This post is an edited version of Dr. Kalyan’s post on the Salient Features of the Copyright Amendment Bill 2010 with such modifications as are made in the recently passed Copyright Amendment Act 2012.
The important amendments made in the Act can broadly be classified into:
A. Modifications with respect to Cinematographic works and Sound Recordings;
B. Exceptions to copyright infringement;
C. Digital Rights Management provisions;
D. Statutory license for cover versions;
E. Statutory license for broadcasting; and
F. Other important provisions.
A. Modifications with respect to Cinematographic works and Sound Recordings
a. The proposal of Principal Director in a cinematographic work to be made a co-author has been dropped following the recommendation of the Standing Committee citing that the time was not ripe for the Principal Director to be made a co-author of a cinematograph film.
b. The definition of Cinematographic Work is amended by removing the condition with respect to the medium and the process of creation of a visual recording. The earlier definition required the visual recording to be on a medium and to be made through a process of producing a moving image. A new definition of Visual Recording has been added under section 2(xxa), which broadens the omitted portion under the definition of cinematographic work by defining it as the recording in any medium, by any method including the storing of it by electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.
c. As per the amendment, persons appearing casually or incidentally and who are not acknowledged any where in a film are not considered to be performers under section 2(qq).
d. The exclusive rights of an author of a cinematographic work and sound recording under section 14(d) and section 14(e) are extended to include storage of the work in any medium by electronic or other means and right to sell or rent the work. The exclusive rights of the author of an artistic work under section 14(c) have also been expanded to include storage of the work in any medium by electronic or other means.
e. The amendments with respect to Principal Director under section 17 have been dropped. A new proviso added to Section 17 provides that when a work is incorporated in a cinematograph film, the ownership of such work reverts back to the author even when such work was commissioned or was created under employment. The provision does not apply to works incorporated in a sound recording alone.
f. Under the amendment, the right to receive royalties of a literary or musical work that forms part of a cinematographic work or sound recording ‘for all forms of exploitation other than the exploitation as part of the film in a cinema hall’ cannot be assigned to any person except to legal heirs or copyright societies as per the amendment under section 18. The new provision under section 19 provides that after assignment of a work to be used as part of a cinematographic work or sound recording, the owner of the work will continue to have the right to claim royalties for use of the work outside the cinematographic work or sound recording.
g. As per the new section 38A, if a performer consents through a written to incorporation of the performance in a cinematographic work, he shall not object to enjoyment of such right by the producer. Notwithstanding the aforesaid, the performer shall be entitled for making of performances for commercial use.
h. The presumption of authorship under the amendment of section 55 relating to civil remedies is extended to cinematographic works and sound recordings.
B. Exceptions to Copyright Infringement
a. The amendment to section 52 introduces the following changes:
i. Reporting of current events has been introduced as fair dealing under the new clause (a) of section 52(1). The new explanation provides that storing of a copy of a work including a computer program (incidental copy) in an electronic medium for private use, criticism or reporting is fair dealing and does not amount to infringement.
ii. The new clause (b) of section 52 seeks to provide that the transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright.
iii. Clause (c) of the amendment provides that transient and incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy also shall not constitute an infringement of copyright. It also provides that if the person responsible has prevented the storage of a copy, on a complaint from any person, he may require such person to produce an order within fourteen days from the competent court for the continued prevention of such storage;
iv. The other sub-sections have been re-numbered;
v. clause (m) with respect to reproduction or articles on current affairs is omitted;
vi. The new clause (n) allows libraries to make a digital copy of a work if the library has a non-digital copy;
vii.The new clause (ya) provides the making of a three-dimensional object from a two dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device does not constitute an infringement of copyright;
vii. The new clause (zb) provides exception to infringement for use by the disabled; and
viii. the new clause (zc) provides that the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory material, that is purely incidental to other goods or products being imported lawfully shall not constitute an infringement of copyright.
Exceptions for the disabled
a. The new section 31B is introduced by the amendment provides for the grant of a compulsory license over a work to publish it for the benefit of the disabled. The license may be granted to an organization working primarily for the benefit of the disabled registered under section 12A of the Income Tax Act and recognized under Chapter X of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.
b. The new clause (zb) is introduced by the amendment bill in Section 52)1) provides that the adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format will not constitute an infringement of copyright.
Parallel Import Exception- the Proposal to validate parallel import by amending Section 2 ( m) has been dropped.
C. Digital Rights Management Provisions
a. The phrase “Rights Management Information” has been defined under a new section 2(xa). It has been defined as title or other information identifying the work or performance, the name of the author or performer, the name and address of the owner of rights, terms and conditions regarding the use of the rights and the number or code that represents the above information but does not include any device or procedure intended to identify the user.
b. The newly added section 65B in the Act deals with protection of rights management information. It provides that any person, who knowingly removes or alters any rights management information without authority, or distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority,shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
It also provides that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII of the Act against the persons indulging in such acts.
c. The amendment proposes to introduce section 65A that relates to anti-circumvention of technical measures adopted to protect copyrighted content.
As per the section, any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred under the copyright Act, with the intention of infringing such rights, will be punishable with imprisonment which may extend to two years and will also be liable to fine. The section does not prevent any person from doing anything for a purpose not prohibited by the Copyright Act. Any person facilitating a person to circumvent a technological measure must maintain records of the person and the purpose of circumvention.
Circumvention of technological measures is permitted for the purpose of:
a. conducting encryption research using a lawfully obtained encrypted copy;
b. conducting any lawful investigation ;
c. doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorization of its owner or operator;
d. doing anything necessary to circumvent technological measures intended for identification or surveillance of a user ; and
e. taking measures necessary in the interest of national security.
D. Statutory License of Cover Versions
a. The new section 31C introduced by the amendment Act provides for the grant of a statutory license for making cover versions of sound recordings. A statutory license will be granted provided the following conditions are met:
i. The original sound recording was made with the license or content of the copyright owner;
ii.The cover version is made in the same medium as the original sound recording;
iii. A notice of intention to make the cover version is given to the owner;
iv. All covers or labels with which the sound recordings are to be sold are provided to the owner; and
v. Advance payment of royalty fixed by the copyright board is made to the owner with respect to all copies.
Limitation and Obligations with respect to cover versions
i. The cover version must not be misleading with respect to the identity of the recording;
ii. The earlier performer’s name or the owner’s name or cinematographic work in which sound recording was used must not be used for publicity purposes;
iii. A notice must be incorporated that the version is a sound recording made under section 31 C;
iv. No alteration of the works used in the sound recording can be made without the owner’s consent unless such changes are required for making the cover version;
v. Royalty must be paid for a minimum of fifty thousand (50, 000) copies unless the copyright board reduces the number in case of a translation; and
vi. Maintain register and accounts with respect to the sound recordings.
E. Statutory license for broadcasting
The new section 31D introduced by the amendment allows a broadcasting organization to broadcast a published work through a statutory license. The broadcasting may be done provided:
a. Give notice stating the duration and territorial coverage of the broadcast tot he copyright owner;
b. Pay advance royalties to the copyright owner as fixed by the copyright board;
c. Announce the names of authors and principal performers with the broadcast;
d. the broadcaster refrains from altering the work except for technical purposes of broadcasting or for shortening the work for broadcasting; and
e. The broadcasting organization maintains records and accounts and allows the copyright owner to inspect them.
F. Other Important Provisions
a. The amendment under section 18 provides that assignment of a work does not extend to assignment with respect to a medium or mode of exploitation that did not exist or was not in commercial use in relation to the assigned work unless the agreement expressly provides otherwise.
b. The assignment agreement must also state other consideration other than royalty if agreed by the parties. Any assignment that is contrary to an assignment made to a copyright society shall be void (amendment to Section 19). The owner of a copyright need not sign a license agreement in order for the agreement to be valid (amendment to section 30).
c. As per the amendment to section 22, the term of the copyright of a photograph shall be life of the author plus sixty (60) years.
d. As per the amendment to section 31, a compulsory license may be granted to a foreign work also. Furthermore, a compulsory license may be granted to more than one person.
e. As per the amendment to section 33, copyright societies may be registered only by authors. The new section 33A introduced for publication of the tariff by the copyright society and its review. As per the amendment to Sections 34 and 35, the copyright society shall be administered by the authors.
f. The new section 38A incorporated by the Amendment Bill provides the rights of the performers. As per the section, a performer has the exclusive right to do or authorize the doing of any of the acts in respect of the performance or any substantial part thereof, without prejudice to the rights conferred on authors, namely, to make a sound recording or a visual recording of the performance or to do certain acts in respect of such recording, to reproduce it in any material form including the storing of it in any medium by electronic or any other means, to issue copies of it to the public not being copies already in circulation, to communicate it to the public, to sell or give on commercial rental or offer for sale or for commercial rental any copy of the recording and to broadcast or communicate the performance to the public except where the performance is already a broadcast performance.
If a performer consents through a written to incorporation of the performance in a cinematographic work, he shall not object to enjoyment of such right by the producer. Notwithstanding the aforesaid, the performer shall be entitled for making of performances for commercial use.
As per section 38B, the performer shall have moral right of attribution as a performer unless omission is dictated by manner of use of performance. Furthermore, a performer also has the right to prevent mutilation or modification that would be prejudicial to his reputation.
g. The copyrights to foreign works and foreign broadcasts have been brought in line with rights to Indian works (section 40 and 40A).
h. The new Section 53 provides for detention of infringing copies of copyrighted works by the customs authorities and related proceedings. The provisions are aimed at bringing objectivity to the process of seizure of infringing copies proposed to be imported into India.
i. The amendment to Section 57 seek to extend the scope of moral rights by making moral rights valid even after the term of copyright expires. Furthermore, the proposed amendment also provides that authorship rights may also be claimed by the author’s legal representatives.