Licensing Copyrights in India
This post was first published on 27th June, 2014.
The owner of the copyrights of any work may grant a license under the Copyright law to authorize a third party to use and distribute the copyrighted work. A copyright license may be exclusive or nonexclusive.
The term Exclusive License is defined in section 2(j) of the Copyright Act to mean and include a license which confers on the licensee and the persons authorized by him, to the exclusion of all other persons, any right comprised in the copyright of a work.
Although assignments and licenses are both contracts involved with the transfer of rights for exploitation of a copyrighted work, both have their own distinct features. A license is nothing but an authorization from the copyright owner to exercise certain acts, without which the acts are considered as infringement. Therefore, no transfer of ownership happens in cases of licenses.
On the contrary, an assignment involves the transfer of ownership of the copyright. In addition to this, the assignee being the owner of the copyright, is entitled to sue third parties against infringement of copyrights. The licensee, including the exclusive licensee, can exercise this right only if the same is specifically included in the terms of the agreement.
Types of Licenses under the Copyright Act, 1957 as amended in 2012
Chapter IV of the Copyright Act discusses licensing of copyrighted works. This chapter discusses seven different types of licenses issued by the Copyright Board:
a) Compulsory licenses for works withheld from the public: According to this provision, any person may approach the copyright board, for issuance of a compulsory license to publish a work that is withheld from the public by the copyright owner. However, before approaching the Copyright Board, the complainant should have approached the copyright owner first for a license to republish or perform the work and the copyright owner should have unreasonably rejected the request of the complainant.
b) Compulsory licenses for unpublished works of unknown authors: In case of unpublished works of unknown or dead authors, any person may apply to the Copyright Board for a license to publish or communicate to the public such works or translations thereof. However, before making such an application, the applicant is required by law, to publish his proposal to do so in a national newspaper.
c) Compulsory licenses for the benefit of the disabled: Any person or non-profit organization working for the benefit of the disabled may apply to the Copyright Board for a compulsory license to publish any work in a format suitable for their accessibility.
d) Statutory licenses for Cover Version: Section 31C of the Copyright Act provides for the grant of statutory licenses for making cover versions of any sound recordings. This section specifically requires the Copyright Board to fix the minimum amount of royalty to be paid for the creation of such a version.
e) Statutory licenses for Broadcasting literary, musical works and sound recordings: This license is issued by the Copyright Board in favour of any broadcasting organization desirous of broadcasting to the public any literary, musical work or sound recording which is already published by the copyright holder. Although the Copyright Board is authorized to determine the royalties payable under this license, the Board is yet to convene and determine these royalties.
f) License to produce and publish translations: This license issued by the Copyright Board permits the applicant, after the applicant pays a determined royalty to produce and publish a translation of literary or dramatic work, after seven years of publication of said work. It is pertinent to note here, that this licensing is not applicable to cinematographic films and sound recordings.
g) License to reproduce and publish works for limited purposes: The Copyright Board may issue licenses to publish a work in India if the editions of such literary, scientific or artistic works are not made available in India. The Copyright Board, in case of such applications, may issue the license after determining the royalty to be paid to the copyright holder.
In the next post, we will discuss in detail, the different types of licenses issued by a copyright holder with respect to the Entertainment Industry.