Ownership of Copyright and Rights of Copyright Owners in India: Lawcirca

Licensing Under Copyright Act, 1957

Share this

Compulsory License is the term usually associated with a statutory license to do an act covered by a particular right without the prior permission of the right owner. Compulsory licensing is given for the use of protection without prior permission of the owner of the right.

Copyright is a right granted in exchange or as a quid pro quo for disclosure of work. Presentation of various works develops the mass and keeps the talent of mankind appreciated. Public Interest is a writ charge through the idea of copyright, its protection, and enforcement.

TYPES OF LICENSES UNDER THE COPYRIGHT ACT, 1957 AS AMENDED IN 2012

Any person is eligible for a voluntary license from the copyright owner in giving in written to publish work. This license is also a documentary proof of negotiation over terms, royalties etc. Problems come into solidity when the voluntary license does not materialize for some reasons. Since the broadcasting or presentation of work is a crucial part, mechanism seeking is provided to seek a compulsory license in certain circumstances subject to just compensation being paid to the owner of work.

1. Compulsory licensing in works withheld from the public

a. Licensing in the case where the author refuses to publish:


In some cases where the owner of the work after its publication has refused to republish the work or refuse to give assent to the republication of work. Section 31 allows a complaint to be presented before a copyright Board whose jurisdiction is now vested in the Intellectual property right appellate board when such refusal has resulted in work being not showcased to the public. On likewise grounds, when the creator of the work has given denial for communication of the work by broadcast or that of a sound recording on terms, the complainant considers not to be reasonable, a complaint can be filed before the board.

b. Licensing in case of Dead/unknown/untraceable author

Under Section 31A, of the Copyright Act 1957, when work is unpublished or published but the author is dead or unknown or cannot be traced, any person may apply to the board for the exploitation of the work. The Board after due notice and doing other formalities, if satisfied directs the proper authority to grant a license. The Appropriate Government may be in the public interest when work is unpublished or published but the creator cannot be found or communication can’t be established or not traceable. Then the government in public interest instructs and allows the author or his legal heirs to publish the work. Even after this, no action is taken in this regard within the prescribed period, the board will on an application of any being granted the permission. As per the provision, anyone may approach the copyright board, for issuance of a compulsory license to publish a work that is withheld from the public by the copyright owner. However, before coming to the Copyright Board, the applicant should have approached the copyright owner first for a license to republish or perform the work and the copyright owner should have unreasonably rejected the request of the complainant.

2. Compulsory licensing for benefit of disabled person

Under Section 31B, of the Copyright Act, any person who is working for the benefit of a disabled person can seek the license from the board. Significantly, this license can be sought even with profit or business purposes. The Board may after hearing the owner of the work grant license for the benefit of the disabled person. In case of unpublished works of untraceable or dead authors, anyone may reach to the Copyright Board for a license to showcase, communicate or publish to the public such works or translations thereof. However, before making any application, the applicant should comply with his legal formalities of publishing his proposal in a national newspaper having the biggest coverage in that area. Any person or non-profit organisation working for the development of the disabled may reach to the Copyright Board for a compulsory license to publish any creativity or work in a convenient format for the disabled.

3. Statutory license for cover versions

Under Section 31C of the Copyright Act, any person having the intention of creating a cover version of a sound recording may give application to the Board for broadcasting in the same medium in which the original version was recorded. This application can be filed after the completion of 5 years from the first publication. The person desirous of obtaining the cover version should be very much clear that it should not be mistaken as the original version. The creator of the work and changes or alteration will not be made to lyrics or music unless it’s technically necessary. A broadcasting organization may communicate a musical creativity or sound recording by paying royalties fixed by the Board. The rate of royalties could vary for radio and television broadcast. Section 31C of the Copyright Act states for the permit of statutory licenses for making cover versions of any sound recordings. This section particularly asks the Copyright Board to set the minimum amount of royalty to be paid for the creation of such a version.

4. License to produce and publish translations

Under Section 32 of the Copyright Act, any person may apply the license to publish the translation of a literary or dramatic work. Such a license may be limited to the expiry of seven years for an Indian work and after three years in case of foreign work and after one year when translated language is not in very popular use or not getting enough use in a developed country. The Board may after hearing the owner grant such permission for the payment of royalties. Certain other conditions should also be kept in mind as the creator has not published the translation and needs to be satisfied. This license can be obtained by broadcasting organization for a foreign word for teaching or research in any field. When the creator of the work gives another translation of work or any edition of a work for which compulsory license was granted by the Board, this license shall be valid till the expiry of three months.  However, the license may exhaust all stock which was produced before the expiry of license. This license issued by the Copyright Board allows the applicant after the applicant pays fees a prefixed royalty to produce and publish a translation of literary or dramatic work, after seven years of publication of said work. Keep in mind, that this licensing does not cover the cinematographic films and sound recordings.

5. Statutory license for broadcasting of literary and Musical works and sound recordings

If the case is of literary, scientific, or artistic work, if the version is not available or any copies are not sold in the six months, and work is not reaching to the public at a reasonable price when compared to works of similar nature, any person can seek a license from the Copyright Board.  Certain conditions like seeking the voluntary license from the owner of the work are a tiresome process before seeking this license. This license is awarded by the Copyright Board in benefit of any broadcasting organization having the intention of broadcasting to the public any literary, musical work or sound recording which have been already published by the copyright holder. Although the Copyright Board reserves all the rights to determine the roy

6. License to reproduce and publish works for limited purposes

The Copyright Board may issue licenses to issue work in India if the editions of such literary, scientific or artistic works are not present in India. The Copyright Board, in case of such applications and requests, may issue the license after fixing the royalty to be paid to the copyright holder.

ENDNOTES

1.https://www.mondaq.com/india/licensing-syndication/607436/compulsory-license-of-copyright-work

2.https://www.iipta.com/appropriating-copyrighted-workis-legal/3.https://www.bananaip.com/ip-news-center/licensing-copyrights-india/

Yashika Singh: Lawcirca

Yashika Singh

Author

Yashika hails from Rajasthan University and spends her time in playing badminton in her lisure time. her Interest area is Company law. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com

Leave a Reply