The Copyright Act (Amendment) Bill 2012 was passed in India's Lower House of Parliament on May 22nd,2012 and by the Upper House on May 17th, 2012 and now awaits final Presidential approval to become law. The Bill is aimed at correcting an imbalance in India's copyright law which was seen as favoring film producers and record labels rather than the lyricists, script writers and song composers. After the Bill was passed in the Rajya Sabha, Mr. Javed Akhtar who has been at the forefront of the battle for recognition and acclaim of the rights of song creators said “Yes, we are all very satisfied with the amendments that have been made. Now our creations will be non-assignable. We will sell the rights. Right now, we sell our compositions to the production house and they re-sell it to music companies, cellphone companies as ring tones, ads and use it wherever they can. In return, we, the creators of that song, music, tune, we don't get anything. But now, hopefully, those rights will lie with us. Now our words, songs, stories, tunes, will be ours and ours only in the legal terms. Even in the present law, we have a share but we are shortchanged by production houses and music companies. We can claim the royalties they earn from such dealings legally and also on our own,"
The following are the salient features of the bill:
- The original authors of literary, musical, dramatic and artistic works that have been incorporated in cinematograph film will be considered as the first owners of copyright in the said works. The “work for hire” concept which states that the employer or “commissioning party” is the first owner of copyright in relation to a said work shall not apply in the abovementioned circumstances.
- Authors of literary or musical works incorporated in films or sound recordings shall be entitled to receive royalties equal to the royalties received by the assignee for exploitation of their work. However this provision does not extend to communication of the film to the public in cinema halls.
- The right of an author to claim royalties or any other form of consideration for utilization of his work in any form other than as part of a cinematograph film or sound recording shall not be extinguished or affected in any way by assignment of the copyright in that work for making a film or a sound recording.
- The right to claim authorship as recognized under section 57 of the copyright act can now be exercised by legal representatives of the author. Hence the right to claim authorship does not extinguish with the death of the author.
- The right to claim damages in respect of any distortion, mutilation or other modification of the author’s work will be available even after expiry of the term of the copyright.
- A new section 38A has been introduced which defines Performer’s right as the exclusive right to do or authorize for doing any of the following acts in respect of the performance or any substantial part thereof, namely:
- To make a sound recording or a visual recording of the performance, Including:
- Reproduction of it in any material form including the storing of it in any medium by electronic or any other means,
- Issuance of copies of it to the public not being copies already in circulation.
- Communication of it to the public
- Selling or giving it on the commercial rental or offer for sale or for commercial rental any copy of the recording
- To broadcast or communicate the performance to the public except where the performance is already broadcast.
- The Compulsory Licensing provisions under section 31, (in relation to published work) and 31A (in relation to unpublished work or anonymous work) which were earlier restricted only to Indian works have now been made applicable to all works.
- A new provision has been inserted where the work may be made available under the Compulsory License for the benefit of the people suffering from disabilities.
- Several changes have been made in respect of the law governing copyright issues in “cover versions”, the most significant being that a cover version of any literary, dramatic or musical work, can only be allowed after five years from the first recording of the original creation.
- The amendment has introduced the concept of “statutory license” in relation to the published works. Any broadcasting organization, that proposes to broadcast any published work to the public including performance of any published musical/ lyrical work and sound recording, shall be required to first give a notice of its intention to the owners of the rights. Such notice shall contain details regarding the duration and territorial coverage of the broadcast and royalties for each work at the rate and manner fixed by the copyright board shall be duly paid to the owners of the rights. Moreover, the names of the author and the principal performer will have to be announced with the broadcast.
- The amendment also permits authors of the work to be members of the Copyright Societies. Copyright Societies will be granted registration for a term of five years and would need to re- register within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012. Further, Copyright Societies will be required to have governing bodies consisting of equal number of authors and owners of work for the purpose of administration of the society. As per a new section 33A, Copyright Societies will also be required to publish their respective tariff Schemes.
- Acts that do not amount to infringement are listed in section 52 and the said section has undergone some changes. The use for educational purposes, fair dealing will not amount to copyright infringement in respect of any work. Earlier this exception only extended to literary, dramatic, musical or artistic work. Several new exceptions have been included in the ambit of this section.
With an aim to curb piracy, Section 65A has been inserted and states the following:
“Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Copyright Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. However, the following are the exceptions:
Doing anything referred to above, for the purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all the relevant particulars necessary to identify him and the purpose for which he has been facilitated; or
- Doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
- Conducting any lawful investigation; or
- Doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorization of its owner or operator; or
- Doing anything necessary to circumvent technological measures intended for identification or surveillance of a user of national security.”
- A new section 53 has been inserted which states that the owner of the copyright can make an application to the Commissioner of Customs for seizing of infringing copies of works that are imported into India.
- Emphasis has been laid on Section 40 which deals with foreign work, that the term of copyright granted to foreign work shall not exceed the term of copyright provided under the Copyright Act, India.
- As per Section 18, it has been clarified that no assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made.