A look at amendments made to the Copyright Act 1957 on Media & Entertainment industry

Recently much needed amendments to the Copy right Act 1957 were passed by both houses of the parliament. The Copyright amendment bill brings significant changes, primarily to media and entertainment industry.

The Amendments have given a new era for the Media & Entertainment Industry particularly as it seeks to safeguard rights of authors of literary works like lyrics or scripts and musical works and grant them an equal right in the royalties made from exploiting their creations. The amended law also makes it compulsory for radio and broadcasters to pay royalties every time they air a recording.

Think Twice before making a cover of "Why this Kolaveri Di"
Think Twice before making a cover of "Why this Kolaveri Di"

According to this amendment, producers are no longer allowed to keep all the royalties to songs, lyrics or other works of arts. Now, these rights will have to be shared with the artist who created them.In order to understand how the amendment impacts the right of an author or composer, I am highlighting the below points.

Extension of fair dealing to all works

Earlier, the law dealt with fair dealing rights related to “literary, dramatic, musical or artistic works”. However, after the amendment, it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative commons, open licensing to be improved

The s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Partial protection to some internet intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to ‘transient or incidental’ storage of a work or performance. The above sections seem to make it applicable mainly to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word ‘incidental’.

Licensing to foreign works

After this amendment Sections 31 (“compulsory licence in works withheld from public”) and 31A (“compulsory licence in unpublished Indian works”) will apply to all works, whether Indian or not (and now s.31A is about “compulsory licence in unpublished or published works”, mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Producing cover version becomes more knotty

The cult song Kolaveri Di became famous and was covered numerous times , most of them without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

  • Time period after which a cover version can be made has increased from 2 years to 5 years.
  • Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
  • Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
  • While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to “contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated”.
  • All cover versions must state that they are cover versions.
  • No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
  • Alterations were allowed if they were “reasonably necessary for the adaptation of the work” now they are only allowed if it is “technically necessary for the purpose of making of the sound recording”.

Other changes introduced in the act include tighter regulations on cover versions, including a clause that raises the time period after which covers are legally allowed from two to five years. It also bans people from bringing out cover versions of any literary, dramatic or musical work for five years from the first recording of the original creation.

[Guest article contributed by Jai Vardhan. Download the amendment bill (pdf). ]

[Image credit: Wikipedia]

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