Written by: SANKRITI KRISHNA,BA.LL.B(HONS.), GALGOTIAS UNIVERSITY
INTRODUCTION
As per Section 14 of a copyright act 1957, Copyright is an exclusive right which grants creators the exclusive right to reproduce, distribute, perform, display & create derivative work based on their original work. This means copyright owner have control over who can use their work & How it can be used. But this act also provides provisions for compulsory licensing in Section 31 of copyright act 1957. Compulsory licenses are that type of licenses which is granted by the Government to an individual or company for use of patents, copyrighted works or other types Of intellectual property, to do without seeking the owner’s consent. It is an involuntary Contracts between a willing buyer and an unwilling seller imposed or enforced by the state. The individual or company granted compulsory license have to pay some amount as fee to the owner a for the license. Nations currently have the right to issue compulsory licenses on patent and copyrights. Compulsory licenses under international law, Berne convention for the Protection of literary and artistic works, is an international agreement governing copyright Provide for the minimum requirements to be set when compulsory licenses are applied in Article 11bis(2) and Article 13(1).
HISTORICAL DEVELOPMENT OF COMPULSARY LICENSING IN INDIA
India, a signatory to the Berne Convention (1886), drew from Article 9 and Article 11 bis to shape its compulsory licensing framework.
Key Points:
· Article 9 allows countries to permit reproduction of copyrighted works in special cases, Without restricting legislative powers.
· Article 11 bis adds conditions to protect authors’ moral rights and equitable remuneration.
· India preferred Article 11 bis over Article 9 to safeguard authors’ interests.
· Section 31 of the Indian Copyright Act, 1957, combines elements from both Articles 9 and 11 bis.
Outcome: India’s compulsory licensing framework balances copyright owners’ rights with societal needs, ensuring authors’ moral rights and equitable remuneration are protected.
WHAT IS COMPULSORY LICENSING IN COPYRIGHT CONTEXT.
Compulsory license is a statutory license that gives the liberty to use the copyrighted work without permission from the copyright owner. Section 31 of a Copyright Act 1957 empowered Copyright board to provide compulsory licences under certain circumstances like the work must have been published or performed in public, the author must have refused to republication of that work, the work is withheld from public on account of such refusal, the author must have refused to republish or allow republication even on reasonable terms. As per Section 31A Copyright act 1957, compulsory license can also grant by copyright board in case of author dead or unknown or cannot be traced. At present, there are five types of compulsory licenses in India. These are the kinds of licenses to which include the works withheld from the public without the appropriate reason, the second type of license is related to orphan works, the third type of license is related to the differently abled, other types include the licenses related to translations and the last one is licenses related to the reproduction and sale of works which are not available in India.
WHY IT IS IMPORTANT?
One of the Objective of Copyright act is to make balance between copyright owner rights and general public access to protected content. Compulsory licensing fulfils this objective. There are times when copyright owner found it difficult or refuse to part from their work. In such a case in order to ensure the availability & accessibility of copyright materials to the public &free flow of ideas & information without infringing the rights of the copyright owner, Compulsory licensing become a necessity of the hour, but it is also important to note that the work should be used in a fair manner and no malpractices should be practised. Compulsory licensing provides access to the public so that it can be used in various academic & beneficial reason. Copyright licensing grants by copyright board in case of author dead or unknown or cannot be traced, so that works can be brought in the public domain.
In, Entertainment Network (India) Ltd. V. Super Cassette Industries Ltd 2008
Fact- this case was between Radio Mirchi and Super Cassette Industries(T-series). Radio Mirchi is basically a broadcasting agency and T-series is a company that holds the copyright of many songs. The dispute arose between them because radio mirchi played one a song which had the copyright of the t-series for which the t-series owners had not given permission.
Judgement- given by the supreme court. They acknowledged the copyright act creates the balance between the interest of the owner of the copyright and the interest of public to have the access to that work. The court said that the act allows the copyright owner complete freedom to enjoy the fruits of his/her labour by earning royalty or fees through issuances of licenses. But this right is not absolute. It is subject to the right of public to have access to the work through compulsory licensing. The court held that if the owner of the work has refused to allow the performance of work and the reason is withheld from the public, compulsory licenses can be granted. The court also said unreasonable demand will also be considered as refusal. The Court converted compulsory license to ‘license by default’ by saying that if it is established that the demand is unreasonable.
CONCLUSION
Compulsory licensing is a vital provision in the copyright law that strikes a balance between the rights of copyright owners and the public’s need for access to protected content. It ensures that copyrighted works are available for use in various academic and beneficial purposes, even if the copyright owner refuses to grant permission or is unavailable. The Entertainment network (India) Ltd. V. Super Cassette Industries Ltd. Case highlights the importance of compulsory licensing in promoting public access to creative works while protecting the rights of copyright owners. By granting compulsory licenses, the copyright board can prevent the unreasonable withholding of works from the public and promote the free flow of ideas and information. Ultimately, compulsory licensing serves as a safeguard against the monopolization of creative works, fostering a fair and equitable environment for both creators and consumers.
Comments