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2011 Copyright Amendment - 1957 Copyright Act

2011 Copyright Amendment - 1957 Copyright Act

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Published by Nandita Saikia
A mark-up showing how some of the existing provisions of the Copyright Act, 1957, would look of the 2011 revisions to the Copyright (Amendment) Bill, 2010, were passed.
A mark-up showing how some of the existing provisions of the Copyright Act, 1957, would look of the 2011 revisions to the Copyright (Amendment) Bill, 2010, were passed.

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Published by: Nandita Saikia on Sep 01, 2011
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08/06/2013

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September 1, 2011; revised September 6, 2011Note: This document has been compiled by Nandita Saikia using material first published at 
 
 
The 2011 Bill: The revisions proposed to be made to the 2010 Bill in August 2011(SpicyIP)
 
 A few weeks ago, the 2011 Bill received Cabinet approval
 — 
although, unfortunately, it was incomprehensibleunless without being cross-referenced with the 2010 Bill.Following this, the Bill was scheduled to be debatedin the Rajya Sabha on August 29, 2011, although no such debate took place. The 2011 Bill is a version of the 2010 Bill, revised with therecommendations of the Parliamentary Standing Committee ( the "PSC") being taken into account. It almost follows the letter of the PSC recommendations, asfar as films and music are concerned. However, some of the other changes visible in the 2011 Bill do notappear to be entirely in consonance with PSC recommendations.
 The principal differences (between 2010 and 2011 Bills) appear to be:
1. Section 2(m)
  The 2011 Bill omits thecontentious amendment proposed to be made to Section 2(m)of the Copyright Act,1957. [More on the 2(m) book debate isavailablehereat SSRN. ]
2. Commercial Rental
 The proposal in the 2010 Bill to define the term "commercial rental" has been retained in the 2011 Billalthough, perhaps in order to address the concerns of rights holders, it was explained that
‘a non 
-profit library or non-profit educational institution 
’ means a library or educational institution which receives grants from the Government or 
exempted from payment of tax under the Income-Tax Act, 1961
. This clarifies the situation with respect to Section 14(b)(ii) of the Copyright Act which says that, in the case of computer programmes, one of the exclusive rights of the copyright owner is the right to 'sell or give oncommercial rental or offer for sale or for commercial rental any copy of the computer programme: Providedthat such commercial rental does not apply in respect of computer programmes where the programme itself isnot the essential object of the rental'.
3. The Principal Director of a Film
  All references to the principal director of a film being a joint author of a film (along with the producer) and,consequently, a joint owner of copyright have been deleted in the 2011 Bill.
4. Lyricists' and Musicians' Rights
wrt  
Out-Film Use
  The 2011 Bill specifies that the authors of underlying works and those they assign the works to are eachentitled to an equal share of the royalties received for the non-theatrical use of those works, (not in conjunction with the film). This clarifies one of the ambiguities in the 2010 Bill.Pertinently, an analogous provision has also been made in respect of sound recordings in the 2011 Bill, and therevisions made by the 2011 Bill in this regard are almost identical to the recommendations of the PSC.
 
5. Copyright Board
  The 2011 Bill proposes to amend Sections 11 and 12 of the Copyright Act dealing with the CopyrightBoard through proposed amendments which had not earlier made an appearance. The Board will, if the 2011Bill is passed, comprise a Chairman and two other members. Also, the requirement that each Bench of theBoard comprise not less than three members has been deleted in the 2011 Bill.
6. Dispute Resolution under Section 19A 
  The 2011 Bill stipulates a time-frame within which disputes relating to the assignment of copyright should bedetermined by the Copyright Board: six months.
7. Accessibility to Copyrighted Works by Disabled Persons
  The 2010 Bill had proposed to achieve ensuring accessibility to copyrighted works by disabled persons througha compulsory licence and an exception to copyright infringement. The scope of the exception has beenconsiderably broadened in the 2011 Bill.Further, the fact that the compulsory licence (in the 2010 Bill) was virtually useless, as very few were eligible toapply for it, was been addressed by the 2011 Bill, which omits stringent eligibility criteria and simply states thatany business or person working for the benefit of persons with disabilities may apply for a licence. What isinteresting is that the proposed 2010 amendment which would have allowed the Copyright Board to determinehow many copies could be published without the payment of royalties has been deleted; presumably, theproposed 2011 compulsory licence no longer contemplates "free copies".
8. Statutory Licences for Radio Broadcast in the proposed Section 31D
  The anomaly which had the text of the 2010 Bill allude to "any broadcast" and the marginal note refer to "radiobroadcast" was been corrected in the 2011 Bill with both now referring only to "radio broadcast".
9. Copyright Societies
  The 2010 concern that the restrictive provisions of the copyright statute with regard to copyright societies would apply to only authors has been addressed in the 2011 Bill, with the 2011 Bill causing the relevantprovisions to apply to both the authors and owners of protected works. Also, the 2011 Bill stipulates that theunderlying works used in films may only be licensed through a copyright society.
10. The Intermediary Safe Harbour
  The 2011 Bill evinces the "strengthening" of the proposed so-called safe harbour clauses with reference being made to "transient OR incidental storage" as opposed to the earlier (2010) "transient AND incidental storage"possibly being exempt from liability for infringement. Further, the notice-and-take-down procedure has beentightened in the 2011 Bill, and the 2010 requirement to get a court order within 14 days (which caused muchconsternation) has been changed to 21 days in the 2011 Bill.
The subsequent pages of this document contain a mark-up showing how some of the existing provisions of theIndian Copyright Act, 1957, would look if the 2011 Bill were passed. Specifically, this document deals with theamendments proposed in relation to:
 
The Copyright Board
 
Royalties for the use of Underlying Works in Film Songs and Other Music
 
Settlement of Assignment Disputes
 
Copyright SocietiesThe contents of this document may not be entirely error-free and are intended to be used solely for the purpose of academic discussion.
 
1.
 
The 2011 Copyright Bill on the Copyright Board
The 2011 version of the Copyright Bill proposes to make changes in Sections 11 and 12 of the Copyright Act, 1957, dealing with the Copyright Board. These are the changes which have been proposed:
11. Copyright Board.
(1) As soon as may be after the commencement of this Act, the Central Government shall constitutea Board to be called the Copyright Board which shall consist of a Chairman andnot less than twoor more than fourteen twoother members. (2)The Chairman and other members of the Copyright Board shall hold office for such period andon such terms and conditions as may be prescribed.The salaries and allowances payable to and the other terms and conditions of service of Chairman and other members of the Copyright Board shall be such as may be prescribed:Provided that neither the salary and allowances nor other terms and conditions of service of theChairman or any other member shall be varied to his disadvantage after appointment. (3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of a HighCourt or is qualified for appointment as a Judge of a High Court.(4)The Registrar of Copyrights shall be the Secretary of the Copyright Board and shall perform suchfunctions as may be prescribed.The Central Government may, after consultation with the Chairman of the Copyrights Board,appoint a Secretary to the Copyright Board and such other officers and employees as may beconsidered necessary for the efficient discharge of the functions of the Board. 
12. Powers and procedure of Copyright Board.
(1) The Copyright Board shall, subject to any rules that may be made under this Act, have power toregulate its own procedure, including the fixing of places and times of its sittings:Provided that the Copyright Board shall ordinarily hear any proceeding instituted before it underthis Act within the zone in which, at the time of the institution of the proceeding, the personinstituting the proceeding actually and voluntarily resides or carries on business or personallyworks for gain.Explanation.- In this sub-section "zone" means a zone specified in section 15 of the StatesReorganisation Act, 1956.(2) The Copyright Board may exercise and discharge its powers and functions through Benchesconstituted by the Chairman of the Copyright Board from amongst its members, each Benchconsisting of not less than three members.Provided that, if the Chairman is of opinion that any matter of importance is required to beheard by a larger bench, he may refer the matter to a special bench consisting of five members;

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