Critique of the provision of copyright societies under the copyright act, 157.
CRITIQUE OF THE PROVISION OF COPYRIGHT SOCIETIES UNDER THE COPYRIGHT ACT, 1957
Author: Aaradhya Shrivastava, School of Law Jagran Lakecity University, Bhopal.
Copyright has an important place in Intellectual Property Rights. Copyright is a fundamental area of intellectual property rights which is important not only with respect to works authored by the individual but also because it includes different kinds of works. Copyright is the exclusive right to do or to do certain acts in relation to literary works, dramatic, musical and artistic works, cinematograph film, sound recording computer databases, etc. Copyright law is designed to prevent copying of existing physical material in literature and art. The objective is to protect the writer or artist from the unlawful reproduction of his material. The law does not give permission to anyone to make a profit and to appropriate to him that which has been produced by labor, skill, and capital of another man. In order to prevent all this or to prevent the violation of the rights of the creative authors, there are Copyright Societies that takes care of the author’s rights and all the things related to copyrighted material.
‘Copyright Society’ means a society registered under Section33 (3). Copyright Society is a legal body which protects or safeguards the interest of owners of the work in which copyright subsist. Copyright Societies gives assurance to the creative authors of the commercial management of their works. The authors of creative works license a publisher to publish the work on a royalty basis. This also leads to infringement of the work anywhere in India or abroad, therefore, it is extremely difficult for the owner of the work to prevent such infringement. To overcome such difficulty owners of Copyright works have formed Societies to license their works for performance or communication to the public or issue copies of the work to the public. ‘Copyright Society’ means a society registered under Section33 (3). The Copyright societies are also authorized to watch out for infringement of the copyright and take appropriate legal action against the infringers.
PROVISION OF 1994 AMENDMENT
The Copyright (Amendment) Act, 1994 added Section 33 to the Act which made it mandatory that only copyright societies can grant a licence or issue copyright license to any person or company.
PROVISION OF 2012 AMENDMENT
The Copyright (Amendment) Act, 2012 came into force with the main objective of establishing an equitable and just framework for the administration of copyright and sharing of revenue to protect the rights of owners and authors incorporated in cinematography and audio recordings. As a part of the 2012 Amendment, section 33(3A) was added, which laid down a new provision that any copyright society carrying out the business of granting or issuing copyright license must register itself again within the period of 12 months from the date of the amendment. Therefore, any copyright society which existed prior to the amendment has to re-register itself within the given time period. Ironically, there was no punishment prescribed in case any copyright society fails to do so.
PROBLEMS OF 1994 AND 2012 AMENDMENTS
Though the attempt of government in the amendments was genuine, there are certain ambiguities that jeopardize the interest of non-author owners of copyright in case of creative works. Section 33 which was inserted by the 1994 Amendment mandated only the copyright societies to carry in the business of “issuing or granting license” for creative works. But, it does not say anything about the copyrightable work. Also, it has to be taken into consideration that Section 18 of the Act says that the owner of creative work can assign the copyright to any “person”.Therefore, an owner or author has the right to assign his copyright to a production company and also has the right to assign it to any other person at the same time. So, in such a process, forming a copyright society is not necessary. However, a specific bar is created by Section 33 on any other person or entity who may be assigned any such right as stated in Section 18 to issue these licenses as a copyright author or owner of a copyrightable work. The ambiguity is that only a copyright society has the right to get involved in the business of issue of license by virtue of Section 33, even when under Section 30 the copyright owner has the valid right license a work. Section 30 and 18 are provisions of the act since it came into existence. The impact on these sections by Section 33 which was added later has not been clarified either by the statue or any of the amendments. It is still ambiguous as to whether Section 18 and 30 will prevail over Section 33 or not. This issue ultimately leads to high legal confusion while deciding the matters by the courts.
Copyright societies that are formed for a specific purpose of granting/issuing licenses for usage of any artistic work are being put up at a more ambiguous position after the 2012 amendment. This ambiguity has not been resolved by any judicial pronouncement till date. There are few judgement by some High Courts on the said issue but they too are contradictory and indecisive. Given the developing stage of the copyright laws in India, there are high chances that the subsequent licensing disputed will allow the High Courts and even Supreme Court to interpret the law and lay down proper positions in order to avoid any form of ambiguity.
Copyright in India is an ownership right given by law to an author, creator of artistic work, music, literature, cinematography and sound recordings. There are additional rights that come under the Copyright framework which allows reproducing work, communication of the work to be public, translation of the work and adaptation of the work.