Suggestions on the Amendment of the Copyright Act, 1957- Part II

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Suggestions on the Amendment of the Copyright Act, 1957- Part II

Section 18

Reasons for suggested amendments

A frequent issue pertaining to Section 18, which outlines the rights which may be assigned and the exceptions, has been the right to receive royalties with respect to works forming part of a cinematograph film or sound recording. The current provision does not permit the author to waive or assign the right to receive equal share of royalties for the utilisation of such works, other than to copyright societies or to his legal heirs. More importantly, the proviso does not enlist the rights in the cinematograph film or sound recording, the exercise of which entitles the author of the literary or musical work to royalties.

The suggested amendment clarifies that that the right to receive an equal share of royalties is limited to the exercise of rights enumerated in Section 14(a)(iv), with respect to any cinematograph film or sound recording.

Another issue arising with respect to Section 18, is that of future assignments by authors, and the question of whether rights in works that come into existence by way of employment or a contract of service under Section 17 may be assigned by the author and not by the copyright owner. The suggested amendment clarifies that, in case of an assignment of future works, a contract of service or employment in accordance with Section 17(a) will supersede any prior assignment agreement, and rights in such works are held by the copyright owner and hence cannot be assigned by the author.

Current Provision Amended provision
Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

Provided however that, the assignment of a future work shall not be valid if the work comes into existence by way of contract of/for service or employment under Section 17(a).

Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilization of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void: Provided also that the author of the literary, dramatic or musical work that forms part of a cinematograph film shall not assign or waive the right under Section 14(a)(iv) to receive equal share of royalties for exercising the right to communicate to public, make available and commercially sell or rent the cinematograph film outside a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void:
Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void. Provided also that the author of the literary, dramatic or musical work that forms part of the sound recording shall not assign or waive the right under Section 14(a)(iv) to receive equal share of royalties for exercising the right to communicate to public, make available and commercially sell or rent such sound recording, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to the contrary shall be void.

 

Section 19

Reasons for suggested amendments

Section 19, which lays down the process and procedure for valid assignment of rights, provides that the author cannot assign rights contrary to rights previously assigned to a copyright society. The suggested amendment clarifies that the author may, at any time, revoke or withdraw an assignment of rights to a copyright society with respect to a work.

Further, the current provision states that the assignment of copyright shall not affect the right of the author of a work to receive royalties with respect to works forming part of cinematograph films or sound recordings. However, the provision distinguishes between cinematographic films and sound recordings, with respect to the nature of utilization for which royalties are payable.

The suggested amendment brings the right to receive royalties for work forming part of cinematograph films and sound recordings in consonance with each other, and also clarifies that the right to claim royalties is limited to the exercise of rights enumerated in Section 14(a)(iv), with respect to both cinematograph films and sound recordings.

Current Provision Amended Provision
[(8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.] (8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.

Provided however that, an assignment of rights with respect to a work to a copyright society may be revoked or withdrawn at any time in accordance with the provisions of this Act.

(9) No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall. (9) No assignment of copyright in any work which forms part of a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of exercise of rights to make available, communicate to public, and commercially sell or rent the cinematograph film, other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
(10) No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilization of such work in any form. (10) No assignment of the copyright in any work which forms part of a sound recording shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any exercise of rights to make available, communicate to public, and commercially sell or rent the sound recording.

 

Section 19A

Reasons for suggested amendments

The current provisions of Section 19A, which lay down the procedure for the revocation of assignments by the Appellate Board in case of disputes, permit the Appellate Board to revoke assignments which are harsh to the assignor after five years following the date of such assignment.

The suggested amendment reduces this period to one year. As the intent of this provision is to ensure that authors are not bound by unfair assignment agreements, it is necessary to allow authors to obtain orders revoking the assignment within a reasonable period.

Current Provision Amended Provision
Provided also that] no order of revocation of assignment under this sub-section, shall be made within a period of five years from the date of such assignment. Provided also that no order of revocation of assignment under this sub-section, shall be made within a period of one year from the date of such assignment.

 

Section 30

Reasons for suggested amendments

Section 30, which relates to licenses by copyright owners, permits copyright owners to license future works, and provides that such license shall take effect when the work comes into existence. However, this provision has led to similar issues as those faced with respect to the assignment by authors of future works created under a contract of service or employment. The suggested amendment clarifies that works coming into existence by virtue of a contract of/for service or employment are owned by the commissioner or employer, and hence cannot be licensed by the author or by the future assignee, and thus brings the provision in line with the corresponding provision on assignment.

Current Provision Amended Provision
30. Licences by owners of copyright. — The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in 5 [writing by him] or by his duly authorised agent:

Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.

Explanation.— Where a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the licence.

30. Licences by owners of copyright. — The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in 5 [writing by him] or by his duly authorised agent:

Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.

Provided however that, the license granted by the author or a future assignee with respect to a future work shall not be valid if the work comes into existence by way of contract of/for service or employment under Section 17(a).

Explanation.— Where a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the licence.

 

Section 30A

Reasons for suggested amendments

This section makes the provisions of Section 19 applicable to licenses, but does not extend the applicability of Section 19A to license-related disputes, thus leaving open the question of whether and how the Appellate Board may revoke a license agreement which is harsh to the licensor.

The suggested amendments extend the applicability of Section 19A to license disputes, and clarify that the one-year time limit for revocation of assignments does not apply to licenses, and permits the Appellate Board to revoke a license at any time.

Current Provision Amended Provision
[30A. Application of 7 [section 19].— The provisions of 7 [sections 19] shall, with any necessary adaptations and modifications, apply in relation to a licence under section 30 as they apply in relation to assignment of copyright in a work.] 30A. Application of section 19 and 19A.— The provisions of Section 19 and Section 19A shall, with any necessary adaptations and modifications, apply in relation to a licence under section 30 as they apply in relation to assignment of copyright in a work.

Provided that, the Appellate Board may pass an order to revoke a license in accordance with Section 19A at any point of time, and the one-year time limit for such revocation shall not be applicable to licenses.

 

Section 38A

Reasons for suggested amendments

Section 38A, which provides certain rights to performers, has led to various issues pertaining to claims for royalties and the scope of the performers’ right to receive royalty, ranging from the nature of works covered within this provision to the amount of royalty payable to performers. The current provision distinguishes between the incorporation of a performance in a cinematograph film and sound recording, and the producer’s exercise of rights in such performance.

The suggested amendments bring the provisions applicable to performer’s rights in cinematograph films and sound recordings in consonance with each other, such that copyright owners of cinematograph films and sound recordings enjoy the same rights.

The current provision entitles a performer to royalties in case a performance is made for commercial use. However, as the Act does not define what constitutes commercial use, and a similar distinction has not been made in case of works forming a part of a film or sound recording, the implementation of the provision has given rise to confusion regarding the nature of utilisation which entitles performers to royalties.

The suggested amendments remove the commercial use requirement, and clarify that a performer has the right to receive royalties from the consideration received by the copyright owner by broadcasting or communicating to the public a cinematograph film or sound recording which includes the performer’s performance.

Further, in order to avoid any confusion which may arise due to the applicability of Section 18 as provided under Section 39A, the suggested amendments clarify that the proviso pertaining to equal share of royalties applicable to literary, dramatic and musical works under Section 18 shall not apply to the rights of performers and broadcasters.

Current Provision Amended Provisions
(2) Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film: (2) Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film or a sound recording he shall not, in the absence of any contract to the contrary, object to the enjoyment by the copyright owner of the film or the sound recording of the performer’s right in the same film or sound recording:
Provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use. Provided however that, in the absence of an agreement to the contrary, the performer shall have the right to receive a share of royalties from the consideration received by the copyright owner for broadcasting or communicating to the public the cinematograph film or sound recording which includes the performer’s performance.

The proviso pertaining to equal share of royalties applicable to literary, dramatic and musical works under Section 18 shall not apply to the rights of performer and broadcasters.

Part I of the recommended amendments may be accessed here.

Part III of the recommended amendments may be accessed here.

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