Author Name:   sumbulfarooquee

The copyright amendment bill 2010 aims to bridge the gap between our copyright laws and the international treaties...

India having one of the biggest publishing markets in the world, has made the matter of intellectual property rights a contentious issue with authors, artists etc asserting their rights. The government is trying to bring the industry practices in line with the international scenario in a globalised manner.

The Copyright Act, 1957 defines the rights of authors of creative works such as books, plays, music, films and other works of art, and computer software. Such authors are the original owners of copyright in these works and have a ‘bundle of rights’ such as the right to distribute, perform, translate and adapt the work. These rights can also be assigned to others. The Act provides for copyright societies, which issue licences for copyrighted works and collect royalties on behalf of authors or rights holders.

Copyright in literary, dramatic, artistic and musical works lies with the author and his heirs till 60 years after his death. Copyright in photographs, films and sound recordings persist for 60 years after the work is made.

The Act also defines the limits of authors’ rights and the extent to which users can make ‘fair use’ of a work without infringing copyright. It prescribes penalties for infringement of copyright. It provides for a registrar of copyrights as well as a copyright board, which shall adjudicate disputes under the Act.

The Copyright Amendment Bill 2010 (CAB 2010)
This Bill amends the Copyright Act, 1957 and seeks to make the provisions of the law in conformity with relevant international treaties. The Bill expands the definition of “copyright” and introduces a system of statutory licensing to protect the owners of literary or musical works. It includes a system of compulsory licensing of copyrighted works for the benefit of the disabled, with the prior approval of the Copyright Board. It also protects performer’s rights, including, allowing them to make sound or visual recordings of their performances and reproduce them in any medium, issue copies to the public or sell or rent a copy of the recording.

The Parliamentary Standing Committee relating to HRD Ministry headed by Oscar Fernandes has cleared it and the Indian publishing industry is jittery about the possibility of the amendment getting passed by Parliament in the Budget Session.

Salient Features Of CAB 2010
1. Modifications with respect to Cinematographic works and Sound Recordings;
2. Exceptions to copyright infringement;
3. Digital Rights Management provisions;
4. Statutory license for cover versions;
5. Statutory license for broadcasting;

Analysis
The Amendment Bill makes the following changes to rights of authors of different types of work: (a) it changes copyright provisions for films (b) it gives artists such as lyricists or composers greater control over rights in their work, (c) it broadens the ‘moral’ rights that authors enjoy over their work and extends this right to performers.

The Bill also makes the following changes to the rights of users of various types of works: (a) copyrighted works can now be produced in ‘special’ formats for the use of disabled persons without infringing copyright (b) it allows for the free import of copyrighted works from other countries (c) it prescribes penalties for persons who circumvent technologies used to protect copyright (d) it provides for statutory licences to be issued to broadcasters and producers of version recordings.

Copyright in Films
The Act specifies that the ‘author’ of a film is the producer, who shall enjoy copyright for 60 years. The Bill provides for authorship of a film to vest with the director as well who shall enjoy copyright for 70 years.

In case of films produced before the Bill, directors can enjoy copyright for ten more years, if an agreement to this effect is signed with the rights owner (e.g. producer) during the term of copyright (currently 60 years).

Rights to Work Used in Films or Sound Recordings
The Bill aims to give those whose work is used in films and sound recordings, such as lyricists, scriptwriters and music composers, a special set of rights over their work. It does so in the following ways:

Under the Act, the ‘author’ of a film or a sound recording is the producer, who holds rights over all the work (i.e. script, music, or lyrics) used in that film. The Bill specifies that when such work is used in a media outside of that film or sound recording, the rights, including the right to royalties, will rest with the creator (i.e. lyricist, music composer). These rights can be assigned by creators to their legal heirs or a copyright society which represents their interests.

· Further, rights can only be assigned for use of work in media which is in current commercial use, or when such media are specifically covered in the assignment of rights (applies to all categories of works).

Copyright Societies
The Act establishes copyright societies which represent owners of copyright in various works. Such societies may issue licences, or collect royalties, on behalf of the rights owners they represent. The Bill makes the following changes:

It specifies that such societies shall be ‘associations of authors’ and shall be subject to their collective control, rather than to the control of rights holders. The central government, while registering, or cancelling or suspending the registration of such societies, shall act according to the interests of authors themselves, rather than of owners of rights.

Authors cannot assign copyright to anyone on terms different from which they are assigned to such societies.

Rights of Users and Fair Use – Exceptions to Copyright Infringement
Currently, the use of a literary, dramatic, musical or artistic work for personal use, research, criticism, or reporting of current events does not infringe copyright. This provision will now apply to films and sound recordings as well.

The Bill permits copying and distribution of copyrighted works in formats designed specially for use by persons with disability (e.g. Braille). Registered organisations who work with such persons can apply to the Board for a licence to publish any work in a general format (e.g. audio books) for use by disabled persons.

Copyrighted work published outside India can be imported without infringing copyright.

Technological Protection Measures and Rights Management
If a person intentionally circumvents technological measures put in place to safeguard rights protected by the Act, he is punishable with imprisonment of up to 2 years and a fine. However, such circumvention is legal if done for purposes of research, investigation or for national security. Those who facilitate circumvention for purposes not specifically prohibited, must maintain a record of the circumvention.

Under the Bill, a person who knowingly removes information about a work and the rights attached to it (“rights management information”), or distributes work with the knowledge that such information has been removed without authority, shall be punishable with 2 years of imprisonment and a fine.

Comparison of film copyright in India with that of the Berne Convention and other countries.

Under the Act copyright in a film rests with the producer for 60 years. The Bill provides copyright to be held jointly by the producer and the principal director for a period of 60 years. The principal director shall hold sole copyright for a further 10 years. Further, copyright in films produced before the Bill extends to 70 years in cases where directors sign agreements with rights owners before copyright lapses, or where the same person is both director and producer.

There are three issues. Firstly, it is unclear why a director should get copyright in a film for 70 years when the producer, who typically bears the financial risk of a film’s success or failure, is entitled to copyright for a term of 60 years. Authors of other works, such as sound recordings, are also entitled to copyright protection only for 60 years.

Secondly, the effective extension of copyright by 10 years in films (in certain cases) made before the Bill, and which are due to come into the public domain soon, will affect the rights of the public to enjoy such films freely.

Third, the Act defines producer as the person who takes the initiative and responsibility for making the work. The Bill, adds “principal director” as a holder of copyright but does not define the term.

Rights of Scrip writers, Lyricists and Music Composers of Films
Clauses 5, 6, 7
The Bill makes a set of provisions which affect the rights of those whose work is used in films or sound recordings (such as lyricists, scriptwriters and composers). It does so by making two broad changes.

Firstly, it gives such authors copyright over their work even when such work is done under employment or commission. In the case of other work produced under such conditions, and not used in films or sound recordings, rights lie with employers or the person who commissioned the work. Secondly, the Bill specifies that rights to royalty remain with the author when the work is used in media other than films or sound recordings, with such rights being assignable only to legal heirs or copyright societies. In the case of other types of work, this restriction on the ability of authors to enter into a contract, does not exist.

As these provisions are being made only for a particular category of authors, the Bill discriminates between different types of authors.

Rights of Persons with Disability to Use Works under Copyright
The Bill has two provisions that help persons with disability get access to copyrighted work. First, it permits adaptation and reproduction of work in a format specially designed for use of persons with disability (e.g. Braille).

Second, the Bill provides for copies produced for the use by persons with disability in non-‘special’ formats (which can also be used by the general public e.g. audio-books). Such work can only be produced by organisations recognised under the Persons With Disabilities Act, 1995, and eligible for tax exemptions under the Income Tax Act, 1961. Such organisations must apply to the Copyright Board for a licence, which is issued following an inquiry, and which will specify the number of copies that can be made, without payment of royalty.

No time limit is specified within which a licence must be issued (or rejected). The Board is only required to dispose of an application ‘as expeditiously as possible’, and ‘endeavour’ to clear such an application in two months. The factors to be taken into account while making a decision are also not mentioned. The Bill also does not provide a process of appeal against the decision of the Copyright Board (in which case the appeal lies to the High Court). This may make the process less accessible.

Clause 35
The Act gives all authors ‘moral’ rights over their work, which exist independently of copyright. Authors have the right to claim authorship of their work, and the right to claim damages against any distortion or modification of their work which adversely affects their reputation (“the right to integrity”). While the right to claim authorship exists at all times, the Act restricts the right to integrity to the term of copyright. The Bill extends this right indefinitely, as well.

By allowing the right to integrity to subsist indefinitely, the ability to create new artistic works (e.g. remixes or parodies), which are inspired by existing works, may be adversely affected. Also, legal representatives of long-deceased authors will have the right to judge whether or not a new work adversely affects that author's reputation.

Under the UK law, the moral right to integrity lasts for the term of copyright, while under the French law, such rights subsist forever. Under the Berne Convention, moral rights must subsist at least for the term for which ‘economic’ rights (i.e. copyright) subsists.

Negative Amendments
1. WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights.
2. Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.
3. Technological Protection Measures: TPMs, which have been shown to be anti-consumer in all countries in which they have been introduced, are sought to be brought into Indian law.
4. Version recordings: The amendments make cover version much more difficult to produce.
5. Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.

The  author can be reached at: sumbulfarooquee@legalserviceindia.com

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