SAVE THROUGH REGISTERED COPYRIGHT SOCIETIES , OWNERS CANNOT ISSUE “BUSINESS OF LICENSING” OR “DEMAND FOR ANY ROYALTY” ON INDIVIDUAL BASIS OR THROUGH UNREGISTERED COPYRIGHT SOCIETIES.
For registration of copyright societies for different work in specific categories , owners and authors have to submit the application for the purpose of carrying on the “business of issuing or granting licenses” pursuant to the procedures laid down under Chapter XI Rule 44 of the Copyright Rules 2013 read with Chapter VII Section 33 of Copyright Act 1957 and Central Government thereupon MAY grant registration as a Copyright society for a period of 5 years under sub section (3A) of a Section 33 with such terms and conditions , as applicable.
The minimum requirement is seven or more (authors and other owners) who have to apply for registration of Copyright society for the purpose of carrying on the business of issuing or granting licenses in respect of right in specific categories of work(s) and once registered copyright society is approved by Central Government , rest other authors/ other owners across the country for that particular work will join in due course which becomes a continuous process. There is no need that all or majority of authors and other owners should assemble one fine day and then Copyright society will start functioning.
Once the registered society is in place the users have to pay the license fee to the said registered society of specified work(s) for the utilisation, otherwise it will tantamount to infringement.
Collection and Distribution of the license fees is the internal arrangement of the respective copyright societies wherein authors / publishers and other owners decide amongst themselves as per the Copyright Rules and provisions of the Copyright statute.
Pragmatically , users cannot get into the administration aspect to look into the assignment terms and conditions to comprehend the ownership and authorship status. Users obligation is to pay the license fees as per the Tariff published by the registered Copyright societies in such manner as may be prescribed subject to Sub Rule 4 of Copyright Rule 56 read with other Rules and provisions of Tariff schemes as given under section 33 A of the Copyright Act 1957. Essentially , to fix the Tariff by the registered copyright societies , Copyright Board prescribes necessary guidelines with terms and conditions.
Therefore as operational strategy is concerned, authors and owners with minimum number of 7 members can start any day and rest other members will follow. Further, when registered copyright society is in place ( even with minimum number of members) , the users like hotels, restaurants, TV , Radio broadcasters will stop paying the license fees directly to the owners , then the said owners who are illegitimately collecting on their own are left with no option but to join the registered copyright society sooner or later to collect their respective contributions. Students are advised to read Article MW 1.08 to substantiate the reasoning why the proviso of “Individual capacity” cannot be invoked as given u/s Section 33 of the Copyright Act 1957?
As on date there is no functional registered Copyright Societies in India for any “Copyright work” as defined under Section 3 of Copyright Act. Please note , Performer right & Broadcasting Right are not Copyright , it’s a special right conferred by the Copyright statute.
Unfortunately , in India, no registered copyright societies got registered at any point of time on literary work for story writers, dialogue writers , in dramatic work for screenplay writers , for music composers who makes Advertisement jingles etc which (all are separate category) in terms of filing of application with the Central Government.
Therefore for this dereliction, certainly the beneficiary constituents are responsible for not having registered copyright societies for their respective work ( category-wise) in India and not the Central Government.
By not having the registered copyright societies for collection and distribution, it’s beneficial to the owners of all these Copyright work(s) to remain outside the registered copyright societies and not to follow the statutory provisions of Tariff, documents that to to be submitted, required approvals, adherence to Distribution schemes, rules pertaining to collections, Code of conduct , provision of Welfare funds as provided in the legislation, filing returns etc to Copyright office.
Hence in the given situation when owners and authors are given the statutory way out for “monetising” their copyright works through registered copyright societies , certainly owners / authors cannot claim that their contents have been infringed by the public / users like hotel, restaurants, television and radio broadcasters etc.
From legal viewpoint, owners cannot have legal protection for their own “wrong doing” by not forming the registered societies purposely , as it is convenient to them to remain outside the registered copyright societies and to intimidate the users.
Despite of strict laws in place, all these years, some of the owners across India state-wise have become dominant players by trading on Author’s equity and issuing business of license by remaining outside the registered copyright societies.
Even after the Copyright Amendment 2012, the plight of the authors remains the same and no distribution of royalties despite of statutory provisions under the Copyright Act. Especially as of now , the practice in vogue is by demarcating the content productions on the basis of retrospective productions done before 2012 Copyright Amendment and prospective royalty payments from 2012.
From legal stance it’s not equitable because though the contents are made before 2012 but when literary and musical work incorporated in sound recording and Cinematograph film are played today , the cause of action is of current date. For instance a Cinematographic film or sound recording is produced in the year 1990 and the said film or sound recording is utilised in the year 2017, certainly the cause of action will be considered of today and the applicability of the provisions will be as per Copyright Amendment 2012. Factually the contents that are played as on date will squarely fall under the on going cause of action of present date. Hence, the utilisation date is the deciding factor and not when the contents are produced.
This aspect of “retrospective productions” and “payments of royalty” for current cause of action will be addressed with fine points in coming articles.
Meanwhile Students are advised to read the case law on Competition Law to understand the business dynamics via-a-vis having Dominant position in Bollywood music by the opposite party wherein Competition Commission of India has given its investigation report Dt. 1/10/2014 in the matter of HT Media Ltd and Super Cassettes Industries Ltd (Case No 40 of 2011). Also read the WP (C) 7186 /2014 filed in the High Court of Delhi and order pronounced by Honourable Justice Shri R S Endlaw in the matter of Super Cassettes Industries Pvt. Ltd v. Union of India & Others. These critical questions relevant to Copyright legislation will be addressed subsequently at appropriate articles as it grossly effects the royalty collection and distribution to authors / publishers and other owners.
On implementation of statutory provisions on payments to authors from 2012 and issuing business of licensing without registered copyright societies by owners from 1994 Copyright Amendment requires the intervention of Serious Fraud investigation office which is under the Ministry of Corporate Affairs , Government of India, as it involves complex aspects of financial transactions, tax laws, information technology, FEMA, company law etc.
The via- media probably available till the the Copyright Board and registered copyright societies are in place is by depositing the license fees in the Court by the users or to the designated Central government fund as per the directions of the Court on available bench marks of previous Copyright Board and / or of the Honourable Courts. Most importantly , while filing suits or any legal proceedings, protection provision as given under section 76 of the Copyright Act 1957 to be invoked without fail which is the legal armour for the acts done or intended to be done in good faith in pursuance to the Copyright Act. Further, section 76 is extremely crucial to link Section 60 & 61 of the Copyright Act 1957. Please read all the three section(s) carefully.
Hence, the statute proprio vigore makes it imperative that no owner can remain outside the registered copyright societies to grant or issue business license in any works.
It’s pertinent to quote an American Judgement of 1918 (100 years! before) as we do not have any such comprehensive judgement in India till date covering the purpose and object of the Copyright legislation. It’s not that Indian Courts are not proficient but unfortunately all these Copyright matters gets resolved outside the Courts perhaps with misconceived facts and the perennial issues remains in status- quo position without the intervention of the Honourable Courts.
More recently , Honourable Courts have started suspecting on the incessant activities that is prevailing in India on the important IPR Domain – “The Copyright” and it will be very crucial to witness the streamlining of the Copyright administration in the coming years.
“The general Rule of Copyright law is that , the noblest of human productions – knowledge, truths ascertained , conceptions etc – become after voluntary communication to others , free as the air to common use.” International News Service v. Associated Press , (1918) 248 U.S. 215,250.
Therefore, India being Berne convention member, the international dimension of Copyright Law can no longer be given secondary consideration because the focus of Copyright law is on the benefits derived by the public from the labours of authors and the ultimate goal of copyright is to enhance public welfare , an essentially economic value to the nation.
By this underline philosophy of Copyright legislation, the paramount requirement is public interest and convenience factor and that’s why the statute has curbed the exclusive Copyright with restriction , limitations , statutory licensing / compulsory licensing and not granted absolute rights.
In next article, all critical aspects to substantiate that “business of licensing” for any works pursuant to Copyright Act 1957 can be done only thru registered copyright societies will be thoroughly revised which will be easy for students for general revision.