By maintaining a balance between public interests and copyright owners’ rights, compulsory licensing plays a key role in copyright law.
The use of copyrighted content without the rights holder’s consent is legal in some situations and isn’t always prohibited.
Compulsory licensing provisions empower authorities to grant licenses to third parties, ensuring access to creative content and promoting the free flow of information and innovation.
This article focuses on the concept of compulsory licensing in copyright.
This article also explores its historical development, legal frameworks, and notable cases.
A compulsory license allows the use of copyrighted material without obtaining the owner’s consent beforehand.
It is often employed when the owner of the exclusive rights refuses to grant authorisation, resulting in the work being withheld from the public.
In India, the Indian Copyright Act, 1957, specifically Section 31, governs the provisions for compulsory licensing.
Under Section 31, if the copyright owner denies republishing or performing the work, or refuses to allow the communication or broadcasting of the work to the public, the Copyright Board can intervene.
After conducting an inquiry and providing an opportunity for the owner to be heard, the Board may direct the Registrar of Copyrights to grant a compulsory license to the complainant.
This license enables the complainant to republish the original work, broadcast it, or communicate it to the public, as applicable.
Related Article: Assignment and Licensing of Copyright
Section 31A of the Act pertains to the provision of compulsory licensing for both unpublished and published works.
If a work is being withheld from the public in India, whether it is unpublished, published, or communicated, and its author or owner is deceased, unknown, or impossible to locate, any person can apply to the Appellate Board for a license.
This license would allow them to publish or convey the work or a translation of it in any language.
Section 31B of the Act pertains to the provision of compulsory licensing for the benefit of disabled individuals.
If an individual, working on a profit basis or for business purposes, is engaged in activities that benefit disabled persons, they have the right to apply to the Appellate Board in the prescribed format and manner as specified in the Act and rules.
The purpose of this application is to obtain a compulsory license to publish any work that is protected by copyright, but with the intention of serving the needs and interests of disabled individuals.
These provisions for compulsory licensing in the Indian Copyright Act ensure that valuable works can be made accessible to the public, even in cases where the copyright owner is uncooperative or unavailable.
The rights of copyright holders and public access to protected content must coexist in harmony, which is why compulsory licensing is crucial.
The main purpose of compulsory licensing is to make copyrighted works accessible for use by individuals who require them.
Under the Indian Copyright Act, creators, artists, and producers are granted exclusive rights to their original works to encourage their creativity and allow them to benefit from their creations.
However, it is equally important to ensure that these works are available for others to access and use in a fair manner.
Copyright holders are able to choose not to make their works available to the public in specific situations.
Compulsory licensing is then required in these circumstances to guarantee the availability and accessibility of copyrighted materials without violating the rights of the copyright owner.
If a person’s work is withheld from the public due to a copyright owner’s unwillingness to reveal it, they have the right to file a complaint with the Intellectual Property Appellate Board in accordance with Section 31 of the Indian Act.
By permitting compulsory licensing, the legislation promotes the free exchange of concepts and information while defending the rights of both the public and rights owners, establishing a just and balanced copyright system.
The ongoing dispute between radio stations and music companies over royalties is a well-known issue in the industry.
This is a notable case that sheds light on this matter.
The dispute arose when Phonographic Performance Ltd. (PPL) refused to grant a license to the radio station at the suggested royalty rate.
In response to PPL’s decision, nine FM radio stations filed applications under Section 31(b) of the Copyright Act, seeking compulsory licenses from the Board to broadcast music produced by PPL.
After hearing arguments from both sides, the Board made a significant ruling.
It was determined that each FM radio station would pay 2% of their net advertisement earnings, which would then be distributed proportionately among all music providers.
This landmark judgment not only fixed the rate of royalty for radio stations and music companies but also established a precedent for resolving similar disputes.
The decision provided clarity and guidance for determining fair and reasonable royalty rates, ensuring a balanced and transparent approach in the licensing process between radio stations and music companies.
The significance of Section 31A of the Act becomes evident in this case.
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Feeling their rights were infringed, Super Cassette Industries filed for a permanent injunction.
Concurrently, the radio station applied for a compulsory license from the Copyright Board under Section 31(b) of the Copyright Act.
The key issue, in this case, was whether the situation warranted the grant of a compulsory license.
The radio station contended that since AIR and Radio City already had licenses, there shouldn’t be anything prohibiting the Board from also issuing them a compulsory license.
The Board determined that Section 31A is applicable only in cases where publication of the work is refused, after reviewing arguments from both parties.
As licenses had already been acquired in this case by AIR and Radio City, it can be concluded that the publication of the work has never been restricted.
Consequently, the Board determined that the arguments put forth by the radio station lacked sufficient grounds.
The Board also alleged that the radio station had committed copyright infringement with regard to the music.
The historical development of compulsory licensing in India traces its origins back to the International Copyright Mandate.
One significant milestone in this journey was India’s adherence to the Berne Convention for the Protection of Literary and Artistic Works in 1886.
Article 9 of the Berne Convention outlines the framework for compulsory licensing in countries that are parties to the agreement.
After signing the Berne Convention, India had the option to use Article 9 as a guideline for determining compulsory licensing mechanisms within the country.
Article 9 states:
“(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.”
While Article 9 of the Berne Convention grants countries the freedom to establish their own legislative powers regarding compulsory licensing, it also raises concerns about potentially excessive limitations on the rights of copyright owners.
Recognising this, Indian policymakers opted not to adopt Article 9 and instead turned to Article 11 bis of the Berne Convention, 1886.
A notable distinction between the two provisions lies in the following paragraph:
“It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.”
The aforementioned explanation highlights that Article 11 bis of the Berne Convention incorporate a crucial aspect that safeguards the moral rights of authors and their entitlement to fair compensation, which were absent in Article 9.
Consequently, it was perceived that Article 11 bis would better suit the requirements of a developing Indian society in comparison to Article 9.
Thus, by combining features from Articles 9 and 11 bis, Section 31 of the Indian Copyright Act was devised.
Compulsory licensing plays a crucial role in the realm of copyright by ensuring access to creative content and balancing the rights of content creators and the public interest.
It empowers prospective owners to obtain copyright licenses for licensed works when the copyright holder is unresponsive or unwilling to grant permission.
This mechanism facilitates the management of copyright and prevents the stifling of innovation and creativity.
The availability of compulsory license provisions protects the interests of both content creators and users.
It allows for the public communication of subject matter that might otherwise be withheld, benefiting society as a whole.
This ensures that content creators receive fair compensation for their work while facilitating the lawful use of intellectual property rights.
In essence, compulsory licensing strikes a balance between exclusive copyrights and the public’s right to access and utilise creative content.
It fosters a dynamic environment where innovation and cultural expression can flourish, benefiting both content creators and society at large.
Compulsory licensing is a significant aspect of copyright law in India, granting specific rights to individuals or entities to use copyrighted works without the explicit consent of the copyright holder.
While the terms “compulsory licensing” and “statutory licensing” are often used interchangeably, they have distinct differences under the Copyright Act.
Compulsory licensing allows for the negotiation of royalty rates by the copyright rightful owner through the Appellate Board, while statutory licensing entails pre-defined rates set by the Appellate Board.
A license grants specific rights to the licensee as outlined in the license agreement, while the ownership of those rights remains with the copyright owner. This distinguishes it from an assignment.
When an assignment is made, the assignee assumes ownership of the assigned interest.
The copyright transfer from the original proprietor to the assignee results in the assignee having all rights, while the original owner retains none.
Section 31 C of the Copyright Act pertains to statutory licensing for making cover versions.
It enables individuals who wish to create sound recordings of existing literary, dramatic, or musical works, with permission or license from the owner, to do so by following the procedures outlined in the Copyright Rules of 2013 (specifically rules 23 to 28).
Copyright licensing is the granting of permission by the owner to another party to use specific rights associated with the copyrighted work.
The licensor maintains ownership of the work and grants the licensee permission to use it subject to specified terms and conditions.
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