Copyright

Guest Post: The Impact of the Copyright Amendment Bill, 2010 on Copyright Societies


Neel Mason,a Managing Partner of Mason & Associates, with over 13 years of practice in IP matters has written for our readers, this excellent guest-post on the impact of the Copyright Amendment Bill, 2010 on Copyright Societies. A must read for all those interested in the wide-ranging amendments proposed to Copyright Societies.

The Impact of the Copyright Amendment Bill, 2010 on Copyright Societies
by
Neel Mason

One of the significant developments under the proposed amendments is the change that will be brought about in relation to Societies registered under the Copyright Act. The amendment to Section 33 of the Act has, inter alia, replaced “no person or association of person” with the words “association of authors” as well as replaced “owner of rights” with the words “author of work”.

The relevant extract of Section as it stands at present is set out below:
“33. (1) No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994 commence or, carry on the business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3):
Provided that an owner of copyright shall, in his individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society:”

The Section restricts any activity by entities other than those registered under the Act for this purpose. The legislation as it now stands permits any person or association of persons to register as a society under the Act, subject to other conditions being met. The substitution effectively means that only authors can register under the Act and therefore excludes all others from such registration. This view is consistent with the aims and objectives of the amendment.

The proposed definition of author under the Act is as follows:
(i)Literary or dramatic work : the author
(ii)Musical work : the composer
(iii)Artistic work other than a photograph : the artist
(iv)Photograph : person taking the photograph
(v)Cinematograph film : the producer and the principal director
(vi)Sound recordings: the producer
(vii)In relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created

At present, the Indian Performing Rights Society (IPRS) is registered as the collecting society (in relation to the right of communication to the public), for “literary works” and “musical compositions”. Phonographic Performance Limited (PPL) is registered collecting society for sound recordings. It is important to bear in mind that they administer the rights of their members and perhaps even reciprocal rights in relation to similar bodies internationally. The membership list of IPRS consists of authors, composers and as well as music companies, while the membership list of PPL consists of various music companies.

The impact of the amendments would be felt particularly in the membership and constitution of the IPRS, as its membership cannot carry on administering rights of entities that are not authors or composers. Therefore even for instances where an entity (such as a music company owns the rights), it will not be possible for the administration of such rights by the IPRS, as such entities cannot continue as members. We are therefore faced with an anomaly whereby one can apply to a collecting society for a license to exploit works in which authors or composers are the owners of the copyright. However, in case the same rights are owned by a company or an entity other than the composer or author, one would need to approach such an entity directly for a license. This results in a serious depletion in the repertoire of works available for licensing via a collecting society and increases the transaction costs involved in negotiating licenses directly with such copyright owners who may not be copyright authors.

The proposed section 19 (8) of the Amendment Bill sets out “ 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 or a work is already a member is void”. Whereas this clause may appear to be a statement of law, (in as much as any new assignment cannot derogate from an earlier assignment), a member of the IPRS will not be able to assign its rights in relation to those vested with IPRS. This leaves the author composer really a few options, to get permission from IPRS, or to resign as a member of the IPRS, thereby depriving the author of potential royalties for other works, or maybe to grant limited rights to IPRS if such an agreement is acceptable by IPRS. The dilemma does raise a larger question as to whether an administering authority needs to own the rights that it administers.

The restriction to authorsforming Collecting Societies will have an impact on the publishing industry where the practise is of publishing houses normally taking assignments from the author. Under the proposed amendment publishing companies will not be able to register their societies for administration of their rights. While the music industry has been using collective licensing of rights for several years, the first steps for the publishing industry in India took place in the year 2002 when the Indian Reprogrpahic Rights Organisation was registered for this purpose. However another applicant, the Copyright Clearing Agency of India has instituted proceedings in the Delhi High Court in relation to the registration granted to the Indian Reprographic Rights Organisation and the issue still remains unresolved. However the amendments now stand to make collective licensing in the publishing industry an impossible task.

It may be necessary for Amendments to consider the realities of the publishing industry. It appears that the amendments have been carried out with the music industry in mind, as they aim to deal with issues that are being faced by members of the IPRS but the amendments have not taken into consideration the wider impact on other industries such as the publishing industry. Further, it severely handicaps the possiblity of collective administration of works, where the rights owners may not the authors and therefore the amendments need to be reconsidered.

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

One comment.

  1. Prashant Reddy

    Mr. Jagdish Sagar, a former senior bureaucrat and author of the 1994 amendments to the Copyright Act sends in the following comments:

    I entirely agree with everything Neel says. I would go further: collective administration can’t work if it isn’t available to all copyright owners, since otherwise it can never cover the bulk of copyrighted works. That’s also important for the using public: today a licence from IPRS and PPL will make almost any public performance of music safe for the licensee, but if these amendments go through it won’t be so in future. Further, the present reciprocal arrangements that IPRS has with about 200 foreign societies will be difficult to sustain if IPRS cannot administer the whole repertoires of its foreign sister societies in India; the destruction of this arrangement won’t help Indian authors whose works are performed abroad.
    But there’s more to it than that: no one seems to be commenting on the main reason why the proposed amendments are actually anti-author! The amended section 33 would limit the bar against carrying on licensing business in copyrights except through registered copyright societies, only to authors, and free others (like enterpreneurial companies, that might now spring up) to carry on the same business of licensing third-party works in competition with registered copyright societies like IPRS, but without being subject to the same regulation (including, as now proposed, even price regulation!).
    Another point: elsewhere the proposed amendments, to comply with WPPT, give the performers of recorded works the same rights as the sound recording producers (who will, as authors of sound recordings be able to continue as members of PPL). But section 33 as amended will exclude perfomers from the benefits of collective administration.
    Altogether, I can see the proposed amendments on copyright societies, if they are enacted, being subject to challenge under Article 14, as discriminatory, by (i) authors (ii) assignees, employers if they enjoy the benefit of section 17(c), & heirs i.e. all non-author owners of copyright; and (iii) performers. Every one of these groups will suffer adverse discrimination one way or another. If the courts strike down the amended provisions as they should, we may (pending further amending legislation to restore the status quo ante) be left with no effective provisions at all on copyright societies.

    Warm Regards,
    Jagdish Sagar

    Reply

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