This article is written by Avinash Pandey of NMIMS Kirit P. Mehta School of Law, Mumbai.
Licensing of Copyright
A copyright is a sort of intellectual property which, typically for a certain period of time, grants its owner the sole authority to reproduce, transmit, adapt, exhibit, and execute a creative work. The creative work could take the form of something musical, artistic, educational, or literary. A creative work’s unique expression of a concept is what copyright is meant to protect, not the idea themselves. A copyright may be susceptible to restrictions based on factors of public interest, for instance the doctrine of fair use within the United States.
The stake in copyright is transferred through a licence. A licence grants another party with certain limitations the ability to utilise a copyright. A licence may offer the permission to use the copyright of an existing work or the copyright of a future research that has not yet been created. A licensee is permitted to utilise a copyrighted work without the proprietor of the copyright asserting any claims of infringement or illegal to be used against the licensee.
To be upheld, a licence agreement needs to include the information below:
The work’s authentication and the rights granted
Timeframe for the License
Payable royalties’ amount
Conditions pertaining to licence revision, extension, and/or cancellation.
The proprietor of the copyright or their officially authorised representative must properly sign the licence, which must be in writing. Information on the current or future copyright work. If the holder of a future research passes away before that work is created, its legal advisors will be entitled to the advantages of the licence, if nothing in the licence is in conflict. An ownership in the right may be granted by licence from the proprietor of the copyright of such an existing material or from the potential owner of a future work; in the case of a future work’s copyright, the licence won’t take effect until that work is created. The Indian Copyright Act’s Section 31 addresses forced licences. It is a phrase used to describe the legal licence that grants the exclusive permission to do an operation without the proprietor of the copyright’s prior consent. In accordance with Section 31, works protected by copyright that are kept from the public must obtain forced licencing.
The copyright board may instruct the Supervisor of Copyrights to grant the complainant a compulsory licence so that he can redact the work, broadcast or otherwise converse the work to the public, and so forth. after giving the copyright owner a satisfactory opportunity to be heard, conducting an investigation, and being satisfied. Making the copyrighted work accessible to the public is the main goal of compulsory licencing. In order for authors, artists, and others to profit from the fruits of their labour and ingenuity, copyrights provide protection for their creative works. However, the public should have access to such work. When copyright owners are unwilling to part with their creations, the Supervisor of Copyrights may issue compulsory licences in order to make their work accessible to the public.
The licencing of copyrighted works is covered under Chapter IV of the Copyright Act. The following seven types of licences are covered in this chapter by the Copyright Board. According to this clause, anybody may apply to the copyright board for the granting of a compulsory licence to publish a work that the copyright owner has withheld from the public.
a) Compulsory licences for materials kept from the general public:
Nonetheless, the plaintiff should have first asked the copyright owner for permission to reproduce or perform the work before turning to the Copyright Board, and the proprietor should not have acted properly when the complainant’s request was turned down.
b) Compulsory licences for unpublished works by unknown writers:
Anyone may request to such Copyright Board for something like a licence to publish or convey to the audience such materials or translations thereof in the event of unpublished works by unknown or deceased authors. However, the applicant must legally advertise his intention to do so in a major publication before filing such a request.
c) Compulsory licencing for the advantage of the disabled:
Any individual or non-profit organisation that works for the advantage of the disabled may submit an application to the Copyright Board for something like a compulsory licence to distribute any work in a format that is accessible.
d) Legal authorizations for Cover Versions:
Section 31C of Copyright Act authorises the issuance of legal authorizations for the creation of compilation albums of any audio recordings. This clause expressly calls on the Copyright Board to set the minimal royalty that must be paid for the production of such a version. The Copyright Board grants this permission to any broadcasting institution that wants to transmit to the general public any literary, musical, or sound recording that has already been published by the copyright holder.
e) Statutory licences for Broadcasting literary, musical, and sound recordings Although it has the authority to decide on the royalties due under this agreement, the Copyright Board has not yet met to do so.
f) License to manufacture and publish transcriptions:
The Copyright Board has granted the applicant this licence, which entitles them to produce and distribute a translation of a literature or dramatic work after the original work has been published for a period of seven years and has paid a set royalty. It is important to note that cinematographic movies and sound recordings are not covered by this agreement.
g) License to duplicate and publish publications for certain purposes:
If editions of certain literary, scientific, or artistic works are also not made accessible in India, the Copyright Board might grant licences to publish those works there. In such cases, the Copyright Board may grant the licence after assessing the royalty that must be given to the content owner.
Permanence of a licence
Unless the licence deed specifies otherwise, if such licensee doesn’t at all use the privilege provided to him by the licence deed within a year, the licence with regards to that right will be presumed to have expired. If the license’s duration is not specified in the deed, it will be assumed to be five years. If there is a disagreement between the licensee and the licensor, the party that feels aggrieved may submit a grievance also with Copyright Board, which also will conduct an investigation and issue any necessary orders, which may include a ruling on any royalties that may be due.
Unless such conditions of the agreement are just too onerous for such licensor and when the owner is also the creator, a copyright may have more than one ownership, an instruction for the license’s termination cannot be issued before a term of five years has passed. If a joint owner issues a licence to the copyright or any portion of it in this situation without the approval of the other owners/co-owners, the co-owner may then bring legal action against the part owner as well as the licensee to whom the right was granted. A key component of issuing a copyright licence is consideration. The licence is revocable if there is no consideration; but, if there is any consideration, an ownership in the copyright is established, making the licence irrevocable.
References
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