Lex Orbis
Manisha Singh Nair
manisha@lexorbis.com
The Indian IP industry is about to witness a series of legislative amendments, such as proposed amendments to the 1957 Copyright Act, that have been in the pipeline for some time. One of the objectives of the Act’s amendment is to introduce conformity with Internet treaties, such as the WIPO Performers and Phonograms Treaty and the WIPO Copyright Treaty. On the other hand, the Act also aims to examine the interests of various stakeholders such as broadcasters, lyricists, singers, composers and so on with respect to royalty issues.
The amendment suggesting deletion of Section 52(1)(b)(ii) is being opposed by broadcasters as it allows them to use literary, dramatic, musical, or artistic works for the purpose of reporting current events. Section 52 enlists certain acts as not amounting to infringement of copyright, commonly known as the “fair use exception”. Deletion of the provision will result in broadcasters becoming liable to pay royalties every time the works are used in news reporting in any cinematograph film or television broadcast. Applicable to news channel broadcasters, the provision shall also extend to paying royalties in the use of clippings as well as archived telecast. However, when TV channels or radio stations use their own orchestrated versions of music, it still qualifies as “fair use” under Section 52 of the Act.
Deletion of S. 52 (1) (b)(ii) is being opposed owing to the fact that the same shall lead to a steep rise in the amount of royalties payable for the works. Broadcasters are collectively requesting the Ministry of Human Resource Development (under the aegis of which the CR Office and Act fall) to not undertake any amendment without consultation with the News Broadcasters Association. The association, which acts as a representative body for broadcasters, constitutes 14 leading news broadcasters who demanded that the proposed amendment be done away with since it takes away from them the well established protection of fair use. This protection lays down the basic foundation of broadcast reproduction rights by assisting in the dissemination of information and communication to users. The association asserted that the fair use exception, as a reflection of freedom of speech and expression, should not be done away with because of prejudice being caused to broadcasters. This is especially since no recourse or redressal to the issue of excessive royalties has been incorporated.
A new provision, Section 33A, has been proposed to be inserted in the Copyright Act. This shall allow the aggrieved party to seek relief from the Copyright Board. Assigning the Copyright Board as the forum for relief, the provision also stipulates that while the appeal lies pending, the complainant would have to pay the royalty sum demanded by the music companies/copyright societies. In view of the time taken in litigating appeals in India, broadcasters are opposing this provision as well. In addition, the incorporation of statutory licensing provisions and the settlement of tariff related issues has also been demanded to prevent the exercise of arbitrariness by copyright owners or societies with respect to royalties and tariffs payable. Another demand is the establishment of a single window regulator in order to preserve the interests of various stakeholders and to ensure that copyright societies operate in a transparent manner.
On the other hand, the Ministry of HRD’s move to amend the Act has been appreciated by, among others, lyricists, writers and singers as it governs their right to retain royalties. The current scheme of the Copyright legislation has moral rights incorporated in favour of the author of the work, but the rights appending commercial gain remain with the producer of the work.
The Amendment Bill will be discussed in the Indian Parliament during the forthcoming budget session. The final outcome of the vote in both Houses will determine which provisions will be allowed. The fate of the Bill will have a crucial bearing on the prevailing norm on royalty distribution and practices governing appeals and dealings at the copyright Board. The various stakeholders will no doubt be following this with interest.