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COPYRIGHT (AMENDMENT) ACT, 2012
No. 27 OF 2012
An Act further to amend the Copyright Act, 1957.
[7th June, 2012]
BE it enacted by Parliament in the Sixty-third Year of the Republic of India as follows:-
Short title and commencement.
1. (1) This Act may be called the Copyright (Amendment) Act, 2012.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. In section 2 of the Copyright Act, 1957 (hereinafter referred to as the principal Act),-
(i) in clause (f), the portion beginning with the words “on any medium” and ending with the words “produced by any means” shall be omitted;
(ii) after clause (f), the following clause shall be inserted, namely:-
‘(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution.’;
Explanation.- For the purposes of this clause, a “non-profit library or non-profit educational institution” means a library or educational institution which receives grants from the Government or exempted from payment of tax under the Income-tax Act, 1961.
(iii) for clause (ff), the following shall be substituted, namely:-
‘(ff)”communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
Explanation.- For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;’;
(iv) in clause (qq), the following proviso shall be inserted, namely:-
“Provided that in a cinematograph film a person whose performance is casual or incidental in nature and, in the normal course of the practice of the industry, is not acknowledged anywhere including in the credits of the film shall not be treated as a performer except for the purpose of clause (b) of section 38B;”;
(v) after clause (x), the following clause shall be inserted, namely:-
‘(xa)”Rights Management Information” means,-
(a) the title or other information identifying the work or performance;
(b) the name of the author or performer;
(c) the name and address of the owner of rights;
(d) terms and conditions regarding the use of the rights; and
(e) any number or code that represents the information referred to in sub-clauses (a) to (d), but does not include any device or procedure intended to identify the user;’;
(vi) after clause (xx), the following clause shall be inserted, namely:-
‘(xxa) “visual recording” means the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method;’;
Amendment of section 11.
3. In section 11 of the principal Act,-
(a) in sub-section (1), for the words “not less than two nor more than fourteen other members”, the words “two other members” shall be substituted;
(b) for sub-section (2), the following sub-section shall be substituted, namely:-
“(2) The salaries and allowances payable to and the other terms and conditions of service of the Chairman and other members of the Copyright Board shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman or any other member shall be varied to his disadvantage after appointment”
(c) for sub-section (4), the following sub-section shall be substituted, namely:-
“(4) The Central Government may, after consultation with the Chairman of the Copyright Board, appoint a Secretary to the Copyright Board and such other officers and employees as may be considered necessary for the efficient discharge of the functions of the Copyright Board.”
Amendment of section 12.
4. In section 12 of the principal Act, in sub-section (2), for the words “members, each Bench consisting of not less than three members”, the word “members” shall be substituted.
Amendment of section 14.
5. In section 14 of the principal Act,-
(i) in clause (c), for sub-clause(i), the following sub-clause shall be substituted, namely:-
“(i) clause (c), for sub-clause (i), the following sub-clause shall be substituted, namely:-
“(i) to reproduce the work in any material form including-
(A) the storing of it in any medium by electronic or other means; or
(B) depiction in three-dimensions of a two-dimensional work; or
(C) depiction in two-dimensions of a here-dimensional work;”;
(ii) in clause (d),-
(a) for sub-clause(i), the following sub-clause shall be substituted, namely:-
“(i) to make a copy of the film, including-
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means;”;
(b) for sub-clause (ii), the following sub-clause shall be substituted, namely:-
“(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;”;
(iii) in clause (e),-
(a) in sub-clause (i), after the words “embodying it”, the words “including storing of it in any medium by electronic or other means” shall be inserted;
(b) for sub-clause (ii), the following sub-clause shall be substituted, namely:-
“(ii) to sell or give on commercial rental or offer for sale or for such rental any copy of the sound recording;”.
Amendment of section 15.
6. In section 15 of the principal Act, for the words and figures, “Designs Act, 1911”, wherever they occur, the words and figures “Designs Act, 2000” shall be substituted.
Amendment of section 17
7. In section 17 of the principal Act, in clause (e), the following proviso shall be inserted at the end, namely:-
Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13;”.
Amendment of section 18.
8. In section 18 of the principal Act, in sub-section (1), after the proviso, the following provisions shall be inserted, namely:-
“Provided further that no such assignment shall be applied to any medium or mode or exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work:
Provided also that the author of the literary of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilisation of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be void:
Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilisation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.”.
Amendment of section 19.
9. In section 19 of the principal Act,-
(i) in sub-section (3), for the words “royalty payable, if any”, the words “royalty and any other consideration payable” shall be substituted;
“(8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.
(9) No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
Amendment of section 19A.
(10). In section 19A of the principal Act,-
(i) in sub-section (2), in the second proviso, for the words “Provided further that”, the following shall be substituted, namely:-
“Provided further that, pending the disposal of an application for revocation of assignment under this sub-section, the Copyright Board may pass such order, as it deems fit regarding implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned:-
Provided also that”;
(ii) after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) Every complaint received under sub-section (2) shall be dealt with by the Copyright Board as far as possible and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the complaint and any delay in compliance of the same, the Copyright Board shall record the reasons thereof.”.
Amendment of section 21.
11. In section 21 of the principal Act,-
(i) in sub-section (1), for the words “the Registrar of Copyrights”, the words “the Registrar of Copyrights or by way of public notice” shall be substituted;
(ii) after sub-section (2), the following sub-section shall be inserted, namely:-
“(2A) The Registrar of Copyrights shall, within fourteen days from the publication of the notice in the Official Gazette, post the notice on the official website of the Copyright Office so as to remain in the public domain for a period of not less than three years.”.
Amendment of section 22.
12. In section 22 of the principal Act, the brackets and words “(other than a photograph)” shall be omitted.
Omission of section 25.
13. Section 25 of the principal Act shall be omitted.
Amendment of section 30.
14. In section 30 of the principal Act, for the words “writing signed by him”, the words “writing by him” shall be substituted.
Amendment of section 30A.
15. In section 30A of the principal Act and in its marginal heading, for the words, figures and letter, “section 19 and 19A”, the word and figures “section 19” shall be substituted.
Amendment of section 31.
16. In section 31 of the principal Act,-
(i) in sub-section (l),-
(a) for the words “any Indian work”, the words “any work” shall be substituted;
(b) for the words “licence to the complainant” the words “licence to such person or person who, in the opinion of the Copyright Board, is or are qualified to do so” shall be substituted;
(c) the Explanation shall be omitted;
(ii) sub-section (2) shall be omitted.
Amendment of section 31A.
17. In section 31A of the principal Act,-
(i) in the marginal heading, for the words “Indian works”, the words “or published works” shall be substituted;
(ii) for sub-section (1), the following sub-section shall be substituted, namely:-
“(1) Where, in the case of any unpublished work or any work published or communicate to the public and the work is withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish or communicate to the public such work or a translation thereof in any language.”.
Insertion of new sections 31B, 31C and 31D.
18. After section 31A of the principal Act, the following sections shall be inserted, namely:-
Compulsory licence for benefit of disabled.
‘31B. (1) Any person working for the benefit of persons with disability on a profit basis or for business may apply to the Copyright Board, in such form and manner and accompanied by such fee as may be prescribed, for a compulsory licence to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of sub-section (1) of section 52 does not apply and the Copyright Board shall dispose of such application as expeditiously as possible and endeavour shall be made to dispose of such application within a period of two months from the date of receipt of the application.
(2) The Copyright Board may, on receipt of an application under sub-section (1), inquire, or direct such inquiry as it considers necessary to establish the credentials of the applicant and satisfy itself that the application has been made in good faith.
(3) If the Copyright Board is satisfied, after giving to the owners of rights in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, that a compulsory licence needs to be issued to make the work available to the disabled, it may direct the Registrar of Copyrights to grant to the applicant such a licence to publish the work.
(4) Every compulsory licence issued under this section shall specify the means and format of publication, the period during which the compulsory licence may be exercised and, in the case of issue of copies, the number of copies that may be issued including the rate or royalty:
Provided that where the Copyright Board has issued such a compulsory licence it may, on a further application and after giving reasonable opportunity to the owners of rights, extend the period of such compulsory licence and allow the issue of more copies as it may deem fit.
Statutory licence for cover versions.
31C. (1) Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section:
Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.
(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.
(3) The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings:
Provided that such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.
(4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made:
Provided that the Copyright Board may, by general order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works.
(5) The person making such sound recordings shall maintain such registers and books of account in respect thereof, including full details of existing stock as may be prescribed and shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such sound recording:
Provided that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this section, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty.
Explanation.- For the purposes of this section “cover version” means a sound recording made in accordance with this section.
Statutory licence for broadcasting of literary and musical works and sound recording.
31D. (1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the Copyright Board shall fix separate rates for radio broadcasting and television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the broadcasting organisation to pay an advance to the owners of rights.
(5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast.
(6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.
(7) The broadcasting organisation shall-
(a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.
(8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2012.’.
Amendment of section 33.
19. In section 33 of the principal Act,-
(i) in sub-section (1), for the words “provided further”, the following shall be substituted, namely:-
“Provided further that the business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act:
Provided also”;
(ii) after sub-section (3), the following shall be inserted, namely:-
“(3A) The registration granted to a copyright society under sub-section (3) shall be for a period of five years and may be renewed from time to time before the end of every five years on a request in the prescribed form and the Central Government may renew the registration after considering the report of Registrar of Copyrights on the working of the copyright society under section 36:
Provided that the renewal of the registration of a copyright society shall be subject to the continued collective control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of the right to receive royalty:
Provide further that every copyright society already registered before the coming into force of the copyright (Amendment) Act, 2012 shall get itself registered under this Chapter within a period of one year from the date of commencement of the Copyright (Amendment) At, 2012.”;
(iii) in sub-sections (4) and (5), for the words “ owners of rights”, the words “authors and other owners of right” shall be substituted;
(iv) in sub-section (5), after the word “concerned” the words “ or for non-compliance of sections 33A, sub-section (3) of section 35 and section 36 or any change carried out in the instrument by which the copyright society is established or incorporated and registered by the Central Government without prior notice to it” shall be inserted.
Insertion of new section 33A.
20. After section 333 of the principal Act, the following section shall be inserted, namely:-
Tariff Scheme by copyright societies.
“33A. (1) Every copyright society shall publish its tariff scheme in such manner as may be prescribed.
(2) Any person who is aggrieved by the tariff scheme may appeal to the Copyright Board and the Board may, if satisfied after holding such inquiry as it may consider necessary, make such orders as may be required to remove any unreasonable element, anomaly or inconsistency therein:
Provided that the aggrieved person shall pay to the copyright society any fee as may be prescribed that has fallen due before making an appeal to the Copyright Board and shall continue to pay such fee until the appeal is decide, and the Board shall not issue any order staying the collection of such fee pending disposal of the appeal:
Provided further that the Copyright Board may after hearing the parties fix an interim tariff and direct the aggrieved parties to make the payment accordingly pending disposal of the appeal.”.
Amendment of section 34.
21. In section 34 of the principal Act, for the words “owner of rights”, wherever they occur, the words “author and other owners of right” shall be substituted.
Omission of section 34A
22. Section 34A of the principal Act shall be omitted.
Amendment of section 35.
23. In section 35 of the principal Act and its marginal heading,-
(a) for the words “owners of rights”, wherever they occur, the words “author and other owners of right” shall be substituted;
(b) after sub-section (2), the following sub-sections shall be inserted, namely:-
(3) Every copyright society shall have a governing body with such number of persons elected from among the members of the society consisting of equal number of authors and owners of works for the purpose of the administration of the society as may be specified.
(4) All members of copyrights society shall enjoy equal membership rights and there shall be no discrimination between authors and owners of rights in the distribution of royalties.
Amendment of section 36A.
24. In section 36A of the principal Act,-
(a) for the words “performing rights society”, the words “copyright society” shall be substituted;
(b) for the words, brackets and figures “the Copyright (Amendment) Act, 1994”, the words, brackets and figures “the Copyright (Amendment) Act, 2012” shall be substituted.
Amendment of section 37.
25. In section 37 of the principal Act, in sub-section (3), for clause (e), the following clause shall be substituted, namely:-
“(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual recording referred to in clause (c) or clause (d).”.
Amendment of section 38.
26. In section 38 of the principal Act, sub-sections (3) and (4) shall be omitted.
Insertion of new sections 38A and 38B.
27. After section 38 of the principal Act, the following sections shall be inserted, namely:-
Exclusive right of performers.
“38A. (1) Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to the provisions of this Act to do or authorise for doing any of the following acts in respect of the performance or any substantial part thereof, namely:-
(a) to make a sound recording or a visual recording of the performance, including-
(i) reproduction of it in any material form including the storing of it in any medium by electronic or any other means;
(ii) issuance of copies of it to the public not being copies already in circulation;
(iii) communication of it to the public;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording;
(b) to broadcast or communicate the performance to the public except where the performance is already broadcast.
(2) Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film:
Provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use.
Moral rights of the performer.
38B. The performer of a performance shall, independently of his right after assignment, either wholly or partially of his right, have the right,-
(a) to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance; and
(b) to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.
Explanation.- For the purposes of this clause, it is herby clarified that mere removal of any portion of a performance for the purpose of editing, or to fit the recording within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation.
Substitution of a new section for section 39A.
28. For section 39A of the principal Act, the following section shall be substituted, namely:-
Certain provisions to apply in case of broadcast reproduction right and performer’s rights.
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