Thanks to Shamnad, we now have a copy of the ‘Amendments’ being moved by Minister Kapil Sibal to the ‘Copyright Amendment Bill, 2010’. The amendments are accessible over here. Most, though not all, of these amendments are based on the report of the Standing Committee which we have blogged about here. I’ve identified the most important amendments below:
(i) The ‘parallel imports’ clause: It had been reported in April of this year that the ministry was thinking of dropping the proposed amendment to Section 2(m) of the Copyright Act, 1957. The amendment would have allowed for parallel imports of books into India and significantly dropped the prices of books especially educational books. This proposed amendment to Section 2(m) has now been deleted by Minister Sibal in his amendments to the amendments. This is a big victory for the publishing industry which until now had strongly and staunchly opposed the amendments. The Minister will however have to answer to the House on why exactly he is disagreeing with the recommendations of the Standing Committee, which in its report had strongly supported parallel imports of books. Our earlier reports on the parallel imports clause can be accessed over here and here.
(ii) The Bollywood clauses: The revolutionary amendments re-defining the rights of the lyricists and composers vis-à-vis the producer in Bollywood have been retained and in fact strengthened on the basis of the Standing Committee’s report. This revolutionary clause will now prohibit lyricists and composers from assigning away and their rights and also mandate that the producer share all royalties equally with them. Therefore the lyricist, composer and the author will each get 33% of the royalties. The second set of amendments, have a lot more clarity than the original provisions in the Copyright Amendment Bill, 2010 and will undo the injustice of the 1977 decision of the Supreme Court in the IPRS case.
(iii) The ‘Copyright Board’: As you all know the constitutionality of the Copyright Board has been challenged by SIMCA before the Madras High Court. For some reason the Copyright Office told the Delhi High Court that it wanted to amend Sections 11 and 12 of the Copyright Act, 1957 which created the Copyright Board. It then went ahead and filed an affidavit before the Madras High Court defending Section 11 and 12 which had been challenged by SIMCA. We blogged about it over here. Now the Copyright Office has moved completely inadequate amendments in the form of a new provision ‘2A’ to Section 11. Although the members of the Copyright Board will now be appointed in consultation with the Chairperson of the Copyright Board the amendments fail to prescribe any minimum qualification criteria for the remaining members. The terms and conditions of the employment of the Chairperson and members will be decided by the Central Government with the caveat that these conditions will not be manipulated to the disadvantage of the members. Such delegation is impermissible in law. Parliament cannot give away such essential legislative functions to the Central Government. It however remains to be seen whether SIMCA will continue its challenge against the Board.
(iv) The disability provisions: The group of persons lobbying for wider fair dealing exception for ‘disabled’ persons have scored a complete and total victory with the Ministry accepting all amendments of the Standing Committee.
(v) The Copyright Societies: The amendments to the Copyright Amendment Bill, 2010 have brought about sweeping changes to the provisions governing the creation of Copyright Societies. On the advice of the Standing Committee the Ministry has rightfully deleted the clause which stated that only authors would have control of copyright societies, as opposed to the ‘owners of the rights’. Instead the Ministry has brought in the following amendments:
(a) ‘Single window’ Copyright Society: [update: My interpretation of a ‘single window copyright society’is most probably wrong. I have corrected the same over here] The new amendments to the Copyright Amendment Bill, 2010 requires that “the business of issuing business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act”. This basically means that only one Copyright Society will now grant a single licence for literary, dramatic, musical and artistic works. Earlier this function was carried out by two copyright societies – IPRS and PPL. While the former would licence literary, dramatic, musical and artistic works, the latter would licence only sound recordings. Now this arrangement was not working out well for a majority of content users, who had demanded a ‘single-window’ licence i.e. both PPL and IPRS give them a joint licence since most content users had to take licences from both societies. As a result both these societies had appointed Select Media Pvt. Ltd. as an agent to issue ‘single window’ licences on behalf of both PPL and IPRS. As we had blogged earlier Select Media Pvt. Ltd. had made a very cool US $ 1.2 million dollars in profit last year with revenues in the neighbourhood of US $ 30-40 million dollars. If this amendment gets through Select Media Pvt. Ltd. can now no longer play the role of a ‘single window’.
Most interestingly, the provision uses the word ‘shall be carried out only through a copyright society’. I think this means that individual music companies cannot carry out their own licensing business. Everything will now have to be routed through this one Copyright Society registered under the Copyright Act.
(b)Registrations of Copyright Societies to be renewed every five years: The government having learnt from the nightmare faced at IPRS by authors, has now mandated a renewal of registration for all copyright societies every five years. This is hardly a surprise given the manner in which IPRS took the Registrar of Copyrights for a ride in 2009. We had blogged about that inquiry over here.
(c) IPRS and PPL to lose their registrations as Copyright Societies: The new round of amendments also requires all existing copyright societies to get themselves registered once again with the Copyright Office. This would mean that IPRS and PPL will lose their registrations and given the requirement of creating a new ‘single window’ copyright society, it is most likely that IPRS and PPL will either have to dissolve entirely or maybe merge before they can even approach the Copyright Office for registration as a Copyright Society.
(d) Registration to be withdraw if copyright societies are not transparent: The new amendments to the existing Bill allow for the Central Government to revoke the registration of a copyright society if the said society does not fulfil the criteria of the new Section 33A which imposes stringent transparency conditions on the copyright societies. Copyright Societies will have to publish tariffs, details of their members etc. failing which their registration will be withdrawn. Even this particular provision has been inspired by the complete mishandling of affairs at IPRS.
The Copyright Amendment Bill, 2010 is scheduled to be discussed tomorrow but it is likely that the same may not be taken up because there are already two heavy bills listed before the Copyright Amendment Bill.
Hi,
The link to the amendments does not appear to be working. If however what you say is correct, the fact that music companies would compulsorily have to be part of collecting societies is revolutionary. A number of music companies choose to stay out of PPL and IPRS particularly in the context of radio licensing. I also wonder how the amendment pertaining to lyricists and composers will play out in light of the recent judgments of the Delhi and Bombay High Courts holding that composers are not entitled to royalties when a sound recording is played/broadcast.
Hi,
Thank’s for pointing it out. I’ve fixed the link. It should be working now.
Prashant
I think your interpretation of the collective licensing clause is wrong: “The business of issuing business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act”. This clause concerns only the musical and literary works, not the sound recordings; hence, it concerns only IPRS: owners of sound recordings (and films!) can still license their masters, either alone or through a Society.
The reason for this clause derives from the nature of music publishing (joint ownership of rights) and the changes in the consumption of music globally rather than from the demand of the radio industry. In this sense, this clause is truly revolutionary, i.e. anticipating the future.
Last but not least, it is not enough for authors to be given their right to royalties, they must also be paid. Only when licensing is done through a Society can all authors be sure that they will receive their rightful share. Consider the alternative: without this clause they would have to claim their share from each and every record label who uses their works.
You interpretation re Section 33 that the amendments will now require ONE Society is erroneous. The proposed amendments clearly pertain to lyrics and musical works and not to sound recordings. I am sure you are aware of the distinction between these works or do you need to take a re look at the Copyright Act?