Adv Hardeep Singh Anand, Managing Partner, JNA Law throws light about the Copyright (Amendment) Act, 2012.
The bill is silent on its periodicity – is it retrospective or prospective. What happens to current exploitation of past works?
Though the amendments do not expressly state whether they are retrospective or prospective, the wordings of proposed Section 19 sub section (9) and (10) which both start with — “No assignment of copyright in any work ——–”, would imply that the said proposed amendment seeks to cover any assignment of works, whether already assigned or to be assigned in the failure. So in my view, the royalties arising out of current exploitation of past works (after coming into force of the amendments) would have to be shared equally with the authors of the works.
There is little clarity on moral rights of performers. Are they entitled to a royalty share from the authors and composers pie?
Moral right is not a commercial right. It is a right to (i) be identified as and claim credit as the author; (ii) seek restraint orders to prevent the distortion and/or mutilation of his work by an author, and (iii) claim damages for any mutilation/distortion which is prejudicial to the authors honour or reputation. So a performer is not entitled to a royalty based on the proposed “Moral right” for “performers”.
Having said that, the performer shall be entitled to a share in the royalties raising in the course of “communicating to the public” of a sound or a visual recording of the performance – [proposed Section 38A (a)(iii)], and also for ‘broadcasting the performance to the public’ – [Section 38A (b)]. The proviso to proposed Section 38A (2) also clarifies that a performer shall be entitled to royalties in case the performance is for commercial use.
Furthermore, proposed Section 39A, makes Sections 18 and 19 amongst others, also applicable to performers, and since proposed Sections 18 and 19 are the Sections where under authors shall claim equal share in the royalties, performers would also be entitled to an equal share. So effectively (i) sound re-cording copyright owner, (ii) music composer, (iii) the lyricist and (iv) the performer will share all royalties equally.
What happens to the Bombay and Delhi High Court judgments in the light of the Copyright Bill being passed. Does it mean the bill overrules the judgments?
In my opinion the amendments do not per se overrule the Bombay High Court’s and the 8th May 2012 Delhi High Court’s Division Bench judgment in the matter of IPRS versus Aditya Pandey & others. The Delhi Division Bench judgment is based on the interpretation by the Supreme Court of India of Section 13(4) viz-a-viz Section 14(1)(a)(iii) of the Copyright Act, in the 1977 IPRS versus EIMPA case, which though noted by the Delhi Division Bench as being obiter, yet held as good law for the High Court to follow, as the obiter was reasoned and also the Delhi Division Bench could not find any reason to disagree with the Supreme Court’s reasoning [paras 51 and 52 of the Delhi Division Bench judgment].
Moreover the Delhi Division Bench judgment in paras 37 and 38, while noting that the Copyright Act recognizes the separate existence of three copyrights i.e. sound recording, musical score & lyrics in a sound re-cording, yet concludes that “the sound recording when broadcast to the public is an exercise of the ownership right on its own strength”. In view of this holding by the Delhi Division Bench, I am of the view that the Hon’ble Supreme Court would be required to revisit the 1977 Supreme Court judgment in the IPRS versus EIMPA case, and clarify the scope of Section 13(4), which in my view is the legal crux of this entire issue. The amendments to not amplify or clarify Section 13(4) of the Act, though the proposed amendment to Section 17 whereby a proviso is added, which seeks to clarify that works “made for hire” or “under a contract of service”, will not affect the right of the author in original literary, dramatic, musical and artistic works” i.e. Section 13(1)(a). No reference or clarification regarding Section 13 (4) is made.
This proviso is aimed at covering “First Owner” claim by parties other than “authors”, for authors to be in para materia to receive the proposed benefits under amended Sections 18 and 19 of the Act.