In our endeavour to explain various works defined under the Copyright Act 1957 and in particular Musical work herein, it’s important to cover the topic on the cardinal facts based for commercial utilisations of such works.
In India , the word commercial exploitation is in vogue than commercial utilisation because from the inception of the Copyright Statute till today the owners are in perception that Copyright is an absolute right despite of stricter provisions being introduced in various amendments from time to time.
Ironically, the producer owners and other owners who produce / acquire Cinematographic films and sound recordings they assume that its their private property on the Copyright works. Therefore, with this perception that being witnessed , it has become serious forbearance to the consumers and authors in the Information Age of 21st Century.
Now fortunately the users and authors have woken up and knocking the doors of Court for Justice to streamline the Copyright works with clear mandate that it’s not the sole property of the owners. To dissuade the cloud whether Copyright is public or private property , examining the fundamentals of the Copyright legislation becomes absolute must and on these basics only seamless commercial utilisation of musical work or any works as defined u/ s 2 (y) can be worked out.
No : 1 – Copyright is a Government granted monopoly for a limited period of time in which authors and owners are given “exclusive rights” (not absolute rights) and Public interest is paramount with the ultimate object to enhance public welfare by encouraging the dissemination of contents. Fundamental principle across the globe from Statute of Anne in early 18th Century (1710) till today the Copyright legislation augments public interest by disseminating knowledge and information besides protection to authors and owners. On this basic philosophy Copyright statutes are promulgated by all the countries , especially those who are members of the Berne convention.
No : 2 – The exclusive right theory given by the Copyright statute comes with restrictions / fair use/ compulsory and statutory licensing and that’s why it’s exclusive rights and not absolute rights. Copyright Statute in India has curtailed the exclusivity of the owners with adequate amendments and importantly Article 300 A of the Constitution also comes into play for Intangible properties. This means though exclusive rights are given to the owners but it got restrictions under the Copyright Act 1957 as given under Section 52 , 31 , 31A, 31B etc read with very important amendment in 2012 by inserting Section 30A that provisions of assignment mode will apply in relation to licensing transactions also.
No : 3 – For commercial utilisation of any work, two constituents have been provided by the Copyright Act. One is thru assignment and other is licensing. “Business of licensing” in India for ANY WORK can be done ONLY through a registered Copyright societies duly approved by the Central Government pursuant to sub-Section 3 of Section 33 of the Copyright Act 1957 and NOT INDIVIDUALLY. It’s a blanket ban provision to do any business of licensing in any form without being a member of the registered Copyright society. Please note carefully , as per Section 33 , its for “business of licensing” wherein the licenses are granted or issued by the registered Copyright society and not for non-business licensing transactions.Therefore, for non-business deals the owner can issue license without being a member of the registered copyright society. Non business are those for instance when Cinematographic Films or Sound Recording are utilised for free in Parliament , educational institution etc. Again please note carefully , this law has come into force from 1994 Amendment and not from 2012. Despite of the law in place innumerable number of licensing deal being executed outside the registered Copyright societies all these years. Squarely the straight losses are to the users who have been paying enormous money to the Copyright owners directly and not routed though the registered Copyright societies. Essentially the time is round the corner for “Demonetisation of Copyright licensing” by the Central Government and to stop the ” Monetisation” by the owners directly as this has clouded the IP environment with ” Intellectual Terrorism”.
No : 4 – Its blatantly illegal to do business of licensing with exorbitant license fee imposed by owners on Individual capacity under the proviso of Section 33. As per Section 33 First proviso, definitely the owner in his individual capacity has the right to grant Licenses in respect of his own work but this has been misconstrued for the benefit of the owners by reading the proviso with pause and putting full stops on their own. All these years the owners (who remained outside the registered Copyright societies) have taken the entire copyright system to a ransom by interpreting the proviso by reading it half way and getting away with the required reliefs. Unfortunately till date not a single case in India by the users or authors on the issue of first proviso of Section 33 has come up before the Apex Court. Ironically this stringent provision of blanket ban in business of licensing is there in statute books since 1994 amendment. On complete reading the intention of legislation is not to protect the big players and to intimidate the users by them to deposit the license fee on their whims and fancy tariffs. The pertinent point to be noted here is that , it’s in respect of ANY WORK as defined u/s 2(y) of Copyright Act 1957 in which the Copyright subsists. On reading the proviso (emphasised without any pause) it’s very clear that if the owner wants to license in his individual capacity then his terms should be consistent with the obligations as a member of the registered copyright society which means first the individual owner has to become the member of the registered copyright society and before approaching the users , NOC has to be obtained by the owner from the said registered copyright society that his acts are consistent with his obligations. On top of it Copyright Amendment 2012 made it more clearer by inserting the second proviso in Section 33 that business of issuing or granting license in respect to literary , dramatic , musical , and artistic works incorporated in a cinematographic films or sound recordings shall be carried out only through a registered copyright society.
The intention of the law to route the licensing transactions through the registered Copyright society is to keep a check on the inflated valuation that being done by the unscrupulous entities to dupe the investors while raising equity or debt and to curtail the benami transactions of getting the illicit money to the country parked outside by over valuation in the name of Software exports. This is the matter of serious investigation and Judicial probe because it definitely involves public interest and more importantly authors interest which is at huge stake.
No : 5 – Again it’s a myth that registered Copyright society is like “Licensing Raj” by the Government which would have definitely come to the thoughts of the readers. No – its not because the registered Copyright societies are run by the owners and authors of respective Copyright work. Government do not come into the picture for running the day today administration of the Copyright societies and its being administered by the authors and owners pursuant to Section 34 & 35 of the Copyright Act 1957. Further rates are not decided by the Government because it falls under ( Voluntary licensing category of authors and owners) instead its published by registered copyright societies pursuant to Section 33A. However, if the users are aggrieved by the rates published then they can appeal to the Copyright Board.
Above article will be applicable to all the works as defined under the Copyright Act and it’s necessary to encounter with the basic facts in MW Series itself because this has to be referred back and forth each time in future by students for in depth understanding of each work enumerated in the Copyright Act. Therefore all the critical aspects on utilisation of works will be covered in MW series for later reference for other works that will be explained in time to come.
Hence its clear that Copyright subject is primarily for the dissemination of information to public and Central Government (CG) has enormous power to put the records straight or else the intervention of the Honourable Courts will be imminent. This aspect on power of CG , reliefs from Courts on statutory provisions, fundamental rights of the citizens to do legitimate business in the country , Section 30 as generic provision on licensing , equal sharing between authors and owner’s, pragmatic solutions etc will be covered in detail in subsequent MW series accordingly ..,.,……,…… to be continued.