Indian copyright laws

An overview by Ananth Padmanabhan

There are many independent musicians who create, produce, and publish their creative work online. There are also organisations involved in the production of digital content. And then there are copyright owners, and this includes artists, creators, production and media houses, and independent publishers. In this vast creative ecosystem that is only growing by the day, it is easy to publish content for educational purposes (without an intention to plagiarise, but sometimes without the permission of the copyright owner) as much as it is easy to plagiarise and upload digital content. Clearly, this is a complex space, and the complexities can be dealt with to arrive at a fair resolution of copyright disputes only if there is a good grip on what the legal system says about copyright laws in the country.

We spoke to Ananth Padmanabhan, Dean, School of Law at Sai University to help us understand India’s copyright laws and what these laws mean for digital content creators, producers, and publishers. An excerpt:

Vaak: Can you give a brief overview on India’s copyright law?

Ananth: Indian copyright law is laid out in a self-contained parliamentary legislation, the Indian Copyright Act, 1957 (the Act). The idea behind copyright law is to protect “works”, including literary, musical, artistic, and dramatic works, sound recordings, cinematograph films and computer software, against unauthorised use and reproduction. However, the Act does not stop with protecting these works against copyright infringement through the grant of certain exclusive rights to their owners. It grants performance rights to “performers” including actors, singers, musicians, and dancers, in respect of their performances. It also grants moral rights to authors. These special rights continue to remain with authors even after they transfer their copyright to a publisher or any other entity and help them in asserting authorship over their works (if not duly credited for their authorial efforts) and preventing any distortions, mutilations or other modifications to their works that potentially cause a dent to their authorial reputation or honour. Thus, the law aims to comprehensively secure property rights and other rights to creators, with the aim of incentivising creative activity. At the same time, it provides a legal channel for these property owners to deal with their rights in a fair manner, largely through voluntary contractual arrangements, such that society benefits from access to these creative works.

Vaak: Who is this law applicable to?

Ananth: The law has relevance for, and applicability to, all four players in the content ecosystem – authors and creators, producers and investors, distribution channels, and end users. Authors are the original owners of works in most circumstances, but industry practices often dictate that they assign (ie. transfer) their rights in respect of these works to producers / investors. The latter group then negotiate with distribution channels – radio stations, theatre owners, digital platforms – regarding royalties and other license terms. In certain settings such as radio broadcasting, when negotiations fail, the designated public authority steps in to fix royalty rates and facilitate compulsory access. Finally, the end users access works through various channels, and either pay for the copy of the work provided to them or resort to the fair dealing provision that exempts them from taking permission before consuming a work. It is also worth noting that copyright protection is available both to Indian works and foreign works (the latter subject to some international conventions and treaties, and statutory conditions), though the enforcement of such rights will be as respects infringing activities that take place within India.

Vaak: What is Copyright Infringement?

Under the Copyright Act, copyright owners have certain exclusive rights such as the right to reproduce the work, issue copies of it to the public, perform the work in public, make cinematograph films or sound recordings based on the work etc. When any person other than the copyright owner indulges in any of the aforementioned activities without the owner’s permission, this would usually amount to copyright infringement (except when there is a fair use under the law, as explained below). Therefore, the composer of a popular song (who hasn’t yet transferred her copyright ownership to a sound recording label or a movie producer) can sue another composer who copies her tune or proceed legally against a reality show where contestants perform her song in public.

Both civil remedies like injunction and monetary compensation, and criminal remedies like penalties and imprisonment, are available to copyright owners, depending on the severity of the infringing activity. Moreover, infringement also includes secondary activities that support primary acts of infringement, such as permitting, for commercial gain, the use of any place from where infringing copies of a work are communicated to the public. Such place can include virtual spaces such as digital platforms. Thus, if the composer in the aforementioned example notifies Youtube that a song that sounds similar to her musical work is uploaded on the platform, Youtube has to take down that song at least for 21 days. After the 21 day period, the take down will only continue if the composer manages to obtain a judicial order supporting her claim.

Vaak: What is the Concept of Fair Use and Fair Dealing in the law?

Ananth: Under the Copyright Act, any behavior that is excused under Section 52 will not amount to infringement. This is the fair use/fair dealing provision in the Act. The purpose behind fair use is to acknowledge that there are some trivial or legitimate uses of copyrighted works, which simply cannot be a voided, or which must in fact be actively promoted for the greater good of society. For example, it would be difficult to carry a news report on acultural event if the news organization is expected to take copyright license for every song that may be played at this event, and which forms a part of the news broadcast. Therefore, Section 52 allows exemption from copyright infringement for purposes such as news reporting, criticism or review of a work, private or personal use including research etc. There are many other exceptions too provided in this section. Some of the more prominent ones are educational and instructional uses, library purposes, judicial orders and official gazette notifications, sound recordings at not-for-profit clubs and residential premises, performances for the benefit of religious institutions, and the tailoring of works in accessible formats for the benefit of persons with impaired access to such works.

So far as a content creator who relies upon an existing copyrighted work is concerned, she should first check the listed exceptions in Section 52 and see whether her proposed use falls within any of the enumerated exceptions contained therein. If yes, she can safely proceed with making use of the existing work. If not, she then has to explore the possibility of identifying the copyright owner and seeking a license.

Vaak: Can you tell us how this law can be applied to digital content creators?

Ananth: When it comes to creative activity, copyright law makes no distinction between the various forms or medium in which works are created. Thus, regardless of whether a song is notated in a book, recorded in a studio, or hummed for the first time during a Facebook live event, the composer of the tune shall be entitled to the same level of copyright protection. In fact, there are some distinct advantages for digital content and related production models that arise from the reality that, unlike in the case of patents or trademarks, copyright exclusivity does not require mandatory registration of works in question. The moment a three-year old child records a dancing video using her mother’s smartphone, she becomes the copyright owner of that cinematograph film. In a digital world, with its velocity and volume of content, this instantaneous rights protection is very useful. Moreover, owners of digital content can also take self-help measures in the form of encryption technologies. If any such encryption is circumvented in an unauthorised manner or for “non fair-use/fair dealing” purposes, that would result in separate liability under law just for tampering with the encryption.

Vaak: What should digital content publishers know about copyright laws?

Ananth: Digital publishing is a domain where the law diverges on certain key features from analog modes of publishing. Take cinematograph films for instance. A 2012 amendment to the Act makes it clear that music composers and lyricists are entitled to an equal share of royalties as the film producer for all uses made of their respective works, except in the case of theatrical revenues (which the film producer gets to keep entirely, besides that which he must contractually share with the theatrical distributors). Most of these subsequent uses in turn are digital avenues for content dissemination. Similarly, even if music composers or lyricists have transferred their rights to film producers or investors, such transfers will not automatically cover future technologies (most of which are digital these days). Thus, separate transfers have to be effected on a later date for exploiting these works in the digital realm.

Again, while radio broadcasting gets the benefit of royalty rates fixed by a public authority (without these broadcasters having to independently negotiate with each sound recording label), the Bombay High Court has made it clear that digital streaming players like Spotify and Wynk cannot avail of this provision and must, instead, seek voluntary licenses first.

Finally, digital intermediaries like YouTube which traditionally host content rather than curating them (unlike a Netflix, for instance) get the benefit of a fair dealing exception wherein they are not liable for copyright infringement. However, when information is passed to such intermediaries by way of a complaint that a hosted video is infringing in nature, they have to immediately take it down for a 21-day period. Within such period, the onus is on the complainant to get a judicial order to ensure that the take-down decision is extended beyond 21 days.

Ananth Padmanabhan Bio

Ananth Padmanabhan serves as Dean, School of Law at Sai University and as a non-resident senior fellow at the Institute for South Asia Studies, NUS. His research interests are in the fields of technology policy, intellectual property rights, and innovation scholarship. He has authored a leading treatise, Intellectual Property Rights: Infringement and Remedies (LexisNexis, 2012), and co-edited an important volume, India as a Pioneer of Innovation (OUP, 2017).