The Copyright Amendment Act, 2012: An Analysis

 The Bill is aimed at correcting an imbalance in India’s copyright law which was seen
as favouring film producers and record companies rather than the lyricist, script
writers and song composers.
 The amendments make copyright complaint with the Internet Treaties, WIPO
Copyright treaty (WCT) and World Performances and Phonograms Treaty (WPPT)
 While introducing technological protection measures, the law ensures that fair use
survives in the digital era by providing special fair use provisions.
 The amendment have perhaps earmarked a new era for the Media and Entertainment
Industry in particular as it seeks to protect rights of authors of literary works like
lyrics or scripts and musical works and grant them an equal right in the royalties
earned from exploiting their creations.
 Certain issues like piracy of copyrighted material and selling through grey market,
illegal sharing of copyright material through computer networks etc. are addressed by
the amendments.
 Prevention of undue advantage by broadcasters and prior acknowledgement of the
author with proper advance royalty would ensure that the interest of the author is
protected and due acknowledgement is given to his work before it is published or
broadcasted.

Analysis of Important Provisions of the

Amendment Act, 2012
Definitions:
 Cinematographic Film:
o The 2010 amendment act has amended the definition of cinematographic film
[Sec. 2(f)]
o The amended definition reads: cinematographic film means any work of visual
recording on any medium’.
 Visual Recording:
o The definition of this term has been added in Sec. 2 (xxa) reads as ‘visual
recording’ means the recoding in any medium, by any method including the
storing of it by any electronic means, of moving images or of the
representations thereof, from which they can be perceived, reproduced or
communicated by any method’.
 Commercial Rental:
o The amendment introduces a new definition of the term ‘commercial rental’ in
sec. 2 (fa).
 It is clarified that commercial rental does not include the rental, lease
or lending of a lawfully acquired copy of computer program, sound
recording, visual recording or cinematographic film for non-profit
purposes by a non-profit library or non profit educational institution.

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 The Copyright Amendment Act, 2012: An Analysis

Meaning of Copyright: Rights in Artistic Works, Cinematographic films and

Sound Recordings:
 Sec. 14 of the Act, details in relation to each work, the meaning of the term copyright
i.e. the right granted in relation to that work under the act.
 In relation to an ‘artistic work’, ‘cinematographic film’, and ‘sound recording’, a new
right has been expressed viz. right to store the work in any medium by electronic or
other means.
 Thus, the violation of this right e.g. online storage, would amount to infringement of
copyright.
 The amendments have made certain changes to clarify the rights in artistic works,
cinematographic films and sound recordings. These amendments address
technological issues like ‘storing’ and thus address some of the digital era challenges.
 The amendment in Sec. 14(c) makes it clear that right to reproduce the work in any
material form includes ‘the storing of it in any medium by electronic or other means’.
 Sec. 14(d) (i) is amended to extend the right of author to include the ‘the storing of the
work in any medium by electronic or other means’
 Amendment in Sec. 14(e) (i) makes copies include the ‘storing of the work in any
medium by electronic or other means’.

Author’s Rights in Cinematographic Work:

 The amendment to section 17 seeks to protect rights of authors of literary works like
lyrics or script writers and musical works.
 The SC in case of IRPS v. EASTERN INDIA MOTION PICTURES
ASSOCIATION:
o Held that the producers of a cinematographic film as the first owners of the
copyright in the musical and lyrical works and no copyright subsists in the
composer of the lyric or music so composed, unless there is contract to the
contrary between the composer of the lyric or music and the producer of the
cinematographic film.
 By way of the amendment, the legislature intends to protect the interests of the
authors of such works by inserting the following provisions:
o In case of commissioned cinematograph work, the commissioning party and in
case of employer-employee relationship, the employer, are considered to be
the first owner of the work.
o The amendment has inserted a proviso to sec. 17 which makes it clear that the
above provisions will not apply in relation to the rights of the authors of
literary, musical, dramatic and artistic works, which have been incorporated in
cinematographic film.
o Thus, the original authors will continue to be considered as the first owners of
the said works.

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 The Copyright Amendment Act, 2012: An Analysis

Performer’s Rights:
 Sec. 38A provides the performer’s right as the exclusive right to do or authorize the
doing of any of the acts in respect of the performance, without prejudice to the rights
conferred on the authors, viz.
o to make a sound recording or a visual recording of the performance,
including—
 (i) reproduction of it in any material form including the storing of it in
any medium by electronic or any other means;
 (ii) issuance of copies of it to the public not being copies already in
circulation;
 (iii) communication of it to the public;
 (iv) selling or giving it on commercial rental or offer for sale or for
commercial rental any copy of the recording;
o To broadcast or communicate the performance to the public except where the
performance is already broadcast.
 Moral Rights of Performers:
o The amendment also refers to non-assignable rights such as ‘moral rights’ and
‘the right of integrity’ of performers.
o The amendment seeks to introduce a new Sec. 38B, which provides as follow:
 The performer of a performance shall, independently of his right after
assignment, either wholly or partially of his right, have the right,—
 (a) to claim to be identified as the performer of his performance
except where omission is dictated by the manner of the use of
the performance; and
 (b) To restrain or claim damage in respect of any distortion,
mutilation or other modification of his performance that would
be prejudicial to his reputation.

Amendment related to assignment of rights:

 Three new provisions are added to Sec. 18 which deals with assignment of copyright.
 According to Sec. 18(1),
o Owner of a copyright or prospective owner of a future work may assign the
copyright.
o The newly added proviso clarify that no such assignment for future work shall
be applied to any medium or more of exploitation of the work which did not
exist or was not in commercial use at the time of assignment was made, unless
the assignment specifically referred to such medium or more of exploitation of
the work.
o Further, the next proviso provides that the author of a literary or musical work
incorporated in a cinematographic film or sound recording shall not assign the
right to receive the royalties in any form other than as a part of the film or
sound recording.

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 The Copyright Amendment Act, 2012: An Analysis

 Sec. 19 of the copyright act, 1957, provides mode of assignment. Sub-Sec. (3) has
been amended to provide that the assignment shall specify the other consideration,
besides royalty, if any, payable.
 Dispute regarding Assignment of Copyright: Section 19A
o (Interim order to be passed by Copyright Board)
 As per Sec. 19A, the parties to assignment of copyright may approach
the Copyright Board for
 Revocation of the assignment, when assignee fails to make
sufficient exercise of the rights assigned to him, and such
failure is not attributable to any act or omission of the assignor.
And
 In case of any dispute regarding assignment of copyright, the
parties to assignment of copyright may approach the copyright
board and the copyright board may hold enquiry and pass
orders as it may deem fit, including an order for the recovery of
any royalty if payable.
 The second proviso is amended to provide that the Copyright Board
(CB) may pass an order, as it deems fit, pending the disposal of an
application for revocation of assignment under this subsection,
regarding implementation of the terms and conditions of assignment
including any consideration to be paid for the enjoyment of the rights
assigned.
o The right to pass such order is limited in relation to applications, and could
have been extended to application related to other disputes as well,
o Earlier, Sec. 19A was applicable to dispute in relation to copyright licenses as
well. However, post amendment, disputes in relation to copyright licence
agreement cannot be adjudicated by the CB.

Amendment related to Compulsory Licenses:

 Section 31 and 31A of the act lays down the provisions of compulsory licences in
works withheld from public and in unpublished Indian works respectively
 While earlier, these provisions were with respect to Indian Works, only, but now, the
expression ‘Indian Work’ has been replaced by the expression ‘Any Work’.
 Further, the word ‘complainant’ in Sec. 31 has been replaced by the expression ‘such
person or persons who, in the opinion of the CB, is or qualified to do so’.
 Compulsory Licence for Benefit of Persons with Disabilities:
o A new Section 31B has been inserted where the work may be made available
under compulsory licensing for the benefit of people suffering from
disabilities.
o According to its provisions, any person working for the benefit of persons
with disability on a profit basis of for business may apply to the CB, in such
form and manner and accompanied by such fee as may be prescribed, for a

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compulsory licence to publish any work in which copyright subsists for the
benefit of such persons.

Statutory Licences:
 New provisions have been inserted with respect to statutory licenses for the Cover
versions and for the broadcasters respectively.
 For cover version:
o In the Copyright Act, 1957, Sec. 52(1) (j) provided an exception from
infringement, in relation to the cover version, if the cover versions were made
following the conditions specified in the said section.
o The amendment has deleted the said section and instead added a new Section
31C, which in effect amounts to granting a statutory licence to make ‘cover
versions’.
o This new section provides for statutory licence to any person desiring to make
a cover version of a sound recording in respect of any literary, dramatic, or
musical work.
o But such cover version may be made only of such literary, dramatic or musical
work, in relation to which a sound recordings has already been made by or
with the licence or consent of the owners of the right in the work.
o Further, the cover version can be made in the same medium as the last
recording of the original work, unless the medium of the last recording is no
longer in current commercial use.
 For Broadcasters:
o A new section 31D has been inserted which provides Statutory Licence for
broadcasting of literary and musical works and also for sound recordings.
 Any broadcasting organization, that proposes to communicate a
published work to the public by way of broadcast (including television
and radio) or a performance of any published musical/lyrical work and
sound recording, may do so by giving prior notice of its intention to the
owners of the rights.
 Such prior notice has to state the duration and territorial coverage of
the broadcast and pay royalties for each work at the rate and manner
fixed by the CB.

Amendment related to Copyright Societies:

 Under the Copyright Act, 1957, Section 33, 34 and 35 deals with registration and
functioning of copyright societies.
 Accordingly, the registration of Copyright Societies will be granted for a term of five
years and shall be renewed every five years.
 As per amendments in Sec. 35, the expression authors and owners of rights has been
inserted in place of owners of rights.
 Now, the copyright societies are required to have governing bodies consisting of
equal numbers of authors and owners of work for the purpose of administration of the
society.

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 The Copyright Amendment Act, 2012: An Analysis

 All members of the Copyright Society shall enjoy equal membership rights and there
shall be no discrimination between authors and owners in the distribution of royalties.
 Further, a new section 33A is inserted which provides for the TARIFF SCHEME of
copyright societies. According to this:
o Every copyright society is required to publish its Tariff Scheme in a prescribed
manner.
o Any person aggrieved by the tariff scheme may appeal to the CB and the CB
may, if satisfied after holding such inquiry as it may consider necessary, make
such orders as may be required to remove any unreasonable element, anomaly
or inconsistency therein.
o However, the aggrieved person is required to pay to the copyright society any
fee as may be prescribed that has fallen due before making an appeal to the
CB and shall continue to pay such fee until the appeal is decided. The Board
has no authority to issue any order staying the collection of such fee pending
disposal of the appeal.
o The CB may after hearing the parties fix an interim tariff and direct the
aggrieved parties to make the payment accordingly pending disposal of the
appeal,
 The provision will ensure transparency in the functioning of the Copyright society and
will avoid any arbitrariness in fixing the royalty tariff,

Amendments of section 52: Certain Acts not to be infringement of

copyright:
 Sec. 52 of the Act enlists certain acts, which do not constitute infringement. The
amendment has introduced the following changes:
o Some exceptions (such as fair dealing, use for education purpose) which were
earlier only in relation to certain types of work (e.g. literary, dramatic and
musical works) have been made applicable to all types of work.
 A ‘far dealing exception’ has been extended to the ‘reporting of current event,
including the reporting of a lecture delivered in public, reproduction in the course of
judicial proceedings, reproduction or publication of any work prepared by the
secretariat of a legislature’.
 Important new exceptions added in Sec. 52:
o As per Sec. 52(1) (b),
 Transient and incidental storage of a work or performance purely in the
technical process of electronic transmission or communication to the
public shall not be an infringement of copyright.
o As per Sec. 52(1) (c),
 The transient and incidental storage of a work or performance for the
purpose of providing the electronic links, access or integration, where
such links, access or integration has not been expressly prohibited by
the right holder shall not be an infringement of copyright.

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o As per Sec. 52(1) (n),

 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 shall not be an infringement
of copyright; this will facilitate digitization of libraries.
o As per Sec. 52(1) (zc),
 The importation of copies of any literary or artistic work, such as
labels, company logos or promotional or explanatory material, that is
purely incidental to other goods or products being imported lawfully,
shall not be an infringement of copyright.
o As per Sec. 52(1) (zb),
 Fair use for the benefit of disabled shall not be an infringement of
copyright. The clause provide for the adaptation, reproduction, issue of
copies or communication to the public of any work in any accessible
formal, to facilitate persons with disability, for private or personal, use,
educational purpose or research.

Author’s moral rights:

 As per the amendment, in Sec. 57(1) (b), the words, ‘which is done before the
expiration of the term of the copyright’ has been omitted. Thus, the Right against
Distortion is available even after the expiry of the term of copyright.
 Further, in sub-sec (2), the words ‘other than the right to claim authorship of the
work’ have been omitted. Therefore, the right to claim authorship can now be
exercised by legal representatives of the author as well.

Protection of Technological Measures: To Curb Piracy:

 Sec. 65A has been inserted to provide for protection of technological measures used
by a copyright owner to protect his rights on the work. The objective of this provision
is to prevent the possibility of digital piracy.
 According to the said section, any person who circumvents an effective technological
measure applied for the purpose of protecting any of the rights conferred by the
Copyright Act, with the intention of infringing such rights, shall be punishable with
imprisonment which may extend to two years and shall also be liable to fine.
 However, there following are the exceptions provided under Sub-Sec. 2:
o Doing anything referred above, for the purpose not expressly prohibited by
this Act; or
o Doing anything necessary to conduct encryption research using a lawfully
obtained encrypted copy; or
o Conducting any lawful investigation; or
o Doing anything necessary for the purpose of testing the security of a computer
system or a computer network with the authorization of its owner or operator;
or

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o Doing anything necessary to circumvent technological measures intended for

identification or surveillance of a user of national security; or taking measures
necessary in the interest of the national security.
 Digital Rights management Information:
o Sec. 65B has been inserted by the Amendment Act, 2012 which provides for
protection of rights management information. Digital Rights Management is
like a software code used to manage the rights of the copyright owners when
any copyrighted material like books or songs are transmitted digitally.
o As per the newly added Sec. 65B, following acts are considered as offences –
 Knowingly removing or altering any rights management information
without authority; or
 Knowingly distributing, importing for distribution, broadcasting or
communicating to the public, without authority, copies of any work, or
performance knowing that electronic rights management information
has been removed or altered without authority.
o The amendment is intended to prevent the removal of the rights of
management information without authority and distribution any work, fixed
performance or phonogram, after removal of rights management information
o The protection of technological measures and rights management information
were introduced in WCT and WPPT as effective measures to prevent
infringement of copyright in digital environment. The introduction of section
65A and 65B is expected to the help the film, music and publishing industry in
fighting piracy.

Importation of infringing copies:

 The amendment has introduced a new section 53 in place of the earlier one. It
provides a detailed procedure where the where of the copyright can make an
application to the Commissioner of Customs (or any other authorized officer) for
seizing of infringing copies of works that are imported into India.
 Under the previous Sec. 53, it was provided that an owner of the copyright can make
an application to the Registrar of Copyrights for procuring an order that infringing
copies shall not imported into India. The amendment seeks to vest the power directly
with the Customs office.
 Section 53 has been completely restructured, and it now enables owners of any works
or performance embedded in works to request- by written notice to the Commissioner
of Customs (or other authorized officer)- that infringing copies be treated as
prohibited goods for not more than one year under certain circumstances, by
following the procedure laid down in the section.

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