>>0 >>1 >> 2 >> 3 >> 4 >> “PROPERTY CONCEPTS REVISITED”

>>0 >>1 >> 2 >> 3 >> 4 >> “You consume my music I consume your wares” An argument given by Ernest Bourget, A French music composer for infringement of his copyright. The principle which had been considered by the tribunal was that an individual composer should not devote his life to chasing unauthorised performances of his music. Rather various right holders should save transactions cost through collective administration of their rights.

>>0 >>1 >> 2 >> 3 >> 4 >> In contemporary society text, music, images are reduced to digital data which can be transmitted in digital form at high speed through the medium of internet. This poses new challenges in relation to enforcement of rights in the individual right holder’s capacity since internet increases the ease with which intellectual property rights in works in digital form can be infringed in a blink of an eye.

>>0 >>1 >> 2 >> 3 >> 4 >> Firstly, collective administration saves transaction costs for right holders and users. It assembles large portfolios of works and grant blanket licenses for the whole repertoire to users who are interested in having easy access to works of different right holders Secondly, where the individual right holder is not able to monitor license given to a large number of users and to enforce her rights against infringements, collective societies can build up effective control systems that serve the interest of all the right holders they represent.

>>0 >>1 >> 2 >> 3 >> 4 >> Authors of literary or artistic works as well as holders of related rights enjoy exclusive rights to authorise or prohibit the use of their works. In cases where the rights cannot be enforced vis-à-vis individual members of the public or where individual management would not be appropriate, given the number and type of uses involved, right holders are granted a remuneration right instead.

>>0 >>1 >> 2 >> 3 >> 4 >> These rights are essentially managed by collecting societies. The underlying idea of collective rights management, is that copyright and related rights are managed collectively. Copyright Society is a legal body which protects or safeguards the interest of owners of the work in which copyright subsist. Thus Copyright Societies give assurance to the creative authors of the commercial management of their works

>>0 >>1 >> 2 >> 3 >> 4 >> Collective administration of copyright by societies is a concept where management and protection of copyright in works are undertook by a society of owners of such works. Obviously no owner of copyright in any work can keep track of all the uses others make of his work. When a person becomes a member of a national copyright society, that society, because of its organisational facilities and strength, is able to keep a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works.

>>0 >>1 >> 2 >> 3 >> 4 >> In India, Sections 33-36A of the Copyright Act, 1957 regulate such copyright societies. Section 33- Registration of the Copyright Society Section 34-Administration of rights of owner by copyright society. Section 34A- Payment of remuneration by copyright society. Section 35-Control over the copyright society by the owner of rights. Section 36 A- Rights and Liabilities of Performing Rights Societies.

>>0 >>1 >> 2 >> 3 >> 4 >> Registered copyright societies in India: The following are the registered copyright societies in India: For cinematograph and television films : Society for Copyright Regulation of Indian Producers for Film and Television (SCRIPT) For musical works: The Indian Performing Right Society Limited (IPRS). For sound recording: Phonographic Performance Limited (PPL) For reprographic(photo copying) works: Indian Reprographic Rights Organization (IRRO).

>>0 >>1 >> 2 >> 3 >> 4 >> Previously copyright was treated as a private individual property, enabling only the owner of such a property to sue for infringement, however after the Amendment of 1994 with the incorporation of the chapter relating to copyright societies the concept of property has been evolved as individual as well as collective. Furthermore after the Amendment of 2010 it has further developed the concept of copyright societies.

>>0 >>1 >> 2 >> 3 >> 4 >> This bill aims to completely restructure the working of and the eligibility criteria for membership in copyright societies by various amendments to the Copyright Act, 1957, which would make it possible for only authors of works to become members of copyright societies and to manage them. This is intended to significantly improve the current situation in the film industry, in particular, for the authors of the underlying works in films.

>>0 >>1 >> 2 >> 3 >> 4 >> This is because these authors currently have a peculiar status in copyright societies such as the IPRS since all rights are considered to accrue to producers as a result of the 1977 IPRS case, and a (mis)interpretation of the subsequent 1994 amendment to the Copyright Act.

>>0 >>1 >> 2 >> 3 >> 4 >> The amendment to Section 33 of the Act has, inter alia, replaced “no person or association of person” with the words “association of authors” as well as replaced “owner of rights” with the words “author of work”. The Section restricts any activity by entities other than those registered under the Act for this purpose. The substitution effectively means that only authors can register under the Act and therefore excludes all others from such registration.

>>0 >>1 >> 2 >> 3 >> 4 >> The impact of the amendment would be felt in the membership and constitution of the collective societies particularly in IPRS, as its membership cannot carry on administering rights of entities that are not authors or composers.

>>0 >>1 >> 2 >> 3 >> 4 >> The restriction to the definition of ‘authors’ forming Collecting Societies will have an impact on the publishing industry where the practise is of publishing houses normally taking assignments from the author. After the amendment publishing companies will not be able to register their societies for administration of their rights.

>>0 >>1 >> 2 >> 3 >> 4 >> While the music industry has been using collective licensing of rights for several years, the first steps for the publishing industry in India took place in the year 2002 when the Indian Reprogrpahic Rights Organisation was registered for this purpose. Therefore the amendments now stand to make collective licensing in the publishing industry an impossible task.

>>0 >>1 >> 2 >> 3 >> 4 >> However, the manner in which the Act presently stands after the amendment could lead to precisely the opposite effect that they have been intended to have. The Act appears to have been drafted in such a manner that the statutory restrictions under the Act would only apply to “associations of authors”. Thus, other persons, including copyright owners, may be able to form their own copyright societies which would be able to function in a manner entirely independent of the regulatory regime incorporated into the Act by the amendment

>>0 >>1 >> 2 >> 3 >> 4 >> The anomaly which arises under the Amendment Act is that one can apply to a collecting society for a license to exploit works in which authors or composers are the owners of the copyright. However, in case the same rights are owned by a company or an entity other than the composer or author, one would need to approach such an entity directly for a license. This results in a serious depletion in the repertoire of works available for licensing via a collecting society and increases the transaction costs involved in negotiating licenses directly with such copyright owners who may not be copyright authors.

>>0 >>1 >> 2 >> 3 >> 4 >> Normally when the Government is recognizing a certain institution under the law it is required to ensure that the institution in question is in compliance with the law. One of the essential conditions of Section 33 of the Copyright Act, 1957 is that an owner is not required to assign his copyright to the Society in order to obtain membership of the Society. However even in a case where a owner grants a license with regard to his work to the society, he shall continue to have in his individual capacity the right to his own works. However in the case of IPRS, where the Government did not take necessary precautions in this regard before recognizing it as a copyright society under the Copyright Act. Article 4 of the IPRS Articles of Association lays down that all the members have to assign their rights to the society on membership and forgo their individual rights. Such practices by Copyright Societies should be controlled and restricted more effectively. The government also should not overlook such misfeasance.

>>0 >>1 >> 2 >> 3 >> 4 >> It may be necessary for Amendments to consider the realities of the publishing industry. It appears that the amendments have been carried out with the music industry in mind, as they aim to deal with issues that are being faced by members of the IPRS but the amendments have not taken into consideration the wider impact on other industries such as the publishing industry. Further, it severely handicaps the possibility of collective administration of works, where the rights owners may not the authors and therefore the amendments need to be reconsidered.