Compulsory licensing under copyright law: a study of its impact on music rights
Copyright is a method the to replicate an unique advent. It hence offers the author and different properties to supply and reproduce his work in any manner possible. “Copy” means to create a replica of an unique advent and “Right” signifies the energy given to a citizen with the aid of using regulation to exercising it at his personal discretion. Thus the Copyright regulation offers the proprietor of the work a package deal of one of a kind rights associated with replica of the authentic work. The copyright holder has the only right over such work and without his permission no person can reproduce his paintings. Thus if someone infringes such right then the copyright holder has the right to sue such an infringer and ask for damages.
Licensing in copyright
Licensing comes into play when someone wants to transfer the interest in the copyright. Although, only limited rights can be granted by granting a license. When any person is granted a license they can use the copyright work without worrying about the infringement of the work, the owner can not claim damages as a matter of right against such work. License is different from an assignment in several aspects. When a license is granted, it is subject to certain conditions that may be mentioned in the agreement, however, the ownership of those rights does not get transferred; it vests in the owner itself. Whereas, when it comes to assignment, the ownership of the copyright is vested in the assignee of the interest that is assigned to them. The original owner has no rights whatsoever, all the rights are transferred to the assignee. A license can be said to be of two types, it could be voluntary or compulsory.
Voluntary licensing is defined in section 30 of the Copyright Act. In voluntary licensing, copyright can be granted by the owner either for the existing work or for any future work. Although, the copyright for future will come into force on the existence of the future work.
Section 31 of the Act defines Compulsory license. The compulsory license is usually applied to some for adjudication to perform an act which is covered by an exclusive right without having to obtain any prior authorization from the original right owner. A compulsory license can also be applied for the work which is yet to be published.
In the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (2004), the court held that, in the case of public interest, automatic license may be granted to the applicant. However, it is necessary to determine what should be the reasonable royalty that should be paid to the licensor. The court also held that, if section 31 is interpreted carefully, it allows to grant license to multiple applicants as allowing only applicant license would defeat the purpose of the statute.
Objective of Compulsory licensing
The main goal for compulsory licensing is to make sure that the copyrighted work is available to the general public. It is true that copyright is granted so that the writers or artists can benefit from their work and protect their work. However, it is also important that their work should be accessible and available for fair use for other people. Compulsory licensing helps in availing the copyrighted work to the public without infringing the rights of the original owner, to maintain the free flow of information, when the copyright owners don’t wish to leave their work.
Compulsory Licensing and Music rights
Before the amendment of 2012, the work done by the musicians and the lyricist was submitted to the producer. After the payment of the work done by them the rights were transferred to the producers and they had no rights on the music they created. All the royalties from the music created would go to the producers. This was clearly unfair for the musicians and lyricists. Therefore, with the 2012 amendment, it was decided that the lyricists and the musicians will receive 50% of the royalties which are collected by the copyright societies. Such royalties can neither be waived nor can they be transferred. This was done to eradicate the wrong faced by the musicians and lyricists.
The act not only mandates royalties for the singers and musicians, but also for other performers such as a dancer or a magician. If their work is anywhere used and someone makes money from it, then the royalties must be paid to the author of the original work. If in this process the reputation of the author is tarnished then they also have the right to claim for damages.
Societies to protect musicians rights
Copyright societies exist to help in making the licensing of the songs and sound recording less complicated and also to help the various artists involved in producing a song such as singers, lyricists protect their rights. Copyright societies should be registered under section 33, which gives them power to grant licenses to the people who require them,on behalf of the owners.
The existing copyright societies are:
- Indian Performing Rights Society (IPRS) – IPRS is responsible for issuing licenses to the people who use music and also collect royalties from them, on behalf of the musicians and the lyricists etc who are the members of this society. After taking away the administrative costs, it disseminates the rest among the members.
- Phonographic Performance Limited (PPL) – PPL has its hands on both public performance rights as well as radio broadcasting rights and also controls over 5 lakh sound recordings in several languages. It has more than 250 music labels as its members.
- Indian Singers Rights Association (ISRA) – ISRA comprises performers and has collected royalties on behalf of them.
Out of these three societies IPRS and PPL have applied for re-registration. And IPRS was re-registered in 2017.
Although it can be said that the legal framework is in need of a lot more work to effectively solve this issue. Nevertheless, the 2012 amendment is step further in giving due credit to the musicians and lyricists of their work. By providing them royalties for their work it ensures that their work is being acknowledged for a long time. And they are benefitted from their work. The music industry in India is growing rapidly, it is important at this juncture to the lacuna of the industry.
AIR 2004 Delhi 326
Contributed by:– Nidhi Jha, Legal intern at LLL