In continuation to previous Article MW 1.04 on commercial exploitation of all the copyright work(s) in particular to musical work that being addressed requires the fundamental understanding on LICENSING.
LICENSING is covered under Section 30 Chapter VI of the Copyright Act 1957.
Before going ahead further on licensing , a flow chart being reproduced herein below on various types of LICENSING (voluntary licensing & non voluntary licensing) which would be easy to understand the explanations given hereinafter:
Essentially Section 30 is in the nature of GENERIC PROVISION under the Copyright Act 1957 given to the owners to issue license. Section 30 on licensing cannot be taken as a standalone right by the owners and it has to be read in conjunction with the statutory restrictions , limitations and exemptions provided under the Act.
No doubt Section 30 allows to issue license by the owners but the operation of Section 30 has been restricted by Section 33 (which is the subject matter here) with important statutory limitation that in business of licensing in respect to literary , dramatic , musical , and artistic works incorporated in a cinematographic films or sound recordings the issuance of licenses shall be carried out only through a registered copyright society.
Therefore, If Section 30 is interpreted as an independent provision then how STATUTORY restrictions in business of licensing as provided under Section 33 of Chapter VII will come into operation ? Allowing Section 30 to be operated independently then whole purpose of statutory restriction is futile and redundant. If suppose the owners are freely allowed to issue or grant license under Section 30 then Honourable courts will definitely ask with doubt and needle of suspicion to owners the purpose and the object of Section 33 restrictions given under a separate Chapter VII of Copyright Act 1957 !!
Strangely, even today two section(s) being interpreted separately and legislation being blamed for the chaos despite of having simple and straightforward provisions in the statute. In short, section 33 restricts section 30 on issuance of license by the owners and that’s why Section 30 is referred as a generic provision as given in Chapter VI of the Copyright Act.
This means though licensing is well defined u/s 30 of Copyright Act 1957 but it got restrictions / limitations / exemptions on issuance of licenses as given under Section 31 , 31A, 31B , 31C , 31D , 33 , 52 etc. Emphasised again that Copyright is a Government granted monopoly for a limited period of time in which authors and owners are given “exclusive rights” (not absolute rights) with restrictions / fair use exemptions / compulsory and statutory licensing.
Moreover the legal framers chronologically serialised first Section 30 in Chapter VI defining licensing by owners and then followed by restrictions in Compulsory and statutory licensing starting from Section 31 in the same Chapter. Further restrictions and limitations being provided separately in Chapter VII under the head “Copyright Societies” starting from section 33 of the Copyright Act 1957.
To substantiate further that Section 30 is a generic provision , students are advised to read carefully the provisions of sub section (3)(i) of Section 34 which states that Subject to such conditions as may be prescribed , a copyright society may – (i) issue licenses under section 30 in respect of any rights under this Act and Copyright society is defined under Section 2(ffd) of Copyright Act 1957.
And further Section 34 (b) has given the leverage to the owners to withdraw but not on the basis as free bird to go and intimidate the users to collect the licence fees individually. Notwithstanding the statutory requirements, the provision is very clear that subject to conditions as may be prescribed, the withdrawal should be without prejudice to the rights of the copyright society under any contract. Students are advised to read the Copyright Bare Act as the provisions given in Section 34 are not reproduced herein.
Next comes the “non business” of licensing. Here also section 30 is invoked to issue the license by the owners in the case when non commercial deals are executed. However this is an inbuilt exemption in Section 33 which means without being a member of a registered copyright society the owners can issue license individually and in case the owner is a member in a registered copyright society , then the said copyright society cannot object on any non business deals done by the owner member.
Then comes the grant / issue of License by owner in his individual capacity subject to the condition that first he has to be a member of the registered copyright society with the condition that his work should be consistent with his obligation (elaborately explained in Article MW 1.04). Here too Section 30 is invoked by the owner for issuing license in his individual capacity but after taking no objection letter from the copyright society as prescribed where he is a member and the said letter has to be shown to the users that his works are not inconsistent with his obligation.
With the above explanation it’s clear that for issuing business of license to various users like restaurants, hotels , pubs, discotheque , event companies, radio stations etc (hereinafter the Users) by a registered copyright society formed pursuant to Section 33, the said society issues licenses under Section 30 of the Copyright Act 1957 read with Section 34 sub section (3) (i) which states that Subject to such conditions as may be prescribed , a copyright society may – (i) issue licenses under section 30 in respect of any rights under this Act ;
Next question is – why “Users” are made responsible to look into the aspect whether ASSIGNMENT or LICENSING agreements of authors and owners are correct or not ? Is it their job ? NO – NOT AT ALL because it’s an internal administration matter between authors and owners of the registered copyright society.
Pursuant to Section 34 (a) of the Copyright Act 1957 its very clear that to administrate any registered copyright society the requirement is to furnish the “exclusive authorisation” then why the copyright societies demands for assignment or license deeds from other owners and authors when the said documents are the most confidential commercial documents executed between authors and producers ? When statute and Rules framed therein do not ask to furnish the assignment or license deed then how copyright societies can ask ? Is the copyright societies above law ?
This will be addressed in detail in the next article…………. to be continued