The Impact of the Copyright Amendment Bill, 2010 on Copyright Societies
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 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.