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1. Introduction to the Copyright Amendment, 2010 2. History of the Amendment 3. Copyright Law Timeline 4. Key Stakeholders 5. How Will the Amendment Affect My Rights? Authors, and Composers Artists, Musicians and Performers Those with Disabilities and Those Working on Behalf of the Disabled Software and Internet Technology Communities Libraries and Film Societies Publishers Broadcasters Producers, Music Companies and Film Companies 6. Glossary 7. Contact Information

Introduction to the Copyright Amendment, 2010:

The Copyright Amendment Act, 2010, which was as officially passed by both the Rajya Sabha and Lok Sabha in late May 2012, is set to revolutionize the entertainment industry. This new bill represents the first time that representatives of the creative and artistic communities were actively involved in the drafting and design of copyright law in India, and the resulting law yields many major accomplishments. Some of the most positive changes that have resulted from the Amendment include: ! Producers must share royalties for authors and composers of film soundtracks. ! Authors and composers are also now considered the joint authors of their work used in films. ! Copyright Societies must be formed by and administered in service of both authors and owners. ! Those with disabilities have expanded access to accessible formats of copyrighted works. ! Provisions for fair dealing and fair use have been expanded. ! Compulsory licenses are now available to produce foreign works that are otherwise unavailable in India. ! The temporary or incidental storage of electronic data necessary for ISPs and search engines to work is now legal. ! India is in compliance with major international internet copyright treaties. These changes will allow musicians and authors to profit from the wildly successful music they create. It will also open up a world of new media and information to to the visually impaired and others with physical limitations. The changes enacted by this Amendment are long overdue. Although there is much to celebrate in the new law, there are a few problem areas as well. This legislation makes it much more difficult for an artist to create a cover version or remix of a popular song. Copyright terms have been extended even beyond the minimum number of years required by international treaties. A few proposed amendments were unable to make it into the final bill, such as joint authorship for the primary director of films, along with the producer, and a provision allowing parallel importation of foreign works, which would have expanded access to the latest editions of foreign textbooks. And there are major concerns that provisions designed to prevent online piracy could be used by private parties to effectively censor content on the internet. Anti-piracy provisions still carry criminal penalties of up to two years imprisonment. And some terms are still unclear, especially what is meant by criticism and review for the purposes of fair use. Not all of the effects of the Amendment are yet certain. Many of these concerns and questions will be clarified over time as the government enforces and courts interpret the law. It will also take time for the industry to respond to these changes and make adjustments in the structure of copyright societies and in the standard contracts between producers, artists, composers and broadcasters. There is a constant tension in copyright law between the interest in rewarding the creativity and ingenuity of artists and authors, and creating incentives for investment by major 3

companies and producers. Because of the personal investment an artist makes in his work, and because of the high financial risks and rewards at stake, this is a difficult ethical issue. Although this legislation has not resolved the tension, it is a move in the right direction. The artistic and legal communities will need to keep a close eye on this area of law as it continues to evolve.

History of the Amendment:

The major inspiration for the Copyright Amendment, 2010 was to correct the uneven bargaining power between artists and producers. Rights to royalties from copyrighted material are managed by Copyright Societies. Prior to the passage of this amendment, the Societies were increasingly dominated by the owners of copyrights, usually producers and recording companies, to the detriment of the creators and authors of copyrighted works. In particular, Indian Performing Rights Society, Ltd. (IPRS), the society responsible for administering the rights of authors and composers of sound recordings, became completely dominated by music producers who excluded artists from having any control in the adminstration of the Society. This dispute can be traced back to an agreement in 1993 whereby royalties were to be split 50-50 between the authors and composers of a work and the owners of copyright on that work. The producers who are copyright owners filed a number of lawsuits challenging the agreement and demanding that owners of copyright be given complete control over the administration of IPRS. Lawsuits by Saregama India Ltd, a particularly powerful member, resulted in Court orders that effectively prevented IPRS from holding its annual meeting in 2004, 2005, and 2006.1 Finally in early 2008, IPRS amended its Memorandum of Association and its Articles of Association to demote authors and composers to ordinary members who may not serve on the Board of Directors, while retaining copyright owners as full members. A new weighting system for votes also rendered the votes of artists virtually worthless. This left the society entirely under the control of the producers and recording companies. The amendments also stipulted that, in order to receive royalties, artists must relinquish any and all rights in their songs. This outcome unjustly striped authors and composers of songs of all rights and royalties to their songs. The Standing Committee which drafted the Amendment also took note that other Copyright Societies were similarly increasingly dominated by recording companies and music companies at the expense of artists.The prior version of the act provided no regulations or guidelines for the formulation of the tariff scheme that societies would use to distribute royalties. This led to arbitrary, coercive and secretive negotiations over royalties that disproportionately benefited the industry over the artists. Many artists lived in poverty even as film and music companies became rich with the proceeds from their works. This injustice was has been recognized for over thirty years and is finally being addressed in this Amendment. In 1997, a Supreme Court judgment in Indian Performing Rights Society vs. Eastern India Motion Pictures Association held that film producers were the sole rights holders in film music, and that authors and composers did not retain any rights under the law. However, the judgment also decried this unjust policy and called on the legislature to revise the law. Justice Krishna Aiyar insisted, the authors and music composers who are left in the cold in the penumbral area of policy should be given justice by recognizing their rights when
1 PDF copies of both judgements are available online at Spicy IP: Prashant Reddy. The story of the litigation leading up to the Special Resolution which curbed the rights of authors and composers 14 February, 2011, http://spicyipindia.blogspot.in/2011/02/story-of-litigation-leading-up-to.html, accessed 26 June, 2012

their works are used commercially separately from cinematograph film and the legislature should do something to help them.2 Now finally, songwriters and composers have a right to renumeration for their works. Other pressing concerns which led to the enactment of an Amendement included the need to facilitate greater access for the disabled to copyrighted material. The drafters also sought to adapt the law to evolving digital and online technology and to bring India into compliance with World Intellectual Property Organisation (WIPO) internet treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties, drafted in 1996, are designed to protect copyrighted works from being copied or disseminated illegally over the internet. The Standing Committee solicited comments and received 68 memoranda from interested parties. Memoranda were received from stakeholders in all aspects of the entertainment and artistic community, including publishers, producers, authors, performers, and software writers. The Committee also met with the Secretary of the Department of Higher Education, who provided considerable guidance in the process of drafting the amendment. Consultations were held with NGOs, legal experts, artists, and industry representatives. In 2000, a Core Group was created, composed of 30 members who represented the Copyright Societies, publishers, disabilities rights groups, academics, the authors' guild, software companies, performers, national arts institutes and legal experts. With the help of the Core Group, a draft was completed in May of 2005 and made available to the public for comment. The Committee held many consultations in 2006 so that the final Amendment would incorporate the comments and concerns of the public. The level of public involvement was unprecedented. After some consultation, several changes were made to the draft. Joint authorship of films and authors' and composers' rights to the their songs that are used in films were introduced. Other changes include the introduction of statutory licenses for broadcasting, compulsory licenses for orphaned works, and changes in the process for registration of copyright societies. For the first time, with this Amendment the creative and artistic community has been involved and influential in the drafting of copyright legislation. This more inclusive process is an improvement, but the situation is not perfect. Although the Committee held many meetings and consultations with various interested groups after the first draft in 2006, this process was not repeated in 2010. Some commentators have expressed frustration that the public was less involved in the final revisions to the Amendment. And there was also very little discussion of how the proposed changes would affect consumers. The dialogue around copyright law is largely concerned with the distribution of revenues from the use of copyrighted works. There is a need to bring a broader perspective to the conversation in order to ensure that the law serves the needs of the end users and that it facilitates creativity and artistic excellence rather than simply maximizing profits for different facets of the entertainment and publishing industries.
2 Indian Performing Rights Society vs. Eastern India Motion Pictures Association (AIR 1977 SC 1443)

Copyright Law Timeline

1957: Copyright Act The Copyright Act, 1957 came into effect from January 1958. This Act forms the basis of copyright protections in India. It borrowed extensively from the British Copyright Law of 1956. It created the Office of Copyrights, administered by the Registrar, and tge Copyright Board which regulate and administer copyright protection and enforce the law. The Act also created Copyright Societies which collect and disburse royalties and instituted civil and criminal penalties for infringement. 1975: India signs the Geneva Phonograms Convention of 1971 This convention, which is concerned with piracy of recorded music, has been signed by 72 states, including India. It bars the unauthorized duplication, import or distribution of pirated copies of sound recordings. 1983: Amendment to the Copyright Act: The 1983 Amendment brought India into compliance with the Berne and Universal Copyright Conventions, of which it was already a signatory. It created provisions for the grant of compulsory licenses of otherwise unavailable works for educational or research purposes. Other major changes included empowering the Copyright Board to settle disputes and allowing for copyright protection for lecures made in public. 1984: Amendment to the Copyright Act: This Amendment was primarily concerned with stemming video and record piracy. The Act clarified that videos fall under the category of cinematography. It also introduced definitions for duplicating equipment and computer programs. It made importation of infringing videos for private or domestic use illegal and strengthened enforcement measures against infringement of copyright. Publication of an infringing record or film was made to be a criminal offense. 1988: India signs the Universal Copyright Convention of 1971 The Universal Copyright Convention protects owners of copyright against unauthorised reproduction, public performance and broadcasting of their works. It was designed to create international norms of copyright protection. 1992: Amendment to the Copyright Act: The 1992 Amendment created rights for performers and further defined the role of the Copyright Board and process for assignment and licensing of copyrights. 1994: Amendment to the Copyright Act: This Amendment made Indian copyright law among the strictest in the world. It incorporates definitions and regulations of computer programs and software. The Act 8

also made adjustments to the powers of copyright and assignment. It created fair use exceptions and moral rights for authors. 1995: World Trade Organization and TRIPS India became a member of the World Trade Organization in 1995, which also necessitated coming into compliance with TRIPS, the Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPS required India to strengthen enforcement measures. 1999: Amendment to the Copyright Act: The 1999 Amendment introduced commercial rental rights for software, increased performers' rights from 25 to 50 years, empowered the central government to impose broadcasting and performers' rights on companies abroad and to restrict foreign broadcasters and performers in India, and introduced interoperability fair use for software. 2010: Amendment to the Copyright Act. The Amendment which is the subject of this guide was approved by rhw Rajya Sabha on 17 May 2012 and by the Lok Sabha on 22 May 2012.

Key Stakeholders
Artists Artists have struggled under India's copyright regime to protect the integrity of their work, claim recognition for their contribution, and ensure that they receive royalties. In the past, they were paid only a flat fee for their work, no matter how successful it eventually became. They want recognition for their ingenuity and hard work, and the right to protect the integrity of their work from copyright infringement. This interest in protecting their work is in conflict with their interest in free creative expression, through performing and recording cover versions. The new system rewards their creativity by giving them a share of control over the copyright societies, and guaranteeing songwriters a cut of royalties, and strictly restrains covers. Producers Producers and the major companies in the entertainment industry seek to invest in entertainment projects and to earn a return on their investment. The original copyright law gave all rights and royalties to a sound recording or film soundtrack to the producer. Under the new legislation, their rights and royalites to music are shared. This may discourage investment in music and film. Producers bear all the financial risk in a new venture, and so they believe they should retain all the financial gains of a major success. By forcing them to share royalities with authors and composers and with performers, the new Act places more emphasis on rewarding creativity and less on protecting the financial interests of investors in the entertainment industry. Intermediaries Intermediaries such as broadcasters, internet providers, and publishers simply seek the ability to legally make music, information, films and other copyrighted goods available as broadly as possible. Broadcasters gained some leverage in this act. Formerly, producers' dominance in the industry allowed them to strong-arm broadcasters into disadvantageous deals. Now terms for broadcasting rates are set externally by copyright societies. For Internet Service Providers, the results are more mixed. The Act clarifies the legality of ISPs and search engines, but it also holds them liable for infringement by users, and creates loopholes whereby private parties may be able to censor online content. Consumers Consumers are unconcerned with the distribution of royalties. Their interests rest solely in gaining access to information and to the arts. They are best served by increasing availability of accessible formats for the disabled and making music, literature and films available in a range of languages. Compulsory licenses and shorter copyright terms also serve consumer interests by making works available that are otherwise closed off. Less stringent anti-piracy measures ensure that anyone with a legal right to use a work may do so. Expanded fair use provisions make works available for commentary, parody, remixing, recycling and research. Ideally, the law should recognize and incorporate these interests. It should encourage the best quality of films, music and other works, and enable their full enjoyment and use by the public, rather than limiting its objectives to simply maximize private profits. 10

How Will the Amendment Affect My Rights? If you are a composer or author...
Do I have any copyright in my work? ! The Amendment gives independent rights to authors of literary and musical works used in cinematograph films. You have joint ownership of your work, shared with the producer or film company that commissioned it. ! Authors who produce work for use in a film have rights to receive royalties and the benefits enjoyed through the copyright societies. ! If your work will not be incorporated into a film and it is commissioned through an employment contract, then your employer who commissioned your work will retain the right to your work, unless your contract specifies otherwise. ! (See Section 17) Do I have a right to receive royalties for my work? ! If your work is going to be incorporated into a cinamatograph film or in a sound recording, you are entitled to receive royalties for the commercial exploitation of your work in any format other than a showing of the work as a part of the film in a cinema hall. ! Songwriters and composers are now entitled to royalty payments equal to the amount received by the producers/copyright owners. Even if you assign the copyright in your work to another person, you cannot waive the right to receive royalties on an equal basis with the assignee. Any agreement to assign royalties will be void. ! There are two exceptions. Songwriters and composers whose work will be used in films or sound recordings may only assign the right to receive royalties to their legal heirs or to a copyright society, which will administer the collection and distribution of royalties. ! If your work is not going to be used in a film and is not a sound recording, you may assign the rights to your work to another person, including the right to receive royalties. If your work is commissioned by an employer, your right to recieve royalties will depend on the terms of your contract. ! (See Section 18 and Section 19) ! Unresolved Issue: It remains to be seen how producers will react to these changes when negotiating future contracts. Producers contest that, since they bear the financial risk in creating a film, they should gain the rewards if the film is successful. There is a possibility that they will try to pass on the risk to authors and composers by eliminating any flat payment to authors and composers, thereby limiting payment to the royalties earned on a song they commission for a film. Are there limits on what rights I may assign in a contract with a producer or a 11

film or music company? ! An author or composer of a copyrighted work cannot assign away any right to their work in a medium or mode that does not yet exist or that is not in commercial use at the time of the contract. ! In the past, contracts often stipulated that the rights to a work were assigned in all existing formats and all future formats. For example, a contract signed in 1980 would effectively assign away the right to royalties for use of the song in a ring tone in 2012. Under the new law, if a technology has not yet been invented, then a contract cannot assign the right to use that format, unless the format is specifically mentioned in the contract. ! This Amendment is not retrospective. It does not apply to any contracts that were signed before the Amendment became law. ! Cause for concern: Authors and composers should watch out for lawyers attempting to use creative language to specifically refer to future technologies that are not yet in use into contracts. ! (See Section 18) ! A creator of a copyrighted work may not contract to assign rights to that work in a manner that violates the terms and conditions of the copyright society of which he is a member. ! As previously mentioned, authors and composers cannot assign away the right to receive royalties on songs used in films. How may I make a legal cover version of an original song? ! The Amendment radically changes the way that cover versions are treated. It is now much more difficult to create a non-infringing cover of a song or film recording. ! Cover versions must be in the same format as the original. For example, you may not make a recording in digital format if the original was only available on a record or cassette tape. ! Cover artists may not make any changes to the lyrics or composition other than what is technically necessary for the production of the cover. ! No alteration to the musical or literary work is permitted. This seems to make it illegal for the cover artist to put his own spin on the song, or to make a remix. ! Previously, covers could be made after 2 years from the original release date. Now this time limit has been increased to 5 years. ! The packaging on the cover version may not refer to the original artist by name or photo anywhere, and it must also clearly explain that this is a cover version somewhere on the package. ! Cover artists must pay royalties in advance. They are required to make a minimum of 50,000 copies, with some exceptions for less common languages. ! (See Section 31C) ! Unresolved Issue: It remains to be seen how courts will interpret the term technically necessary with respect to the changes that may legally be made 12

to a cover version. If the term is interpreted very narrowly, then remixes and most covers will be made illegal. ! It is also unclear whether this change will be applied to online covers such as Youtube.com videos. These videos, while technically made for noncommercial purposes, are available on websites that generate revenue through advertising. Thus it is not clear that they will fall under the fair use exception for private or personal use. ! This provision goes beyond anything required by international copyright treaties that India has joined. What rights do I have as an artist/author member of a copyright society? ! Copyright societies are now formed and administered jointly by both authors and owners. ! The governing board of a copyright society must be composed of equal numbers of owners and authors, elected by the membership. Each society must re-register within one year of this law coming into effect. ! All members of the society must enjoy equal membership rights with no discrimination between authors and owners in the distribution of royalties. ! (See Section 35) ! If the Registrar finds that a society is not acting in the interest of its members, including authors, or that the Society is no longer under the joint control of the owners and the authors, it may suspend, revoke, or fail to renew the society's registration. ! (See Section 33) ! Copyright societies must submit annual reports to the Registrar of Copyrights, which will include the minutes of the annual meeting, a list of all members, audited accounts, the tariff scheme and the distribution scheme. ! (See Copyright Rules Section 14P) ! Unresolved Issue: It is unclear what the new process will be for distributing royalties. It is also unclear how royalties will be divided where there are multiple authors and royalties must be distributed among them. How will royalty rates be determined? ! The tariff scheme of the copyright society must be transparent and publicly available. Aggrieved parties have the right to challenge the rate of tariff if they feel it is inconsistent or unreasonable. ! There was previously no system in place to regulate the fixation, collection and distribution of tariffs, which allowed copyright societies to reach inconsistent and unfair agreements between owners and users of rights. The Standing Committee described these contracts as instances of arbitrariness and arm-twisting.3 There was also no procedure in place for appealing the tariff rates.
3 Standing Committee Report Clause 17.7

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! This new system is designed to make the process more fair for users and to make copyrighted works more widely available. ! (See Section 33A). ! Unresolved Issue: There is still considerable uncertainty about how these legal changes will play out. Although the Act requires that tariff schemes be made available, it does not specify the process for how tariffs will be determined. The detailed procedures for resolving tariff disputes also are still to be determined. What changes have been made to the enforcement process? ! If an enforcement process is underway, the alleged infringer must continue to pay royalties to the rights-holder pending the appeal before the Copyright Board. ! If a party wishes to appeal the tariff scheme designed by a Copyright Society, the Copyright Board may fix the interim tariff to be paid pending the appeal. ! The Copyright Board is urged to resolve all disputes within 6 months. For any delay beyond 6 months, the Board is required to document the reasons for the delay. ! (See Section 19A). If I wish to relinquish my copyrights to my work, how may I do so? ! Now it is easier to relinquish your own copyright. In the past, it was necessary to furnish a signed document to the Registrar of Copyrights. Now you may simply publish a notice in the Gazette to reliquish your rights. ! By relinquishing your rights to your work, you make it freely available for use by the public. ! (See Section 21)

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If you are an artist, musician, or performer...

As a performer, do I have any moral rights in my work? ! Moral rights are the right of a performer to protect the integrity of his work. Under this Amendment, moral rights are now extended to performers. ! Performers have the right to to be identified as the performer. ! They also have the right to prevent their work from being distorted, mutilated or modified in a way that would be injurious to their reputation, or to receive damages if such a distortion of their work occurs. ! (See Section 38B) ! Cause for Concern: This new positive moral right to against any distortion of a performer's work may make it illegal to parody or mimic the work of another performer. What other special rights do I enjoy as a performer? ! Performers have the exclusive right to make a sound or visual recording of their performance, reproduce it any form including by electronic means, to issue copies to the public, and to authorize their works to be broadcasted or communicated to the public and to authorize commercial rental of their works. ! Performers' rights are subject to the rights of authors and other copyright owners (i.e. a performer cannot perform a work if the author withholds permission. A performer in a film cannot refuse to allow his work to broadcast in a cinema hall in violation of the rights of the producer to that film.) ! Performers are entitled to royalties when they perform in a film. ! (See Section 38A) ! This provision was amended to bring the Act into conformity with Article 5 of the WIPO WPPT treaty and Article 14 of TRIPS, two important international intellectual property treaties. (See Glossary) ! Unresolved Issue: The Standing Committee has expressed some concern about the provision that a performer could hold the exclusive right to a sound recording of the performance, since that implies that playing that sound recording constitutes a performance in itself. There is some uncertainty about the limits of performers' rights where they overlap with the rights of authors and producers. Who qualifies as a performer? ! A performer is defined under the Amendment as any actor, singer, musician, dancer, acrobat, juggler, conjuere, snake charmer, person delivering a lecture, or any other person making a performance. ! An extra in a film (someone whose performance is casual or incidental and is not acknowledged anywhere including in the credits of the film) is not considered a performer. However, they do share the rights of performers to prevent their image from being distorted or mutilated in a way that will damage their reputation. 15

! (See Section 2(qq)). May I perform cover versions of original songs? ! You must receive permission and pay royalties for a public performance of a copyrighted song in a commercial setting. ! Permission must be acquired from both IPRS, the song-writers' society, and PPL, the sound recording society. ! There is an exception for students performing before an audience that is limited to other students, parents and faculty and staff of the educational institution. ! (See section 52(1)(j)) ! There is another exception for songs to be used in a religious or marriage ceremony. (Section 52(1)(za)). ! You may try to seek another fair use exception, such as for criticism and review. ! If you are concerned that the tariff you are asked to pay is unreasonable, you may seek a compulsory license from the Copyright Board, or you may appeal the tariff scheme to the Copyright Board.

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If you have a disability or work on behalf of the disabled community...

! This Amendment is a major success for the disabled community. Access to copyrighted works in accessible formats has been greatly expanded. How can I gain access to modified versions of a copyrighted work that are accessible to the disabled? ! A non-profit organization that advocates for the disabled may adapt a work into an accessible format, make copies, and distribute them to disabled people. ! Nonprofit organizations making works accessible for free or at a cost-covering basis need not pay royalties to the copyright holder. ! Non-profit organizations who make works available to the disabled in an accessible format are required to take reasonable steps to prevent the work from being sold or from entering into the mainstream market. ! The works must be made available on a purely non-profit basis. ! A qualifying organization inclues any organization registered under Section 12A of the Income-tax Act and working for the benefit of persons with disabilities, or recognized under Chapter X of the Persons With Disabilities Act, or receiving grants from the government for facilitating access to persons with disabilities or an educational institution or library or archives recognized by the government. ! (See Section 52(zb)) ! Cause for Concern: It is extremly expensive to purchase braille presses to make works accessible to the visually impaired. If works are available in electronic formats, it is easier and less expensive to make them accessible, however digitial rights management regulations may pose a barrier to groups seeking to modify electronic versions (see below). Technological and cost limitations may still make it difficult for groups to make accessible versions available. Do I need to be operating as a not-for-profit organization in order to obtain a compulsory license? ! No, a for-profit organization that wishes to make a work available to the disabled, may obtain a compulsory license to produce a copyrighted work in a handicapped-accessible format. Compulsory licenses are available to private, for-profit entities. ! The Copyright Board may hold hearings to assess the credentials of the organization and to hear from the copyright owner. After the hearings, the Board may authorize the Registrar of Copyrights to issue a compulsory license. ! The Copyright Board is required to dispose of any application for a compulsory license to make a work accessible to the disabled within 2 months. 17

! The license will specify the means and format of publication, the time period when the license is valid, the number of copies that may be made and any royalties or fees to be paid. ! (See Section 31B) ! For-profit entities are required to pay royalties to the copyright holder. ! Cause for Concern: The process for obtaining a compulsory license is somewhat burdensome, which may discourage private companies from pursuing them. Can I renew or extend my compulsory license? ! Yes, once such a license has been issued, the holder of the license may apply for an extension of the license or for permission to issue more copies of the work. ! (See Section 31B). Which types of accessible formats fall under the purview of the law? ! Previously, exceptions were made only for formats that were specially designed only for the use of persons with visual, aural, or other disabilities. The new Amendment now covers any accessible format where the normal format prevents the enjoyment of such works by people with disabilities. ! This expands access to people suffering from disabilities such as dyslexia or limited vision who are able to make use of modified formats that are not necessarily specially formatted only for the disabled, but may also be usable by non-disabled people. ! (See Section 51(1)(zb)). How do changes in rules with respect to Digital Rights Management affect access to accessible formats? ! Cause for Concern: New rules concerning digital rights management may make it more difficult for those working on behalf of the disabled to create modified versions of copyrighted works. These amendments bar anyone from circumventing technology that is designed to block users from making copies of a copyrighted work. ! The Act allows some exceptions for circumventing the encription or copyblocking technology, such as for fair use or for making handicappedaccessible formats. ! It also allows for others to facilitate the circumvention on behalf of an individual who will use the work for a fair use exception purpose (so long as the facilitator keeps records and accounts of the person for whom they are making the modification.) ! However, it does not require for the copyright holder to facilitate that circumvention, so even those who could have circumvented the technology legally may not be able to do so. ! (See Sections 64 and 65) 18

19

If you work in the software and technology community...

How does this Amendment affect Digital Rights Managment? ! This Amendment brings the Copyright Act into conformity with World Intellectual Property Organizations WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). ! Copyright protection is now extended to online formats. Owners are empowered to protect their work against online infringement (for example with encription or access- and copy-control technologies). ! It is now a criminal infringement of the act to use technology to intentionally circumvent these technologies and to make unauthorized digital copies. Anyone who uses circumvention technology can face up to 2 years in prison and fines. ! (See Section 65A) Rights Managment Information ! The Amendment also forbids deleting Rights Management Information Rights Management Information from identifies, electronic copies. (See box on the (a) the title or other right.) 4 information identifying ! The goal is to fight internet piracy of the work or performance; copyrighted material. This is basic (b) the name of the author or information which must not be performer; removed from a copyrighted work. It (c) the name and address of specifies the identity of the rights the owner of rights; holder and provisions for its legal use. (d) terms and conditions ! (See Section 65B) regarding the use of the rights; and ! This provision does not anticipate or (e) any number or code that provide for any device or procedure represents the that can identify the user who tampers information referred to in with Rights Management Information. sub-clauses (a) to (d). ! Cause for Concern: If technology is (Section 2(xa)). used to examine individuals' browsing history and trace the person who modifies or removes the Rights Managment Information, this may constitute a serious threat to internet privacy. How will anti-piracy measures affect fair use exceptions? ! There are legal exceptions when circumventing this technology is allowed, such as for fair use exceptions (to use a copyrighted work for educational purposes or to make a modified version that is disabled-accessible). ! But, there is no requirement that the rights holder make technology available to circumvent encryption measures for legal users. Thus, there will be people 4 (http://www.thehindu.com/opinion/op-ed/article2156475.ece), 20

who have a legal right to use a work, but who will not be able to do so because they lack the technological savvy. ! On the bright side, although the law does not require rights holders to facilitate circumvention for legal users, it also does not make it illegal to create tools for circumventing digital rights managment or for sharing those tools with someone who may legally use them. ! Facilitators who aid legal users in circumventing this technology must keep extensive records of who the person is that they are assisting and for what purpose they will use the work. Concerns about anti-piracy measures: ! These provisions may not be effective in preventing unauthorized uses anyway, because Indian law severely limits the use of encryption technology. Department of Telecommunications approval is needed for any bit length long enough to be effective for protecting copyrighted materials. Other government agencies have issued sometimes contradictory guidelines with respect to encryption.5 The official legal limits of encryption are unclear. ! If Digital Rights Management becomes more common, it will likely block fair use. It is not entirely clear what constitutes facilitating circumvention of encryption technology. The requirement that facilitators keep detailed records could be burdensome and there is a risk of imprisonment for unauthorized circumvention. This may discourage investment in anti-circumvention technology for fair use. ! The Standing Committee stated that this clause was intentionally left somewhat vague so that the government and courts could have flexibility as this area of law and technology evolves.6 ! It is still unclear what form ecryption and technology protection measures(TPMs) will take, how the Act will be enforced, and whether adjustments will be needed to facilitate fair use. What is the impact of the Amendment on Internet Service Providers? ! The Amendment now allows for transient or incidental storage of a work or performance for electronic transmission or communication to the public. This makes it legal for ISPs and VPN providers to make copyrighted works available. ! (See Section 52(1)(b)). ! Transient or incidental storage of a work or performance for electronic links, access, or integration is also allowed, unless it has been expressly prohibited by the holder of copyright in that work. The storage is also prohibitted in cases where the person knows or should know that the work is an infringing copy. This makes it clear that search engines are legal.
5 For more information, see Legally India :Salman Waris. Government asleep over encryption regulations. 29 August, 2009 http://www.legallyindia.com/20090820138/Legalopinions/government-asleep-over-encryption-regulations, accessed 26 June 2012. 6 Standing Committee Report paragraph 20.7.

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! Anyone may issue a complaint to an ISP alleging that it is making an infringing copy available to the public. Upon receipt of such a complaint, the ISP must take down the offending content. If, after 21 days, the ISP does not receive a court order declaring the content illegal, the ISP may restore the content. ! (See Section 52(1)(c)). ! Cause for Concern: This provision could lead to private internet censorship. There is nothing to prevent an individual from issuing mass complaints to take down large amounts of content at the same time, or from repeatedly issuing complaints against the same content, resulting in back-to-back temporary injunctions against the ISP. ! Some ISPs also raised concerns that they may be held criminally liable for infringing the law because of the acts of private users posting unauthorized content on their personal websites. ! Broadcasters, authors, music companies and film associations fear that these measures do not go far enough to protect copyright and that it will be excessively burdensome to obtain a court order in such a short time frame. ! There is still uncertainty about the true effect of these laws. Much will depend on the interpretation of government officials and judges enforcing the law.

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If you operate a library or film society...

How does the Amendment affect the exceptions for fair use or fair dealing? ! Fair Dealing now includes all works, not just literary, dramatic, musical or artistic works, with the exception of computer software. So now it is expanded to include sound recordings and video as well. ! Fair use includes using a copyrighted work for (1) reporting of current events and current affairs, including reporting on a public lecture, (2) criticism and review, and (3) private or personal use, including research. ! (See Section 52(1)(a)). ! Unresolved Issue: It is not clear what the limits are for what constitutes criticism and review. In the U.S., the term has been interpreted very broadly, to include even parodies of original works. Are library rental programs legal? ! The word hire has been replaced with the term commercial rental throughout. ! Commercial rental has been defined to explicitly exempt any rentals or leases by non-profit libraries and non-profit educational institutions of a lawfully acquired film, computer program or sound recording. Therefore, rental programs at nonprofit libraries are now clearly exempt from copyright enforcement. ! (See Section 2(fa)). How may libraries legally store and use electronic copies? ! Unresolved Issue: It is not clear if libraries will be able to lend electronic copies. The Amendment allows for libraries to store an electronic copy of a work if it already has a physical copy of the work on hand. However, this provision says that the storage shall be for preservation. ! (See Section 52(n)). Extension of copyright on photographs ! Copyright on photographs has been extended to the life of the photographer plus 60 years. This applies to any photographs unless the right holder specifically opts out or unless the photo was taken as part of an employment contract. ! This means libraries and archives must obtain permission from the right holder to make a photo publicly available. ! This is a particularly burdensome requirement considering that it is often difficult to ascertain the identity of photographers and may block libraries and archives from making historical or culturally significant photographs available to the public. ! (See Section 25) 23

How Can Film Societies Come Into Compliance with the Act? ! Film societies are not permitted to present copyrighted films to the public. Noncommercial rentals are allowed, but not noncommercial film screenings. Societies may be able to gain an exception from enforcement by framing themselves as educational institutions or seeking a fair use exception for the purpose of criticism and review.

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If you are a broadcasting company...

What is the procedure for obtaining broadcast licenses for television and radio? ! The act changes the way that broadcast licenses are granted. It introduces a system of statutory licensing to broadcasting organizations. ! To broadcast a work, a broadcasting company must give prior notice, state the duration and geographic location of the broadcast, and pay advanced royalties, as stipulated by the Copyright Board. ! The royalties and fees will differ for radio and television broadcasts. ! Broadcasters must announce the names of the principle performers and authors of the work concurrently with the broadcast. ! The broadcaster must get the right holder's consent for any alteration of the work other than what is technically necessary for the broadcast, or shortening the work for the broadcast. ! Broadcasters must keep detailed records and accounts, and upon request, must furnish those records to the rights holder. ! This new system of statutory licensing was designed to avoid protracted or uneven negotiations between broadcasters and rights holders and to ensure public access to works. ! By allowing the Copyright Board to determine rates, this Amendment should prevent copyright societies and owners from dictating unreasonable terms, conditions and rates for broadcasting, as they often did in the past. ! (See Section 31D). ! Cause for Concern: This provision is likely to be challenged by producers and music companies as a violation of the freedom to contract under Constitutional Article 19(1)(g).

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If you are a publisher or a consumer of published works...

How will the Amendment affect access to foreign works? ! If a copyrighted work is not available to the public, a publisher may request a compulsory license for that work from the Copyright Board. This license allows a licensee to publish the work even without the permission of the copyright holder. Compulsory license holders must compensate the owner of copyright in the work. ! Compulsory licenses are available for works withheld from the public or for orphaned works (whose true right holder cannot be found). ! This provision used to apply only to Indian works, but has now been extended to apply to foreign published works as well. ! The goal behind this change is to increase the bargaining power of Indian industries to obtain licenses to import foreign works at lower prices or to print them domestically. This will result in lower prices and broader access to foreign publications. ! The provision applies only to published works, not to films, sound recordings, etc. ! (See Section 31A) How will the Amendment affect enforcement against importation of infringing copies? ! The previous copyright law allowed the owner to apply to the Registrar who could inspect any imports and confiscate any infringing copies of the work, with no time limit, and deliver all goods to the owner of the copyright. ! Now, the owner of the copyright can notice the commissioner of customs that he is owner of the right, presenting proof, and request the Commissioner to prohibit such importations for a period of up to 1 year. ! The Commissioner has to give scrutiny to the evidence, and the owner of the right has to make deposits to the commissioner for the cost of storage and compensating the importer if the goods are not ultimately deemed to be infringing copies. ! Under the new law, the Commissioner is required to inform the alleged infringer and the copyright owner of the detention within 48 hours. A customs officer must release the goods back to the importer unless the complainant produces a court order within 14 days of their detention that proves they are infringing copies. ! This revision will make it easier to import foreign works by placing limitations on confiscation of potentially infringing works. ! (See Section 53) Parallel Importation- REMOVED FROM FINAL VERSION OF BILL ! The Amendment almost included a provision that would have allowed 26

parallel importation of copyrighted foreign works. As the law stands, Indian publishing company may only produce foreign foreign works with permission of the company which holds the Indian copyright to that work. This new provision would have allowed for the importation of legally printed foreign copyrighted works for resale in India even without the permission of the holder of the Indian copyright. Consumer advocates argue that this provision would have allowed Indian consumers, particularly students, to access the newest editions of books at a reduced price. Currently, most academic books are imported and publishing companies have monopolies on individual books, which leads to increased prices. Indian publishers feared this would result in foreign companies withholding licenses for works for production in India, which could cause book prices to increase. The standing committee found that the existing practice in fact leads to higher priced books and that the provision allowing parallel importation would lower prices and increase access. The Indian publishers were only able to make cheaper versions of old, outdated editions, not the latest editions.7 However, pressure from the publishing community led this provision to be removed from the final bill.

7 Standing Committee Report paragraph 7.13

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If you are a producer, film company or music company...

How does the Amendment affect my copyright to my work? ! The Amendment gives independent rights to authors of literary and musical works in cinematograph films. You have joint ownership of your work, shared with the author or composer. ! (See Section 17) ! There was a proposal to extend joint authorship of a film to the principle director as well as the producer because of the extensive creative involvement of directors in the process of filmmaking. However, this proposal was rejected after fierce opposition from producers. Are there limits on what rights may be assigned by an author or composer? ! An author or composer of a copyrighted work cannot assign away any right to their work in a medium or mode that does not yet exist or that is not in commercial use at the time of the contract. ! In the past, contracts often stipulated that the rights to a work were assigned in all existing formats and all future formats. For example, a contract signed in 1980 would effectively assign away the right to royalties for use of the song in a ring tone in 2012. Under the new law, if a technology has not yet been invented, then a contract cannot assign the right to use that format, unless the format is specifically mentioned in the contract. ! (See Section 18) How will copyright societies be formed and administered? ! Copyright societies are now formed and administered jointly by both authors and owners. ! The governing board of a copyright society must be composed of equal numbers of owners and authors, elected by the membership. Each society must re-register within one year of this law coming into effect. ! All members of the society must enjoy equal membership rights with no discrimination between authors and owners in the distribution of royalties. ! (See Section 35) ! If the Registrar finds that a society is not acting in the interest of its members, including authors, or that the Society is no longer under the joint control of the owners and the authors, it may suspend, revoke, or fail to renew the society's registration. ! (See Section 33) How will royalty rates be determined? ! The tariff scheme of the copyright society must be transparent and publicly available. Aggrieved parties have the right to challenge the rate of tariff if they feel it is inconsistent or unreasonable. 28

! (See Section 33A). ! There is still much left to be resolved. Although the Act requires that tariff schemes be made available, it does not specify the process for how tariffs will be determined. The detailed procedures for resolving tariff disputes also are still to be determined.

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Glossary:
Compulsory License: A license granted by the Copyright Board to produce, duplicate and distribute a copyrighted work without the permission of the true rights holder. These licenses are available in cases where the rights holder is unknown, deceased or otherwise unreachable, or in some cases, when the work is being unreasonably withheld from the public. They are now also available to produce a work in a handicapped-accessible format. Copyright Board: A 3-member, quasi-judicial body responsible for resolving copyright disputes, including those relating to compulsory licensing and assignment of rights. The board is headed by a Chairman. It was formed under Section 11 of the Copyright Act, 1957. The members of the board are appointed at the discretion of the Central Government. The Board is empowered to regulate its own procedure and schedule its own sittings. Any dispute before the Copyright Board must be resolved within 6 months. The Board also fixes the royalties to be paid for use of copyrighted works. Copyright Society: A collective organization of at least 7 people formed to administer the rights on behalf of copyright owners. They are registered under Section 33 of the Copyright Act and are regulated by Rules 12 through 14 of the Copyright Rules. Copyright Societies are empowered to issue licenses to use the rights they administer, to collect license fees, and to distribute fees to the copyright owners. Copyright societies must submit annual returns to the Registrar of Copyrights, which includes the audited accounts, tariff and distribution scheme, list of members, and minutes of the annual meeting. Only one society may be registered per type of work. There are currently four copyright societies as follows: ! Society of Copyright Regulation of India Producers for Films and Television (SCRIPFT) for managing rights of Producers or Cinematograph Films and Television Works; ! Indian Performing Right Society Limited (IPRS), for managing rights of musical works created by authors (lyricists), music composers and music publishers (Film Publishers). Other rights owners such as music companies owning rights are also members; ! Phonographic Performance Ltd. (PPL) for managing rights of Sound Recording. Music or recording companies are members; ! Indian Reprographic Rights Organisation (IPRO) for managing rights of Photocopy/reprographic rights. Authors and publishers are its members. Fair Dealing/ Fair Use Exception: Fair use is an exception in copyright law that allows the use of a copyrighted work for (1) reporting of current events and current affairs, (2) criticism and review, and (3) private or personal use, including research. Internet Service Provider (ISP): an organization which provides access to the internet. Registrar of Copyrights: Responsible for administering the Office of Copyrights. All 30

Copyright Societies apply to the Registrar to become registered. Copyright Societies must file returns with the Registrar, which may file complaints to the Copyright Board if it feels the Society is not acting in the interests of its members. Although copyright is automatically confered on a work or performance, individuals may elect to register their copyright through the Registrar as well. The Registrar also keeps track of any instance when a cover version is recorded. Any complaint by a copyright owner that his work is being infringed is also filed with the Registrar. Standing Committee: Department-related Parliamentary Standing Committee on Human Resource Development, with members from both the Rajya Sabha and the Lok Sabha. This committee drafted the Amendment after consulatation with the Department of Higher Education and with interested parties from the general public and the entertainment, high technology and publishing industries. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS): is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994 and applies to all WTO members, including India. Virtual Private Network (VPN): a private network that interconnects remote networks through the internet. WIPO Internet Treaties: The World Intellectual Property Organization (WIPO) is the United Nations agency dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity. It was established in 1967 and now counts 185 states as its members. WIPO has developed 24 international treaties and conventions governing intellectual property, of which India has signed on to 7. These treaties form the international norms with respect to intellectual property. WIPO has drafted two treaties with respect to copyright protection, the WCT and the WPPT, described below. Although India is not a signatory to these treaties, this law brings India into compliance with them. ! WIPO Performances and Phonograms Treaty (WPPT): This treaty protects the interests of performers and producers of music. Performers are granted exclusive rights to reproduction, distribution, rental and communication of their performance. Performers are also granted moral rights to be identified as the performer and to the integrity of their performance. The treaty also requires that signatories provide legal remedies for the circumvention of technological measures designed to prevent infringement or for removal or interference with rights management information. ! WIPO Copyright Treaty (WCT): This treaty allows computer programs adn databases to be protected by copyright law. It accords to authors the exclusive right of distribution, rental and communication to the pbulic of their work. Signatories must provide legal remedies against circumvention 31

of encryption technology designed to prevent infringement and tampering with rights managment information.

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Contact Information

Katherine Gibson katherine.gibson@yale.edu Alternative Law Forum 122/4 Infantry Road Bangalore Ph: 9741379390/ 9480632351 lawrence@altlawforum.org danish@altlawforum.org www.altlawforum.org

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