India/ 5.1 General legislation  

5.1.7 Copyright provisions

The Indian Copyright Act 1957 recognises ‘fair use’ under Section 52 of the Act. It is one of the widest fair use exceptions in the world with regards to education.The Copyright Act was recently amended to provide greater moral rights to authors, broadened the scope of fair use, increased the access of copyright material to the disabled, expanded the right to royalties, introduced the concept of Digital Rights Management and has overhauled rules concerning production of cover versions of music. (Also see Section 4).

Section 37 of the Indian Copyright Act 1957 recognises the Rights of Broadcasting. Some of the significant changes to the Copyright Act are listed below:

Fair Use:

  • Any work - Section 52(1)(a) now allows for fair dealing with respect to any work (except a computer programme) as opposed the previous definition that excluded only literary, dramatic, musical or artistic works other than computer programmes.
  • Commercial Rental - a newly added clause in Section 2 (fa) excludes use of computer programme, sound recording, visual recording or cinematograph films by non-commercial/non-profit library or educational institution from being defined as a commercial rental.
  • Persons with Disabilities - Under the new Section 52(1)(zb) allows copyrighted works to be accessed by persons with disabilities and organisations that work with persons with disabilities. Further, under section 31(B) organisations can apply for a compulsory licence to access works for the benefit of persons with disabilities.

Amendments with respect to the rights of performers/artists/artistic works:

  • Communication to Public - Under Section 2(ff), the definition of communication to the public has been expanded to include performance while additionally expanding the scope of communication to include both simultaneous and individual modes.
  • Section 38(A) establishes the ‘performer’s right’, i.e. the right of any performer who appears or engages in any performance.
  • Performance in a Cinematograph film - Section 2(qq) states that performers’ rights (as defined under Section 38 (B) that confer performer’s rights and right to integrity) will accrue only to those who have been acknowledged in the credits of the film. Although, all performers in the film are entitled to the right to integrity.
  • Terms of Copyright for Photographs - Section 22 now brings the definition of photographs on par with other artistic works which means that unlike the previous provision where the copyright subsisted sixty years after publication it will now effectively subsist till sixty years after the death of the photographer.
  • Authors of Underlying Works in Cinematograph films and sound recordings - Significant changes have been made to Sections 18, 19 and 33 to ensure that authors or underlying works (literary or musical work not forming a part of any cinematograph film) have the right to royalties and the use of their works, although such rights may have already be assigned.
  • Authors Rights - Section 57 of the amendment now allows legal representatives (those with paternity rights) apart from the author (previously, the only person who could initiate such action) to initiate legal proceedings to exercise the right of integrity.
  • Cover Versions - Section 31 C mandates statutory licences for cover versions of sound recordings. The minimum duration of producing a cover version is 5 calendar years (previously only 2 years). Advance payments of royalties should be made for a minimum 50,000 copies. This rule can be relaxed for unpopular languages or dialects. The medium of the cover version should be the same as the original. Cover versions should not resemble the original and state clearly that they are cover versions. Alterations are not allowed and treated in the same manner as ‘alteration to literary or musical work’. Alterations will be allowed only if it is ‘technically necessary for the purpose of making of the sound recording’.

Amendments with respect to technological developments:

  • Future Technologies - Section 18 of the Amendment Act states that there can be no assignment of copyright for technologies not in commercial use when the assignment was signed.
  • Three new sections have been added in the amendments that deal with Digital Rights Management (DRM):
    • Section 2(xa) defines ‘ Rights Management Information’ or RMI which should include the information identifying the work or performance, the title, name and address of the owners of rights, terms and conditions and other codes that relate to the performance.
    • Section 65(A) criminalises the circumvention with an intention of infringing of an effective technological measure applied for the purpose of protecting any of the rights conferred under the Copyright Act unless it is carried out by one of the many exceptions where the circumvention is permissible, such as in the case of research, conducting a legal investigation, national security or identification or surveillance of a user.
    • Further section 65(B) criminalises acts relating to the Rights Management Information (RMI) like unauthorised removal or alteration of the RMI or the unauthorised distribution, import, broadcast or communication of the public copies of the works. It also entitles the rights owners to avail civil remedies.
    • Conversion of Art - Under Section 52(1)(w) limits the conversion of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device without the permission of the copyright owner.

Chapter published: 22-04-2014