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Suggestions for Copyright Reforms by the TLF, NALSAR
The Technology Law Forum (TLF) at NALSAR University of Law, Hyderabad recently released a list of recommendations concerning copyright reform that were submitted to the Registrar of Copyrights. The biggest consideration that made its way into the recommendations was the interplay between the changes in technology law and copyright law. The recommendations were classified into five main categories as given below:
Copyright and Creative Common Licensing of Government Works
The Copyright Act, 1957 provides protection for works created by government departments, legislative bodies and other authorities owned and or controlled by the government or any agency thereunder through sections 17 (d) and 17 (dd) for a period of 60 years. These works include books published by Sahitya Akademi Publications, scientific papers published by the Indian Council of Agricultural Research, audio-visual content from the All India Radio and Doordarshan among other works that are of great public value. These works have been created with public funding and with the ultimate goal of public dissemination and yet are inaccessible to most of the public.
The TLF has recommended that these works must be made available to the public for free use and reuse while also making them available under Creative Commons Licenses which would provide the needed flexibility to ensure that competing interests are balanced. The amendment would thus require all government works to be made available to the public for free use and reuse.
Physical Copy Doctrine in Cinematographic Works
The Act makes a distinction between literary, dramatic musical and artistic works and cinematographic works both in terms of the terminology and the rights accorded. Section 13(1) imposes a requirement of originality for the former set of works and does not use the same for the latter. Sections 14 (a), (b) and (c) provide the holder the right to reproduce the former works in any form while section 14 (d) merely provides the holder the right to produce copies of the work. The main justification for the same is that cinematographic works are a combination of underlying works and cannot be published without the same.
The implication of reading these sections along with section 51 of the Act seems to suggest that the holder of a cinematographic work can only claim infringement when an exact copy is made (physical copy doctrine). In case there is a reproduction of the work that is substantially similar, a claim would lie with the author of the underlying work only. Courts in India have taken differing stands, for instance in the case of Yash Raj Films v Sri Sai Ganesh Productions the Court noted that cinematographic works involve a variety of creative steps and are not mere compilations and should be given the same amount of protection as other works which would be aligned with international standards.
The recommended amendment has suggested doing away with the analogous relationship created between cinematographic works and sound recordings. In order to ensure that there is no power imbalance created, rights to cinematographic works could be given to the directors and not the producers as they play a more active creative role.
Statutory Rights Reversion
Sections 18, 19 and 19A of the Act govern assignments and section 30 A mandates that licenses shall be governed by the framework envisaged under section 19. The rights of an assignee lapse when they are not exercised by them for a period of one year (section 19) but this can be nullified by the contract. Additionally, the Intellectual Property Rights Appellate Board (‘IPAB’) can revoke such licenses in cases where the assignee fails to “make sufficient exercise of the rights assigned” and where the terms are harsh (section 19 A). This creates an unattractive remedial model for authors.
Statutory Rights Reversion refers to the process whereby rights assigned or licensed revert to the author (a) at their option after the lapse of a time-period and/or (b) under certain situations where rights and interests of the author are adversely affected and gives an option for the author to re-negotiate the terms of such assignment or transfer. The creation of such a statutory right (which will ensure it is commonly applied and not just a practice observed by some in the industry) will provide authors enough bargaining power to opt out of any contract detrimental to their interests and will also allow for wide commercialisation/ dissemination of works.
The proposed amendment includes the creation of a right that would expire every fifteen years and available to the author for a period of three years modelled on rights available in other jurisdictions.
Statutory Licensing for Streaming Services
Currently, there is no licensing regime for digital streaming services. The Bombay High court in Tips v. Wynk concluded that Section 31D of the Act was inapplicable to these services meaning that Indian musicians and composers face a plethora of issues including but not limited to lesser negotiating powers, low royalty rates, among others. A proposed amendment to the Copyright Rules in 2019 sought to remove the requirement for broadcasters under section 31 D which would defeat the purpose of equalizing the grave power imbalance that exists between artists and streaming services.
The proposed amendment recommends the passing of a new legislation in consultation with relevant stakeholders including artists/labels and the government. The United States passed the Music Modernization Act under similar circumstances establishing a blanket compulsory mechanical license with higher standards for the rates, the creation of a non-profit governing agency called the ‘Mechanical Licensing Collective’, among other provisions.
There exists a difference in terms of the rights available to consumers in regards to their digital and physical goods. In most cases consumers do not own the rights to the copies they buy since such transactions are usually framed as a license. On an application of the doctrine of exhaustion consumers gain a property right with regards to physical goods. Such a right is not created with regards to digital goods in fact, removing technological measures is deemed as a criminal offense under section 65 A of the Act. These measures exist to counter the ease with which copies can be made online.
The proposed amendment involves the adoption of mechanisms that would apply the principle of digital exhaustion such as forward- and-delete features, resale royalties or file degradation systems, among others. The amendment can also allow for the right to transfer legally purchased copies online. Holders should be mandated to take steps to ensure that users can treat their digital property in the same way as physical property and would involve processes such as standardization of file formats, use of licensed intermediaries to transfer digital property, among others.
The suggestions published by the Technology Law Forum, NALSAR, may be accessed here.
This post is intended to present more suggestions on the amendment of the Copyright Act, 1957.
BananaIP’s suggestions may be accessed here.