Intellectual Property Law

A Peep into the Draft Copyright (Amendment) Rules, 2019

Perhaps, change is the only constant. As a natural corollary, dynamism becomes the quintessential feature of law. This finds resonance with the logic behind the official statement of the Ministry of Commerce and Industry, which has made public the Draft Copyright (Amendment) Rules, 2019, for stakeholders’ remarks till 29 June 2019 “in order to ensure smooth and flawless compliance of Copyright Act in the light of technological advancement in digital era and to bring them in parity with other relevant legislation, the Department for Promotion of Industry and Internal Trade (“DPIIT”) has now proposed to introduce the Copyright Amendment Rules, 2019.”[1]

This proposal knocks at the door at a time when two of the five BRICS nations are contemplating a revision to their copyright laws. China, with a view to keeping pace with the development of the internet and the proliferation of new technologies, is set to revamp its copyright law. Similarly, South Africa’s Copyright Amendment Act saw its successful passage through the National Assembly as well as the National Council of Provinces and is just a Presidential Assent away from implementation.

[Manas Raghuvanshi is a Junior Legal Associate at the Chambers of Ms. Heena Mongia. He graduated from Jindal Global Law School (O.P. Jindal Global University) in May, 2019]

 

Proposed Changes

In India, while the Copyright Act, 1957 is the foundation, the Copyright Rules, 2013 are the superstructure built atop it and together represent the copyright laws in India. The latter of the two was last amended in 2016 and now the following changes, inter alia, have been proposed by the 2019 Draft Amendments:

 

1. The Copyright Board

The proposed 2019 amendment to the Copyright Rules, among other proposals, seeks to tear down the Copyright Board and in its place establish an Appellate Board. The appointment of the Chairman and other members of this quasi-judicial body shall be in accordance with the provisions of the Trademark Act, 1999.

2. Copyright Societies

The Draft categorically urges the Copyright Societies (“CS”) to publish on its website an “Annual Transparency Report” for each financial year. A copyright society is a legal entity that looks after the commercial management of the works of the owners and in turn shelters their interests from unwarranted commercial exploitation. The society is empowered to grant licences and collect royalties in commensuration with the tariff scheme. The proposed annual transparency report ought to exhibit the activities undertaken by the society, the legal description of their structure, information on the refusal to grant licences, monetary information in connection with rights revenues for each category of rights administered among other.

Moreover, the 2019 amendment puts an embargo on the distribution of royalties by copyright societies in case the relevant author cannot be located or identified. In such a case, the CS would have to transfer the unavailable author’s/owner’s share of royalties to a separate account where it cannot be distributed. The CS would also have to take all necessary measures to identify and locate the author/owner and would have to publish on its website, at the end of every quarter, titles of works, names of authors and owners and all other information which will help identify authors and/or owners.

Furthermore, the Department for Promotion of Industry and Internal Trade seeks to modify the mannerism in which copyright societies decide on their tariff schemes. Currently, the copyright societies are legally obliged to ascertain tariff in conformity with the court-issued or the board-issued guidelines and yardsticks. However, the 2019 amendment directs the copyright societies in their fixation of tariff to take into consideration cross-sectional tariff comparisons, economic research, the nature and scope of the use of the work, the commercial value of the rights in use and the benefits to licensees.

Lastly, it has been proposed that the website of the CS ought to make available a feature enabling the users to search the database of works; the Annual Transparency Report; and details of undistributed royalties on account of work belonging to authors and other owners who could not be identified or located.

3. Expansion of Scope

The 2019 amendment endeavours to get the companies that operate through digital means such as websites and music streaming platforms within the catchment area of the Copyright law. On actualisation of the amendment, it will be convenient for digital companies, websites and music streaming platforms to purchase contents- specifically songs and videos, and display them on their portals. Presently, the Copyright Act gives permission to only ‘radio and TV broadcast’ firms to take the approval of the owners and mutually agree upon a price or through Intellectual Property Appellate Board (IPAB) in congruence with Section 31D of the Copyright Act. As the Department for Promotion of Industry and Internal Trade plots to stifle the monopolistic ownership over songs and videos by the content owners and plans on greater circulation of the content among the public, it is suspected that the commercial interest of the content owners might take a beating. In any case, such a substantial change to the Copyright Rules might demand the amendment of the Copyright Act too. Previously, the Hon’ble High Court of Bombay had given a limited interpretation to the words “by way of radio broadcast or television broadcast” used in Section 31D of the Copyright Act in respect of statutory licenses to only radio and television broadcasting while excluding internet broadcasting out of the ambit.

The amendment reflects the government’s resolve to make certain that songs and videos are accessible at an inexpensive and reasonable price to the maximum number of people. In case there are differences between the price, the Intellectual Property Appellate Board (IPAB) is given the freedom to set the price.

 

Conclusion

The 2019 amendment to the Indian copyright regime comes at a time when Knesset has given its assent to the Amendment No. 5 to Israel’s copyright law of 2007. The subject of the said amendment revolves around the use of orphan works (works where after due diligent inquiry the content owner could not be ascertained), exposing the copyright infringers’ identity on the internet, restriction of access to an internet site by virtue of a court order and indirect copyright infringement by making protected work to the public. The 2019 amendment is also concomitant with the ratification by all European Union legislative bodies of the Directive on Copyright in the Digital Single Market that will play an instrumental role in the European Commission’s Digital Single Market (DSM) initiative. This Draft Amendment serves to bring home the assertion that copyright law is dynamic and it ought to endorse the advancement of technology.


Endnotes

[1] Kirtika Suneja, Govt seeks to amend copyright act to improve access to content, Economic Times (04/06/2019), available at https://economictimes.indiatimes.com/tech/internet/govt-seeks-to-amend-copyright-act-to-improve-access-to-content/articleshow/69643363.cms, last seen on 08/06/2019.

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