India: Compulsory License Of Copyright Work

Last Updated: 3 July 2017
Article by N. Mahabir
  1. Copyright is the monopoly granted in exchange or as a quid pro quo for disclosure of work.  Disclosure of various work enriches the society and keeps the march of mankind intact.  Public interest is writ large through the idea of copyright, its protection, enforcement and relinquishment.
  1. It is therefore an anathema to the conferment of copyright that the protected work is not available for public consumption.  Any person can seek voluntary license from the copyright owner in writing to publish the work.  This license is the result of negotiations over terms, royalties etc.  Problems arise when voluntary license does not materialise for any reason.   Since dissemination of work is necessary, mechanism is provided to seek compulsory license in certain circumstances subject to just compensation being paid to the owner of the work.
  1. What happens when the owner of a work after its publication has refused to re-publish the work or allowed re-publication of the work.  Section 31 enables a complaint to be filed before the Copyright Board, which jurisdiction is now vested with the Intellectual Property Appellate Board, when such refusal has resulted in the work being withheld from the public.
  1. Similarly, when the owner of the work, has refused to allow communication of the work by broadcast or that of a sound recording on terms which the complainant considers not to be reasonable, a complaint can be filed before the Board.
  1. The Board will hear the owner of the work and on determination of a cause direct Registrar of Copyright to grant license to qualified persons subject to payment of compensation to the owner of the work. 
  1. Under Section 31 (A) of the Copyright Act, 1957, when a work is unpublished, or published but the author is dead or unknown or not traceable, any person may apply to the Board for exploitation of the work.  The Board after due notice and hearing, if satisfied, direct the Registrar to grant license. 
  1. The Central Government may in public interest, when a work is unpublished, or published but the author is dead or unknown or not traceable, in public interest direct the author or his legal heirs to publish the work.  If the publication is not made within the prescribed period, the Board may on the application of any person grant such permission.
  1. Under Section 31B of the Copyright Act, any person working for the benefit of disabled persons can seek license from the Board.  It is significant that this license can be sought even with profit or business purpose. The Board may after hearing the owner of the work grant license for the benefit of disabled persons.
  1. Under Section 31 C of the Copyright Act, any person desirous of making a cover version of a sound recording may apply to the Board for publishing in the same medium in which the original version was published.  Such an application can be filed after expiry of five years from the first publication.  The applicant desirous of obtaining the cover version should ensure that it is not mistaken as the original version as the owner of the work and changes are not made to lyrics or music unless technically necessary.
  1. A broadcasting organisation may communicate a musical work or sound recording by paying the royalties fixed by the Board.  The rate of royalties may be different for radio and television broadcast.
  1. Under Section 32 of the Copyright Act, any person may seek license to publish translations of a literary or dramatic work.  Such a license may be sought after expiry of seven years for an Indian work, after three years for a foreign work and after one year when the translated language is not in common use in a developed country.  The Board may after hearing the owner grant such permission subject to payment of royalties.  Certain other conditions like the owner not having published the translation are to be satisfied.  This license can be sought by a broadcasting organisation for a foreign work for the purpose of teaching or research in any field.  Interestingly, the Government has special rights for translation in some of the languages for Indian citizens.
  1. In the case of literary, scientific or artistic work, if an edition is not available or any copies are not sold for six months, and such work is not available at a reasonable price when compared to works of similar nature, any person can seek license from Copyright Board.  Certain conditions like seeking voluntary license from the owner of the work has to be exhausted prior to seeking this license.
  1. When the owner of a work publishes translation of a work or any edition of a work for which compulsory license was granted by the Board, this license shall be terminated on expiry of three months.  However, the license may exhaust all stock which was produced prior to expiry of notice period.
  1. The locus of the complainant is a question to be decided by the Board.  The complainant will have to show the resources to republish the work or broadcast the work on such license being granted.  This may be the first threshold to be crossed by the complainant.  The ability of the complainant will be tested by the Board as well as the Registrar of Copyright.  Going by the judicial hierarchy of the Board and Registrar, the ability to exploit the work will be tested by Registrar only in case of persons who had not been before the Board or the Board has left it to the Registrar after taking a prima facie view

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