COPYRIGHT LAW

PROJECT REPORT

COMPULSORY LICENSING

Submitted by:
Tushar mathur
Bba.llb (h)
A3221512003

CONTENTS

INTRODUCTION................................................................................................3
NEED FOR LICENSING.....................................................................................4
COMPULSORY LICENSING IN INDIA............................................................4
BASIS OF GRANT OF COPYRIGHT................................................................5
COMPULSORY LICENCE IN WORKS WITHHELD FROM PUBLIC...........6
COMPULSORY LICENCE IN UNPUBLISHED INDIAN WORKS.................7
LICENSE TO PRODUCE AND PUBLISH TRANSLATIONS IN ANY
LANGUAGE........................................................................................................8
LICENSE TO PRODUCE AND PUBLISH WORK AT A REASONABLE
PRICE...................................................................................................................9
SHORTCOMINGS OF THE STATUTORY LICENSING IN INDIA.................9
CONCLUSION...................................................................................................11
BIBLIOGRAPHY...............................................................................................12

INTRODUCTION

Meeting of points are, in effect, what copyright licensing is all about. A Miltonic definition is
required between liberty and justice.1
Copyright is a bundle of right. A copyrighted work may be used in numerous ways. So for
these different uses there is a need of different licenses for such uses. For example a picture
of a flower can be used on a bed sheet, on a mug or even on a notebook. The owner of the
copyright has the right to restrict the use only on bed sheets and not mugs or notebooks by
way of licensing. Copyright license is an undertaking by the owner of the copyright that the
licensee may exploit the copyright work without fear of infringement.
Licensing is the most important activity that will take place in the life of copyright. The
concept of copyright license brings to the mind the association with activities like book
publishing, film making, and music recordings etc. Such activities largely depend on
copyright licensing which have become highly specialized.

1 John Davies, Publishers and copyright licensing, Interlending and document supply 60,

Vol.27 Iss: 2 (1990)

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NEED FOR LICENSING

The owner of the work may grant any interest in his copyrighted work to some other person
though the way of licensing. It should be duly signed by the owner or by his authorized agent.
Licensing allows copyright holders to choose the rights a licensee may exploit without
passing title. A copyright owner can choose to grant a license for one or all exclusive rights or
grant more limited licenses based on geographic territories or other criteria. Each license can
enumerate an array of terms, conditions, limitations, and royalty arrangements as agreed upon
in a licensing contract. Licenses, therefore, can produce significant financial income for
copyright owners
Non voluntary licenses are necessary in India for public interest. If the owner of the copyright
holder denies republishing or if he denies communicating the same to the public without any
reasonable grounds then the complaint can be made against the same in public interest.
In voluntary licensing, the problem which arises is regarding to the unreasonable terms and
conditions set by the owner of the copyright work or the copyright societies. This pulls the
attention of the courts towards the compulsory and statutory licensing. For the hassle free
work or for the reduction in the litigation and negotiation the concept of non- voluntarily
license has been introduced. Earlier it was just compulsory licensing now it is extended to the
statutory licensing as well.

COMPULSORY LICENSING IN INDIA

Compulsory license is the term generally applied to a statutorily license to do an act covered
by an exclusive right, without the prior authority of the right owner. Compulsory license
provisions afford the facility of using protected material in certain circumstances, as provided
by statute, without seeking the prior permission of the right owner. Some of the terms (for
instance those regarding rates of payment) may be fixed by the court, or a tribunal, outside
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the provisions of the statute. Article 9 of the Berne Paris Text provides the basis for the
provisions concerning compulsory licensing. This provision provides the Conventions
exclusive basis for equitable remuneration and provides for the conditions which should be
met before a member country can entirely excuse a use which includes the equitable
remuneration and not prejudicing the reasonable interests of the author.
Under the Copyright act 1957 section 31C deals with the statutory licensing to make cover
versions and rules 23 -28 of the Copyright Rules, 2013 talks about the procedure which need
to be followed to get the license . The recording can only be made after the expiration of the
year after the publication of the copyrighted original work and for the person should need to
disclose his intention to produce the same in a prescribed manner, copies are supposed to be
provided and the royalty which is fixed by the copyright board need to be paid in advance
and the royalty for the minimum of 50,000 copies are need to be pay during each calendar
year.
Section 31D2 provides for statutory licensing with regard to the broadcasting of the literary,
musical work and sound recording and Copyright Rules, 2013 (rules 29-31) has been
disclosed the procedure by which one can get the statutory license.
It gives the right to the broadcasters. If any institution or organization wants to broadcast a
work which might include sound recording can do the same but for that they are required to
give the prior notice to the owner and need to pay royalty in advance which is fixed
according to the copyright board. The announcement of the performers or authors name shall
be done during the broadcasting. Records and book of account need to be maintained and
shall be presented to the owner when required.

BASIS OF GRANT OF COPYRIGHT

Under the act the registrar of the copyright grants compulsory licenses on the direction of the
copyright board. In general, the basis of the grant of license is:
2 Copyright act 1957
5

An independent inquiry by the copyright board as to suitability of the licence

Payment of royalty is determined by the copyright board
A fee may be charged by the copyright board for granting compulsory license.
The copyright board may not grant the license Suo moto; it is on the basis of a

complaint application by an interested person.

The owner of rights is generally given an opportunity of being heard.

COMPULSORY LICENCE IN WORKS WITHHELD FROM PUBLIC

The copyright board has been vested with the power to grant compulsory license when Indian
works are withheld from public unreasonably by their owners. Any person making a
complaint to the copyright board regarding an Indian work3 during its term of copyright,
which has been published or performed in public and apply for compulsory license on terms
which he considers reasonable. If the copyright board is satisfied that the ground of refusal of
a license by the owner is not reasonable and:

The work is withheld because the owner has refused to republish or allow to
republication of the work, or the owner of the work has refused to allow the

performance in the public; or

The owner has refused to allow communication to the public by broadcast of such
work or in the case of sound recording, the work recorded in such sound recording, on

terms which the complainant considers unreasonable

Then the board:
After giving the owner a reasonable opportunity of being heard; and
After holding such inquiry as it may deem necessary
May direct the registrar of copyright to grant a compulsory license to the complainant to
republish the work, perform the work in public or communicate the work to public by
broadcast, subject to payment to the owner of the copyright such compensation and subject to
such other terms the copyright board may decide.4
It is possible that two or more persons make a complaint and apply for the compulsory
license for the same right in a work under section 31. The reading of section 31(2):

3 Section 2(l) Copyright Act 1957

4 Section 31(1) copyright act 1957
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Where two or more persons have made a complaint under subsection (1), the license shall be granted to the complainant who in
the opinion of the copyright board would best serve the interest of
the general public.
Suggests that a compulsory license may only be granted to one person, the basis of selection
being public interest.
Though copyright board cannot take a suo moto action to issue compulsory licences under
section 31 of the act, it is nevertheless a watchdog of public interest- for it is under obligation
to select that complainant who would serve best for public interest. Therefore, the orientation
of section 31 is the furtherance of public interest5

COMPULSORY LICENCE IN UNPUBLISHED INDIAN WORKS

In case of an unpublished Indian work whose author is dead or untraceable or whose owner
cannot be found, any person may apply to the copyright board for issuance of a compulsory
license to publish such work.6
Before making such application, the applicant shall publish his proposal in one issue of a
daily newspaper in English language having circulation in major parts of the country.7
Where any such application is made under section 31A, the board may, after holding such
inquiry as necessary, direct the registrar to grant a licence to publish the work or to make a
translation subject to the payment of such royalty and subject to such other terms and
condition the Board may determine.8 Such royalty must be deposited by the registrar to the
public account of India or any other account the board may decide so as to enable the
untraceable owner or his heirs to claim such royalty at any time.9

LICENSE TO PRODUCE AND PUBLISH TRANSLATIONS IN ANY

LANGUAGE
5 Ramman Mittal, Licensing Intellectual Property: Law & Management
6 Section 31A(1), copyright act 1957
7 Section 31A(2), copyright act 1957
8 Section 31A(3), copyright act 1957
9 Section 31A(4), copyright act 1957
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A licence to publish any translation to any work in any language may be obtained by the
copyright board by an applicant in certain circumstances and certain terms and conditions
after a period of 7 years from the first publication of the work.
The circumstances necessary are as follows:10
1. The application should be filed after a period of seven years, three years or one year
as the case maybe, from the first publication.
2. A translation of the work has not been published by the author or any person
authorised by him in the last 7, 3 or 1 year as the case maybe, or if a translation has
been published it is out of print now.
3. The applicant had requested and denied authorisation by the owner to produce and
publish such translation, or the applicant after due diligence was unable to fund the
original owner.
4. Where the owner is untraceable and the applicant has sent his request via registered
air mail post to the publisher not less than 2 months before such application is filed
5. A period of six or nine months has elapsed from the date of making the request or
from the date of sending the request.
6. The Applicant is competent to publish a translation of the work and has the means to
pay the royalty fixed by the board
7. The author has not withdrawn circulation of the work.

LICENSE TO PRODUCE AND PUBLISH WORK AT A REASONABLE

PRICE.

The copyright amendment act 1983 has introduced a new provision for issuing compulsory
licence for reproduction of an edition of a literary, scientific or artistic work where copies are

10 Section 32 copyright act 1957

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not available in India or where the work has not been put on sale in India after expiry of
prescribed time periods. 11 The following conditions must be satisfied for grant of license:
1. Where copies are not available in India or where the work has not been put on sale in
India after expiry of prescribed time periods.
2. The application must be for reproduction and publication of work in printed
analogous form at a price at which such edition is sold or at a lower price.
3. The application must be done in a prescribed form and must state the proposed retail
price of the copy.
4. The applicant along with application must deposit the prescribed fee.
5. Only a non-exclusive license may be granted.
6. The applicant should pay to the owner, royalties in respect of copies sold at a rate
determined byte board.
7. The license granted will not extend to the export of such copies.
8. An opportunity of being heard must be given to the owner of the copyright.

SHORTCOMINGS OF THE STATUTORY LICENSING IN INDIA

According to the new amended law two specific sections 31C and 31D has been added which
attracts a lot of attention due to some shortcomings under the law. These two sections have
been specifically added to look over the matter of licensing. But instead of solving the
existing problem, the new amendment raises the eyebrows of many. There are still few
problematic areas which has not been addressed, few of them has been discussed below
To decide the royalty rates, the power has been given to company board, but on what
principles the board will decide the royalties for statutory licensing has not been discussed.
This will definitely reduce the expensive and lengthy conversation, negotiation or litigation
with the copyright society or the rights owner. But still from a sensible point of view there
should be some criteria which need to look over while deciding the royalties for statutory
licensing. Will it be according to the nature of the work, according to the different territorial
basis or suggestion from the stakeholders will be invited to decide the same.
Broadcaster will be more in the favour of the copyright board then the tariff scheme after the
amendment as it gives more power to the copyright board, by not letting the parties to
negotiate which in result neglecting the rights of the rights owner. Further to challenge the
11 Section 32A copyright act 1957
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rate fixed by the board for statutory licensing, no procedure is expressly mentioned under the
amended Act.
Another problem which has been faced by the Community Radio Rules stations in India is
that there are different kinds of broadcasters are active but neither in Copyright Amendment
Act,2012 nor in Copyrights Rules the distinction is mentioned. Which is becoming very
crucial in present situation? There are basically two kinds of stations - Corporate owned FM
radio stations and Community radio stations. Both work differently. No express distinction
has been made between the commercial radio broadcasters and the community radio
broadcasters. They both have different functions and motive behind broadcasting. Corporate
owned station or commercial radio are basically profit oriented and the business is depends
upon the paid programs and advertisement. Whereas the community radio stations are
different in both ways, in terms of purpose and operating sense and provided only to nonprofit legal entities such as krishi vigyan Kendras and educational institutions. The content is
basically development. These stations normally struggle for financial sustainability and
depend upon small donations from the state, communities and specific agencies. But this is
not the same case with the commercial radio stations.
There are also complaints regarding the insufficient compensation/royalty provided to the
copyright owner in exchange of their copyright work. The rights of the copyright owners
have been denied. The term exclusive right which is the basis of the Copyright Act has lost
its significance.

CONCLUSION

As the music industry faces declining profits, the dispute between radio stations and music
companies relating to royalties is yet to see a final outcome. With multiple appeals pending in
this regard, there is a need for the legislature to ensure that the Copyright Board is constituted
as per certain minimum legal standards, so that the questions on its integrity come to rest.
This is essential as the dispute has continued for almost a decade now, and its conclusion will
have impact on a large number of interests in the industry, as well as the general public.
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The growth of such statutory tribunals in India has been sporadic, and devoid of a uniform
pattern. The decisions given by these tribunals as well as their constitutional validity have
been questioned in a number of cases. This has led to doubts being raised about the
transparency in their working as well as fairness in the approach adopted by these tribunals.
The method of appointment of the members as well as the structure of the tribunals has been
struck down by the Courts from time to time. However, efforts must be made to regularise the
procedures, compositions, and review/ appeal of decisions of tribunals. The qualifications for
the membership for these tribunals must be laid down so as to ensure their independence
from the executive.

BIBLIOGRAPHY

P. Narayanan, Intellectual property law, third edition, eastern law house

http://www.indialawjournal.com/volume5/issue_4/article4.html
Deepika Zaveria, Intellectual property rights and statutory licensing in India critical

analysis.
Ramman Mittal, Licensing Intellectual Property: Law & Management

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