What do you consider to be the top recent copyright development?
Question of Employment underSection 17 of the Copyright Act
Neetu Singh vs. Rajiv Saumitra & Ors.
The Plaintiff sought a permanent injunction against the Defendants from reproducing, publishing, distributing, selling and offering for sale one of the copyrighted literary work “English for General Competitions” and related artistic works, copyright of which was vested in the Plaintiff. The books authored by her were earlier published through Paramount Reader Publication and thereafter Paramount Reader Publication OPC Pvt. Ltd. Paramount Reader Publication was given the right to publish the books, the same never being licensed, assigned or transferred to any of the Defendants. Copyright in the books vested in the Plaintiff, this fact being in the knowledge of the Defendants was never objected by them.
The Plaintiff’s book illegally published by Defendant was a verbatim copy incorporating all artistic works and mistakes originally appearing. The Plaintiff contended that in absence of contract of service between parties and the fact of copyright in her favour was prima facie evidence of her authorship of the book.
In dealing with the issue whether a contract of service, as per Section 17 of the Act, existed between the Parties, the Court dealt with fair use provision and distinguished between works for course of instruction and for commercial purposes, and held that the Defendant’s act of selling books to students after copying the study material amounts to commercial activity and thus cannot be deemed as fair use. The Plaintiff’s employment can be determined by Articles of Association and the agreement, which, being absent, the Plaintiff was held to be owner of copyright. Therefore, in case of a dispute regarding copyright between employer and employee, the terms of employment are relevant.
Delhi University Photocopying Case
The Chancellor, Masters & Scholars of University of Oxford & Ors. Vs. Rameshwari Photocopy Service & Ors.
The Court restrained Rameshwari Photocopy Service from photocopying copyrighted work based on a petition filed by the Appellant publishers. The Appellants alleged that the kiosk was violating their copyright and was causing huge financial losses, as students instead of buying textbooks were relying on the photocopies.. The Court held that photocopying portions of books for personal use would amount to fair use and copyright not being the divine right, the ban was revoked and the case dismissed.
An appeal was filed to the Higher Bench of Delhi High Court wherein interim injunction was refused to the Appellants and the Court held that the Defendants did not infringe the copyright as their work was justified by purpose of educational instruction. The matter was remanded to single bench of the Court to determine the necessity of copyrighted material in course packs for educational instruction. The Court considered the inability of economically disadvantaged students to purchase different books and revoked the ban, which was hailed by the students as a means of easy access to education.
Right to Dub Included In Right to Communicate To Public
Mr. Thiagrajan Kumararaja Vs. M/s Capital Film Works (India) Pvt. Ltd., S.P. Charan
The Appellant contended that he had authorized the producer to use his script for making a cinematograph film in Tamil language alone, and not remake or dub the film in any other language.
On dismissal, the Appellant filed an appeal for permanent injunction against the Respondents on the ground that since the rights were not assigned, the producer could not dub and make another film under Section 19 of the Act.
The Respondents contended that dubbing constituted the “right to communicate the film to public” under section 14 (d) (iii) of the Act, they paid consideration for the script, and thus being the first authors, converted it into a cinematograph film with consent of the Appellant.
The Court held that under Section 14 of the Act, the producer is the author of the film and has the right to make its copy, sell or give it on hire or offer for sale or hire and also communicate it to public, which includes dubbing. It was observed that “otherwise enjoys”, provided under Section 2(ff) enlarges the scope of usage of right and enables the Respondent to dub the movie in language of his choice for communication to public.
What do you consider will be the top copyright developments in the next year?
Petition Filed in Supreme Court to Challenge Constitutionality of Provisions on Compulsory and Statutory Licensing in the Copyright Act
M/S Lahari Recording Company vs. Union of India
Writ Petition(s)(Civil) No(s).: 667/2018
In the present petition, the Plaintiff, Lahari Recording Company, has challenged sections 31 (1) (b) and section 31 D of the Act — on the grounds that they infringe the Plaintiff’s fundamental and constitutional rights. While section 31 (1)(b) provides for a system of compulsory licensing of works whose owner has refused to allow their communication to the public on reasonable terms, Section 31 D created a regime for mandatory licensing of works to broadcasting organizations on terms formulated by the Intellectual Property Appellate Board (IPAB).
The essence of the Plaintiff’s petition is that the impugned provisions fundamentally alter the bargain that the copyright system is based on, by taking away the incentive for copyright owners to create original content. The grievance of the Plaintiff is that the Sections 31(1)(b) and 31D of the Act would disrupt the long-standing mutually negotiated voluntary license agreements with broadcasters and with the coming of the impugned provisions, such broadcasters would have no incentive to enter into and/or continue with the voluntary license agreements with the labels and instead would attempt to terminate or wriggle out of their agreements with the labels in order to approach the Appellate Board to have terms convenient to them fixed and imposed upon the labels.
The Plaintiff contends that section 31 (1) (b) does not envisage hearing the copyright owner on every occasion on which a compulsory licence is granted to parties considered qualified by the Intellectual Property Appellate Board (IPAB). Similarly, section 31 D envisages the grant of a statutory licence without hearing the copyright owner.
This makes these provisions, in Plaintiff’s view, arbitrary and thereby violative of Article 14 of the Constitution of India. Given that section 31 (1) (b) gives IPAB the power to formulate the terms on which a compulsory licence is to be granted by taking away this right from the copyright owner’s remit, the Plaintiff contends that it makes an impermissible inroad into the contractual freedom of copyright owners and unduly constrains the exercise of the rights that are a natural consequence of being a copyright owner.
The Plaintiff also challenges section 31 D on the grounds that the provision removes the relationship between broadcasters and music labels from the realm of commercial negotiation and enables broadcasters to utilise copyrighted content at subsidised and preferential rates. This, the Plaintiff contends, unduly tips the scales in favour of broadcasters by prioritising the commercial profitability of broadcasters over the interests of copyright owners. By virtue of the fact that these provisions unduly constrain the exercise of the rights of copyright owners, the Plaintiff contends that they take away the incentive for a copyright owner to create more original content. On a practical level, the Plaintiff contends that, by virtue of the existence of the statutory licensing route, broadcasters are likely to seek an escape hatch from their contractual arrangements with copyright owners and instead seek to access the statutory licensing route, which is more favourable for them.
Although no replies have been filed in the matter thus far, if the Petitioner succeeds by convincing the Supreme Court, this would become a landmark judgment by altering the foundation of Copyright Law.