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This document discusses compulsory licensing under Indian copyright law and its impact on music rights. It begins with an introduction to copyright law and definitions. It then discusses the types of compulsory licenses under the Copyright Act, including licenses for published works withheld from the public, works for the benefit of disabled people, orphan works, translations, and works unavailable in India. It also briefly discusses judicial trends related to compulsory licensing before concluding.

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0% found this document useful (0 votes)
25 views10 pages

SSRN Id3870442

This document discusses compulsory licensing under Indian copyright law and its impact on music rights. It begins with an introduction to copyright law and definitions. It then discusses the types of compulsory licenses under the Copyright Act, including licenses for published works withheld from the public, works for the benefit of disabled people, orphan works, translations, and works unavailable in India. It also briefly discusses judicial trends related to compulsory licensing before concluding.

Uploaded by

Nithiya surya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 10

COMPULSORY LICENSING UNDER COPYRIGHT LAW: A STUDY OF ITS

IMPACT ON MUSIC RIGHTS

By
DINESH KUMAR PATRA

LLM (IPR)

NATIONAL LAW UNIVERSITY, JODHPUR

Electronic copy available at: https://ssrn.com/abstract=3870442


TABLE OF CONTENTS

Introduction ................................................................................................................................ 3

Compulsory Licensing under Copyright Law............................................................................ 5

Types of Compulsory License ................................................................................................... 6

a. License in published works withheld from public


b. License for benefit of disabled
c. Licenses of orphan works
d. Licenses of translations
e. Licenses for reproduction and sale of works unavailable in India

Judicial Trends ........................................................................................................................... 9

Conclusion .............................................................................................................................. 10

Electronic copy available at: https://ssrn.com/abstract=3870442


“The way people enjoy culture and entertainment has completely changed – and this is good.
But it is important that we don’t leave creators in the cold.”1

INTRODUCTION

Copyright means the right to copy an original creation. It thus gives the creator an exclusive
right to produce and reproduce his work in any way possible. “Copy” means to create a
duplicate of an original creation and “Right” means the power given to a citizen by law to
exercise it at his own discretion. So by combining Copy and right, that means, the power given
to a person to create a duplicate (copy) of an original creation and reproduce it as and when he
wants. In other words “copyright” means “the right to copy and reproduce an original creation”.
In most of the cases these rights are given for limited duration.

The Black’s Law Dictionary defines copyright as “right to transcript, imitation, reproduction,
to sell, to public, to print copies or original work.”2

Thus the Copyright law gives the owner of the work a bundle of exclusive rights related to
reproduction of the original work. The copyright holder has the sole right over such work and
without his permission no one can reproduce his work. Thus if a person infringes such right
then the copyright holder can file a suit against such infringer ask for damages.3

Under the Copyright Act 1957, Section 14 lays down the legislative definition of copy right.
Accordingly,

“14. Meaning of copyright- For the purposes of this Act, "copyright" means the exclusive right
subject to the provisions of this Act, to do or authorise the doing of any of the following acts in
respect of a work or any substantial part thereof, namely” :-

“(a) In the case of a literary, dramatic or musical work, not being a computer programme –

i. to produce the work in any material form including the storing of it in any medium
by electronic means;
ii. to issue copies of the work to the public not being copies already in circulation;
iii. to perform the work in public, or communicate it to the public;

1
Andrus Ansip, European Commission Vice-President for the Digital Single Market
2
Bryan A. Garner (ed.), Black’s Law Dictionary, West -Thomson Reuters, U.S.A. (6th ed.- 1990), p.843
3
Mrs. Runa Mehta Thakur, How to Judge the Infringement of copyright : An Analytical study, M.D.U. Law
Journal 2006, 11(2); Pages 135-140

Electronic copy available at: https://ssrn.com/abstract=3870442


iv. to make any cinematograph film or sound recording in respect of the work;
v. to make any translation of the work;
vi. to make any adaptation of the work;
vii. to do, in relation to a translation of an adaptation of the work, any of the acts
specified in relation to the work in sub-clauses (i) to (vi).”

“(b) In the case of a computer programme –

i. to do of the acts specified in clause (a);


ii. to sell or give on commercial rental or offer for sale or for commercial rental any
copy of the computer programme; provided that such commercial rental does not
apply in respect of computer programmes where the programme itself is not the
essential object of the rental;”

“(c) In the case of an artistic work –

i. to reproduce the work in any material form including depiction in three


dimensions of a two dimensional work or in two dimensions of a three
dimensional work;
ii. to communicate the work to the public;
iii. to issue copies of the work to the public not being copies already in circulation;
iv. to include the work in any cinematograph films;
iv. to make any adaptation of the work; vi. to do in relation to an adaptation of the
work any of the acts specified in relation to the work in sub-clause (i) to (iv).”

“(d) In the case of a cinematograph film –

i. to make copy of the film, including a photograph of any image forming part
thereof;
ii. to sell or give on hire, or offer for sale or hire, any copy of the film, regardless
of whether such copy has been sold or given on hire on earlier decisions;
iii. to communicate the film to the public.”

“(e) In the case of a sound recording –

i. to make any other sound recording embodying it;

Electronic copy available at: https://ssrn.com/abstract=3870442


ii. to sell or give on hire, or offer for sale or hire any copy of the sound recording
regardless of whether such copy has been sold or given on hire on earlier
occasions;
iii. to communicate the sound recording to the public”

“Explanation - For the purposes of this section, a copy which has been sold once shall be
deemed to be a copy already in circulation.”

Thus the Copyright Act 1957 provides protection to the following rights:

a. literary, dramatic or musical work


b. computer programme
c. artistic work
d. cinematograph film
e. sound recording

Also, the Madras High Court in the case of Sulmangalam R. Jayalakshmi v. Meta Musical,4
held that “the right which a person acquires in his literary or artistic work which is result of his
intellectual labour is called his copyright. Copyright is not restricted to literary or artistic work.
Copyright applies to different other kinds of work also like dramatic, musical, cinematographic
film, computer programme, work of architecture and sound recording and any other work
which is produced by the intellectual labour of a person.”

COMPULSORY LICENSING IN COPYRIGHT

“A license is the transfer of interest in copyright. In a license, the right to use a copyright is
given to another party with some restrictions on such usage. A license can grant the right in the
copyright of work which is already in existence or copyright in some future work which is yet
to come in existence. A licensee can use the copyrighted work without any claim of
infringement or unauthorized use being brought by the owner of the copyright against the
licensee. Licensing of copyright is dealt under Chapter VI i.e., sections 30 – 32B of the
Copyright Act 1957.”

Compulsory license means that a person can use a copyrighted work of a person without even
obtaining the requisite permission from the owner. So this comes into play when a copyrighted

4
AIR 2000 Mad. 464

Electronic copy available at: https://ssrn.com/abstract=3870442


work is withhold from the public domain. Compulsory licenses are dealt under Sections 31 to
32B of the Copyright Act, 1957.

It is necessary to allow for compulsory licensing in certain copyrighted work for various
reasons. When a copyrighted work unreasonably withheld from the public domain such
licensing provides access to them. Also for academics purposes, compulsory licensing acts as
a boon in providing access to such persons.

“It is also important as compulsory licensing can be granted in cases of unpublished works
where the author dies before the publishing of the work and through means of compulsory
licensing it can be brought in the public domain. The case of unpublished work includes authors
which are unknown, dead or who cannot be traced and as a result, any person can request the
board and seek a license to publish the work.”

“The main motive behind compulsory licensing is to give the availability of the work to the
public so that they can use and benefit from the work for various purposes. It is also important
to note that the work should be used in a fair manner and no malpractices should be practiced.
When the copyright works will be available to all with certain limitations it will lead to better
development of the country.”

TYPES OF COMPULSORY LICENCES

Under the Copyright Act, there are 5 categories of compulsory licensing. They are:

a. License in published works withheld from public


b. License for benefit of disabled
c. Licenses of orphan works
d. Licenses of translations;
e. Licenses for reproduction and sale of works unavailable in India

Works that are withhold from the public

These licenses are available under Section 31 of the Act. The attain licence under this one must
fulfil the following requisites:

a. The work must have been performed or publishes in the public.


b. “The copyright holder must have refused to allow the republication of the work,
resulting in it being withheld from the public, or refused to allow broadcasting of the
work on terms that the complainant considers reasonable.”

Electronic copy available at: https://ssrn.com/abstract=3870442


c. Reasonable opportunity of hearing must be given to the to the copyright owner,

Thus when the abovementioned grounds are fulfilled and the Copyright Board is satisfied then
the board can direct the Registrar of Copyrights to grant a license to the complainant to
republish or broadcast the work, subject to payment of compensation to the copyright owner.

Works for the benefit of the disabled

Section 31B lays down the provision where a person can be granted compulsory license for
publishing copyrighted works for the benefit differently abled person.

“Accordingly, the applicant has to first serve the copyright owner or the publisher with a copy
of the application.5 The Board, after being satisfied with the credentials and good faith conduct
of the applicant, has to grant such licenses expeditiously and preferably within an outer limit
of two months from the date of such application. The license shall specify the means and format
of publication, the period during which the compulsory licence may be exercised and, in the
case of issue of copies, the number of copies that may be issued including the rate or royalty.”

“Royalty is determined by the Board after taking into the following consideration

a. the proposed price at which a copy of such work shall be made available to disabled
persons;
b. the prevailing standards of royalties in regard to such works taking into consideration
the cost involved in making the accessible formats for the disabled person; and
c. other relevant factors.”

Licences for obtaining Orphan Works

Section 31A of the Act lays down provision relating compulsory licence for orphan works.
When the author of a work is dead, unknown or untraceable then such works are termed as
orphan works.

“To obtain a licence under this section, the following conditions are to be fulfilled:

i. publication of the applicant’s proposal to publish or translate the work in question


in an English daily newspaper and a newspaper in the language to which the
translation is proposed to take place; and
ii. deposit of royalty by the applicant to the public account of India or any other
account specified by the Board. Though this provision has not been put to use much,

Electronic copy available at: https://ssrn.com/abstract=3870442


it may assume renewed significance in the light of the Google Books project, where
several of the books sought to be digitised are indeed orphan works.”

Licences for translations

Section 32 (1A) lays down provision relating to grant of compulsory licences for translation of
non-Indian language copyrighted works for the academical purposes teaching, scholarship or
research purposes.

To achieve license under this section the following conditions are to be fulfilled: “

i. Such licenses will not ensue in cases where, pursuant to authorisation by the
copyright owner, copies of the translated work are already in circulation.
ii. In addition, the applicant has to establish that he had requested and been denied
authorisation by the copyright owner to produce and publish such translation, or
that he was, after due diligence on his part, unable to find the copyright owner.
iii. The Board must also be satisfied that the applicant is competent to produce and
publish a correct translation of the work, and possesses the means to pay royalties
due to the copyright owner.”

“Broadcasting organisations can also avail of translation licenses for strictly non-commercial
use and in furtherance of the purpose of teaching or for the dissemination of the results of
specialised, technical or scientific research to the experts in any particular field.”

Licences for Reproductions of Works Unavailable in India

“Reproduction licenses under Section 32A are available for any literary, scientific or artistic
works unavailable in the country. In the case of works used as part of systematic instructional
activity, the copyright owner also has to ensure availability of copies at prices reasonably
comparable with that of similar works in India, failing which the applicant can seek a license
to reproduce and publish such works at a price lower than that at which the edition is sold
outside the country.”

“These licenses cannot be granted unless the applicant satisfies the Board that he had requested
and been denied authorisation by the owner of the copyright in the work to reproduce and
publish such work or that he was, after due diligence on his part, unable to find such owner.
The Board must also be satisfied that the applicant is competent to reproduce and publish an

Electronic copy available at: https://ssrn.com/abstract=3870442


accurate reproduction of the work, and possesses the means to pay royalties due to the copyright
owner.”

JUDICIAL TRENDS ON COPYRIGHTS RELATING TO MUSIC RIGHTS

In Indian Performing Right Society Ltd v Eastern Indian Motion Pictures Assn5, the apex court
observed that, “Copyrighted music is not the soulful tune, the superb singing, the glorious voice
or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic
form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada
brahma, the sweet concord of sounds, the raga, the bhava, the laya and the sublime or exciting
singing”.

In Gramophone Company of India Ltd v Super Cassette Industries Ltd6, the Delhi High Court
observed that, “Musical work is not merely a combination of melody and harmony or either of
them. It must necessarily also have been printed, reduced to writing or otherwise graphically
produced or reproduced. As we know figurations, progressions and rhythmic patterns are
sometimes used in creation of melodies. Every musical composition has a structure, or shape,
that is the arrangement of individual elements so as-to constitute a whole and that musical
notation means a visual record of musical sound (heard or imagined) or a set of visual
instructions for performance of music. Its main elements are pitch (location of musical sound
on the scale), duration, timbre, and volume. There are various systems of notation like verbal,
alphabetical, numerical, graphic and tabiatures. The words 'printed, reduced to writing or
otherwise graphically produced or reproduced' are thus not an empty formality.”

In Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd.,7 the Delhi High Court
observed that “version recordings would really be such sound recordings where while being
inspired by the original melody, a distinct interpretation, different both in presentation, rhythm,
and orchestral arrangement emerges”

The Delhi High Court in Gramophone Company of India Ltd. v. Super Cassette Industries
Ltd.8, analysed Section 52(1) (j) of the Copyright Act and held that “copyright in the primary
and original literary, dramatic and musical works as also a separate copyright in sound
recording or cinematographic film made there from, coexist and the copyright in primary and

5
(1977) 2 SCC 820, p 834.
6
(1995) PTR 64.
7
(2003) 27 PTC 280 (Del), p. 303
8
2010 (44) PTC 541 (Del)

Electronic copy available at: https://ssrn.com/abstract=3870442


original works continue to subsist for exploitation by the owner(s) thereof in future and these
rights are not affected by the factum of the making of a cinematograph film or sound
recordings, the copyright(s) of which may vest in different authors.” The Court declared the
judgment of Delhi High Court in Super Cassette Industries Ltd. v. Bhatla Cassette Industries9
as per incuriam. “The Court also held that once a version recording in compliance with Section
52(l)(j) has been made, it is as much a sound recording as any other sound recording. Therefore,
the copyright holder in a version recording, which is a sound recording has all the usual rights
under Section 14(e). There is no limitation contained in the Act which prohibits the exploitation
of the version recording by sale/ hire of copies of version recording, as a version recording
through mobile phones or internet.”

CONCLUSION

The present legal frame work doesn’t seem to effectively address the issue with respect to
music industries and a resultant the Music industry is facing declining profits. “With multiple
appeals pending in this regard, there is a need for the legislature to ensure that the Copyright
Board is constituted as per certain minimum legal standards, so that the questions on its
integrity come to rest.” This is fundamental as the question has proceeded for right around 10
years now, and its decision will have sway on an enormous number of interests in the business,
just as the overall population.

The development of such Statutory Tribunals in India has been irregular, and without a uniform
example. The choices given by these courts just as their protected legitimacy have been
addressed in various cases. This has prompted questions being brought about the
straightforwardness up in their functioning just as decency in the methodology embraced by
these courts. The technique for arrangement of the individuals just as the structure of the
councils has been struck somewhere near the Courts every once in a while.

It should be acknowledged that the tribunals have come to remain, as the Supreme Court has
brought up that it is well inside the force of the legislature to constitute such bodies and these
are not in essence violative of the doctrine of separation of powers. Be that as it may, endeavors
should be made to regularize the strategies, organizations, and audit/allure of choices of
councils. The capabilities for the enrollment for these courts should be set down in order to
guarantee their freedom from the leader.

9
2003 (22) PTC (Del)

Electronic copy available at: https://ssrn.com/abstract=3870442

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