The Copyright Amendment Act, 2012: An Analysis
Copyright is a bundle of exclusive rights given by the law to the creators of original works. It is a
form of intellectual property protection granted by law. The rights provided under Copyright law
include the rights of reproduction of the work, communication of the work to the public, adaptation of
the work and translation of the work.
Copyright laws serve to create property rights for certain kinds of intellectual property, generally
called works of authorship. Copyright laws protect the legal rights of the creator of an ‘original work’
by preventing others from reproducing the work in any other way.
The main goals of copyright are: -
• To encourage the development of culture, science and innovation
• To provide a financial benefit to copyright holders for their works
• To facilitate access to knowledge and entertainment for the public.
Copyright provides a framework for relationships between the different players in the content
industries, as well as for relationships between rights holders and the consumers of content. Copyright
is a form of Intellectual Property, along with trademarks and patents in all countries, and other
creations (such as trade secrets, database rights, rights of publicity and the like) that may vary from
country to country.
RIGHTS OF THE COPYRIGHT HOLDER
In the Copyright Act, 1957, the owner possesses the right which are to prevent others from using his
works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are
two types of rights given to the owner:
• Economical rights;
• Moral rights.
Economic rights
This right is also known as the Exclusive Rights of the copyright holder provided under Section 14 of
the Act. In this Act different types of work come with different types of rights. Such as:
1. In the case of original literary, musical, and dramatic work:
• Right to reproduce;
• Right to issue copies;
• Right to perform at public;
• Right to make cinematography and sound recording;
• Right to make any translation;
• Right to adaptation; and
• Right to do any other activities related to the translation or adaptation.
2. In the case, of computer program work:
• Right to do any act aforesaid mentioned; and
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The Copyright Amendment Act, 2012: An Analysis
• Right to sell, rent, offer for sale of the copyrighted work.
3. In the case of artistic work:
• Right to reproduce;
• Right to communicate;
• Right to issue copies;
• Right to make any cinematography and sound recording;
• Right to make an adaptation; and
• Right to do any other activities related to the translation or adaptation.
4. In case of a cinematograph film work:
• Right to sell, rent, offer for sale of the copyrighted work; and
• Right to communicate.
5. In the case of a sound recording work:
• Right to communicate;
• Right to issue copies; and
• Right to sell, rent, offer for sale of the copyrighted work.
Moral rights
In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects ethical
rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the
creator, just as much as the economic rights reflect the author’s need to keep the body and the soul of
his work out from commercial exploitation and infringement. These rights are supported by Article
6 of the Berne Convention of 1886, formally referred to as a world convention for the protection of
literary and inventive works, whose core provision relies on the principle of national treatment, i.e.
treats the opposite good as one’s own.
Section 57 of The Copyright Act, of 1957 recognizes two types of moral rights which are:
• Right to paternity– which incorporates the right to assert the authorship of the work, and the
right to forestall others from claiming authorship of his work; and
• Right to integrity- which incorporates the right to restrain, or claim damages in respect of any
distortion, modification, mutilation, or any other act relating to the said work if such distortion,
multiplication, or alternative act would be prejudiced to claimant honour or name.
AUTHORSHIP AND OWNERSHIP IN COPYRIGHT
It is defined under Section 2(d), as the act of creating the work. The Act specifies:
• For literary or dramatic works, the author is the person who writes or composes the work.
• For musical works, it is the composer, emphasizing the creative musical arrangement.
• Artistic works attribute authorship to the artist, such as painters or sculptors.
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The Copyright Amendment Act, 2012: An Analysis
• Photographs credit the photographer, recognizing the technical and artistic skill involved.
• Cinematographic films and sound recordings attribute authorship to the producer, reflecting their
role in production and financing.
• Computer-generated works, a modern addition, credit the person who causes the work to be
created, acknowledging technological advancements.
A critical aspect is the nationality requirement for unpublished works under Section 13(2), where the
author must be a citizen of India or domiciled there at the time of creation which ensures a national
interest in protecting local creativity.
Section 17 of this Act recognizes the author as the first owner, which states that subject to the
provision of this Act, the author of a work shall be the first owner of the copyright therein:
• In the case of literary or dramatic composition, the author,
• In the case of musical work, the musician,
• In the case of creative work apart from photography, the artist,
• In the case of photographic work, the artist,
• In the case of cinematographic or recording work, the producer,
• In case of any work generated by any computer virus, the one who created it.
However, this provision provided to bound exception:
• In case of creation is made by the author underemployment of the proprietor of any newspaper,
magazine or any periodic, the said proprietor,
• In the case where a photograph is taken, painting or portrait is drawn, a cinematograph is made
for the valuable consideration of any person, such person,
• In case of work done in the course of the author’s employment under the contract of service, such
employer,
• In case of address or speech delivered on behalf of another person in public, such person,
• In the case of government works the government,
• In the case of work done under the direction and control of public undertaking such public
undertaking, such and
• In the case of work done in which the provision of Section 41 applies, concerned international
organizations.
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The Copyright Amendment Act, 2012: An Analysis
Copyright Act (Amendment) Act, 2012
• The Bill is aimed at correcting an imbalance in India’s copyright law which was seen
as favouring film producers and record companies rather than the lyricist, script
writers and song composers.
• The amendments make copyright complaint with the Internet Treaties, WIPO
Copyright treaty (WCT) and World Performances and Phonograms Treaty (WPPT)
• While introducing technological protection measures, the law ensures that fair use
survives in the digital era by providing special fair use provisions.
• The amendment have perhaps earmarked a new era for the Media and Entertainment
Industry in particular as it seeks to protect rights of authors of literary works like
lyrics or scripts and musical works and grant them an equal right in the royalties
earned from exploiting their creations.
• Certain issues like piracy of copyrighted material and selling through grey market,
illegal sharing of copyright material through computer networks etc. are addressed by
the amendments.
• Prevention of undue advantage by broadcasters and prior acknowledgement of the
author with proper advance royalty would ensure that the interest of the author is
protected and due acknowledgement is given to his work before it is published or
broadcasted.
Analysis of Important Provisions of the
Amendment Act, 2012
Definitions:
• Cinematographic Film:
o The 2010 amendment act has amended the definition of cinematographic film
[Sec. 2(f)]
o The amended definition reads: cinematographic film means any work of visual
recording on any medium’.
• Visual Recording:
o The definition of this term has been added in Sec. 2 (xxa) reads as ‘visual
recording’ means the recoding 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’.
• Commercial Rental:
o The amendment introduces a new definition of the term ‘commercial rental’ in
sec. 2 (fa).
▪ It is clarified that commercial rental does not include the rental, lease
or lending of a lawfully acquired copy of computer program, sound
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The Copyright Amendment Act, 2012: An Analysis
recording, visual recording or cinematographic film for non-profit
purposes by a non-profit library or non profit educational institution.
Meaning of Copyright: Rights in Artistic Works, Cinematographic films and
Sound Recordings:
• Sec. 14 of the Act, details in relation to each work, the meaning of the term copyright
i.e. the right granted in relation to that work under the act.
• In relation to an ‘artistic work’, ‘cinematographic film’, and ‘sound recording’, a new
right has been expressed viz. right to store the work in any medium by electronic or
other means.
• Thus, the violation of this right e.g. online storage, would amount to infringement of
copyright.
• The amendments have made certain changes to clarify the rights in artistic works,
cinematographic films and sound recordings. These amendments address
technological issues like ‘storing’ and thus address some of the digital era challenges.
• The amendment in Sec. 14(c) makes it clear that right to reproduce the work in any
material form includes ‘the storing of it in any medium by electronic or other means’.
• Sec. 14(d) (i) is amended to extend the right of author to include the ‘the storing of the
work in any medium by electronic or other means’
• Amendment in Sec. 14(e) (i) makes copies include the ‘storing of the work in any
medium by electronic or other means’.
Author’s Rights in Cinematographic Work:
• The amendment to section 17 seeks to protect rights of authors of literary works like
lyrics or script writers and musical works.
• The SC in case of IRPS v. EASTERN INDIA MOTION PICTURES
ASSOCIATION:
o Held that the producers of a cinematographic film as the first owners of the
copyright in the musical and lyrical works and no copyright subsists in the
composer of the lyric or music so composed, unless there is contract to the
contrary between the composer of the lyric or music and the producer of the
cinematographic film.
• By way of the amendment, the legislature intends to protect the interests of the
authors of such works by inserting the following provisions:
o In case of commissioned cinematograph work, the commissioning party and in
case of employer-employee relationship, the employer, are considered to be
the first owner of the work.
o The amendment has inserted a proviso to sec. 17 which makes it clear that the
above provisions will not apply in relation to the rights of the authors of
literary, musical, dramatic and artistic works, which have been incorporated in
cinematographic film.
o Thus, the original authors will continue to be considered as the first owners of
the said works.
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The Copyright Amendment Act, 2012: An Analysis
Performer’s Rights:
Sec. 38A provides the performer’s right as the exclusive right to do or authorize the doing of
any of the acts in respect of the performance, without prejudice to the rights conferred on the
authors, viz.
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;
o To broadcast or communicate the performance to the public except where the
performance is already broadcast.
• Moral Rights of Performers:
o The amendment also refers to non-assignable rights such as ‘moral rights’ and ‘the right
of integrity’ of performers.
o The amendment seeks to introduce a new Sec. 38B, which provides as follow:
▪ 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 damage in respect of any distortion, mutilation or other modification
of his performance that would be prejudicial to his reputation.
Amendment related to assignment of rights:
• Three new provisions are added to Sec. 18 which deals with assignment of copyright.
• According to Sec. 18(1),
o Owner of a copyright or prospective owner of a future work may assign the copyright.
o The newly added proviso clarify that no such assignment for future work shall be applied
to any medium or more of exploitation of the work which did not exist or was not in
commercial use at the time of assignment was made, unless the assignment specifically
referred to such medium or more of exploitation of the work.
o Further, the next proviso provides that the author of a literary or musical work
incorporated in a cinematographic film or sound recording shall not assign the right to
receive the royalties in any form other than as a part of the film or sound recording.
• Sec. 19 of the copyright act, 1957, provides mode of assignment. Sub-Sec. (3) has been
amended to provide that the assignment shall specify the other consideration, besides
royalty, if any, payable.
• Dispute regarding Assignment of Copyright: Section 19A
o (Interim order to be passed by Copyright Board)
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The Copyright Amendment Act, 2012: An Analysis
▪ As per Sec. 19A, the parties to assignment of copyright may approach the Copyright
Board for
✓ Revocation of the assignment, when assignee fails to make sufficient exercise of the
rights assigned to him, and such failure is not attributable to any act or omission of the
assignor. And
✓ In case of any dispute regarding assignment of copyright, the parties to assignment of
copyright may approach the copyright board and the copyright board may hold enquiry
and pass orders as it may deem fit, including an order for the recovery of any royalty if
payable.
▪ The second proviso is amended to provide that the Copyright Board (CB) may pass an
order, as it deems fit, pending the disposal of an application for revocation of assignment
under this subsection, regarding implementation of the terms and conditions of
assignment including any consideration to be paid for the enjoyment of the rights
assigned.
o The right to pass such order is limited in relation to applications, and could have been
extended to application related to other disputes as well,
o Earlier, Sec. 19A was applicable to dispute in relation to copyright licenses as well.
However, post amendment, disputes in relation to copyright licence agreement cannot be
adjudicated by the CB.
Amendment related to Compulsory Licenses:
•Section 31 and 31A of the act lays down the provisions of compulsory licences in
works withheld from public and in unpublished Indian works respectively
• While earlier, these provisions were with respect to Indian Works, only, but now, the
expression ‘Indian Work’ has been replaced by the expression ‘Any Work’.
• Further, the word ‘complainant’ in Sec. 31 has been replaced by the expression ‘such
person or persons who, in the opinion of the CB, is or qualified to do so’.
• Compulsory Licence for Benefit of Persons with Disabilities:
o A new Section 31B has been inserted where the work may be made available under
compulsory licensing for the benefit of people suffering from disabilities.
o According to its provisions, any person working for the benefit of persons with disability
on a profit basis of for business may apply to the CB, 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.
Statutory Licences:
• New provisions have been inserted with respect to statutory licenses for the Cover
versions and for the broadcasters respectively.
• For cover version:
o In the Copyright Act, 1957, Sec. 52(1) (j) provided an exception from infringement, in
relation to the cover version, if the cover versions were made following the conditions
specified in the said section.
o The amendment has deleted the said section and instead added a new Section 31C, which in
effect amounts to granting a statutory licence to make ‘cover versions’.
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The Copyright Amendment Act, 2012: An Analysis
o This new section provides for statutory licence to any person desiring to make a cover
version of a sound recording in respect of any literary, dramatic, or musical work.
o But such cover version may be made only of such literary, dramatic or musical work, in
relation to which a sound recordings has already been made by or with the licence or consent
of the owners of the right in the work.
o Further, the cover version can be made in the same medium as the last recording of the
original work, unless the medium of the last recording is no longer in current commercial use.
• For Broadcasters:
o A new section 31D has been inserted which provides Statutory Licence for broadcasting of
literary and musical works and also for sound recordings.
▪ Any broadcasting organization, that proposes to communicate a published work to the
public by way of broadcast (including television and radio) or a performance of any
published musical/lyrical work and sound recording, may do so by giving prior notice of
its intention to the owners of the rights.
▪ Such prior notice has to state the duration and territorial coverage of the broadcast and
pay royalties for each work at the rate and manner fixed by the CB.
Amendment related to Copyright Societies:
• Under the Copyright Act, 1957, Section 33, 34 and 35 deals with registration and
functioning of copyright societies.
• Accordingly, the registration of Copyright Societies will be granted for a term of five
years and shall be renewed every five years.
• As per amendments in Sec. 35, the expression authors and owners of rights has been
inserted in place of owners of rights.
• Now, the copyright societies are required to have governing bodies consisting of
equal numbers of authors and owners of work for the purpose of administration of the
society.
• All members of the Copyright Society shall enjoy equal membership rights and there
shall be no discrimination between authors and owners in the distribution of royalties.
• Further, a new section 33A is inserted which provides for the TARIFF SCHEME of
copyright societies. According to this:
o Every copyright society is required to publish its Tariff Scheme in a prescribed manner.
o Any person aggrieved by the tariff scheme may appeal to the CB and the CB 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.
o However, the aggrieved person is required to pay to the copyright society any fee as may
be prescribed that has fallen due before making an appeal to the CB and shall continue to
pay such fee until the appeal is decided. The Board has no authority to issue any order
staying the collection of such fee pending disposal of the appeal.
o The CB may after hearing the parties fix an interim tariff and direct the aggrieved parties
to make the payment accordingly pending disposal of the appeal,
• The provision will ensure transparency in the functioning of the Copyright society and
will avoid any arbitrariness in fixing the royalty tariff,
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The Copyright Amendment Act, 2012: An Analysis
Amendments of section 52: Certain Acts not to be infringement of copyright:
• Sec. 52 of the Act enlists certain acts, which do not constitute infringement. The
amendment has introduced the following changes:
o Some exceptions (such as fair dealing, use for education purpose) which were earlier only
in relation to certain types of work (e.g. literary, dramatic and musical works) have been
made applicable to all types of work.
• A ‘far dealing exception’ has been extended to the ‘reporting of current event, including
the reporting of a lecture delivered in public, reproduction in the course of judicial
proceedings, reproduction or publication of any work prepared by the secretariat of a
legislature’.
• Important new exceptions added in Sec. 52:
o As per Sec. 52(1) (b),
Transient and incidental storage of a work or performance purely in the technical process of
electronic transmission or communication to the public shall not be an infringement of
copyright.
o As per Sec. 52(1) (c),
The transient and incidental storage of a work or performance for the purpose of providing
the electronic links, access or integration, where such links, access or integration has not been
expressly prohibited by the right holder shall not be an infringement of copyright.
o As per Sec. 52(1) (n),
The storing of a work in any medium by electronic means by a non commercial public
library, for preservation if the library already possesses a non digital copy of the work shall
not be an infringement of copyright; this will facilitate digitization of libraries.
o As per Sec. 52(1) (zc),
The importation of copies of any literary or artistic work, such as labels, company logos or
promotional or explanatory material, that is purely incidental to other goods or products being
imported lawfully, shall not be an infringement of copyright.
o As per Sec. 52(1) (zb),
Fair use for the benefit of disabled shall not be an infringement of copyright. The clause
provide for the adaptation, reproduction, issue of copies or communication to the public of
any work in any accessible formal, to facilitate persons with disability, for private or
personal, use, educational purpose or research.
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The Copyright Amendment Act, 2012: An Analysis
Author’s moral rights:
• As per the amendment, in Sec. 57(1) (b), the words, ‘which is done before the
expiration of the term of the copyright’ has been omitted. Thus, the Right against
Distortion is available even after the expiry of the term of copyright.
• Further, in sub-sec (2), the words ‘other than the right to claim authorship of the
work’ have been omitted. Therefore, the right to claim authorship can now be
exercised by legal representatives of the author as well.
Importation of infringing copies:
• The amendment has introduced a new section 53 in place of the earlier one. It
provides a detailed procedure where the where of the copyright can make an
application to the Commissioner of Customs (or any other authorized officer) for
seizing of infringing copies of works that are imported into India.
• Under the previous Sec. 53, it was provided that an owner of the copyright can make
an application to the Registrar of Copyrights for procuring an order that infringing
copies shall not imported into India. The amendment seeks to vest the power directly
with the Customs office.
• Section 53 has been completely restructured, and it now enables owners of any works
or performance embedded in works to request- by written notice to the Commissioner
of Customs (or other authorized officer)- that infringing copies be treated as
prohibited goods for not more than one year under certain circumstances, by
following the procedure laid down in the section.
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