Reproduction Rights Under Indian Copyright Act, 1957
Concept of "Infringing Copy" under the Indian Copyright Act, specifically in terms of Reproduction
Student: I'm trying to understand the concept of "infringing copy" under the Indian Copyright Act, specifically in terms of reproducing or reproduction?
Professor: When we talk about an "infringing copy" in the context of reproducing or reproduction, we're essentially referring to unauthorised duplications of copyrighted works. Let me explain based on the various categories mentioned in the Act.
Student: What are these categories?.
Professor: To start with- for any literary, dramatic, musical, or artistic works, an infringing copy is a reproduction of the work that doesn't take the form of a cinematographic film. Daily we see at bus stations, train stations- copies of original books being sold at one third the price of the originals. The person selling it is doing it illegally. People who purchase such books too then become complicit in this illegality.
But Section 51 of the Copyright Act, 1957, has an exception whereby the reproduction of any literary, dramatic, musical or artistic work in the form of a cinematograph film will be deemed to be an “infringing copy”.
Student: What about cinematographic films?
Professor: Any reproduction of cinematographic film(s), on any medium, using any means, is an ‘infringing copy’. Thus, creating duplicates of a movie, whether on DVDs, digital files, or any other medium, qualifies as an infringing copy. Example- burning a DVD/ CD from a purchased DVD set is infringement. Downloading torrent files is infringement. This is as per Section 2(f) and Section 14(a)(ii) of the Indian Copyright Act, 1957.
Student: Okay. How about sound recordings?
Professor: When it comes to sound recordings, an infringing copy is any reproduction that captures the same sound recording, made through any means. So, if someone duplicates a musical recording without proper authorisation, that would be considered an infringing copy. Say we are attending a concert and we record the whole show and then broadcast it on social media, without permission/ rights, it will be wrongful reproduction. This is governed by Section 2(x) and Section 14(a)(iii) of the Indian Copyright Act.
Student: What are the provisions mentioning programmes or performances?
Professor: In the context of broadcast reproduction rights or performers rights under the Act, an infringing copy involves the reproduction of the sound recording or cinematographic film of such a programme or performance. Essentially, making or importing reproductions or copies of broadcasts or performances without adhering to copyright provisions would be classified as infringing. This is outlined in Section 2(q) and Section 14(a)(iv) of the Indian Copyright Act. Please visit www.seedup.in for further details.
Section 32 of the Copyright Act, 1957- Licence to Produce and Publish Translations
Student: Professor, I came across Section 32 of the Indian Copyright Act, and it seems to be about obtaining a licence to produce and publish translations. Can you help me understand the details?
Professor:
1. Eligibility for Application:
- Who Can Apply?: Any person, after a period of seven years from the first publication of the work, can apply to the Appellate Board - for a licence to produce and publish a translation of a literary or dramatic work in any language
- Additional Provision: Sub-section (1A) of section 32 allows for application for translations of foreign works. This should be for purpose of teaching, scholarship, or research. This application can be done after three years, with specific conditions.
2. Application Requirements:
- Form and Information: The application must be made in the prescribed form, stating the proposed retail price of the translation.
- Prescribed Fee: Along with the application, the applicant must deposit a prescribed fee with the Registrar of Copyrights.
3. Granting of Licence:
- After Inquiry: The Appellate Board may grant a non-exclusive licence after holding an inquiry.
- Conditions of Licence: The licence is subject to conditions, including the payment of royalties to the copyright owner, determined by the Appellate Board.
4. Conditions for Granting Licence:
- Publication Status: No licence will be granted unless the translation has not been published in the specified language within the prescribed time frame.
- Request and Denial: The applicant for the reproduction permit must prove that they requested and were denied authorization from the copyright owner or, after due diligence, were unable to locate the owner.
- Notice to Publisher: If the owner is untraceable, a copy of the request must be sent by registered air mail to the publisher at least two months before the application.
5. Additional Conditions:
- Printed Notice: The name of the author and title must be printed on all copies of the translation.
6. Competency and Means:
- Competency: The Appellate Board must be satisfied that the applicant is competent to produce an accurate translation and can pay the required royalties.
- Author's Withdrawal: The author should not have withdrawn copies of the work from circulation.
7. Opportunity of Hearing:
- Fair Hearing: The Appellate Board must provide an opportunity for the copyright owner to be heard.
8. Broadcasting Authority's Application:
- Broadcasting Authority: Broadcasting authorities may apply for a licence to broadcast translations for educational or research purposes.
- Conditions: Similar conditions and modifications as in sub-sections (2) to (4) apply.
9. Explanation of Terms:
- Developed Country: A country not regarded as developing.
- Developing Country: A country regarded as such by the General Assembly of the United Nations.
- Purposes of Research: Excludes industrial and commercial research.
- Purposes of Teaching, Research, or Scholarship: Includes instructional activities at all educational levels and other organised educational activities.
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Section 32A of the Indian Copyright Act, 1957- 32A. Licence to Reproduce and Publish works for Certain Purposes
Student: Professor, I'm trying to understand Section 32A of the Indian Copyright Act, particularly regarding the reproduction and publication of works for certain purposes. Can you help me break it down in point form?
Professor:
1. Eligibility for Application:
- Timeframe: After the expiration of the relevant period from the first publication of a literary, scientific, or artistic work.
- Conditions: The copies are not available in India, or not put on sale for a specific period, or not at a reasonable price for systematic instructional activities.
2. Application Process:
- Form and Information: The applicant may apply to the Appellate Board stating the proposed retail price of the reproduced work.
- Prescribed Fee: A fee must be deposited with the Registrar of Copyrights along with the application.
3. Granting of Licence:
- After Inquiry: The Appellate Board may grant a non-exclusive licence after holding a prescribed inquiry.
- Conditions of Licence: The licence includes the payment of royalties and restrictions on export.
4. Conditions for Granting Licence:
- Authorization Request: The applicant must prove that they requested and were denied authorization by the owner of the copyright, or they were unable to find the owner after due diligence.
- Notice to Publisher: If the owner is untraceable, a copy of the request must be sent by registered air-mail to the publisher at least three months before the licence application.
- Competency: The Appellate Board must be satisfied that the applicant can reproduce and publish an accurate version and pay the required royalties.
- Price Fixation: The applicant undertakes to reproduce and publish the work at a price fixed by the Appellate Board, reasonably related to the price charged in India for similar works.
- Timeframe for Publication: A specific period must elapse without the owner publishing the work before the licence is granted.
- Printing Details: The name of the author and title must be printed on all copies, and the author should not have withdrawn copies from circulation.
- Opportunity of Hearing: The owner of the copyright must be given an opportunity to be heard.
5. Limitation for Translation:
- Publication Requirement: No licence for the translation of a work is granted unless the translation has been published by the owner or an authorised person, and it is not in a language in general use in India.
6. Application to Audio-Visual Fixations:
- Applicability: The provisions of this section also apply to the reproduction, publication, or translation into a language in general use in India of any text in audio-visual fixations for systematic instructional activities.
7. Explanation - Relevant Period:
- Definition: "Relevant period" is the period after the first publication of a work, varying for different categories of works:
- Seven years for fiction, poetry, drama, music, or art.
- Three years for natural science, physical science, mathematics, or technology.
- Five years for any other case.
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Section 32 vs Section 32A of Copyright Act, 1957
Student: Explain the difference between Section 32 and 32A of the Indian Copyright Act, 1957?
Professor:
1. Purpose of the sections:
- Section 32: This section permits the reproduction and publication of translations of literary, scientific, or artistic works, after a specified period, on certain conditions being met.
- Section 32A: This section permits the reproduction and publication of works, including translations, for certain purposes- eg.- when copies are not available in India or not put on sale, at a reasonable price, but they are for instructional activities.
2. Eligibility Criteria:
- Section 32: Applies when an applicant is seeking a licence for translating a work after a specified period from the first publication.
- Section 32A: Applies when an applicant is seeking a licence for reproduction and publication, including translations, after the expiration of the relevant period.
3. Conditions for Granting Licence:
- Section 32: Requires the applicant to prove that they were denied authorization or were unable to find the copyright owner, among other conditions.
- Section 32A: Requires specific conditions, including the unavailability of copies in India or not being put on sale for a certain period.
4. Application Process:
- Section 32: Involves applying to the Appellate Board, stating the proposed retail price, and depositing a prescribed fee.
- Section 32A: Also involves applying to the Appellate Board, stating the proposed retail price, and depositing a prescribed fee.
5. Timeframe for Publication:
- Section 32: Specifies different relevant periods for different types of works, ranging from seven years to five years.
- Section 32A: Specifies the relevant period based on the type of work, such as seven years for fiction, poetry, drama, music, or art.
6. Export Restrictions:
- Section 32: The licence may include conditions such as not extending to the export of copies outside India.
- Section 32A: Similar conditions, including restrictions on export, are present in the licence.
7. Price Fixation:
- Section 32: The applicant undertakes to reproduce and publish the work at a price fixed by the Appellate Board.
- Section 32A: No explicit mention of price fixation, but the reproduction is expected to be at a price reasonably related to works of the same standard in India.
8. Applicability to Audio-Visual Fixations:
- Section 32: Primarily focused on literary, scientific, or artistic works.
- Section 32A: Applicable to the reproduction, publication, or translation into a language in general use in India of any text in audio-visual fixations for instructional activities.
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Section 32B of the Copyright Act, 1957- Termination of Licences issued under this Chapter
Student: Please throw light on the provisions of Section 32B of the Indian Copyright Act? What does it mean by termination of licence?
Professor:
1. Termination of Translation Licences (Section 32B, Sub-section 1):
- Condition: If, after the granting of a licence to produce and publish the translation of a work (referred to as the licensed work) under Section 32A(1A), the copyright owner or an authorised person publishes a translation in the same language, significantly the same in content, and at a reasonable price.
- Termination: The granted licence is terminated.
- Notice Requirement: The termination doesn't take effect until three months after the licensee is served notice in the prescribed manner by the owner intimating the publication of the translation.
- Continuation of Sales: Copies produced and published by the licensee before termination may continue to be sold until exhausted.
2. Termination of Reproduction or Translation Licences (Section 32B, Sub-section 2):
- Condition: If, after the granting of a licence to produce and publish the reproduction or translation of any work under Section 32A, the copyright owner or an authorised person sells or distributes copies of the work or its translation
- in the same language,
-significantly the same in content,
- at a reasonable price.
- Termination: The licence granted to the third person or others stands terminated/ cancelled.
- Notice Requirement: The termination doesn't take effect until three months after the licensee is served notice in the prescribed manner by the owner intimating the sale or distribution of the copies.
- Continuation of Sales: Copies already reproduced by the licensee before termination may continue to be sold until exhausted.
Student: So,if the copyright owner decides to publish a translation or sells copies of the work themselves, the licences granted to others may be terminated?
Professor: Yes. Section 32B states that if the actual copyright owner or an authorised person publishes
a translation or
sells copies in the same language
at a reasonable price,
the licences granted to others for the same work stand terminated.
Still, there are notice periods to allow the licensee/ third person to continue sales until their existing stock is exhausted.
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Section 37 of Copyright Act, 1957- Broadcast Reproduction Right
Student: What is broadcast reproduction right?
Professor:
1. Broadcast Reproduction Right (Section 37, Sub-section 1):
- Special Right: Every broadcasting organisation is granted a special right known as "broadcast reproduction right" for its broadcasts.
2. Duration of Broadcast Reproduction Right (Section 37, Sub-section 2):
- Timeframe: The broadcast reproduction right remains in effect until twenty-five years from the beginning of the calendar year following the year in which the broadcast is made.
3. Acts Constituting Infringement (Section 37, Sub-section 3):
- During the Right's Continuance: While the broadcast reproduction right is in force, certain acts without the owner's licence are deemed as infringement.
- Infringing Acts Include:
- (a) Re-broadcasting the original broadcast.
- (b) Causing the broadcast to be heard or seen by the public on payment of any charges.
- (c) Making/ creating any sound recording / visual recording of the broadcast.
- (d) Making/ creating any reproduction of such sound recording or visual recording if the initial recording was done without a licence or for a purpose not covered by the licence.
- (e) Selling, giving on rent, offering for sale, any sound recording or visual recording mentioned in (c) or (d).
4. Infringement Consequence (Section 37, Sub-section 3):
- Deemed Infringement: Any person performing the aforementioned acts without the owner's licence is deemed to have infringed the broadcast reproduction right.
- Subject to Section 39: The infringement is subject to the provisions of Section 39, which likely deals with remedies and penalties for infringement.
Student: I understood that the broadcast reproduction right allows broadcasting organisations to control certain uses of their broadcasts, and anyone doing these acts without permission infringes on that right?
Professor: Yes. The broadcasting organisation is granted the exclusive right to control how its broadcasts are used for a specified period, and unauthorised acts, as listed in the section, are considered infringements. This helps protect the interests of the broadcasting organisation.
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Section 38A of Copyright Act, 1957- Exclusive Right of Performers
Student: Do performers have exclusive rights?
Professor:
1. Exclusive Rights of Performers (Section 38A, Sub-section 1):
- Exclusive Right: Performers have an exclusive right, in addition to the rights conferred on authors, to control certain acts related to their performance.
- Acts Covered:
- (a) Making a sound recording or a visual recording of the performance, including reproduction, issuance of copies, communication to the public, and selling or renting copies.
- (b) Broadcasting or communicating the performance to the public, except when the performance is already broadcast.
2. Specific Acts Covered (Section 38A, Sub-section 1):
- Recording of Performance: Performers have the exclusive right to control the making of sound or visual recordings of their performance, including reproduction, issuance of new copies, communication to the public, and selling or renting copies.
- Broadcasting and Communication: Performers also have the exclusive right to control the broadcasting or communication of their performance to the public, except when the performance has already been broadcast.
3. Agreement for Cinematograph Film (Section 38A, Sub-section 2):
- Consent to inclusion/ incorporation: If a performer, by a written agreement, agrees/ gives his consent to the inclusion/ incorporation of their performance in a cinematograph film, they cannot object to the producer of the film enjoying the performer's right in the same film.
- Royalties: The performer is entitled to receive royalties in case the performance is used for commercial purposes.
Student: Therefore, this section ensures that performers have control over the use of their performances, especially in recordings and broadcasts?
Professor: Correct. Section 38A grants performers exclusive rights to their performances, allowing them to control how their performances are recorded, reproduced, and broadcast. It also addresses the scenario where performers agree to have their performances incorporated into cinematograph films but ensures they are entitled to royalties for commercial use.
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Section 39 of Copyright Act, 1957- Acts not Infringing Broadcast Reproduction Right or Performer’s Right
Student: What are the acts that do not infringe broadcast reproduction rights or performer's rights?
Professor:
1. Non-Infringing acts (Section 39, Sub-section (a)):
- For private use: If the making/ creation of any sound and/or visual recording is for the private use of the person making the recording, then it is not considered an infringement.
- Teaching or Research: Similarly, making recordings solely for bona fide teaching or research purposes is not an infringement.
2. Non-Infringing acts (Section 39, Sub-section (b)):
- Fair Dealing: The use of excerpts of a performance or a broadcast is not an infringement if it is consistent with fair dealing.
- Permissible Purposes: Such fair dealing is allowed in the reporting of current events or for bona fide review, teaching, or research.
3. Non-Infringing acts (Section 39, Sub-section (c)):
- General Exceptions: Section 39(c) includes other acts that do not infringe broadcast reproduction right or performer's right.
- Adaptations and Modifications: These acts should not constitute infringement of copyright under Section 52, which likely refers to the general provisions regarding copyright infringement.
Student: So,if someone makes sound or visual recordings for private use, teaching, or research, or uses excerpts of performances or broadcasts fairly for reporting, review, teaching, or research, it doesn't infringe on broadcast reproduction right or performer's right?
Professor: True. Section 39 provides specific exemptions for acts that, when done for private use, teaching, or research, or for fair dealing purposes like reporting and review, do not infringe on broadcast reproduction right or performer's right. These exemptions balance the rights of the copyright holders with the needs of individuals and educational or research institutions.
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Section 52 of Copyright Act, 1957- Certain Acts not to be Infringement of Copyright.
Student: Professor, Section 52 of the Copyright Act mentions certain acts that won't be considered infringement of copyright. Can you help me understand these acts?
Professor:
1. Fair Dealing (Section 52, Sub-section (a)):
- Private Use: Fair dealing with any work for private or personal use, including research.
- Criticism or Review: Fair dealing for criticism or review, whether of that work or any other work.
- Reporting Current Events: Fair dealing with reporting of current events, including lectures delivered in public.
2. Computer Program Copies (Section 52, Sub-section (aa) - (ad)):
- Lawful Possessor: Making copies or adaptations of a computer program by the lawful possessor for specified purposes.
- Interoperability: Acts necessary for obtaining information essential for operating interoperability of independently created computer programs.
- Observation or Test: Observing, studying, or testing the functioning of a computer program for understanding its ideas and principles.
- Non-Commercial Personal Use: Making copies or adaptations of a computer program for non-commercial personal use.
3. Transient or Incidental Storage (Section 52, Sub-section (b) and (c)):
- Technical Process: Transient or incidental storage during the technical process of electronic transmission.
- Electronic Links: Transient or incidental storage for providing electronic links, access, or integration, unless expressly prohibited.
4. Judicial Proceedings (Section 52, Sub-section (d)):
- Judicial Proceedings: Reproduction of any work for the purpose of a judicial proceeding or for reporting it.
5. Specific Reproductions (Section 52, Sub-section (e) to (j)):
- Secretariat Works: Reproduction or publication of works prepared by the Secretariat of a Legislature for exclusive use.
- Certified Copies: Reproduction of any work in a certified copy made in accordance with the law.
- Public Reading: Reading or recitation in public of reasonable extracts from published literary or dramatic works.
- Educational Performances: Performances in educational institutions limited to staff, students, and related audience.
6. Non-Profit Uses (Section 52, Sub-section (k) to (zc)):
- Non-Paying Audience: Amateur club or society performances for a non-paying audience.
- Library Use: Storing a work in electronic form by a non-commercial public library for preservation.
- Ephemeral Recording: Making an ephemeral recording for archival purposes by a broadcasting organisation.
Student: So, these provisions allow for various uses of copyrighted works without infringing copyright?
Professor: Exactly. Section 52 provides a range of exceptions for specific acts that won't be considered copyright infringement. It balances the interests of copyright holders with the needs of society, education, research, and other legitimate uses.
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Summary:
Student: Alright, summarising the discussion from the reproduction perspective:
1. Section 32A:
- Reproduction Licence: Permits applying for a licence to reproduce and publish a work under specific conditions, including unavailability in India.
2. Section 32B:
- Termination of Reproduction Licences: Outlines conditions for terminating licences granted for the reproduction of works, whether translations or reproductions.
3. Section 37:
- Broadcast Reproduction Right: Grants broadcasting organisations the exclusive right to reproduce broadcasts and identifies acts that may infringe this right, focusing on reproduction aspects.
4. Section 38A:
- Exclusive Right of Performers: Establishes performers' exclusive rights, particularly concerning the reproduction, communication, and broadcast of their performances.
5. Section 39:
- Non-Infringing Acts: Lists acts that do not infringe broadcast reproduction or performer's rights, emphasising reproduction activities, including private use and fair dealing.
6. Section 52:
- Non-Infringing Copyright Acts: Specifies acts that do not constitute copyright infringement, with a focus on reproduction, encompassing fair dealing, specific reproductions, and non-profit uses.
In essence, these sections delve into the realm of reproduction, addressing licenses, rights, and exceptions, ensuring a nuanced approach that safeguards creators while allowing for legitimate and fair reproduction practices.
