The basic expediency behind the enactment of Copyright Amendment Act, 2012 was its pending compliance with the WIPO Copyright Treaty, WIPO Performances and Phonograms Treaty and the changing contemporary adjustments with respect to the utilization of copyright.
Artistic Works, Cinematographic Films and Sound Recordings
Definition of ‘Cinematograph film’ has been amended under Section 2(f) along with the introduction of Clause 2(xxa) i.e. definition of Visual Recording. To overcome digital challenge of creation of multiple copies of a work in different locations, Section 14 has been amended to include the right of storing the work for reproduction of artistic works, a copy of cinematograph films and incorporating sound recordings in any medium by electronic or other means, as was already provided for literary, dramatic and musical works.
In compliance with the Articles 6 to 10 of WPPT, the Section 38A of the Copyright Act has been introduced with the omission of Section 38 (3) and (4) that paved the way for an exclusive right to a performer and entitling the performers royalties for commercial use. Article 5 of WPPT is reflected in a new section 38B which grants moral rights to performers taking into consideration the editing and alteration done over digital space. Article 9 of WCT influenced the duration of protection of photographic works, extending it to sixty years after the death of the author.
Section 11 states the constitution of Copyright Board consisting of a Chairman and two members. Payment of salaries and allowances has also been included in the statute by introducing it under the Section 11.
On the lines of Article 11 TRIPS, 7 WCT and 9 of WPPT, the term ‘hire’ has been replaced by ‘commercial rental’ under Section 14 (d). Definition of commercial rental has been introduced in section 2(fa) to clarify that the right is not applicable to non-commercial activities. Moreover, under sections 14 (d), the words ‘regardless of whether such copy has been sold or given on hire on earlier occasions’ has been deleted. This now also incorporates the doctrine of first sale exhaustion in cinematograph films and sound recordings along with literary, dramatic and artistic works before the amendment.
Assignment of Rights
To strengthen the position of the author in case of new modes of exploitation, three new provisos has been added under Section 18(1) which provides
(I) no such assignments shall apply to any mode of exploitation that was not in existence when the assignment was made.
(II)The author of a literary or musical work incorporated in a cinematograph film or sound recording shall not assign or waive the right to receive royalties on an equal basis with the assignee in any form other than as a part of the film except to the legal heirs of the author.
(III) The author of a literary or musical work included in sound recording but not forming part of a cinematograph film shall also not assign or waive the right to receive royalties on an equal basis with the assignee in any form other than as a part of the film or sound recording, except to the legal heirs of the author.
Section 19 specifies ‘other considerations’ apart from royalties for assignment. Under Section 19A The Copyright Board may hold inquiry and pass orders for the recovery of any royalty as it may deem fit. Also, another sub-section 3 has been added in the Section 19A that requires the Copyright Board to pass the order within 6 months from the date of receipt of the complaint. In case the Copyright Board delays in compliance of the same, it shall record the reasons thereof.
Section 21 now authorizes the author to relinquish copyright by way of public notice. Also, sub-section 2A has been introduced under Section 21, wherein the Registrar of Copyrights is required to post the notice for the same on the official website of the Copyright Office within 14 days from the publication of the notice in the official Gazette.
Compulsory Licenses can be obtained for ‘any work’ and not just ‘Indian works’ as decided by Board under Section 31. Under Section 31B, special provisions have been added which are related to the work (compulsory license) for disabled.
Section 31C provides statutory license to any person who is desirous to make a cover version of a sound recording in respect of any literary, dramatic or musical work. A new section 31D provides for statutory license to broadcasters.
All copyright societies will have to register afresh under Section 33, 34 and 35 with a limited period of 5 years. Section 33A makes it mandatory for each society to publish its tariff schemes and Section 35(4) prohibits discrimination between authors and owners of rights (royalties).
Fair Use Provisions
Section 52 now includes reproduction in the course of judicial proceeding and any work prepared by secretariat of a legislature as not an infringement. Now making of a 3D object from a 2D work (industrial application) shall not constitute infringement under Section 52 (1) (w).
Special Provision for Access to the Disabled
The new Clauses (zb) and (zc) added to section 52(1) provide for the right of fair use of the work for the benefit of the disabled, available to any person or organization working for the benefit of the persons with disabilities.
Section 53 now provides detailed provisions to control import of infringing copies, disposal of infringing copies and presumption of authorship under civil remedies.
Any person who sidesteps/avoids an efficacious measure for the protection of any of the rights to infringe such rights, shall be punishable with imprisonment, which may extend to two years and shall also be liable to fine as installed under new section 65A, exceptions being national Security and Lawful investigation, While Section 65B provides protection against unauthorized alteration of any right management information by making it a criminal offence punishable with the same sentence as mentioned above.
More detailed deliberations could have been done on:
i. The ‘term of life plus 60 years’ clause in case of photographer as it is above the WCT, Berne and TRIPS requirements.
ii. Issue of criminalization of non-commercial and individual copyright infringement could have been discussed.
iii. Government Work for the reproduction, communication or publication to public to be considered as non-infringement.
iv. Duration of copyrights above international obligations.
v. Copyright exception in case of distance and digital learning.
vi. Distinction between commercial and non-commercial public communication.
vii. Intermediary websites between the author/producer and their use should have been given more protection.