[This post has been authored by our reporters – Harsh Jain and Harshita Lilani. They discuss the controversies surrounding Copyright law in India and highlight the recommendations sent by the Technology Law Forum to the Registrar of Copyrights.]
The last amendment to the Indian Copyright Act was made in the year 2012 and therefore, the news that a reform process had begun was a welcome development. However, the fact that the process began with ‘private consultations’ has raised many concerns. The impact of any Copyright Law reform would be far-reaching and, therefore, must involve all stakeholders – authors, industry players, academicians, students, and more. This also means that the reforms must be forward-looking – to be able to anticipate and adapt to changing times.
It is with these views that the Technology Law Forum at NALSAR has made some suggestions to the Registrar of Copyrights (the document can be accessed here). We hope that these suggestions would be included in the future consultations that the Registrar would engage in. We give brief summaries of the suggestions below:
I. Copyright in Government Works
The Copyright Act, through Sections 17(d) and 17(dd), protects the works of the various governmental bodies such as legislative bodies, judicial authorities, government companies, etc. for a period of sixty years. These works cover a wide range of extremely valuable educational, literary, cultural and scientific material. Though created with the help of significant public funding, these works remain inaccessible to the taxpayers who paid for their creation since they are often behind paywalls or the distribution channels employed by the government bodies that produce them remain inadequate. While we think that all these works should be made available to the public for use and re-use, we recognize the need of the government to retain copyright over them. Retaining the copyright ensures that the government can strategically regulate downstream movement to ensure that the content remains free; ensure that the cultural sensitivities of various communities, who have contributed to the works, are respected; etc. Thus, we propose that the government open up all of its works to the public for free access, while also making them available under Creative Commons licenses for re-use. CC licenses are extremely easy to deploy and already used by many government organizations and state governments. To that end, we propose an amendment in the Copyright Act that requires all government bodies to make their works available to the public for free use and reuse.
II. Physical Copy Doctrine in Cinematographic Works
The Copyright Act uses different terminology when engaging with cinematographic works when compared to literary, musical and artistic ones. In Section 2(m) of the Act, an ‘infringing copy’ is defined as a “reproduction” for the latter works and a “copy” for cinematographic works. Section 13(1) of the Act imposes a requirement of ‘originality’ when defining the kind of musical, artistic, literary and dramatic works copyright subsists in, but omits the term ‘original’ for cinematographic works. Lastly, Sections 14(a), (b) and (c) differ from Section 14(d), such that holders of a copyright in the former three works hold the right to reproduce the work in any material form, whereas the holder of copyright in the latter only has the right to produce copies of the work.
The justification for the differences is that each of the underlying works can be published separately, unlike a cinematographic work which is a combination of the underlying works and thus cannot be published independent of them. The effect of the three provisions read alongside Section 51 of the Act is that a holder of a copyright in a cinematographic work can only claim infringement when an exact copy of their work is made. When the reproduction is substantially similar to the original work, the claim can lie only with the creator of the underlying works of the cinematographic work. While earlier judicial decisions supported this view, recent High Court judgements, such as in MRF Limited v. Metro Tyres, have taken an opposing stand. They contend that cinematographic works, like most other works, involve more than a mere compilation of their underlying works and thus should be entitled to the same kinds of protection that the other works are given. Such a view is in line with global standards. It is necessary that the Act clears these distinctions and treats cinematographic works in the same way it treats other artistic works. Ignoring the creative leap that goes into a cinematographic work fails to adequately protect the additional work put in during this process. The argument that any change would give producers too much power can be dealt with by giving the rights associated with the change to the directors instead of the producers.
III. Statutory Rights Reversion
Statutory ‘rights reversion’ means that rights in a work assigned/licensed revert to the author (a) at their option after the lapse of a time-period and/or (b) under certain situations where rights and interests of the author are adversely affected. Reversion gives authors a choice to renegotiate the terms of an assignment and applies to cases where rights, when uncommercialised, could be exploited by the author through other avenues. This right becomes instrumental for an author where a contract could transfer her copyright to an assignee for its entire life.
Under the present framework Sections 18, 19 and 19A of the Act govern assignments (31A applies the same to licensing). As per Section 19(4), rights assigned lapse when they are not exercised by the assignee within a period of one year. However, the application of this provision can be nullified by the contract. Further, while Section 19A empowers the Intellectual Property Rights Appellate Board to revoke assignments which are unfavourable to the author/assignor, there are various problems with the functioning of the IPAB.
A statutory right which can be enforced by any court in India would give authors the necessary bargaining power to opt-out of agreements detrimental to their interests. This right would also enable wider commercialization/dissemination of works.
We propose a right which comes into effect after every fifteen years, available to be exercised by the author in a three-year period. For example, if work is assigned on the 31st of March 2021, the right becomes available to the author from 1st of April 2036 till the 1st of April 2039, after which the right shall become available on 2nd April 2054. This ensures that the author has the right to choose to renegotiate the contract with changing times and circumstances. Such a right is available in the U.S. and Canada and has been recommended by researchers in other jurisdictions as well.
IV. Statutory Licensing for Streaming Services
Presently, there is no licensing regime in place for digital streaming services, due to which many Indian musicians and composers have to go through a lot of hardships like being paid a pittance, less royalties etc. They have little negotiating power, no copyright societies to represent them and are hardly given any seat at the table where their music is sold by big labels to streaming giants. The previous system of obtaining license under the statutory licensing provision, Section 31D of the Copyright Act, was made inapplicable to digital/ internet music streaming by the Bombay High Court decision of Tips v. Wynk. The above-mentioned issues faced by these artists make futile the very purpose of the Copyright Act, which is to let a copyright holder reasonably exploit her work.
We suggest extensive collaboration among the stakeholders especially the members of the music industry (labels and musicians), and the Government to come up with a separate legislation dealing with this issue. The United States came up with the Music Modernization Act of 2018 when faced with the same situation. This act established a blanket compulsory mechanical license, enabling digital music providers to license works more easily and provided for a non-profit governing agency called the ‘Mechanical Licensing Collective’, with whom copyright holders could register themselves.
As this legislation was brought after comprehensive discussions with all the stakeholders directly, it proved to be a success. A similar approach in India can be as beneficial and hence we suggest to initiate discussions on the same.
V. Digital Exhaustion
There is a large gap between the rights consumers have in digital and physical goods being bought by them. With regard to physical goods, consumers have the ability to transfer and share their own copies commercially and non-commercially. As a result, they develop a property right in the physical goods which is not the same in case of digital goods. Hence, there is a need to develop appropriate technology to deal with transfer of rightful property of copies bought online. Though a variety of suggestions were given to make digital exhaustion possible, such as forward-and-delete, resale royalties or file degradation systems, these have proven inadequate in providing a balance between the interests of the user and the rights-holders.
We propose that relevant amendments should be introduced in the Copyright Act that provide the right to transfer legally bought copies online. In order to proceed with this issue, it is suggested that the Registrar conduct consultations and invite suggestions and proposals.
A possible solution could be that the rights-holders and the service providers be mandated to take steps to ensure that users are able to treat their digital property in the same manner as their physical property.
Recommendations sent to the Registrar by Harsh Dudhe, Krishna Sumanth, Mritunjoy Roy, Sankalp Jain, Saumya Khandelwal and Vishal Rakhecha