The Indian Copyright (Amendment) Act, 2012 And Its Functioning So Far23/10/2014 by Intellectual Property Watch 4 CommentsShare this Story:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Google+ (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)The views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.By Abhai PandeyIt’s been a little over two years since the Copyright Act, 1957 was extensively amended in 2012 with far-reaching ramifications for all categories of stakeholders. The amendments purported to introduce a level playing field for different categories of right holders in the entertainment industry, recognise the access needs of users of the copyrighted works in general and visually impaired population of the country in particular, align the copyright regime of the country with rapid advances in technology and streamline copyright enforcement and administration. To gauge the influence of the amendments on copyright regime in India as well as to see if their implementation so far has been in sync with the legislative intent, this article seeks to evaluate the Copyright (Amendment) Act, 2012 (hereinafter referred to as the Amendment Act) as well as their working.[Note: this article updates an earlier article published by this author on Intellectual Property Watch here.]Amendments pertaining to entertainment industry While the 2012 amendments to the Act extended the rights of the performers and broadcasting organisations, the major thrust of amendments was on eliminating unequal treatment meted out to lyricists and music composers of copyrighted works incorporated in cinematograph film owing to the contractual practice in Indian entertainment industry. Under industry practice, lyricists and music composers were assigning all rights in the work to the producer of the film for a one time lump-sum payment. This entailed that lyricists and music composers had no further right to any royalty accruing from their work even if the work was being utilized in mediums other than the cinematograph film. This was justified by taking recourse to Supreme Court Judgement in Indian Performing Rights Society v. Eastern India Motion Picture Association (AIR1977 SC 1443) wherein the Apex Court, on the basis of Section 17(b) and 17(c) of the Act, concluded that the producer of the cinematograph film was the first owner of the copyright and no copyright subsists in the lyricist or the composer unless there is a contract to the contrary between them and the producer. This 1977 decision was extensively used in the industry against the interests of the composers and lyricists and revenue earned through the avenues of commercialization of such works due to rapid advances in technology were kept away from the composers and lyricists. Since conventional assignment contracts entered into by the composers and lyricists entailed giving up all the rights in the works including its exploitation rights via future technologies, copyright creators simply had no share in the astounding revenues that accrued to the producers.To rectify this stark inequality, the Amendment Act introduced a proviso in Section 17 of the Act, clearly providing that clauses (b) and (c) of the section would have no impact on the right of the author of the work incorporated in the cinematograph film, thus effectively overruling earlier Supreme Court judgement. The Amendment Act specifically recognised the difference between usage of the literary and musical work for incorporation in the cinematograph film and other independent uses of such work across different mediums and modes. And accordingly mandated that those assignment contracts, that preclude the right of the author of the literary or musical work, incorporated in the cinematograph film, to collect royalties in case of utilisation of the work in forms other than the cinematograph film, would be void unless such assignment is made in favour of legal heirs of the author or the copyright society for collection and distribution of royalties. Further, any assignment of copyrights in any work would not be applicable to any future medium or mode of exploitation of the work not in existence at the time of the assignment. To enforce transparency and effectiveness in implementation of these provisions, the Amendment Act made it mandatory to transact the business of issuance of licenses in respect of works incorporated in cinematograph film through a registered copyright society under the Act.Response to the amendmentsAs expected amendments have not gone down too well with the producers of the cinematograph film and major music companies of the country who buy the music rights of the film, and a number of writ petitions challenging the constitutional validity of the amendments have been filed before the Delhi High Court (Bharat Anand v. Union of India, W.P. (C) – 2321/2013, Venus Worldwide Entertainment Pvt. Ltd v. Union of India, W.P. (C)-2318/2013, Super Cassettes Industries v. Union of India, W.P. (C)-2316/2013).Surprisingly a category of songwriters and composers (in whose favour amendments are claimed to be), are also not very pleased with the amendments and have challenged their constitutionality (Devender Dev v. Union of India, W.P. (C)-2959/2013). These songwriters and composers belonging to a regional language fraternity have challenged the second proviso to section 33 (1) which compulsorily requires them to transact licensing business through a copyright society, on the ground that it restricts their right to license their work and forces them to join a copyright society which in view of the limited popularity of that regional language music harms their commercial interests as they would have no say in determining the distribution scheme of the royalties collected by the Copyright Society. While these writs are yet to be decided it has been widely reported that producers of the cinematograph film are already devising ingenious ways to create instruments preserving their broad interests.The Government had assured that it would set up a permanent Copyright Board and also a Copyright Enforcement Agency Council to ensure compliance with the provisions of the Amendment Act; some concrete steps toward this goal are yet to be taken.Access-facilitating measures in the Amendment One of the high points of 2012 amendments was to ensure that users of copyrighted materials have affirmative access to protected materials and their fair use rights are duly protected and enforced. To this end, Amendment Act not only broadened the scope of statutory and compulsory licensing provisions provided in the earlier Act, but also empowered broadcasting organisations to broadcast any prior published literary, musical work and sound recording by just giving a prior notice to the copyright owner and paying royalty at the rates prescribed by the Copyright Board as laid down in Section 31D of the Amendment Act. Neither any positive confirmation from the copyright owner is required nor do they have any say in determining royalty rates, making it almost an unqualified right for the broadcasters.Copyright owners, which once again include major music labels, are not particularly happy and have challenged the constitutionality of this amendment. (Venus Worldwide Entertainment Pvt. Ltd v. Union of India, W.P. (C)-2318/2013, Super Cassettes Industries v. Union of India, W.P. (C)-2316/2013)Further, amendments also recognised the need to ensure access to reading material for the differently abled population of the country and accordingly introduced exceptions specifically for their benefit. The newly introduced Section 52(1) (zb), is broadly worded, and allows the conversion of any work in any accessible format by any person or organisation till such reproduction is for the benefit of persons with any disability and the converting organisation or person is working on a non-profit basis ensuring that such copies do not enter the main channels of business. Even sharing of accessible format copies has been allowed subject to such copies being used only for personal, educational, research purposes. Thus, there is no need of obtaining any bureaucratic approval/license or satisfying any onerous requirement for conversion till the purpose is to enhance accessibility for the differently abled population.Subsequent to the commencement of Amendment Act, India also ratified Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled, adopted on 23rd June, 2013 (hereinafter referred to as Marrakesh Treaty), becoming the first country to do so. This would enable Indian users to use accessible format copies available in the developed countries and also allow sharing of digitized version of hitherto available printed works which when used with assistive technological measures such as read aloud capability, text to speech function or refreshable Braille display may prove very beneficial.Amendments focussing on alignment of the Copyright Act with digital advances The Amendment Act has tried to bring the Indian Copyright regime in sync with technological advances and concomitant international developments. And accordingly, the ambit of reproduction right has been widened to include storing of the work in any medium by electronic means. Section 65A and 65B are inserted so as promote to digital rights management. Both these provisions are aimed at protecting the rights of the copyright owners in the digital domain and there were concerns that may impinge on the fair use rights of the copyrights users as seen in case of the United States Digital Millennium Copyright Act (DMCA). However, it has been expressly provided in the Amendment Act that circumventing for “a purpose not expressly prohibited by this Act” will be allowed. Yet there are some ambiguities in this provision. For instance, the provision prohibits circumvention of an effective TPM but does not define what constitutes an effective TPM. While in USA effective TPM refers to a TPM which effectively controls access to the copyrighted digital content, in the Indian context the meaning of the expression is not clear.To ensure that digital advances are useful for the users as well and does not unreasonably restrict their access, the Amendment Act also brought in some safe harbour provisions especially for internet service providers (ISPs) in section 52(b) and 52(c) of the Amendment Act. Both these provisions protect ISPs from liability of copyright infringement in case of transient or incidental storage of the work for purpose of providing access, in case such access is not expressly prohibited by the copyright holder and there is no reasonable ground to believe it is an infringing copy. ISPs are responsible to take down the content or restrict access only in case of a written complaint from the copyright owner. Both these provisions do not seem to put any positive obligation on the ISPs to prevent infringement and they are mandated to act only if a complaint of infringement has been brought to their notice. But Delhi High Court in a recent order in Star India Pvt. Ltd v. Haneeth Ujwal (CS(OS) 2243/2014) held that ISPs have an obligation to ensure that no violation of third party intellectual property rights takes place through its networks. Also, by virtue of the obligations that have been imposed upon an ISP under its license agreement with the Department of Telecommunications, the ISPs are mandated to ensure that content which infringes intellectual property is not carried on its network. This order has enjoined the ISPs to monitor the content that they provide access to and made them responsible for curbing infringement thereby restricting the scope of safe harbour provision provided in the Amendment Act.Conclusion The Amendment Act was aimed to be an access-enabling, technology friendly dynamic enactment, however 2 years down the lane it remains legislation yet to be fully implemented. Many of the provisions are simply inoperable due to a non-existent Copyright Board, while some are not being followed in true spirit by different categories of stakeholders. Furthermore, some provisions are already under judicial scrutiny while some are considered too vague to warrant any implementation without clarification from legislation or judiciary. Judicial interpretations and pronouncements in the near future are is likely to clear the mist around many provisions brought in the statute book through 2012 Amendment Act. Abhai Pandey is a Partner at LexOrbis and is an attorney-at-law with over 18 years of experience in Corporate and Intellectual Property Law. He is an expert in strategizing, advising and handling contentious matters across all realms of IP, with extensive experience in leading teams of investigators, liaison with Enforcement Agencies to organize successful raid actions on pirate and counterfeit businesses in India. He regularly represents clients at all the forums of judiciary including Intellectual Property Appellate Board and the IP Offices.Image Credits: Alexander Hagstadius (CC BY-NC-ND 2.0) Share this Story:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Google+ (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Related"The Indian Copyright (Amendment) Act, 2012 And Its Functioning So Far" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.