This was originally published in TerraLex Crossborder Copyright Guide 2019 edited by Reynolds Porter Chamberlain LLP, UK and is repurposed for readers on website.

Legislation and Regulation

1.1 What are the main sources of copyright law?

The Copyright Act 1957 (the Act), supported by the Copyright Rules 1958 (the Rules), is the governing law for copyright protection in India. Substantial amendments were carried out to the Copyright Act in 2012. India follows a common law legal system, so relies on case law to interpret and set precedents in law and so the judicial decisions contribute to the sources of copyright law in India. India is a member of the Berne Conventions and Universal Copyright Convention. The Government of India has also passed the International Copyright Order, 1999. According to this Order, any work first published in any country that is a member of any of the above conventions is granted the same treatment as if it was first published in India.

Subsistence of Copyright

 

2.1 What type of works can be protected by copyright?

Copyright subsists throughout India in the following classes of works:

  • original literary, dramatic, musical and artistic works
  • cinematograph films
  • sound recordings.

These are the broad categories, and can be summarised as follows:

 

Literary works

The term literary works” encompasses all works that are in print or writing, irrespective of the quality or style of the work. Literary work refers not only to works of prose and poetry, but anything that would be under the ambit of literature”. However, there will be no copyright if the work is merely a collection of words, the collection of which involved no literary skill. In India, a computer program is treated as a literary work and is protected as such.

 

Dramatic works

A dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.

 

Musical works

Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written to enjoy copyright protection.

 

Artistic works

Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; a work of architecture; and any other work of artistic craftsmanship. Any colour scheme, layout or arrangement of any alphabets or features qualifies as an artistic work.

 

Cinematograph films

Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording; “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.

 

Sound recordings

Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.

 

2.2 What is required for works to qualify for copyright protection?

Any work which falls under any of the categories mentioned above. The work sought to be copyrighted must be original; however, it is not necessary that the work should have some original thought or idea. The law is only concerned about the originality of the expression of thought.

 

2.3 What rights does copyright grant to the rights holder?

A copyright grants protection to the creator and his or her representatives (by way of an agreement), for the works and prevents such works from being copied or reproduced without their consent.

The creator of a work can prohibit or authorise anyone to:

  • reproduce the work in any form, such as print, sound, video, etc
  • use the work for a public performance, such as a play or a musical work
  • make copies/recordings of the work, such as via compact discs, cassettes, etc
  • broadcast it in various forms
  • translate the same to other languages.

 

2.4 Are moral rights protected (for example, rights to be identified as an author of a work or to object to derogatory treatment of a work)?

Yes, the Act grants an author special rights which exist independently of the author’s copyright, and subsist even after the assignment (whole or partial) of said copyright. The author has the right to:

  • claim authorship of the work
  • restrain or claim damages with respect to any distortion, mutilation, modification, or other act in relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial to their honour or repute.

These special rights can also be exercised by the legal representatives of the author.

 

A recent amendment to copyright law states that the right against distortion is available to the author even after the expiry of the term of copyright. Previously, it was available only against distortion, mutilation etc. done during the term of copyright of the work.

 

2.5 What is the duration of copyright in protected works?

The duration of protection for copyright works varies according to the type of work and the date of creation:

 

Category of work

Literary, dramatic, musical or artistic works

Duration

Copyright expires 60 years from the end of the calendar year in which the author dies.

Where a work has a joint author/co-author, it expires 60 years from the end of the calendar year in which the last known author dies.

Where the author’s identity is unknown, copyright expires 60 years from the end of the calendar year in which the work was first published. In a case where there are joint authors/co-authors, and the identity of one author is known and the identity of the other is unknown, the copyright expires 60 years from the end of the calendar year in which the known author dies.

Category of work

Cinematograph films

Duration

Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the film is published.

Category of work

Sound recordings

Duration

Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the sound recording is published.

2.6 For how long do moral rights subsist in copyright works?

An author’s moral right, which is a right against distortion, is available even after the expiry of the term of copyright.

Ownership

3.1 Who is the first owner of a copyright work?

The concept of “first owner” Indian copyright law is quite important and may be determined as follows:

In the case of a literary, dramatic or artistic work (which includes a photograph, painting or a portrait) created during the course of employment or under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the author of such a publication shall, in the absence of a contract to the contrary, be the first owner of copyright.

However, such ownership shall vest with the proprietor of the publication only for the limited purpose of publishing the work or a reproduction of the work in a publication and, for all other purposes, the copyright shall vest with the author of the work.

If a photograph, painting or portrait has not been made for the purposes of publication in a periodical but has been made for any other purpose, then in the absence of a contract to the contrary, the copyright in such work shall vest with the person at whose instance the work was created.

In the case of a cinematograph film, in the absence of a contract to the contrary, the copyright in the cinematograph film shall vest with the producer of the film (i.e. the person at whose instance the film was made for a valuable consideration).

In the case of a work made during the course of employment or under a contract of service or apprenticeship, the employer shall, in the absence of a contract to the contrary, be the first owner of copyright. In the case of a government work, the copyright in the work shall vest with the Government.

3.2 Can copyright in a work be jointly owned? If so, what are the rights of a co-owner?

As per the Act, work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. Thus, the Act recognises joint authorship. Joint authors fully enjoy all of the rights granted by the Act, as mentioned previously. The term of copyright of a work of joint authorship is calculated with respect to the author that dies last.

3.3 Can you register copyright? If so, what are the benefits of such registration and what other steps, if any, can you take to help you bring an infringement action?

Under Indian law, registration is not a prerequisite for acquiring a copyright in a work. A copyright in a work is created when the work is created and given a material form, provided it is original.

However, the Act provides a procedure for copyright registration. Such registration does not confer any special rights or privileges with respect to the registered copyrighted work. It is however suggested that the owner of such original works register it as the certificate of registration of copyright and the entries made on the Register serve as prima facie evidence in a court of law when a dispute relating to ownership of copyright arises. Copies of the entries and extracts from the Register that are certified by the Registrar of Copyrights are admissible as evidence in all courts. Thus, registration only raises a presumption that the person in the Register is the actual author, owner or rights holder. In infringement suits and criminal proceedings, when time is of essence to obtain urgent orders, registration is of tremendous help. Copyright notice is not necessary under Indian law to claim protection.

3.4 What steps should you take to validly transfer, assign or license copyright?

An assignment of copyright shall be valid only when it is in writing, signed by the assignor or by his/her duly authorised agent.

3.5 Can moral rights be transferred, assigned or licensed?

No: moral rights cannot be transferred or assigned.

Infringement

A copyright is infringed if a person without an appropriate permission or licence does anything that the owner of the copyright has an exclusive right to do. There are two classes of infringement: primary infringement and secondary infringement.

Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.

  • Copying
  • Issuing copies of the work to the public
  • Renting or lending the work to the public
  • Performing, showing or playing a copyright work in public
  • Communicating the work to the public
  • Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaption.

4.2 What acts constitute secondary infringement of copyright?

Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:

 

  • Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire
  • Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright
  • By way of trade exhibits in public
  • Imports into India

 

4.3 What acts are permitted with respect to copyright works (ie what exceptions apply)?

Under the Act there are certain circumstances which constitute fair dealing, which is not considered an infringement .. The lists of non-infringing acts are summed up below:

Use

Parody

Conditions

There must be no intention to compete with the copyright holder, and the motive for use of copyrighted matter must not be improper.

Use

Private use, including research

Conditions

Applicable only to literary, dramatic, musical or artistic works.

Use

Criticism or review

Conditions

–

Use

Reporting of current events, through newspaper, magazine or similar periodical, photographs or film.

Conditions

Exception – the publication of a compilation of addresses or speeches delivered in public is not

fair dealing.

Use

Reproduction of any work for the purpose of judicial proceedings or a report of judicial proceedings, or in any work produced by any house of any Legislature, exclusively for the use of the members of that Legislature.

Conditions

–

Use

The making of copies or adaptation of a computer program in order to utilise the computer program for the purposes for which it was supplied; or to make back-up copies purely as a temporary protection against loss, destruction or damage.

Conditions

Must be the lawful possessor of a copy of such computer program.

Use

Any act done to achieve operating inter-operability of an independently created computer program with other programs by a lawful possessor of a computer program.

Conditions

Only applicable if such information is not otherwise readily available.

Use

The making of copies or adaptation of the computer program from a personally legally obtained copy for non-commercial personal use.

Conditions

–

Use

The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force.

Conditions

–

Use

The reading or recitation in public of any reasonable extract from a published literary or dramatic work.

Conditions
 

Use

The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions.

Conditions

Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.

Use

Reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions.

Conditions
 

Use

The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording.

Conditions

The audience must be limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording.

Use

The making of sound recordings in respect of any literary, dramatic or musical work, if sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, or the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him.

Conditions
 

Use

The causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or as part of the activities of a club or similar organisation which is not established or conducted for profit; or as part of the activities of a club, society or other organisation which is not established or conducted for profit.

Conditions
 

Use

The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.

Conditions
 

Use

The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.

Conditions
 

Use

The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public.

Conditions
 

Use

The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

Conditions

Provided that where the identity of the author of any such work (or, in the case of a work of joint authorship, of any of the authors) is known to the library, museum or other institution, the provisions of this clause shall apply only if such reproduction is made at a time more than 60 years from the date of the death of the author (or, in the case of a work of joint authorship, from the death of the author whose identity is known; if the identity of more authors than one is known, from the death of such of those authors who dies last).

Use

The storing of a work in any medium by electronic means by a non-commercial public library for preservation, if the library already possesses a non-digital copy of the work.

Conditions
 

Use

The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.

Conditions
 

Use

The reproduction or publication of any matter which has been published in any Official Gazette except an Act of a Legislature, or any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter, or the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government, or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court.

Conditions
 

Use

The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder. 

Conditions

Provided that no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public. Also provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government.

Use

The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.

Conditions
 

Use

The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under Section 2(c)(iii) of the Act, if such work is permanently situated in a public place or any premises to which the public has access.

Conditions
 

Use

The inclusion in a cinematograph film of any artistic work permanently situated in a public place or any premises to which the public has access; or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.

Conditions
 

Use

The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.

Conditions
 

Use

The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.

Conditions

Religious ceremony including a marriage procession and other social festivities associated with a marriage.

Use

The adaptation, reproduction, issue of copies, or communication to the public of any work in any

accessible format by any person to facilitate persons with disabilities to access the works; or any organisation working for the benefit of persons with disabilities in the case that the normal format prevents the enjoyment of such work by such persons.

Conditions

The copies of the works in such accessible format are made available on a non-profit basis and only to recover the cost of production, and the organisation shall ensure that the copies are used only by persons with disabilities, and take reasonable steps to prevent their entry into ordinary channels of business.

4.4 Is it permissible to provide a hyperlink to, or frame, a work protected by copyright? If so, in what circumstances?

Under the Act, hypertext linking does not per se constitute copyright infringement; however, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in the case of hyperlinking, the linking site is not reproducing any work. If the reproduction occurs, it is at the user’s end, who visits the linked page via the link. Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is at the user’s discretion to access the work by clicking the link. But, nevertheless, the linking site is definitely aiding in the distribution of the work.

4.5 Is a licensee of copyright able to bring an infringement action?

Under the Act, an infringement of copyright is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the type of licence involved.

An exclusive licence authorises the licensee to exercise a right which would otherwise be exercisable exclusively by the copyright owner. One such right is the right to bring an infringement action.

A non-exclusive licensee may also bring an infringement action but only where the licence is in writing and signed by the copyright owner and expressly grants the non-exclusive licensee the right of action.

Remedies

5.1 What remedies are available against a copyright infringer?

The Act provides the following remedies for copyright infringement:

 

  • Civil
  • Criminal

However, it is only the first two remedies, civil and criminal, which are of any real practical importance. Under civil remedies, one may file for interlocutory injunction, pecuniary remedies, Anton Piller orders, Mareva injunction and accounts rendition, delivery of infringing copies and damages for conversion. Under criminal remedies, one may file for imprisonment and fine, seizure of infringing copies and delivery of them to the owner. Under administrative remedies, one may file for moving the Registrar to ban the import of infringing copies and delivery of the confiscated infringing copies to the owner.

5.2 Are there any specific remedies for online copyright infringement?

A court can direct that infringing websites be blocked by internet service providers (ISPs) either as part of a John Doe order or a website-blocking order [RK Productions v BSNL (2012) 5 LW 626]. John Doe or Ashok Kumar orders are ex-parte interim injunctions issued against infringers. John Doe orders saw a change when the Bombay High Court passed an order dated July 26, 2016 in relation to the movie ‘Dishoom’ [Eros International and Another Vs BSNL & Others, Notice of Motion (L) No. 2147 Of 2016 in  Suit (L) No. 751 OF 2016]. This order recognises the impact of Ashok Kumar orders on unknown defendants as it challenges to balance the ‘competing rights’. The order lays down a process to minimise the negative impacts of Ashok Kumar orders and tailors down blocking from entire websites. The order sets in place a mechanism that provides for selective blocking of content, verification of the list of URLs as well as safeguards for the unknown defendants.  Such a mechanism helps ensure that freedom of speech online is not trampled in the fight against online piracy.

5.3 Under what circumstances is copyright infringement a criminal act and what sanctions

may apply?

The Act prescribes that the intentional infringement or abetment of an infringement of the copyright in a work would be considered as criminal act. Criminal remedies for copyright infringement include:

  • Punishment through imprisonment which may not be less than six months but which may extend to three years
  • Fines which shall not be less than Rs.50,000 and which may extend to Rs.200,000
  • Search and seizure of the infringing goods including plates, which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work
  • Delivery up of infringing copies or plates to the owner of the copyright.

5.4 Is there a time limit for bringing a copyright infringement claim?

The time limit for bringing a copyright infringement claim is three years from the date of infringement. Where the cause of action for filing a suit for infringement of copyright is a recurring one or continuing in nature, the limitation period of three years would be taken to commence from the date of such last infringement.

5.5 Can legal (or any other) costs be recovered in an action for copyright infringement? If so, what percentage of costs will typically be recovered by the successful party?

Under the Act, the plaintiff can seek recovery of all three remedies, namely (a) account of profits (b) compensatory damages and (c) conversion damages, which are assessed on the basis of value of the article converted.

Enforcement

6.1 What courts can you bring a copyright infringement action in, and what monetary

thresholds, if any, apply?

Every suit or civil proceeding in respect of the infringement of copyright can be instituted before a District Court or above.

6.2 Are there any other ways in which you can enforce copyright?

Copyright Board

The Copyright Board is a body constituted by the Central Government to discharge certain judicial functions under the Act. The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of licences in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. It does not deal with copyright infringement cases or with criminal piracy of copyright works.

6.3 What agency bodies are responsible for promoting and/or enforcing copyright? If so,

what do they do?

In India, the Copyright Office is the government body responsible for promoting and enforcing copyright. The Office is under the control of the Registrar of Copyrights who acts under the direction of the Central Government. Specifically, the Copyright Office is under the aegis of the Department of Higher Education, Ministry of Human Resource Development.

6.4 What are the main collective rights management agencies that operate in your jurisdiction and who do they represent?

In India, there are some registered copyright societies which undertake the management and protection of copyright in works of authors and other owners of such works.

Some of them are listed below:

  • Musical works: The Indian Performing Right Society Limited (IPRS)
  • Sound recording: Phonographic Performance Limited (PPL)
  • Reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO)
  • Performers’ (Singers’) Rights: Indian Singers’ Rights Association (ISRA).

6.5 Are copyright levies payable? By whom, and in what circumstances?

The Indian Act does not prescribe any copyright  levies.

Copyright Reform

7.1 What do you consider to be the top recent copyright development?

Question of Employment under Section 17 of The Copyright Act

Neetu Singh vs. Rajiv Saumitra & Ors.

Citation: MANU/DE/1912/2018

The Plaintiff, sought permanent injunction against the Defendants from reproducing, publishing, distributing, selling and offering for sale one of the copyrighted literary work “English for General Competitions” and related artistic works, copyright of which was vested in the Plaintiff. The books authored by her were earlier published through Paramount Reader Publication and thereafter Paramount Reader Publication OPC Pvt. Ltd. Paramount Reader Publication was given the right to publish the books, the same never being licensed, assigned or transferred to any of the Defendants. Copyright in the books vested in the Plaintiff, this fact being in the knowledge of the Defendants was never objected by them.

The Plaintiff’s book illegally published by Defendant was a verbatim copy incorporating all artistic works and mistakes originally appearing. The Plaintiff contended that in absence of contract of service between parties and the fact of copyright in her favour was prima facie evidence of her authorship of the book.

In dealing with the issue whether a contract of service, as per Section 17 of the Act, existed between the Parties, the Court dealt with fair use provision and distinguished between works for course of instruction and for commercial purposes, and held that the Defendant’s act of selling books to students after copying the study material amounts to commercial activity and thus cannot be deemed as fair use. The Plaintiff’s employment can be determined by Articles of Association and the agreement, which, being absent, the Plaintiff was held to be owner of copyright. Therefore, in case of a dispute regarding copyright between employer and employee, the terms of employment are relevant. 

Delhi University Photocopying Case

The Chancellor, Masters & Scholars of University of Oxford & Ors. Vs. Rameshwari Photocopy Service & Ors.

Citation: MANU/DE/3285/2016

The Court restrained Rameshwari Photocopy Service from photocopying copyrighted work based on a petition filed by the Appellant publishers. The Appellants alleged that the kiosk was violating their copyright and was causing huge financial losses, as students instead of buying textbooks were relying on the photocopies.. The Court held that photocopying portions of books for personal use would amount to fair use and copyright not being the divine right, the ban was revoked and the case dismissed.

An appeal was filed to the Higher Bench of Delhi High Court wherein interim injunction was refused to the Appellants and the Court held that the Defendants did not infringe the copyright as their work was justified by purpose of educational instruction. The matter was remanded to single bench of the Court to determine the necessity of copyrighted material in course packs for educational instruction. The Court considered the inability of economically disadvantaged students to purchase different books and revoked the ban, which was hailed by the studnets as a means of easy access to education.

Right to Dub Included In Right to Communicate To Public

Mr. Thiagrajan Kumararaja Vs. M/s Capital Film Works (India) Pvt. Ltd., S.P. Charan

Citation: MANU/TN/3844/2017

The Appellant contended that he had authorized the producer to use his script for making a cinematograph film in Tamil language alone, and not remake or dub the film in any other language.

On dismissal, the Appellant filed an appeal for permanent injunction against the Respondents on the ground that since the rights were not assigned, the producer could not dub and make another film under Section 19 of the Act.

The Respondents contended that dubbing constituted the “right to communicate the film to public” under section 14 (d) (iii) of the Act, they paid consideration for the script, and thus being the first authors, converted it into a cinematograph film with consent of the Appellant.

The Court held that under Section 14 of the Act, the producer is the author of the film and has the right to make its copy, sell or give it on hire or offer for sale or hire and also communicate it to public, which includes dubbing. It was observed that “otherwise enjoys”, provided under Section 2(ff) enlarges the scope of usage of right and enables the Respondent to dub the movie in language of his choice for communication to public.

7.2 What do you consider will be the top copyright developments in the next year?

Petition Filed in Supreme Court to Challenge Constitutionality of Provisions on Compulsory and Statutory Licensing in the Copyright Act

M/S Lahari Recording Company vs. Union of India

Writ Petition(s) (Civil) No(s).: 667/2018

In the present petition, the Plaintiff, Lahari Recording Company, has challenged sections 31 (1) (b) and section 31 D of the Act — on the grounds that they infringe the Plaintiff’s fundamental and constitutional rights. While section 31 (1)(b) provides for a system of compulsory licensing of works whose owner has refused to allow their communication to the public on reasonable terms, Section 31 D created a regime for mandatory licensing of works to broadcasting organizations on terms formulated by the Intellectual Property Appellate Board (IPAB).

The Plaintiff contends that section 31 (1) (b) does not envisage hearing the copyright owner on every occasion on which a compulsory licence is granted to parties considered qualified by the Intellectual Property Appellate Board (IPAB). Similarly, section 31 D envisages the grant of a statutory licence without hearing the copyright owner.The essence of the Plaintiff’s petition is that the impugned provisions fundamentally alter the bargain that the copyright system is based on, by taking away the incentive for copyright owners to create original content. The grievance of the Plaintiff is that the Sections 31(1)(b) and 31D of the Act would disrupt the long standing mutually negotiated voluntary license agreements with broadcasters and with the coming of the impugned provisions, such broadcasters would have no incentive to enter into and/or continue with the voluntary license agreements with the labels and instead would attempt to terminate or wriggle out of their agreements with the labels in order to approach the Appellate Board to have terms convenient to them fixed and imposed upon the labels.

This makes these provisions, in Plaintiff’s view, arbitrary and thereby violative of Article 14 of the Constitution of India. Given that section 31 (1) (b) gives IPAB the power to formulate the terms on which a compulsory licence is to be granted by taking away this right from the copyright owner’s remit, the Plaintiff contends that it makes an impermissible inroad into the contractual freedom of copyright owners and unduly constrains the exercise of the rights that are a natural consequence of being a copyright owner.

The Plaintiff also challenges section 31 D on the grounds that the provision removes the relationship between broadcasters and music labels from the realm of commercial negotiation and enables broadcasters to utilise copyrighted content at subsidised and preferential rates. This, the Plaintiff contends, unduly tips the scales in favour of broadcasters by prioritising the commercial profitability of broadcasters over the interests of copyright owners. By virtue of the fact that these provisions unduly constrain the exercise of the rights of copyright owners, the Plaintiff contends that they take away the incentive for a copyright owner to create more original content. On a practical level, the Plaintiff contends that, by virtue of the existence of the statutory licensing route, broadcasters are likely to seek an escape hatch from their contractual arrangements with copyright owners and instead seek to access the statutory licensing route, which is more favourable for them.

Although no replies have been filed in the matter thus far, if the Petitioner succeeds by convincing the Supreme Court, this would become a landmark judgment by altering the foundation of Copyright Law.