Suggestions on the Amendment of the Copyright Act, 1957- Part I
The Hon. Registrar of Copyrights, through an email dated 14th October, 2020, invited suggestions on the amendment of the Copyright Act, 1957 in the light of changes brought about by use of internet, digitalization and an increasingly globalized market for digital content. On behalf of BananaIP Counsels, we have submitted the following recommendations and suggestions to the Registrar, and await positive changes in the Act.
We appreciate the Registrar’s recognition of the changed situation brought about by the COVID-19 pandemic, and the need to revisit and carry out corresponding changes to ensure that the law evolves and addresses these challenges.
BananaIP Counsels has been working with authors, artists, performers, producers, and copyright owners on different aspects of copyright law for over 15 years, and has been dealing with copyright issues that spring from provisions of the Copyright Act in its current form. The proposed amendments have been suggested with a view to address and overcome certain issues that have come to our attention over the years with respect to copyrights and their use, and to promote business activities involving copyrighted works without compromising on the incentives offered by the copyright system to authors.
The following posts present the proposed copyright amendments along with reasons for the suggested changes. The current provision is provided along with the proposed provision for ease of reference. While most proposed changes relate to digital businesses and content, others relate to general provisions that form the basis for all business transactions relating to copyrights.
Proposed Amendments to the Copyright Act
Sections 13 and 14
Reasons for suggested amendments
These provisions, which enumerate the works in which copyright subsists and the rights therein, grant different rights to owners of copyright in cinematograph films and sound recordings. The suggested amendments bring the provisions related to sound recordings in consonance with the existing provisions related to cinematograph films.
With respect to digital content, the right to make the work available has not been mentioned, and therefore the same has been added to recognise the right of copyright owners to make their works available as well as license and assign this right.
Further, the 2012 amendment introduced royalty share for authors of literary and musical works. The suggested amendments propose expanding this right to royalty to the authors of dramatic works as well, as dramatic works form an integral part of cinematograph films and sound recordings.
The suggested amendments also include the right to receive equal share of royalty in Section 14, and provide that the right to make a cinematograph film or sound recording of a literary, dramatic or musical work is subject to the payment of such royalties to the authors. The suggested amendment, which includes this right in Section 14, removes any confusion arising out of the business practices and interpretation of this right.
| Current Provision | Amended Provision |
| 13. (3) Copyright shall not subsist— (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any 1 [sound recording] made in respect of a literary, dramatic or musical work, if in making the 1 [sound recording], copyright in such work has been infringed. | 13. (3) Copyright shall not subsist— (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any sound recording if a substantial part of the sound recording is an infringement of the copyright in any other work; |
| 14. Meaning of Copyright.— For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:— (a) in the case of a literary, dramatic or musical work, not being a computer programme,— (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); |
14. Meaning of Copyright. — For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: — (a) in the case of a literary, dramatic or musical work, not being a computer programme,— (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, make the work available to public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work provided that any person making such cinematograph film or sound recording pays equal share of royalties from the consideration received by such person from the exercise of right to communicate to public, make available and commercial sale or rental outside a cinema hall in such cinematograph film or sound recording; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); |
| (c) in the case of an artistic work,— (i) to reproduce the work in any material form including— (A) the storing of it in any medium by electronic or other means; or (B) depiction in three-dimensions of a two-dimensional work; or (C) depiction in two-dimensions of a three-dimensional work;] (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); |
(c) in the case of an artistic work,— (i) to reproduce the work in any material form including— (A) the storing of it in any medium by electronic or other means; or (B) depiction in three-dimensions of a two-dimensional work; or (C) depiction in two-dimensions of a three-dimensional work; (ii) to communicate the work to the public and make the work available to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); |
| (d) in the case of a cinematograph film,— 3 [ (i) to make a copy of the film, including— (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means;] 4 [ (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;] (iii) to communicate the film to the public; |
(d) in the case of a cinematograph film,— (i) to make a copy of the film, including— (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means; (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film; (iii) to communicate the film to the public and make the film available to the public; |
| (e) in the case of a sound recording,— (i) to make any other sound recording embodying it 1 [including storing of it in any medium by electronic or other means]; 2 [ (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;] (iii) to communicate the sound recording to the public. |
(e) in the case of a sound recording,— (i) to make any other sound recording embodying it including storing of it in any medium by electronic or other means; (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording; (iii) to communicate the sound recording to the public and make the sound recording available to the public. |
Section 17
Reasons for suggested amendments
Section 17, as it currently stands, enumerates the situations in which an employer or commissioner of certain works is the owner of the copyright. There are multiple clauses which distinguish between print media such as newspapers, artistic works such as portraits and photographs, and works created under a contract of service or apprenticeship. The multiplicity of clauses creates distinctions which are no longer relevant to today’s business and copyright transactions, and also creates an unnecessary distinction between certain types of commissioned works and works created pursuant to a contract of service or employment.
As courts have expanded interpretation beyond the literal language in a number of cases, it is prudent to have a single clause covering all works commissioned or created during the course of employment, or contract of/for service.
The suggested amendments avoid multiplicity of clauses, and ensure that all types of works are covered in the provision for commissioning of works and works created under a contract of service or employment, without distinguishing between the various types of works or the purpose for which they have been commissioned or otherwise created under a contract.
Moreover, the current provision only includes authors, and does not include performers, although performances may also be carried out under similar contracts. The suggested amendment includes performers, to avoid any ambiguity related to the ownership or rights or the consequences of commissioning a performance, or making a performance during the course of employment.
| Current Provision | Amended Provision |
| 17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that— (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; [(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Explanation.— For the purposes of this clause and section 28A, “public undertaking” means— (i) an undertaking owned or controlled by Government; or (ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);or (iii) a body corporate established by or under any Central, Provincial or State Act;] [Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.] |
17. First owner of copyright.— Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that— (a) in the case of any work made by the author or any performance made by a performer for valuable consideration at the instance of any person or in the course of the author’s or performer’s employment under a contract of service or apprenticeship, the employer or the person at whose instance the work has been created, shall, in the absence of any agreement to the contrary, be the first owner of the copyright or performer’s right therein; (b) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Explanation. — For the purposes of this clause and section 28A, “public undertaking” means— (i) an undertaking owned or controlled by Government; or (ii) a Government company as defined in section 2(45) of the Companies Act, 2013; or (iii) a body corporate established by or under any Central, Provincial or State Act; Provided that in case of any work that forms part of a cinematograph film, nothing contained in clause (a) shall affect the right of the author to receive royalty under Section 14(a)(iv) of this Act. |
Part II of the recommended amendments may be accessed here.
Part III of the recommended amendments may be accessed here.
