Introduction:
A copyright owner has the exclusive right to deal with its copyright subject matter, if a third party tries to use such copyrighted work without the permission of the author then it would amount to infringement. Hence, a license entails the transfer of an interest in the copyright by the owner in exchange for a consideration. It allows the third party to use and distribute the copyrighted work without any claim of infringement or unauthorised use being made by the author of the copyright. The objective of a license is to commercially exploit the copyrighted work for financial gains.
A license is different from an assignment since there is no transfer of a proprietary interest in the case of a license. The licensee only gets rights subject to restrictions mentioned in the license agreement and the author has the right to retain ownership. On the contrary, there is a complete transfer of ownership of the copyright to the assignee and he is further entitled to sue third parties for infringement of copyright. The Copyright Act, 1957 lays down the procedure and the formalities that need to be complied with in order to enter into a legally enforceable licensing agreement.
Types of Licenses Under the Copyright Act 1957 (2012 Amendment)
There are two types of licenses which are as follows: –
Voluntary License
Section 30 of the Indian Copyright Act defines voluntary licensing as “The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent.”
Hence, the author of the copyright can grant a license not only in existing work but also in respect of the future work, in this case, the license shall come into effect once such future work comes into existence. A license must be in writing and duly signed by the owner or his authorised agent. However, if the licensee of a future work dies before such work comes into existence then his legal representatives shall have the right to receive the benefits of the license[i]. The mode of a license is like an assignment deed and must comprise certain particulars such as duration of the license; royalty payable; terms of revision, extension or termination; and territorial extent.
Types of voluntary licenses
- Exclusive: Exclusive License is defined in section 2(j) of the Copyright Act which confers the right on the licensee and the persons authorized by him, in exclusion of all others including the owner of the copyright.
- Non-exclusive: it does not confer the right of exclusion on the licensee but merely an authority to use the copyrighted work. The owner has the right to grant licenses to multiple people.[ii]
- Implied: license can be deemed to be implied by conduct or circumstance. The owner can impliedly permit the use of his work if he has knowledge that someone is using his work but is not taking any action against it.
Compulsory License
A compulsory license allows for the use of copyrighted work without prior permission of the owner. Section 31 of the Indian Copyright Act provides for the compulsory licensing of copyright in case of works that are withheld from the public and provides authority to the Copyright board. In case a copyright owner has refused to:
- “Republish or allow for the republication of the work or has refused to allow the performance of the work in public.
- Allow communication of the work to the public by way of a broadcast of such work, or in the case of a sound recording the work recorded in such sound recording on terms which the complainant considers reasonable.”[iii]
The Copyright Board has been given the authority to adjudicate disputes regarding the grant of licenses and fix the rate of royalty or payment thereof. It may hold an enquiry and on the satisfaction of certain conditions, may direct the Registrar of Copyrights to grant a license for that particular work subject to the payment of compensation to the complainant.
Types of Compulsory Licenses
There are seven different types of compulsory licenses which are granted for the following: –
- Works withheld from the public
This provision allows the person to approach the copyright board for the grant of license for publication of work that is withheld from the public. However, the person should have first approached the copyright owner for a license, and only if the owner has refused to publish or allow the republication of the work on unreasonable grounds.
In Super Cassette Industries Ltd v. Entertainment Network (India) Ltd Mumbai[iv], the respondents were running a radio FM channel called the Radio Mirchi, made several attempts to obtain a license from Super Cassette Industries Ltd (SCIL) to play its sound recordings but failed to get it. The Copyright Board ultimately issued the respondents a compulsory license but an appeal against it was filed in the Delhi High Court. The Court observed that in case of the compulsory license, then there was no need for any enquiry as given under section 31. The court also pointed out that once the copyright was put in public then refusal can only be made on reasonable and valid grounds. The Copyright Board while making an order under section 31, had to maintain a proper balance between the private rights and the copyright vis-a-vis- public interest. The case was sent back to the Copyright Board for fresh consideration.
- Published or unpublished work (section 31-A)
In case the author of the published or unpublished work is dead or unknown or cannot be found, then any person may apply to the Copyright Board for a license to publish such work or translation thereof in any language. However, the applicant must publish his proposal in the national newspaper before making any such application.
- The benefit of the disabled persons (Section 31-B)
Anyone working for the benefit of persons with disabilities for business or non-profit organizations may apply to the Copyright Board in a prescribed manner for a compulsory license to publish any work in which copyright works for the benefit of such persons.
- Statutory license for the Cover Versions (Section 31-C)
Any person who wishes to make a cover version of a sound recording in respect of literary, dramatic, or musical work with the license or consent of the copyright owner, is allowed to do so. Conditions for making cover versions are provided in the Act itself. Alterations are only permitted if it is technically necessary to make the sound recording. Prior notice must be given to both the copyright owner as well as the Registrar of Copyright before making a cover. Advance copies of all cover versions must be provided or royalties to be paid in advance.
- Statutory Licensing for Broadcasting of Literary and Musical Work and Sound Recording (Section 31-D)
The copyright board grants the license to any broadcasting organisation who wishes to broadcast by way of television or radio, any published literary, musical work or sound recording to the public. It must provide prior notice to the owner of the copyright specifying its intention, duration and the territorial coverage of the broadcast. The rate of fixing the royalty has to be determined by the Copyright board.
- License to Produce and Publish Translation of Literary or Dramatic Work in any Language (Section 32)
Any person may apply to the Copyright Board for a license to produce and publish a translation of work after the expiry of seven years of publication of the said work after payment of determined royalty.
- License to Reproduce and Publish Works for Certain Purposes (Section 32-A)
The Copyright Board may grant licenses to publish a work in India if the editions of such literary, scientific or artistic works are not made available in India. The Copyright Board, in case of such applications, may issue the license after determining the royalty to be paid to the copyright holder.[v]
Analysis of Exclusionary Nature of Copyright Agreement
It can be seen from the above discussion, that the nature of the terms of the copyright agreement is somewhat exclusionary. A license is a form of granting a part of the exclusive right held by the copyright owner. It can be both exclusive and non-exclusive but can only be determined by the copyright owner. However, compulsory licensing prevents the abuse of monopolistic power held by the copyright owner. It further ensures that the public is not getting deprived of the copyrighted work due to the unreasonable demands of the owner of the copyright. [vi]Hence, it can be argued that voluntary license and compulsory license maintains a balance between the discretion of the owner and the public good.
Conclusion
A license is an agreement by which the owner permits the licensee to utilise the copyrighted work in a prescribed manner, where the ownership vests with the author of the Copyright. there are various types of licensing agreements as per the Indian Copyrights Act, 1957. The 2012 amendments brought out several necessary changes regarding the interpretation of provisions. It is important to ensure that the licenses would streamline business practices by protecting the original owner’s rights. There needs to be more clarity regarding statutory licenses and their effect on the public. License paves the way for other people to have access to exclusive copyrighted material and promote public welfare.
References:
[i] Dsouza, A. (2016). Compulsory Licensing of Copyright in India – Intepat IP. Intepat IP. Retrieved 4 August 2020, from https://www.intepat.com/blog/Copyright/compulsory-licensing-Copyright-india/.
[ii] Sambhar, I. (2019). Assignment And Licensing Of Copyright – Intellectual Property – India. Mondaq.com. Retrieved 4 August 2020, from https://www.mondaq.com/india/Copyright/854828/assignment-and-licensing-of-Copyright.
[iii] Dsouza, A. (2016). Compulsory Licensing of Copyright in India – Intepat IP. Intepat IP. Retrieved 4 August 2020, from https://www.intepat.com/blog/Copyright/compulsory-licensing-Copyright-india/.
[iv] (2004) 29 PTC 8 (DEL)
[v] Sambhar, I. (2019). Assignment And Licensing Of Copyright – Intellectual Property – India. Mondaq.com. Retrieved 4 August 2020, from https://www.mondaq.com/india/Copyright/854828/assignment-and-licensing-of-Copyright.
[vi] Makkar, K., & Mitra, D. India Law Journal. Indialawjournal.org. Retrieved 4 August 2020, from https://www.indialawjournal.org/archives/volume5/issue_4/article4.html.
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