The Department for Promotion of Industry and Internal Trade (DPIIT) notified the Draft Copyright (Amendment) Rules (the “Draft”) on 30th May 2019. Presently, the Copyright Act, 1957 (the “Act”) and the Copyright Rules, 2013 (the “Rules, 2013”), as last amended in 2016, are two laws that govern copyrights in India. The said Draft is introduced to amend certain rules under the Copyright Rules, 2013, exercising the power of the Centre to do so under Section 78 of the Copyright Act, 1957. The Draft is open for suggestions and comments from the public till 29th June 2019.
In a press release accompanying the draft rules, the Ministry of Commerce and Industry said that “Copyright Amendment Rules have been introduced 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 legislations.” Some of the highlights of the amendments sought to be brought in the Copyright Rules, 2013 are:
Scope of Statutory License
Chapter VIII of the Rules, 2013, containing sections 29, 30 and 31 deal with the statutory licensing for the broadcasting of literary and musical works and sound recordings. The sections originally entail the license for ‘radio and television’ broadcasting only. The amendment sought is to replace the words “by way of radio broadcast or television broadcast” by the words “for each mode of broadcast”. This amendment will bring internet broadcasting within its domain, thus not restricting ways of broadcasting to only radio and television. If the amendment gets approved, it will be easier for video and music streaming providers to buy videos and songs from its authors or owners and upload them.
The Bombay High Court in this regard negated the view in Tips Industries Ltd. v. Wynk Music Ltd. & Anr. (2018). The Court held that the provisions of the Act and the Rules, 2013 on statutory licensing did not include internet broadcasting by means of internet streaming and/or downloading.
A copyright society is a registered collective administration society under Section 33 of the Act. Such a society is formed by authors and other owners. These are entities that carry out the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings, on behalf of several authors and owners. This is a kind of compulsory collective licensing for managing of performing rights. Therefore, the Act accords these entities with a statutory monopoly over the issuance of licenses for creative content in India, as Financial Express reported.
The draft amendment introduces the requirements for Annual Transparency Report under a new Rule 65A. Under this rule, the copyright society is to draw up and publish reports for each financial year, within six months of the end of a financial year. The report should be made available on their website for at least 3 years. It also specifies the information that it needs to contain i.e. financial information on royalties due, rights revenue, report of activities conducted in that year, information regarding refusals to grants licenses, activities conducted under the Welfare Scheme as under Rule 67, etc. This amendment would lead to lifting the veil of opacity the copyright societies have been working under, bring out the questionable decisions of the societies, and facilitate increased accountability.
Code of Conduct for copyright societies
Rule 66 deals with the code of conduct for copyright societies. The draft amendment seeks to amend the current code by requiring the copyright societies’ to provide a facility on their websites for enabling users to search their database for the ‘Annual Transparency Report’ and the details of undistributed royalties with regard to the ‘identified and unidentified or unlocated owners’ of the work royalties belong to.
It further provides that the copyright societies have to publish information related to royalties attributed to authors and owners as well as the royalties paid to them, and the number of such payments. They have to provide reasons for any delay in royalty payments.
Rule 58 provides for the copyright society to lay down a scheme for distribution of royalties for the members whose name has been registered in the Register for Authors and Owners, to be approved by the General Body. The Rule further lays down the directions for the scheme. Furthering the same, the Draft Amendment seeks to introduce certain rules for undistributed royalties. Hence, where the owner could not be identified or located, the undistributed royalties are to be accounted for in a separate account.
Rule 12 lays down the measures that copyright society is to take for identifying the owner of the work, by publishing the details of the work and relevant information each quarter on their website. In case the royalty remains undistributed for 3 years since the time it was collected, the amount is to be returned back to the licensee.
The Draft Amendment digitizes certain provisions that previously could be carried out by only offline methods.
1. Fee Payment
The Draft Amendment seeks to amend Rule 83 of the Rules, 2013. This amendment allows electronic payment of the fee along with the method of banker’s cheque or demand draft. Moreover, the draft amendment specifies that where a document is filed without the prescribed fee where it is to be paid, the document filing will not be considered to have been done for the purposes of any proceedings under the Rules, 2013.
2. Mode of Communication
The mode of communication by the Board, Copyright Office of the Registrar of Copyrights at present in accordance to Rules, 2013 is said to have been done even via written intimation to any person on their known address. However, the Draft Amendment amends Rule 82 to include such communication to duly take place if there is a written intimation delivered to the person either by electronic means or registered post.
The copy of the application for license for works withheld from public, in accordance with Rule 7 is currently served upon the owner of the copyright only by registered post. The Draft Amendment seeks to add a method of electronic means for serving notice of the application to the owner of the copyright under Rule 7(1).
Similarly, the Draft Amendment seeks to amend Rule 18 wherein the copy of application as under Rule 17 (application for license for benefit of disabled) can either be served upon the owner of copyright either via registered post, as originally contained or via electronic means.
Registration of a computer programme
The application for registration of a computer programme has been provided for under Rule 70(5) of the Rules, 2013. At present, the application is to be accompanied by the source and object code for registering a computer programme. However, the Draft Amendment amends the said Rule. The amended Rule seeks the application to be accompanied by at least first 10 and last 10 pages of the source code. If the source code is less than 20 pages, then the whole source code will have to be provided along with the application for registration.
The Board under Rule 2(a) has been defined to mean a Copyright Board. However, the Draft Amendment amends the words “the Copyright Board” to “the Appellate Board”. The Rule 3, which specifies the qualifications for appointment of chairman has been sought to be amended in such a way that the chairman and the board members are to be appointed in a way consonant to the Trade Marks Act, 1999.