COPYRIGHT LAW AND ROLE OF COPYRIGHT SOCIETIES

IN EXPLOITATION OF ECONOMIC RIGHTS

R.R. Gupta*
'Copyright' means the exclusive right, given to authors or creators of
works, like books, films, computer programs, to control the copying or other
exploitations of such works. Copyright begins automatically on the creations
of work without the need for compliance with any formalities. The only
prerequisites for protection which apply to all works are that the work must be
of a type in which, copyright can subsist, and that either the author is 'qualifying
person 1, or the work has been published or broad cast, in an appropriate manner.
The work must also be original and it must be recorded in some form i.e.
written or stored in computer memory. The author or the creator has the
exclusive right to communicate the work to the public.
This exclusive right is granted in respect of all works under various sub-
sections of section 14. Section 14(a) (iii) of the Act confers on the owner of the
copyright in literary, dramatic or music work the exclusive right to communicate
the work of the public. Under section 14(b) (i) read with 14 (a) (iii) the owner
of the copyright in computer programmes has the exclusive right to communicate
the work to public. Section 14 (c) (ii) provides in respect of artistic work the
exclusive economic right to communicate the work to the public. Similarly,
section 14 (d) (iii) provides in respect of cinematograph films the exclusive
right to communicate the film to the public. Finally section 14 (c) (iii) provides
in respect of sound recording the exclusive right to communicate the work to
the public. Berne Convention reiterates this right at international leveL Article
11 of the Berne Convention grants the author of literary and artistic work the
right to enjoy, exclusive right of authorising the broadcasting of their work or
communication thereof to the public by any means of wireless, diffusion of
signs, sounds or images.
In certain cases, the author, director or creator of a work may be entitled
to exercise certain right which may include the right to be identified with a
work and to object to distortion or unjustified treatment of the work. Where
any of the various exclusive rights which collectively make up copyright in a
* LL.M., Ph.D. Associate Professor, Department. of Law, University of Rajasthan, Jaipur.
The drafting practice for amendments to the Copyright Act has been different from the amendments in
other Acts in India. Normally in other laws the old provisions have been omitted by omitting those
sections with numbers and instead new provisions have been inserted with new section numbers. In
Copyright At the far reaching changes have been made in various provisions by totally deleting and
adding completely a new section in its place. The progression of clauses is also different. Generally after
clause (0 by amendment (fa) is inserted but in copyright law (ft) has been inserted. Similarly (xx) is
inserted after (x). This is not to criticize the drafting but the persons trained in finding the law in a
particular manner may have to look at least twice to confirm that they have not skipped definitions in
some of the clauses and after (0 in this Act is (ft).
2004 - 2005] Copyright Law and Role of Copyright Societies 111

work have been exercised without permission, civil remedies may be available
and in certain cases the criminal action may be brought up by such owner or
author where the copyright is being infringed with a view to commercial gain.
In India, the first legislation in this regard was Indian Copyright Act.
1914 which was mainly based on the U.K. Copyright Act, 1911, with a view to
fulfill International obligation in the field of copyright, the Copyright Act,
1957 was enacted. The new Copyright Act was put on the statute book by mid-
1957 and was brought into force from 21 January 1958. The Act did not break
away from the past, but had renovated and built upon the solid old foundation.
This accounted for its affinity with the U.K. Copyright Act, 1956 (replaced by
1988 Act). It was no longer a replica of the British legislation and had acquired
its own distinctive features.
For the first time it established a Copyright office under the immediate
control of the Registrar of Copyright, a civil servant in charge of administrative
matters pertaining to the Act, and provided for the maintenance of a Register
of Copyrights. The Act also established a quasi-judicial Copyright Board under
the Chairmanship of a sitting or retired judge of the Supreme Court of India or of
a High Court, or a person qualified to be so appointed, and vested the Copyright
Board with important powers. The Act gave recognition for the first time to
Cinematograph films as a distinct class of work eligible for copyright protection
and to a special right called 'broadcast reproduction right' in programme
broadcast by radio and television. It is to be noted that present broadcast
reproduction rights are completely different from those recognized in 1957. The
Act also recognized for the first time the 'moral rights' of the author, which are
described in the Act as 'special rights'.
The revision of both the Berne Convention and the Universal Copyright
Convention (U.C.C.) at Paris in 1971 made available special provisions to
developing countries enabling them to grant compulsory licences for translation
and reproduction of works of foreign origin when required for educational
purposes. In 1983 the Act was amended inter alia to avail the special concessions.
This was soon followed in 1984 by another amending measure to protect the
Cinematograph film industry from the rapidly growing menace of unauthorised
video-reproduction of films, and the record2 industry from the then-growing
record piracy. Provision was made for more effective prosecution and deterrent
punishment of offenders. In 1991 the Act was amended to extend the term of
copyright to sixty years instead of fifty years 3 • The Copyright Act, 1957, as
amended in 1983, 1984 and 1992 and major amendment in 1994 and again in
1999 which relates to information technologies and computer programmes.
2 As it was referred at that time. Now they are protected as Sound recordings.
3 The term was extended by an Ordinance on 28.12.1991 and was made into Act 13 of 1992.
112 NALSAR Law Review [Vol.2: No.1

Meaning of Copyright
To understand the meaning of copyright, it is essential to state the
provisions of section 14 of the Act. The section provides:
For the purpose of this Act, "copyright" means the exclusive right
subject to the provisions of this Act, to do or authorise the doing of any of the
following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a
computer programme,-
(i) to reproduce the work in any material form including the storing of
it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in
circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of
the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work; any
of the acts specified in relation to the work in sub-clauses (i) to
(vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental of offer for sale or for
commercial rental any copy of the computer programme :
Provided that such commercial rental does not apply in respect of
computer programmes where the programme itself is not the essential object
of the rental.
Thus , "copyright" means the exclusive right, subject to the provisions
of the copyright Act 1957, to do or authorise the doing of any specified acts in
respect of a work or any substantial part thereof, as elaborated under Clauses
(a) to (e) of Section 14 of the Act. The Act lays special emphasis on the concept
of "Ownership" and "~ights" of the owner of the copyright. Though registration
of a right with the Copyright Office is optional and not essential, however, the
Act provides for compulsory registration of copyright (Section 14) in order to get
legal protection under the Act. In the Register of Registration, the names or
titles of works and the names and addresses of authors, publishers and owners
of copyright and similar other related prescribed particulars are stated for future
2004 - 2005] Copyright Law and Role of Copyright Societies 113

record and legal protection of owner's interest. A copyright owner has five,
exclusive rights in copyright work: Reproduction right, modification right or
derivative works right, distribution right, public performance right and public
display right or broadcast right Registration is the prima-facie evidence of
ownership of the copyright. Anyone who violates any of the exclusive right of a
copyright owner is known as infringe of copyright. Copyright owner is known as
infringe of copyright. Copyright shall be deemed to be infringed (section 51)
when any person having no such proprietary license, does anything or permits for
the sake of profit, for which the exclusive right is conferred on the owner of
the copyright. Similarly owner's copyright shall also be infringed when any
person makes sale or hire or sells or lets for hire or distributes for trade etc.
affecting the rights of the owner of the copyright. Explanation to Section 51
further clarifies that the reproduction of a literary, dramatic, musical or
artistic work in the form of a cinematograph film shall be deemed to be an
"infringing copy". Restrictions are also imposed on publishing a sound recording
or a video film in respect of any work unless prescribed particulars are stated
and procedure is followed (Section 52-A). In order to restrict such misuse and
infringement of copyright of the owner, the Act prescribes certain civil
remedies and declares offences to be' penally punished according to
prescribed judicial process.
When any person produces a work in the context of Copyright Act, 1957
(herein after Act) there are two logical steps 4. The author ~ay make other
copies of the work himself or he may communicate the work to other persons
from the public, which can be done either by supplying a copy of the work or
the work may be communicated without supplying a copy. For supplying a
copy reproduction of the work is necessary. There can be various forms of
communicating the work of public.
Communication of the work can take place when the work is heard, seen
or otherwise enjoyed or the work may be performed as it is or it may be allowed
to be incorporated in a sound recording or cinematograph or in a performance
or broadcast. All such actions in relation to the work are in exclusive domain
of the author or copyright holder. When an owner does one or the other of such
actions, the work is said to be published. In other words the exercise of one or
the other of the economic rights is the vindication of copyright. When the right
is exercised the work is said to be published. Publication is important for
determining the ownership and duration of rights in relation to work. In s 3 of
the Act which defines publications of the work, the two yardsticks have been
used for defining publication. ·Publication of a work is complete if the work
has been made available to the public by issue of copies or if the work is

4 Third is performance of the work, which is a bit on periphery of communication of work.

114 NALSAR Law Review [Vo1.2: No.1

communicated to the public 5 • It is also clear by proviso to s 6 that if the issue

of copies or communication to public is of insignificant nature then such making
available of the work would not be treated as publication of the work. Thus
after the 1994 amendment the expression "communication to public" has equal
importance as "the issue of copies" which had been popular all these years in
the definition of publication. It is so because of changing, modes of publication
electronically. This changes reflects the recognition that now the works may
be "made available" not by conventional means of issuing copies but they will
be made available more and more by communication to public. The
incorporation of the work in a sound recording and making it available to public
would amount to publication. The possibility ofmaking the work available by
posting the work on Internet sites is going to be more common. It is
submitted that once a work has been made available for viewing or hearing or
otherwise enjoying in a computer resource with connectivity to Internet, it will
be sufficient communication to the public, regardless of weather any member
of the public actually sees, hears or enjoys such a work. '
Economic Rights as Business Opportunities
Section 14 of the Copyright Act confers economic rights on the copyright
owner. The economic rights include such rights which have pecuniary value.
Exploitation of the work by the exercise of these rights bring economic benefit
to the owner of the copyright. The owner of the work may exploit the work
himself or licence others to exploit anyone or more of the rights for
consideration.
These rights do not enable the owner to undertake anything in particular.
They are negative rights that the owner has a right to prohibit others not to do any
such action with the work of the owner. Exclusive rights include the following:
• the right 'to reproduce the work and making the copies available
• the right to communicate to the public by means of, for instance,
public performance and broadcasting by cable, wireless, internet or
mixed modes of convergence, which appear to be covered in the present
.words of the Act.
• The copyright confers on the owner of copyright the sole right to perform
and any person does this without the consent of the owner he infringes
his right.
• the right to make any translation, adaptation, re-arrangement and
transformation of work.
• to right to reproduce the artistic work in any material form including
depiction in three dimensions of a two dimensional work or in two-
5 For certain purposes of the Act, the performance of the work is deemed to be publication.
2004 - 2005] Copyright Law and Role of Copyright Societies 115

dimensions of a three-dimensional work;

• the right to sell or give one hire, or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on hire
on earlier occasions;
• the right to sell or give on commercial rental or oiler for sale or for
commercial rental any copy of the computer programme.
Thus section 14 ,grants a variety of rights to the owner of copyright. It is
interesting or curious that when such a right is exercised excepting those things
which amount to publication of the work, if any action (right) is undertaken, it
produces a new work which is likely subject matter of copyright. However
issue of copies produces a good in which the work is incorporated. A book
should be comparable to a sound recording or a film, but it is not. Even the
additional ingredients are much lesser in the book. As there is no separate right
for the publishers the authors and publishers have to share the economic rights
available to the author-owner. This also gives rise to a tense relationship between
authors and book publishers. The publisher even though does not normally
exercise any of the rights mentioned in s 14 except issue of copies, desires to
obtain all (he rights. In the process the possibility of wealth generation by
exploiting the same work through publication on other media is compromised.
Transfer of those rights which for sure are not to be exercised is to kill the
entrepreneurship of author-owner also. This is true even as the publisher might
be justified in apprehending the exploitation of the work by other media as
cutting into his sales.
The economic rights may thus be seen differently by authors. A person who
is exposed to these rights may actively look for opportunities to exploit each
and every medium mentioned in the rights. Thus these rights or media might give
an insight to the owner for wealth generation or business opportunities emerging
from the knowledge of copyright law.
Basic copyright means the right to copy or reproduction of work in which
copyright subsists. The autp.ors, composers and artists are to be protected from
the public that it should not reproduce the original works of the authors resulting
in financial loss to them. The objective of the Copyright is to encourage authors,
composers and artists not only to create original works by rewarding them with
the exclusive rights for a fixed period6 but to encourage them to reproduce the
works for the benefits of the public and indeed to exploit all the economic
rights as far as possible. Necessarily there is required a large scale licensing
activity on the part of the author as the multiple exclusive rights for different
mediums need to be effectively exercised.

6 In India after 1992 it is 60 years from the beginning of the calendar year next following the year in
which author dies.
116 NALSAR Law Review [Vol.2: No.1

Need for Copyright Societies

It is very difficult for an individual writer, composer or musician or
other person to sell his original work in the country or abroad without any risk
of shutting out the potential licensees or buyers or mis-use by such persons and
getting the appropriate commercial benefit. It is also not practical for an
individual to sell his work and fixing of the royalty and collecting of the fees
and to keep track of the copies or frequency of display or use of the work. An
individual is also not a technical and commercial person to evaluate the potential
of the work. The selling of the products, getting the agreements signed,
negotiations for royalty and collection of royalty fees are considered to a
business. The business is supposed to be done through technical experts in the
field of business. It is also not possible for an individual to check any
infringement of his original work and getting the matter legally objected in the
right forum. It was in this background the need of an agency, who can look after
the interest of the whole community of right holders in a particular field to
combinedly form a society to take a common interest and cause for their benefit.
The Berne Conventions and TRIPS
The Berne Conventions in 1886 laid down rules for providing the
protection to the original works in the member countries. Article 1 of the
Convention laid down that the countries to which these convention applied
constitute a union for protection of the right of the authors in their literary,
artistic works. Article 2 defined the expression "Literary and Artistic Work". It
includes every production in the literary, scientific, and artistic domain, whatever
the mode or form in this expression, such as books pamphlets and other rights
Lectures, address dramatic or musical work, choreographic work and
cinematographic work.
The convention also laid down how a member country would treat, if
there is an infringement of Copyright provisions. The provisions of the
International Convention had been revised· from time to time to include certain
field or area for extending the copyright laws. The latest representation of the
Berne convention was finalised in the Berne Convention of Promotion of
Literary and Artistic Work (Paris Act) 1971.
India is one of the members of both international conventions, meaning
thereby India has to grant protection to the works of the member countries in
India and has a right for Copyright protection in those member countries. Now
more prevasive than the Berne Convention is the TRIPS whereby the Berne
convention has to be applied in a definite manner. TRIPS has introduced
consequences for the nation-state if Berne or other IP conventions are not
followed.
2004 - 2005] Copyright Law and Role of Copyright Societies 117

Copyright problems in some respects are international problems.

International problem can travel from one country to another more easily and
quickly than other kinds of property and amongest International problem it is
cheapest and easiest for copyright materials to travel and now with Internet it
is just a click away. Technological progress has made copying of copyright
material easy and simple. Books, recorded tapes, or video cassettes of films or
computer programmes can be taken from one country to another without any
difficulty and thousands of copies made from it and distributed on the click of
a mouse. Unauthorised home taping of radio and television programmes have
become common allover the world. Photocopying has made unauthorised
copying of copyright material simple and inexpensive. Consequently the control
of copyright infringement has become very difficult and often impossible. It is
submitted that the only possibility for controlling infringing copies is to make
authorized copies available at reasonable prices and at all possible places. It is
advisable to use all those methods and Inaterials, which are used by pirators to
make official copy available. Licensing out at reasonable price is the answer
and it is the copyright societies, which can do it effectively.
Copyright Act- 1957 and Copyright Socities
With a view to grant copyright protection the Government of India
got enacted the Copyright Act 1957 in Parliament ·and up-dated it from
tilne to time according to the requirements of the International Conventions.
The Central Government of India passed the latest International Copyright
Order 1981, as amended in March, 1997. Prior to Amendment Act of 1994 the
provisions under sections 33 to 36 for setting up of Performing Rights Societies
were concerned with forming societies which could only issue or grant licences
for performances in India of any work in which copyright subsisted. These
Societies had a limited field of operation viz. grantl.ng licences for the purposes
of literary, dramatic or music work, which is of such a nature that it can be
performed in public i.e. a stage play based on a novel etc.
By the Copyright Amendment Act 1994 the provisions under section 33
to 36 and has extended the operation of the legal provisions to all classes of
work, in which copyright may subsist under the Act, Section 33 of the Act
provides that no person or association of persons are allowed to carryon the
business of issuing or granting licence in respect of any work in which copyright
subsists. The Central Governnlent has been empowered to register copyright
societies· in subsection (3). It shall have regard to
(i) the interests of the authors and other owners or rights under this Act,
(ii) the interest and convenience of the public and
(iii) in particular of persons, who are most likely to seek licences
(prospective licences) in respect of the relevant rights,
(iv) the ability and professional competence of the applicants
118 NALSAR Law Review [Vol.2: No.1

(association), if satisfied as to above the central Government may register

such associations of persons as copyright society, subject to such
conditions as may be prescribed7 •
The chapter, "copyright societies" (chapter VTI:ss 33-36A) has been
inserted by 1994 amendment w.e.f. 10 May 1995. It provides for the
registration of copyright societies by the Central Government8 • From the above
date no person or associatiorl of persons shall commence or carry on the business
of issuing or granting licences in respect of any work in which copyright subsists
or in respect of any other rights conferred by this Act except under or in
accordance with the registration granted under sub-section (3) by the Central
Government ....
Thus the copyright societies may not only deal in copyright but they may
also be established for performers rights and broadcast reproduction rights.
Any association of persons who fulfill such conditions as may be prescribed
may apply to the Registrar of Copyright for permission to do such business.
The Registrar is required to submit the above application for permission to the
Central Government. Central Government may register such association of
persons as a copyright society subject to such conditions as may be prescribed.
Ordinarily not more than one copyright society shall be registered by
the Central Government to do business in respect of the same class of works 9 •
Existing performance rights societies are to be deemed to be copyright societies
and should get themselves registered within one year from the commencement
ofAmending Act of 1994. The Act has given the overriding power to the Central
Government that if a copyright society is managed contrary or detrimental to the
interest of the owners and is detrimental to the interest of the owners of the right
concerned it may, after satisfying itself through an enquiry in the prescribed
manner, cancel the registration of such societylO. The Central Government has
also got authority in the interest of the owners of rights to suspend the registration
of such a society, pending enquiry for a period not exceeding one year. The
government in such a case shall appoint an administration to discharge the
functions of the copyright society under sub-clause (5) of section 33.
Powers and Procedures of Copyright Society
Section 34 of the Act enacts various rights, powers and procedure of the
copyright society asunder Copyright Society may accept from an owner of
rights exclusive authorization to administer any right in any work i) by issue
of license or ii) collection of license fees or both.

7 S 33(3).
8 S 2 (ffd) and 33(3).
9 Proviso to s 33(3).
10 S 33(4).
2004 - 2005] Copyright Law and Role of Copyright Societies 119

The owner of rights shall have the right to withdraw such authorisation
without prejudice to the rights of the copyright society, under any contract. It
shall be alright for a copyright society to enter into an agreement with any
foreign society or organization administering the rights, corresponding to the
rights under this Act. The agreement with such a foreign society may include
administration of those rights which are being administered by the concerned
Copyright Society in India in the foreign country and administration in India
on behalf of the foreign society the rights being administered by such foreign
society in relation to foreign works.
However, no such Society shall permit any discrimination in regard to
the terms of the licence, disbursement. of fees collected between Indian and
other works 11 •
Copyright Society is entitled to issue licenses, or collect fees in
pursuance of such licenses, and distribute such fees amClng the owners of the
rights, after making deductions for its own expenses. There is a residuary power
wherein the Society may perform. any function which is not inconsistent with
the basic norm that Copyright Society has to subserve the interests of owners of
rights.
Copyright Society shall be subject to the collective control of the owners
of the rights under the Act, whose rights it administers. The Society shall submit
to the register of the copyright such returns, as may be prescribed by the Central
Government. Section 36A, has made a clarification about the rights, or liabilities
in any work in connection with the Performing Rights Society, which had
accrued or were incurred before the commence.ment of the Copyright
Amendment Act 1994 on 10 May 1995 or any legal proceedings in respect of
such rights or liabilities pending on the day.
Procedure
Copyright Rules (amendment 1995) laid down the conditions and
procedures for submission of application for registration of Copyright Societies.
There are available in Chapter V of the Rules. The conditions provide that any
association or persons which may be incorporated or may not be incorporated
and if it comprises 7 or more owners of granting licences in respect of any
class of works in which copyright subsists or in respect of any other right, such
an association may file an application in the prescribed from to the Registrar
of Copyrights for submission to Central Government for the grant of permission
to carryon such business and for its registration as a copyright society 12. The
Central Government within 60 days from the date of its receipt by Registrar
may take decision, as such·or reject the application after giving the applicant
an opportunity of being heard.
11 Proviso to s 33(2).
12 Rule 12 of Copyright Rules 1958.
120 NALSAR Law Review [Vol.2: No.1

rrhe Central Government may be order suspend the registration of a

Society for a period for a period of not exceeding one year and shall appoint an
administrator to discharge the functions of Copyright Society. The Central
Government has also authority to cancel the registration of a Copyright Society,
after holding proper enquiry if the society had furnished incorrect and
misleading particulars in the application for registration. Every society has to
file returns and audited accounts to the Registrar within one month from the
conclusion of every annual general meeting of the owners of the rights which
are owners of the society 13 •
As mentioned above, the Copyright Amendment Act 1994 provides for
setting up of separate Copyright Society for different categories of works. In
India three Copyright Societies have been registered, one Indian performing
Right Society Limited (I.P.R.S.) for Musical work, second is the requirements
of Cinematograph Film Producers and third Producers and Phonographic
Performance Limited (P.P.C.) in the field of sound recordings.
The Indian Performing Right Society Limited is a Company Limited by
guarantee and is a registered company under the Companies Act, 1956. It is a
non-profit making body and has been given carryon copyright business in
musical works or any action during song, or performed with the music. The
Society came into existence on 23 rd August 1969. The Society administers and
controls the performing rights in music work, musical rights in any musical
works and synchronize rights in music work on behalf of its members and
those of its sister societies with which it has reciprocal agreements. Nearly all
composers, song writers and publishers of musical works are members of the
Society. Its members control nearly 97 percent of Indian Music Society, as a
direct reciprocal agreement with the similar societies in foreign countries, such
as APRA, MACP, ACI, COMPASS and CASH, 1PRS serves both as owner
and user by acting as a bridge between the owner and the users.
The Society has become an indispensable mechanism for collecting
royalties from various users of copyright works of their members and fixing
the royalties for payment to such members after deducting 15% as its
administrative expenses.
The copyright societies are proceeding in the right direction, serving
and giving relief to the individual writers, composers, etc. and industries engaged
in such fields allover the world. Copyright societies appear to be only saviors
for authors and owners so that they are protected and are equipped to fight
with global menace of piracy and counterfeiting through these new institutions
which license out and also protect owners from infringement of their rights.

13 Rule 14 P of the Rules.