Understanding the Copyright Rules
Update: The Copyright Rules, 2013 have been notified by the government on 14th March, 2013. Please refer to the latest version of the rules for the exact language currently in force.
Having recently notified the the Indian Copyright (Amendment) Act, 2012, the Copyright Office has now released the draft Copyright Rules, 2012 which seek to clarify certain ambiguities in the amendments. A brief (but exhaustive) overview of the different aspects covered by the Rules is given below.
Transient or Incidental Storage
This was an important amendment introduced for the benefit of internet intermediaries that may sometimes be required to make copies of protected works, for ancillary purposes, not related to the main activities of the intermediary. The 2012 Rules allow for written complaints to be made by an owner of copyright in case of alleged infringement. However, the written complaint must:
(a) identify the work in question
(b) produce evidence to show ownership
(c) identify the individual responsible
(d) details of the storage
(e) and most importantly, in my opinion, that the allegedly infringing act of incidental storage or providing links, access or integration, is not exempted under S.52 of the Act. The individual responsible for such storage (intermediary for example) if satisfied by the complaint, must take necessary steps to prevent access for 21 days or till he receives a court order to this effect. In the absence of any court order, the intermediary shall continue to store and provide access to such work.
Technological Protection Measures (DRM)
The Copyright Rules explicitly state that where circumvention of TPM’s is permitted under law, an individual may approach anyone to assist in such circumvention. Such person, providing assistance, must maintain detailed records of these individuals, including:
(a) personal and professional details
(b) reasons for circumvention
(c) signed declaration that he will be solely responsible in case of infringement.
Interestingly, it states that if any circumvention technology is provided online, then an online registration form requiring such details to be submitted must be provided. To assuage privacy concerns, it is provided that such information shall only be disclosed on the basis of a court order or to a police officer not below the rank of sub-inspector, if it involves a complaint under S.65A.
Compulsory License for the Visually Impaired
These rules relate to the newly inserted Section 31B of the Act. The relevant form is Form VI, which must be sent to either the owner of copyright or the publisher, if the former is untraceable. Notice and an opportunity of being heard must be given to other interested parties.
The license conditions are similar to those provided for earlier:
a) deadline for publication,
(b) medium and format,
(c) number of copies,
(d) rate of royalty
(e) the persons to whom royalty must be paid.
Again, the provisions concerning determination of royalties, extension and cancellation of licences are applicable.
Further, Rule 75 pertains to the ‘making or adapting of the work by organizations working for the benefit of persons with disabilities’. There are detailed provisions for maintenance of records, which includes – name of the work, author, owner and date of publication; details of the format; nature of activity; number of copies; price of the copies. Moreover, a separate register is required to be maintained with names and details of persons with disabilities for whom copies are sought. There are also important notice requirements that must be placed on each copy produced.
Significantly, the Rules specify what the term ‘accessible format’ means. This was a source of confusion while the amendments were being discussed. Now it is clear that it includes Braille, Daisy, large print, talking books, digital formats such as .doc, PDF, ePub etc. and ‘all other formats that can be used by persons with disabilities’. Once these rules come into effect, it appears that the exception for persons with visual impairments will be wide enough to adequately cover and benefit end users as hoped.
The applicable provision for cover versions is S. 31C of the Act. A notice must be given to the owner of the work 15 days before making the cover version and must contain:
(a) the work in question
(c) evidence of consent of the author,
(d) name, address and nationality of the owner
(e) number of copies sought to be made and year of production
(f) details of advance payments made.
Interestingly, Rule 35 enumerates conditions that must be followed while making a cover version. For example, it says the ‘integrity’ of the original work must be maintained. Other conditions concerning packaging and labeling of products to prevent confusion in the minds of the public have been restated. To make fresh copies, a new notice must be issued. There are also extensive requirements concerning record keeping and payment of royalties. Additionally, the Rules provide for a complaint mechanism for non-payment of royalties to the owner.
License for Broadcasting
Outside of the conditions already stated under S.31D, the Rules specify that notice of intention to broadcast must be given to the Registrar at least 15 days in advance. Separate notices are required for radio and television broadcasting. It also mentions the necessary details that are required to be included in the notice (with a few new additions).
Perhaps the most important aspect of the Rules concerning broadcasting relate to the determination of royalties, which state that the Copyright Board must give notice of its intention to fix royalties and invite suggestions for the same. Within 30 days of such notice, interested parties must give suggestions along with adequate evidence, including rates for different formats. Thus, the final royalty rates must be fixed by the Board within 2 months. It also lists out some of the factors that the Board should consider in fixing royalties: the time slot, nature of work, market practice of determining advertising rates/TRP’s. The rates shall be revised every 2 years.
Licenses for Translations
Licences for translations can be applied for under S.32 of the Act. The 2012 Rules clarify that each application can only relate to one specific ‘work’ as defined under the Act, and for translation into one language only. The condition for granting a license is that it should ‘serve the interests of the general public’ (Rule 13(4)). The conditions concerning royalty payments shall apply for translated works as well. Provisions for extension (in case licensee has been unable to produce or publish the translation) and cancellation (failure to translate, fraud or misrepresentation, violation of license terms) are also present.
Compulsory Licenses for Publication, Translation and Reproduction
Form III must be be filed for this purpose, along with a notice to other interested parties. On the issue of determining royalty payments, Rule 19 enumerates the factors to be considered in determining the rate of royalty:
(a) the proposed retail prince of such work,
(b) prevailing standards of royalty,
(c) other relevant matters
As explained above, there are provisions for granting extension and terminating the compulsory license as well.
Compulsory Licenses for Published or Unpublished Works
To obtain a compulsory license for an unpublished Indian work, the applicable form is Form V. Publication of the proposal in a daily newspaper is also necessary. The license itself must contain the following:
(a) period within which work must be published/communicated;
(c) royalty to be deposited;
(e) medium in which the work is to be communicated.
All other provisions concerning determination of royalties, extension and cancellation of licences continue to apply here as well.
The Copyright Board
The Rules enumerate certain qualification requirements for appointment to the Copyright Board. The term of the Chairman and other members has also been provided for, and the maximum age is set at 65 years for the Chairman and 62 years for other members. As far as removal of the Chairman and other members is concerned, an order of the President is required on the ground of ‘proved misbehaviour or incapacity’. Detailed provisions for investigation and inquiry are also present.
The section on copyright societies has the most extensive rules. Among other things, it details the procedure for registration as a copyright society, including the necessary documentation. It also states that membership in such societies will be open to authors of any work, in addition to the owners. There is another important provision on the ability of copyright societies to continue business and for the re-registration of existing societies. This particular rule will have an important bearing on the future of the existing societies – PPL, IPRS and IRRO.
The Rules also attempt to clarify when authors can authorise copyright societies to collect royalties on their behalf and when such authorisation can be withdrawn. In the interests of transparency, the Rules specify that a ‘Tariff Scheme’ must be published on the website of such copyright societies, within three months from date of commencing business. There are also important clauses on the distribution of royalties based on actual use and the procedure to appeal to the Copyright Board in case of grievances concerning tariffs.
A separate section called ‘Distribution Scheme’ seeks to clear the ambiguities around the distribution of royalties between authors and owners. Interestingly, there is also a code of conduct for copyright societies, which details the information that must be made available on its website and other rules that a society must follow concerning treatment of its members, complaints, fixing of royalties, publication of tariff schemes, meetings of the society etc.
Performer’s societies are defined as societies that issue licences for different category of performers – actors, singers, musicians, dancers, acrobats etc. It states that any such performer’s society, if it consists of more than 7 members, may apply for registration and the provisions concerning Copyright Societies will apply to it with necessary adaptations and modifications.
Importing Infringing Works
This relates to S.53 of the Act, which allows for allegedly infringing imported goods to be classified as ‘prohibited goods’, therefore liable to be detained by a Customs Officer. The notice must be in accordance with Form XIII and must include the required security deposit. The period of detention is 14 days and notices must be sent to both parties upon detention. The Rules make an additional allowance for the importer to request of the name and address of the person sending such a notice.
Registration of Copyright
This concerns the procedural aspects of registering copyright in any ‘work’, as defined under the Indian Copyright Act. The application for registration must be submitted to the Registrar of Copyright. There are also provisions for correction of entries in the register and for inspection of the register from time to time.
Relinquishment of Copyright
Relinquishment of a part or complete copyright in a particular work is permissible under S.21 of the Copyright Act. The Rules make detailed references to the public notice requirements for relinquishment and the prescribed format. It provides that the Registrar must post the notice on the website of the Copyright Office for a period of not less than three years. The public notice by the author must contain a host of details including the class of the work, title, name of the author, language, publisher’s details and the registration number.
Update: The current Registrar of Copyright, Mr. G.R. Raghavender has written in to state: “We have asked the public to give their comments by 21st September 2012. The ministry of HRD, the copyright office will be discussing the draft rules with all stakeholders and copyright experts on 8th October 2012 in a meeting in the ministry before notification of the same“.
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