In the past, we have extensively covered the amendments to the Indian Copyright Act
by way of the 2012 amendment that was recently notified by the Government. Now, the draft Copyright Rules, 2012
have been published, which seek to clarify some of the ambiguities in the amendments. A brief (but exhaustive, hence long post warning) overview of the different aspects covered by the Rules is given below:
LICENCES FOR TRANSLATIONS
Licences for translations of work can be applied for under S.32 of the Act. The 2012 Rules clarify that each application only relates to one particular work and for translation into one language only. Similar details as above are required to be given in the public notice. The condition for granting of license is that it should ‘serve the interests of the general public’ (Rule 13(4)). The conditions concerning royalty payments as provided for in S.32 shall apply for translated works as well. Provisions for extension (in case licensee has been unable to produce or publish the translation) and cancellation (failure to translate, fraud or misrepresentation, violation of license terms) are also present.
COMPULSORY LICENCES FOR PUBLICATION, TRANSLATION & REPRODUCTION
The applicable form is Form III and notice to other interested parties is possible. One of the most important factors in a compulsory licence case is the issue of determining royalty payments. Rule 19 lays down the considerations in determining the rate of royalty: (a) the proposed retail prince of such work, (b)prevailing standards of royalty, (c) such other relevant matters. As explained above, there are provisions for granting extension and terminating the compulsory license as well.
COMPULSORY LICENSE FOR PUBLISHED/UNPUBLISHED WORKS
For obtaining a compulsory license over an unpublished Indian work, the applicable form is Form V. The statutory condition for publication of the proposal in a daily newspaper is also explained in the Rules. The license itself shall contain the following: period within which work must be published/communicated; price; royalty to be deposited; language to be specified; medium in which the work is to be communicated. The other provisions concerning determination of royalties, extension and cancellation of licences continue to apply here as well.
COMPULSORY LICENSE FOR DISABLED PERSONS & RULES FOR FACILITATORY ORGANISATIONS
This relates to the newly inserted Section 31B of the Act. The relevant form for submitting an application is Form VI, which must be sent to either the owner of copyright or the publisher, if the former is untraceable. Notice and hearing to other interested parties must also be given. The license conditions are similar to those provided for earlier: (a) deadline for publication, (b) medium and format, (c) number of copies, (d) rate of royalty and (e) the persons to whom royalty must be paid. Again, the provisions concerning determination of royalties, extension and cancellation of licences also apply. Further, Rule 75 of the 2012 Copyright Rules relates to the ‘making or adapting of the work by organizations working for the benefit of persons with disabilities’. Here, the Rules make detailed provisions for maintenance of records by such organisations ,which include – name of the work, author, owner and date of publication; details of the format; nature of activity; number of copies; price of the copies. Moreover, a separate register is required to be maintained with names and details of persons with disabilities for whom copies are sought. There are also important notice requirements that must be placed on each copy produced. Most importantly however, the Rules specify what the term ‘accessible format’ means. This was a source of confusion while the amendments were being discussed. Now it is clear that it includes Braille, Daisy, large print, talking books, digital formats such as .doc, PDF, ePub etc. and ‘all other formats that can be used by persons with disabilities’. Thus, with these Rules in effect, it appears that the exception for persons with visual impairments is wide and effective and will surely benefit the end users as desired by the amendment.
COVER VERSIONS – LICENSING
The applicable provision for cover versions in S. 31C of the Act. The notice period is now specified as 15 days before making the cover version. The Rules also specify what details are to be contained in the notice -the concerned work, alternations, evidence of consent of the author, name, address and nationality of the owner, number of copies sought to be made and year of production and lastly, the details of advance payments made. Interestingly, Rule 35 enumerates conditions that must be followed while making a cover version. For example, it says the ‘integrity’ of the original work must be maintained. The other conditions concerning packaging and labelling to prevent public confusion are also re-stated. To make fresh copies, a new notice is to be issued and there are also extensive requirements concerning record keeping and payment of royalties. Additionally, the Rules provide for a complaint mechanism in case of non payment of royalties to the owner of the original work.
This section deals with the rules under S.31D of the amended Copyright Act. Outside of the conditions already stated under S.31D, the Rules specify that notice of the intention to broadcast must be given to the Registrar 15 days in advance. Further, separate notices are required for radio and television broadcasting. It also mentions the necessary details that are required to be included in the notice (with a few new additions). Perhaps the most important aspect of the Rules relating to broadcasting concern the determination of royalty payments. The Rules state that the Copyright Board must give notice of its intention to fix royalties and invite suggestions for the same. Within 30 days of such notice, interested parties must give suggestions forroyalty rates along with adequate evidence – including rates for different formats. Thus, the final royalty rates must be fixed by the Board within 2 months. It also lists out some of the factors that the Board should consider in fixing royalties: the time slot, nature of work, market practice of determining advertising rates/TRP’s. The rates shall be revised preferably every 2 years.
THE COPYRIGHT BOARD
The Rules provide details qualification requirements for appointment to the Copyright Board. The term of the Chairman and other members has also been provided for in the rules with the maximum age being set at 65 years for the Chairman and 62 years for other members. As far as removal of the Chairman and other members is concerned, an order of the President is required on the ground of ‘proved misbehaviour or incapacity’. Detailed provisions for investigation and inquiry are also present.
The section with the most extensive rules however concern copyright societies. Amongst other things, it has detailed provisions regulating the applications for registration as a copyright society. It also states that membership in such societies will be open to authors as well – hence not restricted to owners only. There is again, a very important rule concerning the ability of copyright societies to continue business as such and for re-registration of existing societies. This particular rule will have an important bearing on the future of the existing societies – PPL, IPRS and IRRO. For those wishing to apply for registration as a new copyright society, the Rules provide detailed instructions on the documentation necessary and the procedure to be followed. The Rules also make great strides towards clarifying when authors can authorise the copyright societies to collect royalties on their behalf and when such authorisation can be withdrawn. In the interests of transparency, the Rules also specify that a Tariff Scheme must be framed and published on its website, within three months from date of commencing business. There are also several important clauses on the distribution of royalties based on actual use and appeals to the Copyright Board in case of grievances concerning tariffs. There is also a separate section called ‘Distribution Scheme’ that seeks to clear the ambiguities about how exactly the royalties will be distributed amongst authors and owners. Interestingly, there is also a code of conduct for copyright societies, which is well worth looking into since it enumerates the information that must be made available on its website (which is incredibly useful in my opinion) and various other rules that a society must follow concerning treatment of its members, complaints, fixing of royalties, publication of tariff schemes, meetings of the society etc. I have only highlighted the points in brief, since I will be writing a separate post on Copyright Societies soon, where I can probe each of these issues in greater depth in light of the Copyright Rules 2012.
The Copyright Rules, 2012 refer to performer’s societies as societies involved with issuing licences for different category of performers – actors, singers, musicians, dancers, acrobats etc. It states that any such performer’s society, if consisting of more than 7 members, may apply to the Registrar for registration and the provisions concerning Copyright Societies will apply to it with necessary adaptations and modifications.
IMPORTING INFRINGING WORKS
This relates to S.53 of the Act which allows for allegedly infringing imported goods to be classified as ‘prohibited goods’, liable to be detained by a Customs Officer. The notice must be in accordance with Form XIII and shall include the required security deposit. The period of detention is 14 days and notices must be sent to both parties upon detention. The Rules make an additional allowance for the importer to request of the name and address of the person sending such a notice.
This was an important amendment introduced for the benefit of internet intermediaries amongst others, who require to make incidental copies of copyright protected works. the 2012 Rules allow for written complaints to be made by an owner of copyright. However, the written complaint must require identify the work in question, evidence to show ownership, individual responsible, details of storage and most importantly, in my opinion, that the allegedly infringing act of incidental storage or providing links, access or integration, is not covered under S.52 of the Act which provides for fair dealing. The individual responsible for such storage (intermediary for example) if satisfied of the infringing use, will take necessary steps to prevent access for 21 days or till he receives a court order to this effect and in the absence of a court order, shall continue to store and provide access to such work.
TECHNOLOGICAL PROTECTION MEASURES The Copyright Rules explicitly state that where circumvention of TPM’s is permitted under law, an individual may approach anyone to assist in such circumvention. Such person, providing assistance, must maintain details records of the said individuals including his personal and professional details, reasons for circumvention and an undertaking that he will be solely responsible in case of infringement. Interestingly, it states that if such circumvention technology is provided online, then an online registration form requiring such details to be submitted is also mandatory. For the sake of assuaging privacy concerns, it is provided that such information shall only be disclosed on the basis of a court order or to a police officer notbelow the rank of sub-inspector, if it involves a complaint under S.65A.
REGISTRATION OF COPYRIGHT
This concerns mostly the procedural aspects of registering copyright in a work with the Registrar of Copyrights. There are also provisions for correction of entries in the Register and for inspection of the Register from time to time.
RELINQUISHMENT OF COPYRIGHT
Relinquishment of part or complete copyright in a particular work is permissible under S.21 of the Copyright Act. The 2012 Rules make detailed references to the public notice requirements for relinquishment and format for the same. It provides that the Registrar must post the notice on the website of the Copyright Office for a period of not less than three years. The public notice by the author must contain a host of details including – class of the work, title, name of the author, language, publisher’s details and the registration number. The Copyright Rules 2012 are thus extensive in scope and are helpful in understanding the full scope and effect of the amendments recently passed.
We will try and analyse each of these aspects in separate posts in the coming weeks. If you would like to submit guest posts on any of these topics, you can mail them in to us, or me at [email protected]
We would certainly appreciate posts with a practical approach or from someone who is in the business and has had a hands-on experience.
Update: The current Registrar of Copyright, Mr. G.R. Raghavender has written in to state:
“We have asked the public to give their comments by 21st September 2012. The ministry of HRD, the copyright office will be discussing the draft rules with all stakeholders and copyright experts on 8th October 2012 in a meeting in the ministry before notification of the same”.