Author Name:   Madhvi Datta

Copyright is a form of intellectual property whose importance has increased enormously in the recent times due to rapid technological development in the field of printing, music, communication, entertainment and computer industries...

Copyright Amendment Bill 2010

Copyright is a form of intellectual property whose importance has increased enormously in the recent times due to rapid technological development in the field of printing, music, communication, entertainment and computer industries. The last amendment to the copyright act was done way back in the year 1999. Since then a lot of advancements and developments have taken place across all sectors affected by the Copyright Act. An amendment to answer certain issues like authorship of cinematographic films, exceptions to infringement, digital rights management, statutory licensing, piracy through computer networks etc has been in the pipe lines since 2006. It was on 19 April, 2010 that The Copyright (Amendment) Bill 2010 was introduced in the Rajya Sabha by the minister of Human Resource Development Kapil Sibal. [1]

The Bill seeks to give independent rights to lyricists, composers and singers as the authors of literary and musical works in films. The Copyright (Amendment) Bill 2010 will allow professionals like authors and lyricists to get royalties and other benefits from the commercial exploitation of their work. Currently, the right to receive royalty lies with music companies and producers. The Copyright (Amendment) Bill 2010 also addresses the concern of the music industry that has been complaining about “version recordings” of original songs and depriving music companies of royalties. The Copyright (Amendment) Bill 2010 gives the producer and the director joint ownership of the copyright, thus giving more power to directors. Until now, producers were the sole owners of copyright. Sibal said, "This legislation will help artistes and encourage a lot of new talent from the grass roots level."It may be recalled that the government had formed a 10 member committee comprising Aamir Khan, Mukesh Bhatt, Javed Akhtar, Vishal Bharadwaj, Vishal Dadlani, Prasoon Joshi, Boney Kapoor, Anjum Rajabli, Madhu Mantena and T-Series CMD Bhushan Kumar to look into the proposed amendments to the Copyright Act. [2]

Highlights of the Bill:
# The Copyright (Amendment) Bill, 2010 was introduced in the Rajya Sabha on April 19, 2010. The Bill was referred to the Department related Standing Committee on Human Resource Development (Chairperson: Shri Oscar Fernandez), which is scheduled to submit its report within two months.
# The Bill amends the Copyright Act, 1957, which consolidates the law relating to copyrights in India. The Bill seeks to make the provisions of the law in conformity with the World Intellectual Property Organization’s WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. The treaties deal with protection of authors of literary and artistic works and rights of performers and producers of phonograms.
# The Bill adds three definitions: “commercial rental”, “rights management information” and “visual recording”. It amends the definitions of “author”, “cinematograph film”, “communication to the public”, “infringing copy”, “performer” and “joint authorship”. It includes the producer and principal director of a film and the producer of a sound recording in the definition of author. It excludes a person from the definition of “performer” in a film if his role was incidental and in the normal course of practice is not acknowledged in the credits of a film.
# The Act states that the author of a work (which includes literary work, cinematograph films and sound recordings) is the first owner of copyright. It defines “copyright” as the exclusive right of the author to reproduce a literary or dramatic work or computer programme or artistic work.
# The Bill protects performer’s right by allowing him to make sound or visual recording of the performance and allow its reproduction in any medium, issuing copies to the public or selling or renting a copy of the recording. It also recognizes the right of the performer to be identified as the performer or restrain any distortion of the performance even if he has a written agreement to include his performance in a cinematograph film.
# The Bill expands the definition of “copyright” to allow artistic works, cinematograph films and sound recording to be saved in electronic forms. It also allows the copy of the film or sound recording to be rented out or sold.
# The Bill states that in case of cinematograph films the producer and the principal director shall be the joint first owner of copyright. In case of a film produced before the Bill is passed, the principal director shall have copyright for 10 years after the expiry of the copyright subject to any agreement between the principal director and the owner of the copyright. The author retains his copyright even if his work is used in a cinematograph film.
# The Bill enhances the term of a copyright for a cinematograph film. For a principal director, the copyright is for 70 years. For a producer, the copyright is 60 years, extended to another 10 years if he enters into an agreement with the principal director. The term of copyright of photographs has been extended to life plus 60 years.
# Any recognized organization working primarily for the disabled may apply to the Copyright Board for compulsory license of any copyrighted work for the benefit of the disabled. The Copyright Board may direct the Registrar of Copyrights to grant the license for prescribed time.
# The Bill seeks to introduce a system of statutory licensing for cover version of a sound recording so that right of copyright holder of literary or musical work is protected. Also, allow statutory licensing to broadcasting organizations of published works. The rate of royalty shall be fixed by the Copyright Board.
# The Act provides for registration of copyright societies by authors and other owners of rights for the interest of the author and the convenience of people seeking licenses. The Bill amends this to allow copyright societies to be registered only by authors of works. Each copyright society shall publish a tariff scheme. In case of dispute, the aggrieved party can appeal to the Copyright Board.
# The Act includes a list of activities which does not constitute infringement of copyright. The Bill excludes copying of computer programmed from the list. It includes reporting of current events (including public lectures) and non-commercial libraries.
# The Bill penalizes any person who infringes a technological measure applied for protecting rights in the law with imprisonment of up to two years
# Copyright in a film currently rests with the producer for 60 years. The Bill extends copyright to a director as well, but for 70 years. In some cases, this amendment also applies to films produced before the Bill.
# The Bill makes special provisions for those whose work is used in films or sound recordings (e.g. lyricists or composers). Rights to royalties from such works, when used in media other than films or sound recordings, shall rest with the creator of the work and can only be assigned to heirs, or copyright societies which act in their interests.
# The Bill allows for the production of copyrighted work in special formats (such as Braille), for use by persons with disability, without infringing copyright. It also specifies a procedure by which work can be produced in general formats, for use by such persons.
# The Act gives authors, or their representatives, the right to claim damages against use of their work (while under copyright), in a way which adversely affects their reputation. The Bill allows such a right to be exercised indefinitely, as opposed to being restricted to the term of copyright, as is the case currently. [3]

Key Issues and Analysis:
It is unclear why directors are allowed copyright in a film for 70 years, whereas producers, and authors of other works, are allowed copyright only for 60 years.
The Bill gives a special set of rights to authors of work used in films and sound recordings (such as scriptwriters and music composers). As these rights are not given to creators of other works, the Bill discriminates between different types of authors.
The procedure prescribed for the issue of licenses to reproduce work in non-specialized formats, for persons with disability, is not time bound. This may make the process less accessible.
Authors and their representatives may claim damages against the use of even those works which are out of copyright, on grounds that they damage the author’s reputation. This provision may affect creativity and artistic expression of others who build upon an author’s work.

Part A: Highlights of the Bill:
Context:
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 licenses 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 amendment Bill seeks to make changes to the rights of authors, as well as those of users. It also seeks to bring relevant provisions of the Act in line with the World Intellectual Property Organization (WIPO) Copyright Treaty and Public Performances and Phonograms Treaty, “to the extent considered necessary and desirable.”India has not signed these treaties as yet. It is a signatory to the Berne Convention, 1886, under which countries recognize copyright of authors from other member countries.

Key Features:
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 composer’s 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 licenses 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 licenses, 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 especially for use by persons with disability (e.g. Braille). Registered organizations who work with such persons can apply to the Board for a license 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.

Miscellaneous Provisions:
Copyright in photographs will last for 60 years after the death of the photographer (currently 60 years from publication).Independent of owning the copyright, authors have the right to claim damages when their work, while under copyright, is used in ways which adversely affects their reputation. Under the Bill, this ‘moral’ right will persist forever. The Bill extends ‘moral’ rights to performers, rather than just authors as is the case now. The Bill prescribes a statutory licensing procedure for cover versions of existing sound recordings. Such versions can be made only five years after the original recording, with royalty payable on a minimum of 50,000 copies a year, at rates fixed by the board. A separate statutory licensing procedure has also been prescribed for broadcasters. Under the Bill, authors have rights in the ‘commercial’ rental of works such as films or sound recordings. Rental, storage and limited copying of copyrighted works by non-commercial public libraries are permitted. The Copyright Board can now issue interim orders in cases of disputes over assignment of copyright, or disputes over the tariffs announced by copyright societies. However, the collection of fees due to such societies cannot be stayed. A person who stores a work while it is transmitted electronically does not infringe copyright unless he knows that the work infringes copyright. The Bill also gives such persons the right to ask for a court order from a complainant before permanently removing works which may infringe copyright.

Part B: Key Issues and Analysis:
Rights of Directors and Producers of Films:
Clauses 5,12-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.

Table 1: Comparison of film copyright in India with that of the Berne Convention and other countries.

Rights of Scriptwriters, Lyricists and Music Composers of Films:
Clauses 5, 6, 7, 33-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:
Clauses 17, 31-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 organizations recognized under the Persons With Disabilities Act, 1995, and eligible for tax exemptions under the Income Tax Act, 1961. Such organizations must apply to the Copyright Board for a license, 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 license must be issued (or rejected). The Board is only required to dispose of an application ‘as expeditiously as possible’, and ‘endeavor’ 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.

Moral Rights of Authors:
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. [4]

CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.

Existing Copyright Act:
The Indian Copyright Act, 1957 has been designed from the perspective of a developing country. It has always attempted a balance between various kinds of interests. It has always sought to ensure that rights of authors of creative works are carefully promoted alongside the public interest served by wide availability and usability of that material. For instance, our Copyright Act has provisions for:

Compulsory and statutory licensing: recognizing its importance in making works available, especially making them available at an affordable rate.
Cover versions: recognizing that more players lead to a more vibrant music industry.
Widely-worded right of fair dealing for private use: recognizing that individual use and large-scale commercial misuse are different.
These provisions of our Act have been lauded, and India has been rated as the most balanced copyright system in a global survey conducted of over 34 countries by Consumers International. The Indian Parliament has always sought to be responsive to changing technologies by paying heed to both the democratization of access as well as the securing of the interests of copyright holders. This approach needs to be lauded, and importantly, needs to be maintained.

Proposed Amendments:
Some positive amendments:
Fair Dealings, Parallel Importation, Non-commercial Rental: All works (including sound recordings and cinematograph films) are now covered the fair dealings clause (except computer programmes), and a few other exceptions; parallel importation is now clearly allowed; and non-commercial rental has become a limitation in some cases.
Persons with disabilities: There is finally an attempt at addressing the concerns of persons with disabilities. But the provisions are completely useless the way they are currently worded.
Public Libraries: They can now make electronic copies of works they own, and some other beneficial changes relating to public libraries.
Education: Some exceptions related to education have been broadened (scope of works & scope of use).
Statutory and compulsory licensing: Some new statutory licensing provisions (including for radio broadcasting) and some streamlining of existing compulsory licensing provisions.
Copyright societies: These are now responsible to authors and not owners of works.

Open licenses: Free and Open Source Software and open content licensing is now simpler.
Partial exemption of online intermediaries: Transient and incidental storage of copyrighted works has been excepted, mostly for the benefit of online intermediaries.
Performer’s rights: The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.
Enforcement: Provisions on border measures have been made better and less prone to abuse and prevention of legitimate trade.

Some negative amendments:
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.
Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.
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.
Version recordings: The amendments make cover version much more difficult to produce.
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.
Missed opportunities: Government-funded works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Criminal provisions: Our law still criminalizes individual, non-commercial copyright infringement.
Libraries and archives: The exceptions for ‘public libraries’ are still too narrow in what they perceive as ‘public libraries’.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions. [5]

References:
[1] http://jurisonline.in/2010/09/copyright-amendment-bill-2010-an-analysis/
[2] http://www.businessofcinema.com/news.php?newsid=15975
[3] http://en.indiapolicywiki.org/index.php?title=The_Copyright_(Amendment)_Bill_2010_Summary
[4] http://prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1121&category=&parent_category=1
[5] http://www.cis-india.org/advocacy/ipr/blog/copyright-bill-analysis

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

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