performing rights society was deemed as a legal body to grant licences and its provisions were mentioned from Section 33 to 36. With the onset of copyright societies, the performing rights societies under the former provisions of Section 33 will be deemed to be a copyright society if such societies had registered themselves under the new Section 33 of the Copyright Act. To register a copyright society under this Act, an application should be made to the registrar of copyright. The registrar will eventually forward the application to the Central Government. The central government will take a few considerations in order to grant registration. The conditions are:
- The interest of the authors and other owners of rights under the Act.
- Interest and convenience of the public.
- The interest of the class of persons who want to seek licences in respect of relevant rights.
- Capacity and professional competence of those who apply.
The central government usually does not register more than one copyright society for one class of work. If the central government feels that a copyright society is being managed detrimental to the interest of authors and other owners then they might cancel the registration of the copyright society. At times, the central government may suspend the registration of a copyright society during the pendency of an enquiry for a period of not exceeding one year.
Provisions regarding tariff scheme
Tariff schemes help to get any sort of monetary benefit in the respect of any copyright or any such right administered by it. This scheme provides a transparent mechanism to all the stakeholders and licensees.
Under Indian law, the provisions for Tariff Scheme are stated in Section 33A of this Act. This Section states that every copyright society might publish its Tariff Scheme in a manner as prescribed in Copyright Rules, 2013. The Section further states that if any person is aggrieved by such a scheme, he/she may appeal to the appellate board. After such an appeal, the board will hold an enquiry and if it feels necessary then might make orders to remove any unreasonable element. However, the aggrieved person must continue to pay to the copyright society until the appeal is decided. During an enquiry, the board might also fix an interim tariff and direct the parties accordingly.
Provisions for the power of copyright society
The powers of copyright societies are mentioned in Section 34 of the Act. The Section states that:
- A copyright society might accept exclusive authorisation of any copyrighted work from the author and other owners of such rights. By accepting such exclusive authority, they issue licenses or collect the license fees or both.
- An author or any other owner of rights might withdraw search authorisation, without injuring any rights of the copyright society under any contract.
The copyright society might enter into an agreement with any foreign society or organisation administrating rights corresponding to rights under this act to entrusting to such a society in any foreign country the rights administered by the said copyright society in India and vice versa. However, such a society should not discriminate in regard to the terms of licence or distribution of fees collected between rights in India and other works.
The Section further states certain powers of copyright societies. The powers are:
- Any copyright society can issue a licence under Section 30.
- Such societies can collect fees regarding licenses.
- They can also distribute fees among authors or other owners, provided that they had kept the money for their expenses.
- They are also permitted to perform any other functions under Section 35.
Provisions regarding the control of copyright societies
According to Section 35, every copyright society is subjected to the collective control of the authors and other owners of rights, whose rights are being administered by the society. However, foreign societies are exempted from this control.
The manner in which the copyright societies are being controlled are:
- The copyright society needs to obtain the approval of authors and other owners of rights for the procedure of collection and distribution of fees.
- They also need to obtain approval from authors and other owners for the utilisation of any amounts collected as fees.
- They also need to provide full and detailed information to authors or other owners of rights regularly regarding all the activities about administration.
The Section further states that all the fees which are required to be distributed among the authors and other owners of rights must be distributed in proportion to the actual use of their works. Every copyright society must have a governing body with the members elected from the members of the society. Lastly, all the members of copyright societies must enjoy equal membership and should not be discriminated against.
Provisions regarding submission of returns and reports
According to Section 36, every copyright society must submit reports or returns to the Registrar of Copyright. The Central Government can also appoint any officer who would be assigned to take and scrutinize all the reports of the copyright society.
Provisions regarding the rights and liabilities of performing rights society
As per Section 36A, the rights and liabilities of performing rights societies that had accrued on or before the day before the commencement of the Copyright (Amendment) Act, 2012, will not be affected by anything mentioned under Chapter VII of the Copyright Act, 1957.
Confusion among certain provisions
There might be an ambiguity that arises in the mind of the people while reading Section 18 along with Section 30 and Section 33. Section 18 of the Act states that the owner or author of any work had the right to grant the copyright to any person of his/her choice. On the other hand, the owners of copyright had the power to grant a licence under Section 30 of this Act. However, Section 33 creates a specific bar on any other person to grant a licence except those who are registered as a copyright society under this Act. The Act does not clarify this ambiguity in the statutes, thereby leading to confusion.
In the case of Event and Entertainment Management Association v Union of India and others, (2010), the Delhi High Court held that Novex Communication Pvt. Ltd. which is not a registered copyright society under Section 33 can continue to operate its business within the ambit of Section 18 and Section 30. However in the case of Leopold Cafe and Stores v Novex Communication Pvt. Ltd., (2014), the Bombay High Court banned Novex Communication Pvt ltd. and restricted its business to grant licenses. These two opposite judgments created confusion among the people. This issue of a conflict between the Sections had still not been addressed as such.
Amendment in 2012
The Copyright Act has been amended five times including the amendment in 2012. The amendment is of vital importance because it created conformity with the international standards established by WIPO Copyright Treaty or known as WCT and WIPO Performances and Phonograms Treaty also known as WPPT. This amendment also holds special importance regarding the copyright societies. Previously, the copyright society did not recognise the rights of the authors. This created several legal issues between the authors and the owners of rights along with the copyright societies. However, with this amendment, the term ‘author’ was introduced in the provisions. The inclusion of the authors in the copyright society ensured that the governing body of every copyright society shall have an equal number of authors and owners for administration and there will be no discrimination between authors and owners of rights in the distribution of royalties. The amendment also inserted the provisions for Tariff schemes and repealed the provisions for payment of remuneration by copyright society.
Copyright is very essential in today’s world. There are different copyright societies in India for different purposes. Copyright society plays an important role in the life of those authors and owners who have copyright on their work. Society helps such authors and owners in the field of business regarding earning monetary benefits. It also helps the authors and the owners to be associated with foreign societies.
- P. Narayanan, Intellectual property Law
- The functioning of Copyright Society under the Copyright Act 1957, ISSN 2581-5504
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