THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

Dissertation

on

Law relating to Copyright Licence in India: An Analytical Study

submitted in fulfillment of the requirement of award of the Degree of LL.M.

submitted

by

Anil Sharma

under the Guidance

of

Prof. (Dr.) Ghayur Alam

Professor in Business and Intellectual Property Laws

2017-18
 Acknowledgments
It has been possible for me to complete this dissertation due to the guidance, support and
encouragement of several people who play an important part in my life. At the end of my
dissertation, it gives me great pleasure to thank all those people who contributed in different
ways to the successful completion of this dissertation.

First and foremost, I would like to express my sincere gratitude to my Guide, Prof. (Dr.) Ghayur
Alam, Professor in Business and Intellectual Property Laws, National Law Institute University,
Bhopal. This work would not have been possible without his guidance and support. Under his
guidance, I have learned a lot about legal research.

I would also like to thank Faculty Members, Library Staff and Computer Lab Staff of National
Law Institute University, Bhopal. I shall always be grateful to them for giving their insights on
various topics related to the main topic, directly or indirectly. I am truly grateful to them for
taking time out to always help me.

I thank my friends for their suggestions and vital help during the completion of my dissertation.

Finally, the two people whose constant support and encouragement has made the completion of
this dissertation possible, my parents. I owe everything to them. To them, I dedicate this
dissertation.

Anil Sharma

ii
 Declaration
I declare that this dissertation entitled “Law relating To Copyright Licence In India: An
Analytical Study” is the outcome of my own work conducted under the guidance of Prof. (Dr.)
Ghayur Alam, Professor in Business and Intellectual Property Laws, National Law Institute
University, Bhopal.

I further declare that to the best of my knowledge this dissertation does not contain any part of
work, which has been submitted for the award of any degree in any University.

Further, all the materials and resources used to carry out this study have been fully and properly
acknowledged and cited.

Date: Anil Sharma

iii
 LIST OF ABBREVIATIONS

AC Appeal Cases
AIR All India Reporter
CA Court of Appeal
CB Copyright Board
CL Compulsory Licence
CS Civil Suit
DLJ Duke Law Journal
HC High Court
ILR Indian Law Reports
IP Intellectual Property
JIPR Journal of Intellectual Property Rights
JT Judgment Today
SC Supreme Court
SCC Supreme Court Cases
WL Westlaw
CLR Columbia Law Review
WLR Weekly Law Reports (Eng)
HUP Harvard University Press
NJIPL NLIU Journal on Intellectual Property Law

iv
 TABLE OF CASES

Aga Medical Corp. V. Faisal Kapadi (2003) 26 Ptc 349 (Del)..................................................... 47

Anton Pillar K. G. Vs Manufacturing Process Limited(1976 Ch. 5) ............................................ 31
Babul Production Private Ltd. V. Zen Products(2005 (31) Ptc 135) ............................................ 24
Babul Products Private Ltd. V. Zen Products(2005 (31) Ptc 135)................................................ 51
Bennett Coleman And Co. Ltd. V. Phonographic Performance Ltd( Manu/Wb/0093/2004) ...... 56
Deshmukh And Co. (Publishers) Pvt. Ltd. Vs. Avinash Vishnu Khandeka(Air 2006 (2) Bom. Cr
321)............................................................................................................................................ 16
Entertainment Network (India) Ltd. V. Super Cassette Industries Ltd.( 2008 (37) Ptc 353) ....... 56
Frisby V. British Broadcasting Company (1967 Ch 932)............................................................. 23
Houghton Mifflin Company V. Rajendra Kumar Arya(Air 2006 Del. 2147) .............................. 51
John Wiley And Sons Inc. And Others V. Prabhat Chander Kumar Jain And Others,(2010 (170)
Dlt 701). .................................................................................................................................... 22
K.A. Venugopala Setty V. Dr. Suryakantha U. Kamath(1992(12)Ptc 55 Karn) .......................... 45
Mars Recording Private Limited V. Saregama India Limited(A IR 2015 KA 151) ........................ 58
Music Choice India Private Limited V. Phonographic Performance Limited(2010 (44) Ptc 171
Bom) .......................................................................................................................................... 64
Nav Sahitya Prakash V. Anand Kumar(Air 1981 All 200) .......................................................... 22
Phonographic Performance Ltd. Vs. Music Broadcasting (P) Ltd(2004 (29) Ptc 282 Bom. (286)
................................................................................................................................................... 17
Pillalamari Lakshmikant And Others Vs Ram Krishna Pictures,(Air 1981 Ap 224) ................... 32
Srimagal And Company V. Books (India) Private Limited(Air 1973 Mad 49) ........................... 44
Star India Pvt. Ltd. V. Piyush Agarwal(AIR 2012 DEL 5535)....................................................... 58
Super Cassette Industries Ltd. V. Entertainment Network (India) Ltd(Air 2004 Delhi 326) ....... 54
Super Cassette Industries Ltd. Vs. Entertainment Network (India) Ltd(Air 2004 Delhi 326) ..... 17

v
 SUMMARY OF CONTENTS

Certificates………….………...………………………………………………….………………i

Acknowledgements…..…………………………………………………………………………..ii

Declaration ……………………………………………………………………….………….….iii

List of Abbreviations…………………………………………………………….……….….....iv

Table of Cases……………….…………………………………………………………..……….v

Introduction………………………………………………………………………………………04

Chapter 1- Conceptual Analysis……………………………………………………………........12

Chapter 2- Meaning and Types of Copyright Licence.………………………………….…..…...35

Chapter 3- Difference Between Copyright Licence And Copyright Assignment..............................43

Chapter 4- Judicial Interpretation of Statutory Provisions Relating To Copyright Licence…….48

Conclusions and Suggestions………………………………………………………………….…68

Bibliography...........................................................................................................................................................72

vi
 Table of Contents
Certificates………….………...………………………………………………….………………i

Acknowledgements…..…………………………………………………………………………..ii

Declaration ……………………………………………………………………….………….….iii

List of Abbreviations…………………………………………………………….……….….....iv

Table of Cases……………….…………………………………………………………..……….v

INTRODUCTION ........................................................................................................................................ 4
RESEARCH METHODOLOGY............................................................................................................ 10
RESEARCH QUESTIONS .................................................................................................................... 10
OBJECTIVE OF STUDY....................................................................................................................... 10
CHAPTERIZATION .............................................................................................................................. 11
1 CHAPTER 1 ....................................................................................................................................... 12
CONCEPTUAL ANALYSIS ................................................................................................................. 12
Meaning and Nature of Copyright ...................................................................................................... 12
1.1. Constitutional Aspect of Copyright Law .................................................................................... 12
1.2. Licensing..................................................................................................................................... 13
1.3. Essence of Licensing................................................................................................................... 14
1.4. Voluntary Licensing.................................................................................................................... 15
1.5. Compulsory Licence ................................................................................................................... 16
1.6. Statutory Licence ........................................................................................................................ 17
1.7. WORKS SUBJECT TO COPYRIGHT LICENSING ................................................................ 17
1.7.1. Literary work ...................................................................................................................... 18
1.7.2. Dramatic Work.................................................................................................................... 18
1.7.3. Musical work ...................................................................................................................... 19
1.7.4. Artistic Work ...................................................................................................................... 19
1.7.5. Sound recording .................................................................................................................. 20
1.7.6. Cinematograph film ............................................................................................................ 20

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 1.7.7. Composite and derivative works......................................................................................... 20
1.7.8. Multimedia Works .............................................................................................................. 20
1.8. RIGHTS AND DUTIES OF PARTIES ...................................................................................... 21
1.8.1. Who can grant licence of Copyright?.................................................................................. 21
1.8.2. Right to Grant Licence........................................................................................................ 21
1.8.3. Right of Licencee to make Alterations in the work ............................................................ 22
1.8.4. Right to Sub licence ............................................................................................................ 22
1.8.5. Right to Sue Infringer ......................................................................................................... 22
1.8.6. Exclusive Licencee’s Right to Sue for Infringement .......................................................... 22
1.9. FORM AND CONTENT OF LICENCE .................................................................................... 23
1.9.1. Writing ................................................................................................................................ 23
1.9.2. Identification of work......................................................................................................... 24
1.9.3. Rights subject to licence ..................................................................................................... 24
1.9.4. Duration of licence.............................................................................................................. 24
1.9.5. Territorial extent of licence................................................................................................. 25
1.9.6. Territorial Division of Licence Rights and Principle of International Exhaustion ............. 25
1.9.7. Registration of Licences...................................................................................................... 26
1.9.8. Royalty................................................................................................................................ 27
1.10. REMEDIES FOR BREACH OF COPYRIGHT LICENCE ................................................... 28
A. Civil Remedies............................................................................................................................ 29
B. Criminal Remedies...................................................................................................................... 32
C. Administrative Remedies through the Copyright Board ............................................................. 33
D. Remedies Under Indian Contract Act and Specific Relief Act ................................................... 33
2 CHAPTER 2 ....................................................................................................................................... 35
MEANING AND TYPES OF COPYRIGHT LICENCE ....................................................................... 35
2.1. Voluntary Licence....................................................................................................................... 35
2.1.1. Exclusive licence................................................................................................................. 35
2.1.2. Non-exclusive Licence........................................................................................................ 36
2.2. Non-Voluntary Licence............................................................................................................... 36
2.2.1. Compulsory Licence ........................................................................................................... 37
2.2.2. Statutory Licence ................................................................................................................ 40
3 CHAPTER 3 ....................................................................................................................................... 43

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 DIFFERENCE BETWEEN COPYRIGHT LICENCE AND COPYRIGHT ASSIGNMENT...............43
3.1. Mode of Licence and Assignment..............................................................................................43
3.2. Transfer of interest.....................................................................................................................45
3.3. Right to Sue...............................................................................................................................45
3.4. Title...........................................................................................................................................45
3.5. Revocation.................................................................................................................................45
3.6. Voluntary or Non-Voluntary Transfer of work...........................................................................46
3.7. Signature....................................................................................................................................46
3.8. Transaction................................................................................................................................46
3.9. Proceed in Court........................................................................................................................46
CHAPTER 4.............................................................................................................................................48
JUDICIAL INTERPRETATION OF STATUTORY PROVISIONS RELATING TO COPYRIGHT
LICENCE.............................................................................................................................................48
4.2. Compulsory Licence..............................................................................................................51
4.3. Statutory Licence...................................................................................................................56
4.4. Copyright Board....................................................................................................................62
4.5. Collective Licensing..............................................................................................................64
CONCLUSIONS AND SUGGESTIONS.................................................................................................68
BIBLIOGRAPHY.....................................................................................................................................72
Books:...................................................................................................................................................72
Articles:.................................................................................................................................................73
E-resource:............................................................................................................................................74

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 INTRODUCTION

This work seeks to analyze the ‘law relating to copyright licence in India’. I opted this
topic because this area of statute fulfils the object of Copyright Act, 1957. Licensing is a way to
spread the work of producer created by his intellectual labor. There are two theories for
justification of Intellectual Property, one is labor theory i.e. propounded by John Locke and
whereas the Utilitarian theory propounded by Jeremy Bentham. To my mind the labor theory
works in the favor of producer because it talks about the fruit of labor if any one produce some
work by his intellectual labor must be protected and get fruit of his labor by spread in consumers.
And the Utilitarian theory works in the favor of consumers because it talks about the maximum
happiness to the maximum number of people and by the work of producer, consumer can get the
benefit from producers work and if the work does not spread then the consumer never get fruit of
his labor so the process of Licensing favors both the theories of Intellectual property because it
provides the fruit of labor as well as spread maximum happiness to the maximum number of
people.

Licensing is a form of contract so the concepts of The Indian Contract, 1872 also applies on it at
the time of Licence, provisions of Contract Act must be followed and bind on both the parties.
Without contract we never survive in our daily live because from dawn to dusk we do contract
with others. Let’s take example like purchase vegetable, milk, general store items etc. these were
the examples of daily use in all these thing contract works. So here the producer creates the work
and by licensing he spread his work among the people and encourages them to think about
something and work in that way. We can spread our views by licensing and assignment. Works in
nature of literary, dramatic, musical, cinematographic and sound recording work are the subject
matter of licensing under the Copyright Act, 1957. There are two ways by which the process of
Licensing works, one is voluntary and another is non-voluntary. In case of voluntary the owner
or his duly authorized agent transfers his work in written form voluntarily in case of non-
voluntary through compulsory and statutory licence. Copyright law also envisages non-voluntary
contracts by fashioning the mechanisms of compulsory and statutory licences. By fashioning
these mechanisms, copyright law serves her primary objectives: encouragement of learning,
dissemination of knowledge and access to copyrighted material. In a sense the mechanism of
compulsory licence, sub silatio, caste a legal duty on the copyright owner to make

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the copyrighted material available to the public and tells him that if he cannot do it, somebody
else do it, and he will be entitled a reasonable royalty. The mechanism of statutory licence allows
others to take the copyright material to the public. These equitable mechanisms seek to balance
the interests of the copyright owner and the public. We will discuss the whole process of licence
and the provisions given under Copyright Act, 1957 and the Copyright Rules, 2013.

In India, the Copyright Act, 1957 (as amended up-to-date), the Rules made there under and the
International Copyright Order, 1999 govern the facets of copyright, related rights and
neighboring rights. The Copyright is granted and protected as per the provisions of the Act and
there exists no common law right On the international plan, India is a part of the Berne
Convention for Protection of Artistic and Literary Works (1886), the Universal Copyright
Convention (1952) and the Agreement on Trade and Related Aspects of Intellectual Property
Rights, (TRIPs). However, India has not ratified the WIPO Copyright Treaty 1996 and WIPO
Performances and Phonogrammes Treaty 1996, till date. It is our birth right and human right to
express ourselves, to be creative, to create works of art, science and entertainment.

So, the way of study will be in exploratory and descriptive in nature and find out the answers of
the questions framed in synopsis of this work i.e. in chapter one to analyse the concept of
Copyright Licence, chapter two the difference between licence and assignment chapter three
seeks to find out the meaning and types of Licensing, chapter four judicial interpretation of
statutory provisions given under Copyright Act, 1957 and rules there under.

REVIEW OF LITERATURE

1
Gerald R. Gibbons in this article author focused on the universal copyright convention
promulgated by UNESCO in 1952. The primary purpose of this convention was to reconcile the
demands of author protection with the urgent need for cultural diffusion among the less literate
nations of the world. He told that time period for compulsory licence up to the seven years from
the date of first publication of work and duties of licencee which must be satisfied before a
compulsory licence. He mentioned the nature of licence, the obligation of licence and the

1 Gibbons Gerald R, The Compulsory Licence System of the Universal Copyright Convention, 06, DBJ, 23-
40 (1956).

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licensing translation outside the licensing state. At last he concluded that from the author’s point
of view however, the compulsory licence provisions may be somewhat disadvantageous.

2
Bruce Schaffer in his article he discussed the constitutional validity of compulsory licence in
general compulsory licence is a licence which the holder of a copyright in a work must grant to
anyone who wants to use the work in one of the ways specified in the copyright law. He also
talks about the compulsory licence may be unconstitutional is that there are limitations on the
exclusive right of the holders of copyright. The term ‘exclusive licence’ is used in the
constitution itself in art.1, sec. 8, clause 8 of U.S. Constitution. In conclusion the compulsory
licence provision enacted in 1909 was probably anomaly caused by congress responding to the
antitrust fever of the day. In 1976, Amendment provisions favour author.

3
Louis Altman author included in his article the effect of patent or copyright expiration on
licence agreement with the landmark judgments of U.S. Supreme Court and added all Intellectual
Properties in his article and their licence provision and its effect when they expired.

4
John B. Mcknight and Carlos Muggenburg R.V the article divided into 4 parts and second part
considers the treatment of licensing and franchising also noting the most significant reforms to
Mexico’s copyright law. Mexico’s recent enactment in June 1991 of the law for the promotion
and protection of Industrial Property. So this law repeals the Transfer of Technology law of 1982
and the transfer of technology Regulations 1990. In conclusion author said that process of
licensing and franchising reveals the transfer of technology regulations to be only an interim
measure in a continuing effort to obtain permanent change in the treatment of transfer of
technology to Mexico.

5
Joanne Benoit Nakos first of all he introduced the rapid growth of communication industry and
many problems are associated with free access to and manipulation of the newly available
information. There are numerous recent law suit filed based on dispute between copyright

2 Schaffer Bruce, Are the Compulsory Licence Provisions of the Copyright Law Unconstitutional, 2 Comm.
& L. 1 (1980).
3 Altman Louis Is there an Afterlife- the Effect of Patent of Copyright Expiration on Licence Agreements, 64
J. Pat. Off. Soc’y, 297 - 334 (1982).
4 Mcknight John B & Carlos Muggenburg R.V, Mexico’s New Intellectual Property Regime: Improvements
in the Protection of Industrial Property, Copyright , Licence and Franchise Rights in Mexico, 27 Int’l, 27-
50(1993).
5 Benoit Nakos Joanne, An Analysis of the Effect of New Technology on the Rights Conveyed by Copyright
Licence Agreement, 25, CLR, 433 – 461 (1995).

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owners and licencees as a result of the developments of new forms of communication and
determine current approaches to the construction of licence agreements. At last he concluded that
strict approach to new uses would resolve future conflicts in the same equitable manner as
current conflicts and its universal appeal would prove timeless.

6
Jeremy Thorpe in this article author focused on the collective licensing of copyright and told it
is high time that Australia’s Copyright Act, 1968 reflected the development of copyright
collecting societies. He added subheadings in his article like-concerns about collective licensing,
how collecting societies operate, defects of the present regulatory regime, overcoming the
inadequacies of the law and at last he concluded that concerns raised by small business regarding
the collective exploitation of copyright should not be viewed as a problem that ‘needs fixing’.
This article has demonstrated, there is significant scope for improving the regulatory regime.

7
Daniel C. Miller author divided his article in five chapters and third chapter consist of
determining the ownership in copyright work and in software licence agreements. He concluded
that let the buyer beware because the act of creation doesn’t presumptively give rise to ownership
claims. It is constraint by copyright licensing agreements.

8
Howard B. Abrahams in this article author highlights several factors compel the conclusion that
compulsory licences are an outdated concept and should be repealed. Author concludes with
hesitation that the mechanical licence should be repealed and gave four factors that influenced
this conclusion.

9
John L. Hines this article is an overview of copyright licensing under U.S. Copyright Act, of
1976 and discusses the following topics: the subject matter of a copyright licence, exclusivity
allocation of rights, term and termination, risk management and licence fees but not include
anywhere the provisions of Copyright Act, 1957 of India.

6 Thorpe Jermy, Collective Licenceing of Copyright: Optionbs for Competitive Reform, JPAR, 05, No. 2 ,
213-224 (1998).
7 Miller Daniel C, Determining Ownership in Virtual Worlds: Copyright and Licence Agreements, 22 Rev.
Litig., 435-471(2003).
8 Abraham Howard B, Copyrights First Compulsory Licence, 26, SCCHLJ, 215-253 (2009).
9 Hines John L, Copyright Licensing, TLJ, 18 – 26 (2010).

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 10
Zakir Thomas in his Article “, Overview of Changes to the Indian Copyright Law” after The
Copyright Amendment Act, 2012. He discussed about the provision related to copyright licence
under section 30 mode of licence by owners of copyright by writing by him or his duly
authorized agent and section 31when work withheld from public and 31B for benefit for disabled
person and section 31C for cover version and 31D for statutory licence for broadcast of literal
and musical work. The above amendment has been brought in to facilitate access to the works by
to the works for the growing broadcasting industry.

11
Prof. (Dr.) Ghayur Alam* & Abhinav Pradhan** in this article “Copyright Contract” authors
explained the need of contract that is an effective device of facilitating and maximizing
exchanges. So how the contract is important for copyright owner? In reply of this contended that
a copyright owner may lack of ability and capacity to fully exploit her copyright. She may not
have adequate resources, may not be good enough in making viable business choices and
strategies and may not have the presence in domestic and global markets. In such cases device of
contracts comes to her rescue in the form of Licence.

This article proceeds into five parts. In Part one attempt has been made to analyze
provisions relating to voluntary copyright contracts, this part proceeds into three steps ownership
of copyright, assignment and licence with related case laws. In part second to analyze the
provisions of compulsory licence stated that Copyright is a statutory right. It is a property right in
a sense. Compulsory licence is a call to copyright owner that perform your duties and if you
cannot, let somebody else to do it and you may get compensated by way of royalty. In part three
the basis of statutory licence it is limited to the cover version of sound recording and broadcast.
In part four Copyright societies are also known as collecting societies for they collect licence fee
from licencee and at last part five in conclusion they conclude that there is no format of
agreement assignment and licence, but the provisions as to mode of assignment and licence as
given in the Act are required to be followed.

10 Thomas Zakir, Overview of Changes to the Indian Copyright Law, 17, JIPR, 324-334 (2012).
*Professor in Business and Intellectual Property Laws & Ministry of HRD Chair on Intellectual Property Laws at
the National Law Institute University, Bhopal, India.
**Research Associate, Ministry of HRD Chair on Intellectual Property Laws at the National Law Institute
University, Bhopal, India.
11
Prof. (Dr.) Ghayur Alam & Abhinav Pradhan, Copyright Contracts, 05, NJIPL, 01 – 100 (2016).
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 12
Dr. Raman Mittal in his book he included the licensing of all Intellectual properties and divided
into four parts with chapters. In chapter one he introduced intellectual property licensing and
chapter five of part two talks about the copyright licensing from page number 153 – 215 and
describe the concept of copyright licensing, works subject to copyright licensing, rights subject
to copyright licensing, rights and duties of parties, forms and content of licensing, remedies for
breach of copyright licence, compulsory and statutory licences.

13
Robert W. Gomulkiewich, Xuan- Thao Nguyen, Danielle M. Conway authors divided the
summary of contents of the book in three parts so in part one foundations of licensing, part two
Intellectual property licensing and part three Licensing in Business and Industry are included.
Now in part two from page 309 – 342 contains overview of copyright licensing, introduction,
assignment versus licence of copyrights, new medium of expression and derivative works,
statutory termination of copyright licences, copyright compulsory licences, copyright licensing,
misuse and antitrust then Litigation issues in copyright Licensing and International issues in
Copyright Licensing. It does not contain the provisions regarding copyright licence in India.

14
Standing Committee report In this report the provision for protection of right of author given
under various clauses and sections of this amendment act, this report is based on the amendment
2012 why this amendment is added and how the rights of author were violated and compelled to
make agreement with producers of movie only once at the low rate of royalty and the ownership
of authors work transferred to the producer this creates the relation of bonded labour between
composer of music and the producer of film or elaborate the provision of statutory licence and
compulsory licence why they are added and how these provision beneficial for owner of the
copyright or the author of the copyright in which the ownership of work subsist.

15
Berne Convention in this convention Art. 9(2) says that 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 and article 9(3) talks about the

12 DR. RAMAN MITTAL, LICENSING INTELLECTUAL PROPERTY LAW AND MANAGEMENT, 01,
Satyam Law Int. 01 - 215 (2011).
13 ROBERT W GOMULKIEWICH et.al, LICENCING INTELLECTUAL PROPERTY LAW AND
PUBLICATION, 02, Aspen Publishers, 309 – 342 (2011).
14Copyright (Amendment) Act, 2012; Rajya Sabha Secretariat, New Delhi, November, (2010).
15 Berne Convention for the Protection of Literary and Artistic Works (1886).

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reproduction of sound and visual recording work. Art. 11 talks about the Right of public
performance and of communication to the public of a performance. And article 13 talks about the
compulsory licence.
16
In a case disputes and differences having arisen between the parties in regard to compulsory
licence in which broadcast of the songs in respect whereof the first respondent holds a copyright
as owner thereof or by reason of purchase of the copyright belonging to others. So in conclusion
the hon’ble Supreme Court does not approve the manner in which the Board has dealt with the
matter. The order of the Board should be set aside and the matter be remitted to the Board again
for the consideration of the matter afresh on merit and this appeal is allowed with the
aforementioned directions.
17
In a case appellant filed an appeal before Delhi High court against the order of copyright board
in which the copyright board grant the compulsory licence to the respondent under Sec. 31(1)(b)
of the Copyrights Act, 1957. So On consideration of the totality of facts and circumstances the
impugned order, granting compulsory licence to the respondent has to be set aside. Consequently
the respondent is restrained from infringing the copyright of the appellant.

RESEARCH METHODOLOGY
This is an exploratory and analytical study of ‘law relating to Copyright Licence in India’ and
seeks to find out answers to the following questions.

RESEARCH QUESTIONS
1. What is the meaning of Copyright Licence?
2. What are the types of Copyright Licence?
3. What is the difference between Copyright Licence & Copyright Assignment?
4. What are statutory provisions relating to Copyright Licences?
5. How the Courts in India have interpreted the provisions relating to Copyright Licences?

OBJECTIVE OF STUDY
To find the answers to the above research questions.

16 CIVIL APPEAL NO. 5114 OF 2005.

17 AIR 2004 Delhi 326.

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CHAPTERIZATION

In addition to the introductory chapter, this dissertation is divided into four chapters:

CHAPTER 1
Conceptual Analysis
CHAPTER 2
Meaning and types of Copyright Licence
CHAPTER 3
Difference between Copyright Licence and Assignment
CHAPTER 4
Judicial interpretation of statutory provisions relating to Copyright Licence
Conclusions & Suggestions

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 CHAPTER 1

CONCEPTUAL ANALYSIS
In this chapter the researcher deals with the concepts of Copyright Licence given under
Copyright Act, 1957 and Copyright Rules, 2013.

Meaning and Nature of Copyright

The right which a person is acquired in a work by the intellectual labour is called his
‘Copyright’. The Copyright Act, 1957 deals with the two types of Copyright, one which deals
with what are called original works all of which are product of the brain and imagination of some
author who has invented the work. The other part deals with soundrecordings, cinematograph
film, broadcasts and similar other matters, which can all be said to be the works based upon
something which has been produced by some author but the work which is copyright is the
product of the application of some special technique, skill and knowledge to produce a version of
the original author’s script, score and the like and recorded in a form which enables it to be
reproduced visually, audibly or in the form of an edition of some work for the benefit of the
public. For example, a novel may be translated, serialized, dramatized or turned into a
cinematograph film. Copyright does not lie in any idea, but in the expression in which the idea is
expressed.

Licensing is the most important activity which will take place in the life of a copyright work.
These copyright works reach the four corners of the world mostly through the instrument of
licensing which also results in benefits to the owner of the work as well as the licencee. The
concept of ‘copyright licensing’ brings to one’s mind association with activities like book
publishing, music recording and publishing, film making and distribution, computer software and
advertising. Such activities depend broadly on copyright licensing which, during the course of
evolution, have become highly specialized.

1.1. Constitutional Aspect of Copyright Law

18
Under the Constitution of India, the matter of Copyright fall under Entry 49 of List-1 which is
the Union list and it is a subject of Central law. Thus, the parliament has the exclusive right to
frame laws on this subject. Being a property right it is subject to the provisions of Article 300A

18 Schedule 7, List I Entry 49, of ‘The Constitution of India’, 1950. “Patent, Inventions and Design;
Copyright, Trade-marks and Merchandise marks.”

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 19
of the Constitution Of India. These rights are recognized and reaffirmed as freedom of speech
20
and expression in Article 19(1) (a) read with Article 19(2) of the Constitution of India. Under
Art. 19(2) of the Constitution of India, reasonable restrictions on the enumerated grounds may be
imposed on the right to create Copyrightable work reasonable restrictions though necessary are
at times used by the Government of the day to stifle and choke creativity in and of thought and
expression in name of being seditious, blasphemous, defamatory or immoral. According to the
constitutional scheme, we have the fundamental right to express ourselves in any manner we like
and the restrictions are only exceptions and not fundamental.

1.2. Licensing
The term ‘licensing’ has been derived from the latin term ‘licentia’ which means ‘freedom’ or
21
‘liberty’. The licence does not transfer ownership; it only grants a right to use the licensor’s
property. Once the licence comes to an end the licencee may be subjected to an action for
infringement just like the rest of the world. The licencee must remember that the right to use the
Copyright is permitted only to the extent described in the licence agreement because a licence is
construed as reserving all other rights.

Section 30-32B of the Copyright Act, 1957 are concerned with provisions relating to licensing.
Section 30 of the Copyright Act empowers the owner of copyright to grant an interest in the right
by a licence in writing. The section also purports that licence can be granted in relation to the
copyright which shall vest in the future work and can only take effect once the work comes into

19 See Art. 300A, Constitution of India, 1950. ‘No Person Shall be Deprived of his Property Save by
Authority of Law’.
20 See Art. 19, Constitution of India. “ Protection of certain rights regarding freedom of speech, etc.-(1) All
citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of [the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to
an offence.]
21 Compact Oxford Dictionary, Thesaurus, and Wordpower Guide (Indian Edn.) as referred in Gitanjali
Mehlwal, Intellectual Property Licensing: Discovering its Facets, 10,JIPR, 204 (2005).

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existence. A licence is granted by the right holder to any person in pursuance of a contract in
writing. The contract specifies as to what rights have been licensed or for what duration.

1.3. Essence of Licensing

Licence means to grant permission for someone who takes interest in your copyright work if you
are not capable to expand it or to have no sufficient economic resource. It’s a type of contract so
it is an effective device of facilitating and maximizing exchanges. One may not have adequate
economic resources, may not be good enough in making viable business choices and strategies,
and may not have the presence in domestic and or global markets. In such cases the device of
contracts (licence) comes to his rescue. What he cannot do on his own, he may allow someone
else do it. He may not be able to reach the world at large with his work on his own. Contracting
helps him reach wider public and help enrich public domain of knowledge; art and science which
22
in turn help promote the basic objective of copyright law.

A licence is a grant of permission. In everyday life people encounter many types of licences. The
permission to drive a car is known as a driver’s licence. Lawyers and engineers must be licensed
by a professional organization to practice in their respective fields. Airlines give passengers the
right to occupy a seat on an airplane at a certain hour on a certain day bound for a certain
destination. A concert ticket gets a patron into the concert hall to hear a symphony and a baseball
ticket gets a fan into the ballpark to watch a game.

Manifestation of human creativity in the form of ideas and expressions are converted into private
property and protected by law through the intellectual property system. These forms of property
like copyright, patents, trademarks, trade secrets and designs are tradable and licensing is one
important way of trading in them whereby the owner grants rights to another to use that property
while continuing to retain ownership over it.

Intellectual property is a negative right in that it gives the owner a right to prohibit others from
copying it without permission. It is the consent of the owner under specified circumstances not to
exercise this negative right with respect to a third party which forms the basis of intellectual
property licensing. That means the owner promises the licence not to sue him provided he
exploits the property according to the terms of the licence. In returns of this promise by the

22 Prof. (Dr.) Ghayur Alam & Abhinav Pradhan, Copyright Contracts, 05, NJIPL, (2016).

Page | 14
licensor the licencee usually promises to pay consideration to the licensor. So, a licence allows
the licensor to retain ownership of the property and at the same time to receive royalty income
from it, in addition to the income from his own exploitation of it. Therefore, licensing creates an
income source, disseminates the intellectual property to varying classes of users and acts as a
catalyst for further innovation and development.

A shorthand definition of licence is “a promise by the licensor not to sue the licencee.” Putting it
in another way, without a licence any use or exploitation of intellectual property by a third party
would amount to copying or infringement. Such copying would be improper and could, by using
the legal system, be stopped if the intellectual property owner wanted to do so.

Thus for the above reason the provisions for licensing under the Indian legislation on copyright
can be broadly classified into three categories voluntary licensing, compulsory licensing and
statutory licensing.

1.4. Voluntary Licensing

Chapter 6 of the copyright act, 1957 deals with the licensing of copyrighted work. Licensing
ordinarily involves a contractual agreement to exploit the exclusive right which is conferred to
the creator of the work by the process of contractual bargaining between the creator and the
entity/organization which shall be responsible in getting the work across to the public. In the
process, the author gets his returns from the sales of his work by way of royalty and the
responsible entity earns its share of investment from the profits.

23
In the case of Deshmukh and Co. (publishers) Pvt. Ltd. Vs. Avinash Vishnu Khandeka, High
Court of Bombay has aptly described the features of a ‘licence’ in the context of copyright
contracts:

“The copyright comprises of schedule rights which can be exercised independent of each other.
The licence is a personal right which cannot be transferred except in certain circumstances.
Licence is a right to do some positive act. Licence is personal right and creates no more than
personal obligation between a licensor and licencee. The licence is generally revocable at the will
of the grantor. There are different kinds of licences. A licence may be exclusive or non-exclusive;
exclusive licence means a licence which confers on licensor or licencee and persons

23 AIR 2006 (2) Bom. CR 321.

Page | 15
authorized by him to the exclusion of all other persons (including the owner of the copyright)
any right comprised in the copyrighted work. In the case of non-exclusive licence the owner of
copyright retains the right to grant licences to more than one person or to exercise it himself.
Licence is a personal right and licencee may not always be entitled to make alterations to the
terms.”

1.5. Compulsory Licence

The Indian copyright Act has its scales inclined in favour of access to knowledge and wider
diffusion of Indian Works. Though, it seeks to protect the rights of the authors in the best
possible manner, nevertheless, it has elaborate statutory provisions to encourage public access to
works through the system of compulsory licensing. The system comes into operation in the
circumstances when the work which has been previously published or performed in public is not
available in the market and the owner of the copyright has refused to allow republication, public
24
performance or communication of the work by way of broadcasting. To simplify, in case where
the copyright holder has refused to grant the public, the right to access the work, a complain can
be filed before the quasi-judicial body, i.e. the Copyright Board.

25
In the case of Phonographic Performance Ltd. Vs. Music Broadcasting (P) Ltd. The learned
counsel submitted the provisions under Article 27 of the Universal Declaration of Human
26
Right. It is submitted that compulsory licence is provided to ensure that the members of the
public are not deprived of the enjoyment of the copyright work. At the same time, rights of the
owner of the copyright cannot be put in jeopardy and the scheme of the act is that a compulsory
licence is granted only when such work is withheld from the public.

27
In the case of Super cassette Industries Ltd. Vs. Entertainment Network (India) Ltd. The Delhi
High Court observed:

24 SHASHI NATH MANDAL, ‘COPYRIGHT LAW: CASES AND MATERIALS’, Regal Publications, New Delhi,
(2013).
25 2004 (29) PTC 282 BOM. (286).
26 Article 27 of UDHR:
(i)Everyone has the freely to participate in cultural life of the community to enjoy the arts and to share in scientific
advancement and its benefits.
(ii)Everyone has the right to the protection of the artistic production of the moral and material interests resulting
from any scientific, literary or artistic production of which he is author.
27 AIR 2004 DEL. 326 (344).

Page | 16
“The Board while adjudicating the application for compulsory licence must also determines that
the parties before the Board have their competing commercial interest. The public interest can
only be safeguarded by the Board. This indeed is the main duty and obligation of the Board. Any
decision which is taken by the Board must be taken while keeping larger public interest in view.
The Board has carefully maintained the balance between creations of monopoly which is
generally considered opposed to public interest and protecting intellectual property rights as a
measure to encourage creativity in the respective fields.”

1.6. Statutory Licence

Collective licensing is a business practice used for licensing and management of copyright works
by specialized organizations acting in the interest and on behalf of the owners of copyright.
Copyright Societies are also known as Collecting Societies for they collect licence fee from the
licencees. Copyright Societies are formed primarily for better and efficient exploitation and
administration of the copyright. An individual copyright owner may not have the capacity or the
bargaining power to fully reap the benefits of copyright. The individuals enter into a contract
with the Copyright Societies and the Copyright Societies enter into contracts with others for
granting permission of use of copyrighted material. These Societies fix tariff rate and frame their
own regulations. Chapter VII of the Act deals with the Copyright Societies.

1.7.WORKS SUBJECT TO COPYRIGHT LICENSING

All the works which form subject matter of copyright could be licensed or assigned. The
precise list of copyrightable works varies from country to country. In India, the Copyright Act,
1957 protects:

 Original literary, dramatic, musical and artistic works,

 Cinematograph films and
 Sound recordings

28
From unauthorized uses. Unlike the case with patents, copyright protects the expressions and
not the ideas. A brief outline of these works and their attributes is presented below.

28 See section 13 Copyright Act, 1957.

Page | 17
1.7.1. Literary work
The basic form of literary work is something textual – like a piece of prose or verse. That would
include novels, poetry, history and other literature on any subject. The expression literary work’
covers works which are expressed in print or writing irrespective of the question whether the
quality of style is high. The expression is not confined to works of literature in the commonly
understood sense but include all works expressed in writing whether they have any merit or
29
not. Therefore, question papers, football coupons, logarithmic tables, tambola tickets, letters,
questionnaires, catalogues, almanacs, dictionaries, etc. have been extended copyright protection
under the category of ‘literary work’.

30
The reason for this inclusion of digital works within the definition of literary work is that with
the advent of digital technology some new types of work came into being and questions arose
about how, and to what extent, they should be protected. Computer programmes have some of
the characteristics of a literary work but are not written to be read directly by another person;
rather a computer program is a set of instructions for a machine. The question of a new, sui
generis form of protection was seriously considered in the 1970s, but copyright protection
became the norm. The TRIPS agreement requires that computer programme, whether in source
31
or in object code, shall be protected as literary works under the Berne Convention.

Compilation of data or other material, whether in machine readable or other form, which
by reason of the selection or arrangement of their contents constitute intellectual creations shall
be protected as such. Such protection, which shall not extend to the data or material itself, shall
32
be without prejudice to any copyright subsisting in the data or material itself.
33
1.7.2. Dramatic Work
This is an inclusive but not an exhaustive definition. This definition does not exclude the script
of a play, but the script, being textual in character, is in any case concurrently protected as
literary work. A dramatic work typically involves not merely dialogue but a series of incidents

29 See Agrawala Publishing House v. Board of High School and Intermediate Education, AIR 1967 All 91;
University of London press Ltd. V. University Tutorial Press Ltd. [1961] 2 Ch 601.
30 See Sec. 2(o), Copyright Act 1957. “Literary Work” includes computer programmes, tables and compilations including computer
[databases].

31 Art. 10 (1) of TRIPS Agreement.

32 See Art. 10.2, TRIPS Agreement.
33 See Sec. 2(h), Copyright Act, 1957. “Dramatic work” includes any piece for recitation, choreographic work
or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or
otherwise but does not include a cinematograph film.”

Page | 18
and situations encompassing the whole composition of arrangements for presentation on the
stage, both visual and aural.

In the case of dramatic works, the Copyright Act specially requires fixation of thervthe work. A
dramatic work is conventionally fixed in material form by a combination of text and drawings or
other graphic images. An audio-visual recording could also amount to fixation. The act does not
prescribe this requirement for other kinds of works.

34
1.7.3. Musical work
Under this definition, a musical work need not be written down to enjoy copyright protection. In
this way the definition goes beyond extending protection only to notational form in which music
is recorded and is capable of accommodating Indian music as well. The use of the expression
“and includes any graphical notation” makes it clear that fixation is not a prescribed requirement
as is the case with dramatic work.

35
1.7.4. Artistic Work
This definition is exhaustive, not inclusive, and lists three kinds of artistic works. The first part
covers paintings, sculptures, drawings, engravings and photographs further, ‘drawing includes
36
diagrams, maps, chart and models.

The second part covers works of architecture which includes any building or struictuure
having an artistic character or design, or any model for any such building or structure. Thus
every building or structure is not protected by copyright.

The third part covers ‘any other work of artistic craftsmanship’ i.e. something which is
not covered by the earlier two parts but which nevertheless displays some artistic craftsmanship.
Works of artistic craftsmanship may include such everyday useful objects as furniture, pottery,
cutlery, jewellery, etc.

34 See Sec. 2(p), Copyright Act, 1957. “Musical work” means a work consisting of music and includes any
graphical notation of such work but does not include any words or any action intended to be sung, spoken
or performed with the music.
35 See Sec. 2(c), Copyright Act, 1957. “artistic work” means,—
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph,
whether or not any such work possesses artistic quality;
(ii) a 4[work of architecture]; and 1[work of architecture]; and"
(iii) any other work of artistic craftsmanship;
36 See Sec. 2(za), Copyright Act, 1957.

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 37
1.7.5. Sound recording
Copyright shall subsist in a sound recording only if it has been lawfully made. The laws of some
countries (India being one) treat sound recordings as works independently protected by
copyright, over and above any copyright in the recorded work, but in other countries these are
protected by means of a ‘neighboring right’.

38
1.7.6. Cinematograph film
“cinematograph film” means any work of visual recording on any medium produced
through a process from which a moving image may be produced by any means and includes a
sound recording accompanying such visual recording and “cinematograph” shall be construed as
including any work produced by any process analogous to cinematography including video
films;]"

1.7.7. Composite and derivative works

It 9is not usual for several different copyrights, whether pertaining to different authors or the
same one, to subsist in the same composite work; for example, illustrated books which contain
both literary and artistic works and songs which comprise both literary and musical works. There
are also many casese where a separate copyright subsists in the composite work itself; for
example, anthologies and compilations. Derivative works would include translations and
39
adaptations. Such works command independent copyright protection.

1.7.8. Multimedia Works

Multimedia is so often used in common parlance that is a paradox that its true meaning and
definition remain elusive. Literary defined, multimedia refers to a work involving more than one
medium of expression. In that sense multimedia is certainly not a new phenomenon. Television is
known to have combined various elements such as photos, text, motion pictures and sounds.
Movies combine both video and audio elements. Different materials might be combined to form
a multimedia work which might include text, still images, moving images, sounds, music,
computer software, graphics, charts, pictures, photographs, designs, etc.

37 See Sec. 2(xx), Copyright Act, 1957. “sound recording” means a recording of sounds from which such sounds
may be produced regardless of the medium on which such recording is the method by which the sounds are
produced;
38 See Sec. 2(f), Copyright Act, 1957.
39 See Art. 2.3, Berne Convention, 1886.

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Every producer of multimedia works must carefully consider what rights he or she will need in
every copyrighted work to be used. If a text is to be included then the right of reproduction is of
course needed. But if the multimedia work will be performed in public then the right of
‘communication to public’ has to be obtained as well along with right to distribute. Multimedia
licences are common in media and entertainment industries where different types of intellectual
property can play a simultaneous part in the creation of a single product. The end result could be
anything from an e-commerce website, a movie or a distance education course.

1.8.RIGHTS AND DUTIES OF PARTIES

The rights of the owners (licensors) of copyright will be broader and will not be subject to any
limitation as against the rights of licencees. The rights of the licencee which will be subject to
conditions and limitations imposed by the owner of the copyright will flow from both the statute
as well as from the covenant entered into between the parties. “the rights of the owner and
exclusive licencee may not be the same and the rights of the exclusive licencee shall also be
40
subject to the fetters imposed by the agreement between the licensor and licencee.”

1.8.1. Who can grant licence of Copyright?

The right to licence a copyrighted work has been bestowed on the ‘owner’ of copyright in the
work. The owner of the copyright in any existing work or the prospective owner in any future
41
work may grant any interest in the copyright by licence.

1.8.2. Right to Grant Licence

The Copyright Act only says that the owner has the right to grant licences, but is silent in case of
42
joint ownership. In Nav Sahitya Prakash v. Anand Kumar it was held that a joint owner cannot,
without the consent of all other co-owners, grant a licence. If a joint owner issues such a licence
without the consent of other co-owners, then the co-owners whose consent was not obtained can

40 John Wiley and Sons Inc. and others v. Prabhat Chander Kumar Jain and others, 2010 (170) DLT 701.
41 See Sec. 30, copyright act, 1957. “Licences by owners of copyright”—The owner of the copyright in any
existing work or the prospective owner of the copyright in any future work may grant any interest in the
right by licence in writing signed by him or by his duly authorised agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when
the work comes into existence.
Explanation.—Where a person to whom a licence relating to copyright in any future work is granted under this
section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to
the contrary in the licence, be entitled to the benefit of the licence.
42 AIR 1981 All 200.

Page | 21
 43
sue the licencee and the licensor for infringement of copyright. In the case of powell v. head, it
has been held that the part owner of a dramatic work cannot grant a licence for its representation
without the consent of all other owners.

1.8.3. Right of Licencee to make Alterations in the work

A licencee has a right to make alterations in the licensed work unless the licence contract restricts
44
such alterations either expressly or impliedly. A licencee has the right to make alterations
45
except in so far as his licence expressly or impliedly restricts that right. That means if the
licence is for the entire copyright in a work then it would include a right to make adaptations or
alterations in the work also; but if, for example, the licence covers only the right of reproduction
and distribution then no alterations may be made. The right to make alterations is, however,
46
subject to author’s special rights under sec 57 of the Copyright Act, 1957. This is the most
relevant in cases of publication of literary, dramatic or musical work.

1.8.4. Right to Sub licence

The Copyright Act is silent about the right of the licencee to sublicence his right. It is, therefore,
important for the parties to clearly specify this right or its absence in the contract.

1.8.5. Right to Sue Infringer

A non-exclusive licencee has no right to sue. The non-exclusive licencee can, however, sue the
licensor for damages for breach of contract if the latter does not protect his interest.

1.8.6. Exclusive Licencee’s Right to Sue for Infringement

The Copyright Act confers on an exclusive licencee a procedural status which enables him to
bring proceeding but otherwise the rule remains unchanged. For the purpose of availing civil

43 1879 (12) Chancery Division 686.

44 See frisby v. British Broadcasting Company [1967] Ch 932
45 See George v. Cheiry, AIR 1986 Ker. 12
46 See Sec. 57, Copyright Act, 1957 “Author’s special right”.—[(1) Independently of the author’s copyright
and even after the assignment either wholly or partially of the said copyright, the author of a work shall
have the right"
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the
said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or
other act would be prejudicial to his honour or reputation:
Provided that the author shall not have any right to restrain of claim damages in respect of any adaptation of a
computer programme to which clause (aa) of sub-section (1) of section 52 applies.
Explanation.—Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an
infringement of the rights conferred by this section.]
(2) The right conferred upon an author of a work by sub-section (1), may be exercised by the legal representatives of
the author.

Page | 22
remedies an exclusive licencee enjoys the same status as that of the owner of copyright.
Accordingly, an exclusive licencee is entitled to remedies like injunction, damages and accounts.
In this regard, commenting on section 54 (a) of the Copyright Act, 1957 the Delhi High Court
held that:

The limited applicability of section 54 only for the purpose of chapter XII is in indicative of the
legislative intent which is that the legislature intended to treat the owner of the copyright and
exclusive licencee at parity only for the limited purpose of chapter XII and not for all other
purposes…. But for the purposes of the other chapters including the allocation of rights and
defining the rights under the Act, the definition of the owner including exclusive licencee will
not be applicable. This is a rather deliberate omission vis-à-vis the other chapters and a conscious
insertion/exception by the legislature only for the chapter XII to give additional right to sue to
the copyright owner through its exclusive licencee.

1.9.FORM AND CONTENT OF LICENCE

There is no specific form or words prescribed in the copyright act for a copyright licence. A valid
47
contract for licence may be concluded and effective even by letter. However, every licenswe
must contain certain particulars as to writing, identification of the work, rights granted, duration,
territorial extent, royalty, etc.; which have been discussed below:

1.9.1. Writing
A licence of copyright does not have to be in any special form, but it must contain conform to the
requirements of writing. The contract must be written down by the owner of copyright or his duly
48
authorized agent. A reading of sections 30, 30A and 19(1) of the Copyright Act makes it clear that a
contract for licence of copyright has to be in writing. In ESPN stars sports V. Global Broadcast News
49
limited and others, the court held that “a licence, exclusive or otherwise, has to confirm to
provisions of law. By virtue of provisions of sectionjs 30, 30A read with section 19,

47 London Printing and Publishing Alliance v. Cox [1891]3 Ch 291 (CA)

48 See Sec. 30, Copyright Act, 1957. Licences by owners of copyright.—The owner of the copyright in any
existing work or the prospective owner of the copyright in any future work may grant any interest in the
right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a
licence relating to copyright in any future work, the licence shall take effect only when the work comes
into existence. Explanation.—Where a person to whom a licence relating to copyright in any future work is
granted under this section dies before the work comes into existence, his legal representatives shall, in the
absence of any provision to the contrary in the licence, be entitled to the benefit of the licence.
49 ESPN stars sports V. Global Broadcast News limited and others, 2008 (36) PTC 492 (Del), para. 28

Page | 23
as far as they deal with the procedure for assignment, i.e. the requirement to be in writing, etc,
apply with equal vigour.”

50
In Babul Production Private Ltd. V. Zen Products, It was contended that since the
proprietor of the trademark had entered into a registered user agreement with the plaintiff, the
plaintiff has an oral licence to use the copyrights in question. But the court held the plea of oral
licence in copyright to be contrary to section 19(2) of the Copyright Act read with section 30A.
the court stated that a licence under section 30 must identify the work and such identification
would not be possible by an oral licence. Merely because no objection had been raised by the
owner of the copyright to the alleged use by the plaintiff, the court refused to imply a licence.

1.9.2. Identification of work

The work which is sought to be licensed has to be identified in the contract. Perhaps the most
important provision in a licence is the description of the property. The description should be as
complete and accurate as possible, leaving little room for ambiguity. The description should be
clear enough so that, in case of a dispute, a third party that may not be knowledgeable about the
property could make a decision about what is included and what is not.

1.9.3. Rights subject to licence

The contract shall specify the rights licensed, for example whether the work can be published, or
translated or distributed. Licence of rights conveys that the licencee has the right to exploit or
exercise these rights. While the licence is free to exercise these rights in the manner prescribed in
the contract, at the same time he is under an obligation to exercise these rights. If he cannot
exercise these rights within one year of the contract, then the licence shall be deemed to have
been lapsed after the expiry of the said period. This is, however, subject to a contract to the
contrary. This is a beneficial provision specially made for the owners of copyright.

1.9.4. Duration of licence

The rights granted under copyright come with a term. Beyond this term the copyrighted work
enters in public domain and it becomes possible for anyone to exploit the work without any
licence whatsoever. Therefore the duration of a copyright licence can be for the full term of
copyright or a part of it. Beyond this term, the licence will be free to use the property, even if the
licence term exceeds it, as the property falls into public domain. However, it is to be noted that

50 2005 (31) PTC 135.

Page | 24
copyright terms are not universal in the world. A country may protect copyright for fifty years
and another may do so for seventy years. If X is granted a worldwide licence for the full term of
copyright then the term of the licence would vary for different jurisdictions.

51
As per the copyright Act, the contract shall specify the duration of the licence. If,
however, the contract does not state the term or duration of the licence, then as per the law it
52
shall be deemed to be for a period of five years.

1.9.5. Territorial extent of licence

The owner may grant separate licence for different territories. For example, a publisher may be
licensed to distribute a book only in the territory of India. The owner may assign a right to one
country and licensed to the same to another person in a different country. The copyright Act says
53
the contract shall specify the territorial extent of the licence if however the contra t does not
specify the territorial extent of the licence, then, according to sec. 19(6), there is a presumption
54
that the territorial extent is throughout India. Section 19(6) postulates that if the covenant is
silence about territory, then the said assignment/licence, by deeming fiction of law, shall be
limited to India. From another perspective, this is the statutory recognition of the principle that
the owner’s right under the Copyright Act is not circumscribed by the territorial limitation and
rather the owner can licence its rights worldwide.

1.9.6. Territorial Division of Licence Rights and Principle of International Exhaustion The
doctrine of exhaustion addresses the point at which the Intellectual property holders control
over good or services ceases. This termination of control is significant to the functioning of
market economy which depends on free transfer of goods or services. The doctrine builds on the
idea that once the rights holder has been able to obtain an economic return from the first sale, the
purchaser of good or service is free to use and dispose it off without further restriction. Form the
point of view of International trade and movements of goods and service, the focus of exhaustion
question is whether it operates at national or International basis.

51 See Sec. 19(2) and 30A, Copyright Act, 1957.

52 See Sec. 19(5), Copyright Act, 1957.
53 See Sec. 19(2) and 30A, Copyright Act, 1957.
54 See Sec. 19(6), Copyright Act, 1957. ‘If the territorial extent of assignment of the rights is not specified,
it shall be presumed to extend within India.’

Page | 25
 55
In penguin Books Ltd. V. India Book Distributors and Others, the plaintiff who was the owner
of copyright, filed a suit against certain Indian Book distributors. It was contended by the
plaintiff that importation of American editions by defendant distributors without a licence for the
purpose of resale in India is an infringement of their copyrights. The defendant contended that
they had lawfully purchased published books in America and had imported them into India for
sale, so they are not guilty of infringing the plaintiff’s copyright. The court held that importing
and selling the books without a licence would amount to violation of plaintiff’s copyright.
Importation is forbidden unless a licence has been granted by the owner.

Most of the copyright producing nations within the fold of the WTO have the rule of national
exhaustion for copyright; however, Article 6 of TRIPS seems to permit even adoption of the
56
principle of exhaustion at International level.

1.9.7. Registration of Licences

Owners of copyright are entitled to registration of their right in the register of Copyrights
maintained in the Copyright Office. The assignee, being the owner, may apply in the prescribed
form to the Registrar of Copyrights for entering his name and particulars of the work in the
register of Copyright. The licencee being a ‘person interested in the copyright’ may also similarly
apply in the prescribed form to enter his name and interest in a copyrighted work in the Register
57
of Copyrights.

The registration of assignments and licences is not compulsory under the Copyright Act and such
58
registration is not necessary for the validity of copyright assignment and licence. However the

55 1984(4) PTC 285.

56 Art. 6, TRIPS: For the purposes of dispute settlement under this Agreement, subject to the provision of Art 3 and
4 nothing in this Agreement shall be used to address the issue of the exhaustion of Intellectual Property Rights.
57 See Sec. 45 Copyright Act, 1957. “Entries in register of Copyrights”—
(1) The author or publisher of, or the owner of or other person interested in the copyright in, any work may
make an application in the prescribed form accompanied by the prescribed fee to the Registrar of
Copyrights for entering particulars of the work in the Register of Copyrights: 1[Provided that in respect of
an artistic work which is used or is capable of being used in relation to any goods, the application shall
include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade
Marks referred to in section 4 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), to the effect
that no trade mark identical with or deceptively similar to such artistic work has been registered under that
Act in the name of, or that no application has been made under that Act for such registration by, any person
other than the applicant.
(2) On receipt of an application in respect of any work under sub-section (1), the Registrar of Copyrights may,
after holding such inquiry as he may deem fit, enter the particulars of the work in the Register of
Copyrights.
58
See Savitri Devi v. Dwarika Prasad, AIR 1939 All 305.
Page | 26
registration of assignments and licences has some evidential value because the Register of
59
Copyrights is a prima facie evidence of the particulars entered therein.

Since the registration of Copyright assignments and licences is not compulsory under the
Copyright Act, the assignee or the licencee may not register their rights or interests in the
Copyright. In this situation, the prospective assignee or licencee has no independent means of
knowing whether the copyrighted work has been subject to prior assignments of licences. In this
matter the assignee or licencee will have to depend upon the word of the owner of copyright in
the work to be assigned or licensed. Therefore, it is important for every person who seeks a
copyright licence or assignment to obtain a representation from the owner about any licences or
assignments issued previously in respect of the same work.

1.9.8. Royalty
The contract for assignment or licence of copyright shall specify the amount of royalty payable,,
if any. The language of sec. 19(3) – “the assignment of copyright in any work shall also specify
the amount of royalty payable, if any, to the author or his legal heirs during the currency of the
assignment” is somewhat anomalous. First the right to assign or the licence rests with the
‘owner’ and not the ‘author’ so the right to receive the royalty lies with the owner not the author.
Therefore, it is unclear why section 19(3) makes it obligatory for the licence or assignment to
specify the amount of royalty payable to the author. The use of the expression ‘if any’ in the end
further confounds the situation. It is submitted that instead of ‘author’ ‘owner’ should be used as
the right to assign or licence under 18 and 30 of the Copyright Act with the owner of copyright.

Whatever the provisions of the Copyright Act, as to royalty may suggest, royalty remains
a fundamental requirement of any licence or assignment. The reason is that every licence or
60
assignment is a contract and to be valid the contract must be supported by consideration.

59 See Sec. 48, Copyright Act,1957. “Register of Copyrights to be prima facie evidence of particulars entered
therein”— The Register of Copyrights shall be prima facie evidence of the particulars entered therein and
documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of
Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts
without further proof or production of the original.
60 See Sec. 25, Indian Contract Act, 1872. “Agreement without consideration, void, unless it is in writing and
registered or is a promise to compensate for something done or is a promise to pay a debt barred by
limitation law. - An agreement made without consideration is void, unless"

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1.10. REMEDIES FOR BREACH OF COPYRIGHT LICENCE
A copyright licence could be breached by licensor or licencee. In case of copyright, remedies for
such breach are to be found in:

 The Copyright Act, 1957.

 The Contract Act, 1872 and
 The Specific Relief Act 1963
Remedies for Breach of
Copyright Licence

Under Specific Relief

Under Contract Under
Act (Injunction,
Act (damages) Copyright
Specific Performance)
Act, 1957

Civil Remedies Criminal Remedies Administrative Remedies

(Damages; accounts; (Imprisonment; Fine) (Recovery of royalties;
Injunction) Revocation of licences)

(1) it is expressed in writing and registered under the law for the time being in force for the registration of
1[documents], and is made on account of natural love and affection between parties standing in a near
relation to each other; or unless
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for
the promisor, or something which the promisor was legally compellable to do; or unless.
(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally
or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have
enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a
contract.
Explanation 1.—nothing in this section shall affect the validity, as between the donor and donee, of any gift actually
made.
Explanation 2.—An Agreement to which the consent of the promisor is freely given is not void merely because the
consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in
determining the question whether the consent of the promisor was freely given.

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1.10.1. Remedies Under the Copyright Act

According to sec. 51 of the Copyright Act, Copyright in a work shall be deemed to be infringed
when the licence in contravention of the conditions of a licence, does anything, the exclusive
61
right to do which is conferred upon the licensor. For example, if the licencee uses the work in
excess of the grant or beyond the period of grant, he could be said to have infringed the
copyright of the licensor as he, by doing so, has encouraged upon the exclusive domain of the
licensor. “A breach of the licensing agreement might also constitute copyright infringement if the
breach were material or if it resulted in a failure to satisfy a condition to the licence.” The
remedies for such an infringement could be of civil, criminal or administrative nature.

A. Civil Remedies

62
As per section 55 of the copyright Act, if the licencee has infringed the copyright in the
licensed work, the licensor as owner is entitled to all such remedies by way of injunction,

61 See Sec. 51, Copyright Act, 1957. “When copyright infringed:—Copyright in a work shall be deemed to be
infringed” —
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under
this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent
authority under this Act:
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii)
permits for profit any place to be used for the communication of the work to the public where such communication
constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for
believing that such communication to the public would be an infringement of copyright; or
(b) when any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the
copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India," any infringing copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and
domestic use of the importer.
Explanation.—for the purposes of this section, 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”.
62 See Sec. 55, Copyright Act, 1957. “Civil remedies for infringement of copyright”—(1) Where copyright in
any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be
entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be
conferred by law for the infringement of a right:
Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable
ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than
an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant
by the sale of the infringing copies as the court may in the circumstances deem reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that to the author or
the publisher, as the case may be, appears on copies of the work published, or, in the case of an artistic work,
appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in

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damages, accounts and otherwise as are or may be conferred by law for the infringement of a
right. These remedies are tortuous in nature and intent is not a prerequisite for such liability.
However, in the case of innocent infringement, in accordance with section 55, some of these are
not available.

Where the licensor threatens the licencee with any legal proceedings or liability in respect of an
alleged infringement of copyright, the licencee may institute a declaratory suit that the alleged
infringement was not in fact an infringement of any legal rights of the licensor and may in such
63
suit obtain injunction against such threats and claim damages also.

Further the civil remedies under the Copyright Act are also divided into two categories:
Preventive Civil Remedies and Compensatory Civil Remedies.

a) Preventive Civil Remedies

This again includes the Anton Pillar Order and Injunctions. These types of remedies are
preventive in nature which prohibits the offender from doing something. These remedies also
advocates about the negative rights of the owner over the infringement or to be infringed
copyrights.

Anton Pillar Order

This form of order actually made under the court's inherent power. It was invented and used for
the first time by English exponent, Lord Denning in Anton Pillar K. G. Vs Manufacturing

respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the
publisher of the work, as the case may be.
(3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the
discretion of the court.
63
See Sec. 60, Copyright Act, 1957. “Remedy in the case of groundless threat of legal proceedings” —Where any
person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any
other person with any legal proceedings or liability in respect of an alleged infringement of the copyright, any
person aggrieved thereby may, notwithstanding anything contained [in section 34 of the Specific Relief Act, 1963
(47 of 1963)], institute a declaratory suit that the alleged infringement to which the threats related was not in fact an
infringement of any legal rights of the person making such threats and may in any such suit” -
(a) obtain an injunction against the continuance of such threats; and
(b) recover such damages, if any, as he has sustained by reason of such threats: Provided that this section does not
apply if the person making such threats, with due diligence, commences and prosecutes an action for infringement of
the copyright claimed by him.

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 64 65
Process Limited. Presently, it has got recognition in the provision of TRIPs also. Where there
is a possibility of the defendant destroying or disposing of the incrimination material, the Court
may take an order in order to inspect the premises of the defendant on an ex-parte application by
the plaintiff without giving notice of the application to the defendant. It is not a search warrant. It
only authorise entry and inspection of the defendant, by permission, in the absence of which the
act would tantamount to the tort of trespass.

Injunction

The main remedy sought in most copyright suits for an injunction to restrain the defendant from
continuing to do acts which constitute infringement. It is granted to safeguard the interests of the
copyrights owner of his legitimate benefits where there is a likelihood that irreparable harm shall
be caused to the copyright holder. It is an interim relief granted during the pendency of the
proceedings. The injunctions can be temporary and permanent which may depend upon the
situation and circumstances of the case. The laws relating to injunction are contained in the
Specific Relief Act, 1963.

b) Compensatory Civil Remedies

This includes Damages, Accounts of Profit and Delivery of infringing copies. These sorts of
remedies are curative in nature and compensate the owner or the creator to save him from
pecuniary/economic loss which may arises from the act of infringement. Damages: Apart from
the injunction, Copyright Act also provides remedies by means of Damages. The Copyright
owner can either claim for damages or accounts of profit and not both since the spirit behind this
legal remedy is that the plaintiff must be compensated and he cannot be compensated twice for
the same violated act. However, the remedy of injunction can be joined either with that of
66
damages or accounts, but the remedies of accounts and damages can in no case be joined.

64 (1976) Ch. 5 (Known as Anton Piller Order), referred by DR. J.K. DAS, INTELLECTUAL PROPERTY
RIGHTS, 1st , Kamal Law House, Kolkata, 212 (2008).
65 TRIPS Agreement, Para 2 of Article 50.
66 Pillalamari Lakshmikant and others Vs Ram krishna Pictures, AIR 1981 AP 224.

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Accounts of Profit

This kind of remedy is available to the owner of the copyright generally along with damages but
sometimes along with injunctions also. Thus, in case of suit of infringement of copyright the
owner may seek the relief in form of accounts as well as of damages. Further, since damages
were awarded and the decree of damages became final, the publishers were not entitled to the
relief of accounts. Thus, the court held that the remedies of damages and accounts are remedies
67
in the alternative and the two reliefs are incompatible.

Delivery of infringing copies

If any infringing copy of the copyrighted materials has been ceased or collected from any place
or custody of any person infringing the rights of the owner than the infringing copies of the
copyrighted materials should be delivered to the original copyright owner or creator.

B. Criminal Remedies

The Copyright Act provides not only civil remedies against infringement of copyright but also
criminal remedies. Civil and Criminal remedies are distinct and independent and can be availed
simultaneously. Both the remedies are not mutually exclusive but clearly co-extensive and they
differ in content and consequence. If the licencee knowingly infringes the copyright in the
68
licensed work, then he is liable to be punished with imprisonment and fine. Knowledge or
men rea of the accused is an essential ingredient to constitute the offence of infringement for
criminal prosecution. This general rule of criminal law is applicable to criminal proceedings
under copyright law also. The offence of infringement must be done knowingly, i.e. with the

67 Id.
68 See Sec. 63, Copyright Act, 1957. “Offence Of Infringement Of Copyright Or Other Rights Conferred By
This Act.-Any person who knowingly infringes or abets the infringement of:
(a) the copyright in a work, or
(b) any other right conferred by this Act, [except the right conferred by section 53A],
[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to
three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh
rupees:
Provided that [where the infringement has not been made for gain in the course of trade or business] the court may,
for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of
less than six months or a fine of less than fifty thousand rupees.]
Explanation.—Construction of a building or other structure which infringes or which, if completed, would infringe
the copyright in some other work shall not be an offence under this section.

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knowledge that what is done is an offence, that the act in question would infringe the copyright
in a work. Knowledge is a precondition of finding of an offence under copyright.

C. Administrative Remedies through the Copyright Board

In case of any dispute between the parties to a contract concerning the assignment or licence of
69
copyright, the Copyright Board has been vested with certain powers to resolve the dispute. The
copyright board has the power to revoke the contract of licence of copyright if a licencee fails to
make sufficient exercise of the rights licensed to him. In this situation the Copyright Board, on
receipt of a complaint by the licensor, may revoke the contract after holding such enquiry as it
may deem necessary if such failure is not attributable to any act or omission of the licensor.

Further the Copyright Board may on receipt of a complaint from the aggrieved party, and after
holding such enquiry as it considers necessary, pass such orders as it may deem fit including an
70
order for the recovery of any royalty payable.

D. Remedies Under Indian Contract Act and Specific Relief Act

69 See Sec. 6, Copyright Act, 1957. “Certain Disputes To Be Decided By Copyright Board” -If any question
arises,-
(a) whether a work has been published or as to the date on which a work was published for the purposes of Chapter
V, or
(b) whether the term of copyright for any work is shorter in any other country than that provided in respect of that
work under this Act, it shall be referred to the Copyright Board constituted under section 11 whose decision thereon
shall be final:
Provided that if in the opinion of the Copyright Board, the issue of copies or communication to the public referred to
in section 3 was of an insignificant nature, it shall not be deemed to be publication for the purposes of that section.]
70
See Sec. 19A, Copyright Act, 1957.“Dispute with respect to assignment of copyright”- (1) If an assignee fails to
make sufficient of the rights assigned to him, and such failure is not attributable to any act or omission of the
assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry
as it may deem necessary, revoke such assignment.
(2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a
complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it
may deem fit including an order of the recovery of any royalty payable.
Provided that the Copyright Board shall not pass any order under this sub section to revoke the assignment unless it
is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author:
[Provided further that, pending the disposal of an application for revocation of assignment under this sub-section,
the Copyright Board may pass such order, as it deems fit regarding implementation of the terms and conditions of
assignment including any consideration to be paid for the enjoyment of the rights assigned:
Provided also that] no order of revocation of assignment under this sub-section shall be made within a period of five
years from the date of such assignment.
[(3) Every complaint received under sub-section (2) shall be dealt with by the Copyright Board as far as possible and
efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the
complaint and any delay in compliance of the same, the Copyright Board shall record the reasons thereof.]

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‘Damages’ is the only remedy under the Contract Act. Damages are an attempt by the court to
compensate the aggrieved party to the licence contract, i.e. the party that suffers the breach. The
primary aim or principle of the law of damages for a breach of contract is to place the plaintiff in
the same position he would be in if the contract had been fulfilled, or place the plaintiff in the
position he would have occupied had the breach of contract not occurred. Damages may be
liquidated or unliquidated. The other remedies of specific performance and injunction are
afforded by the Specific Relief Act, 1963 which are ordered usually when an award of damages
would be “inadequate.” Remedies under the Contract Act and the Specific Relief Act are
available to both the licencee and the licensor. The next chapter deals with the copyright licence
generally.

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 CHAPTER 2

MEANING AND TYPES OF COPYRIGHT LICENCE

This chapter seeks to answer the research question no. 1 & 2 deal with the meaning and types of
copyright licence i.e. voluntary and non-voluntary.

2.1.Voluntary Licence

Licence means to grant permission to use the work licenced, with respect to intellectual property,
a licence is a promise not to sue a party for actions that would otherwise constitute infringement.
A licence is that transfer of intellectual property which does not affect the monopoly of the
owner, as a matter of law, a licence is a grant of rights that represent less than all of the rights
which would accompany full ownership and there is no transfer of proprietary interest because
by licensing the owner retains ownership to the rights to that intellectual property and thus
retains proprietary control over it. Licence grants the licencee rights in property without
transferring ownership of the property.’

Types of Voluntary Licence

The voluntary licence is further devided into exclusive and non-exclusive licence.

2.1.1. Exclusive licence

71
The definition of ‘exclusive licence’ given under statute. A licence, conferring on the licencee
or his authorized representatives, to the exclusion of all others including the owner of the
72
copyright, any right comprised in the Copyright in a work is an exclusive licence.

An exclusive licencee is regarded as the owner of copyright for the purposes of enforcing civil
73
remedies against the infringement of Copyright. He can sue for the infringement of Copyright

71 See Sec. 2(j), of the Copyright Act, 1957. ‘Exclusive Licence’- means a licence which confers on the
licensee or on the licensee and persons authorised by him, to the exclusion of all other persons (including
the owner of the copyright) any right comprised in the copyright in a work, and “exclusive licensee” shall
be construed accordingly;
72 See HALSBURY’S LAW OF INDIA, INTELLECTUAL PROPERTY, 20(1), Lexis Nexis, New Delhi, 173 (2004).
73 See Sec. 54 (a), of the Copyright Act 1957. For the purposes of this Chapter, unless the context otherwise
requires, the expression “owner of copyright” shall include—
(a) an exclusive licensee;
(b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of the
work, until the identity of the author or, in the case of an anonymous work of joint authorship, or a work of joint
authorship published under names all of which are pseudonyms, the identity of any of the authors, is disclosed

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but he must join the copyright owner as a defendant in the action. If an action for infringement of
copyright brought by the exclusive licencee is successful, then the copyright owner would be
74
precluded from bringing any fresh action in respect of the same cause of action.

2.1.2. Non-exclusive Licence

Only the extreme case where even the licensor is excluded from exploiting the property is
described as exclusive licence, while all others are variations of non-exclusive licences. Non
exclusive licences permit the licensor to grant further licences, as desired and thus a non-
exclusive licence is normally considered as being a mere agreement by licensor not to sue the
licencee for infringement so long as the licencee complies with all the terms and conditions of
the licence. The licensor remains free to use the licensed rights himself and to grant additional
licences to others. Normally it is clear what an exclusive or a non-exclusive licence is, but again
it does no harm to spell it out in the contract.

2.2.Non-Voluntary Licence
Copyright law also envisages non-voluntary contracts by fashioning the mechanisms of
compulsory and statutory licenses. By fashioning these mechanisms, copyright law serves her
primary objectives: encouragement of learning, dissemination of knowledge, and access to
copyrighted material. In a sense, the mechanism of compulsory license, sub silentio, caste a legal
duty on the copyright owner to make the copyrighted material available to the public and tells
her that if she cannot do it, somebody else do it, and she will be entitled a reasonable royalty. The
mechanism of statutory license allows others to take the copyrighted material to the public.
These equitable mechanisms seek to balance the interests of the copyright owner and the
75
public.
The Non-Voluntary licence is further divided into two types i.e.:

(i) Compulsory Licence

publicly by the author and the publisher or is otherwise to the satisfaction of the Copyright Board by that author or
his legal representatives.
74 See Sec. 61(2), of the Copyright Act, 1957. ‘Owners of copyright to be party to the proceeding’—
(1) In every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive
licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant and
where such owner is made a defendant, he shall have the right to dispute the claim of the exclusive
licensee.
(2) Where any civil suit or other proceeding regarding infringement of copyright instituted by an exclusive
licensee is successful, no fresh suit or other proceeding in respect of the same cause of action shall lie at the
instance of the owner of the copyright.
75
Prof. (Dr.) Ghayur Alam & Abhinav Pradhan, Copyright Contracts, 05, NJIPL, 01 – 100 (2016).
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 (ii) Statutory Licence
2.2.1. Compulsory Licence

Compulsory licence is a statutory scheme requiring the copyright owner to grant the necessary
authorization for a user to use his or her work, without depriving him or her of his or her right to
76
negotiate the terms of the authorization, with the proviso that the administrative or judicial
authorities would fix the amount of remuneration if no amicable agreement can be reached
between the parties. If the work is withheld from public or owner refuse to republish the work so
in this condition on application filed by the applicant for grant of compulsory licence in
77
prescribed manner before the Copyright Board and then after hearing both the parties if the
refusal to publish is not reasonable then board grant the compulsory licence in this situation.
Compulsory licence grant for published work, unpublished work and for benefit of Disabled
person.

Types of Compulsory Licence

For published Work

If at any time during the term of copyright in any work which has been published or performed
in public, a complaint is made to the Copyright Board that the owner of Copyright in the work-

76 See Sec. 6, of the Copyright Act, 1957. ‘Copyright Board’- Certain disputes to be decided by Copyright
Board; If any question arises—
(a) whether a work has been published or as to the date on which a work was published for the purposes of Chapter
V, or
(b) whether the term of copyright for any work is shorter in any other country than that provided in respect of that
work under this Act, it shall be referred to the Copyright Board constituted under section 11 whose decision thereon
shall be final: Provided that if in the opinion of the Copyright Board, the issue of copies or communication to the
public referred to in section 3 was of an insignificant nature, it shall not be deemed to be publication for the
purposes of that section.
77 See Rule 6, of Copyright Rules, 2013. ‘Application for licence’- (1) An application for a licence under
section 31 to re-publish the work or perform the work in public or communicate the work to the public by
broadcast shall be made in Form II and shall be accompanied by the fee specified in the Second Schedule.
(2) Every such application shall be made in respect of one work only.
(3) Every application to re-publish the work or perform the work in public shall be accompanied with adequate
evidence to show that the owner of copyright has refused to re-publish or has allowed the re-publication of the work
or has refused to allow the performance of the work in public, and the reasons for such refusal.
(4) Every application for communication of the work to the public by broadcast shall be accompanied with adequate
evidence along with reasons or grounds to show that the owner of copyright has refused to allow—
(a) the communication of work by broadcast to the public; or
(b) in the case of sound recording, the reasons for the applicant to consider the terms unreasonable

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 i. has refused to republish or allow the republication
ii. has refused to allow the performance in public of the work
iii. has refused to allow, communication to the public by broadcast
iv. has refused to recorded in sound recording

So in these conditions the copyright board, after giving to the owner of copyright in the work a
reasonable opportunity of being heard and after holding such inquiry as it may deem necessary,
may, if it is satisfied that the grounds for such refusal are not reasonable, direct the registrar of
copyrights to grant to the complainant a licence to republish, perform or communacate the work
78
in public. Refusal to allow means refusal to everyone and such refusal would result in the work
not being published or performed at all. The object of the section 31of the Copyright Act is to
issue a licence to allow the licencee to republish or perform the work in public which is not
otherwise available to enable the public to make use of the work generally and this must be done
79
by the owner of Copyright.

For Unpublished Work

Any person may apply to the Copyright Board for a licence to publish an unpublished Indian
work or a translation thereof in any language, whose author must be citizen of India at the time
of the making of the work and is-

i. Dead
ii. Unknown

78 See Sec. 31 of the Copyright Act, 1957. ‘Compulsory licence in works withheld from public’-
(1) If at any time during the term of copyright in any Indian work which has been published or performed in
public, a complaint is made to the Copyright Board that the owner of copyright in the work—
(a) has refused to re-publish or allow the re-publication of the work or has refused to allow the performance in
public of the work, and by reason of such refusal the work is withheld from the public; or
(b) has refused to allow communication to the public by broadcast, of such work or in the case of a sound recording]
the work recorded in such sound recording, on terms which the complainant considers reasonable, broadcast, of such
work or in the case of a sound recording the work recorded in such sound recording, on terms which the complainant
considers reasonable," the Copyright Board, after giving to the owner of the copyright in the work a reasonable
opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the
grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence
to re-publish the work, perform the work in public or communicate the work to the public by broadcast, as the case
may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and
conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence
to the complainant in accordance with the directions of Copyright Board, on payment of such fee as may be
prescribed
79
Music Broadcast Pvt. Ltd v. Phonographic Performance Ltd. (2003) 26 PTC 70 (CB).
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 iii. Cannot be traced
iv. Cannot be Found

Before applying for the grant of a compulsory licence, the applicant must publish his proposal in
one of a daily newspaper. The whole procedure of application to, up to grant the Compulsory
80
Licence given under rule 11, of the Copyright Rules, 2103 . Where an application is made to the
Board, it may after holding the prescribed inquiry, direct the registrar to Copyrights to grant to
the applicant a licence to publish the work or a translation thereof in the language mentioned in
the application. The copyright Board may determine the payment of royalty and other terms the
conditions of the licence. The registrar of copyrights would then grant the Compulsory Licence
to the applicant in accordance with the direction of the Copyright Board.

For Benefit of Disabled Person

This provision is meant to facilitate the availability of copyrighted works to certain disabled
persons. However the scope of section 52(1)(zb) is limited to certain special formats only. The

80 See Rule 11, of the Copyright Rules, 2013. ‘Application and grant of licence’- (1) An application for a
licence under Section 31A to publish or communicate to the public the work or translation thereof, in any
language, any unpublished work or any work published or communicated to the public and the work is
withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the
copyright in such work cannot be found, shall be made by any person in Form III and shall be accompanied
by the fee specified in the Second Schedule:
Provided that in case the desired author is dead such application for publication of the work can be made only if
there is failure to publish the work within the time specified by the central government as provided in sub-section (6)
of section 31A.
(2) Every such application shall be made in respect of one work only and in respect of translation of a work into one
language only.
(3) The application other than an application under sub-section (7) of section 31A shall be accompanied by a
newspaper containing the publication issued under sub-section (2) of section 31A and published in one issue of a
daily newspaper in the English language having circulation in the major part of the country and where the
application is for the publication of a translation in any language, in one issue of any daily newspaper in that
language.
(4) If the Board is satisfied that the licence for publication or communication to the public or translation in any
language of the work, applied for may be granted to the applicant, or if there are more applicants than one, to such
applicants, as, in the opinion of the Board, would best serve the interest of the general public, it shall direct the
Register of Copyrights to grant the licence accordingly.
(5) Every such licence shall be subject to the conditions provided in sub-section (7) of section 31A, and shall specify
(a) the period within which such work shall be published, translated or communicated to the public;
(b) the price at which the copies of such work are to be sold or charges to be collected for communicating the work
to the public;
(c) the amount of royalty to be deposited and the account in which it has to be deposited;
(d) in case of translation of the work, the language in which the translation shall be produced and published; and
(e) in case of communication to the public of the work the medium in which it is to be communicated to the public.
(6) The grant of every such licence shall, as soon as possible, be notified in the Official Gazette and on the website
of the Copyright Office and the Board and a copy of the licence shall be sent to the other parties concerned.

Page | 39
Copyright Amendment Act, 2012 also included to supplement the provisions of section 52(1)
81
(zb) with a provision for issuance of Compulsory Licence for the disabled persons in the form
of Section 31B, an application of Compulsory Licence for benefit of disabled person made under
82
rule 17, of the Copyright Rules 2013 .

2.2.2. Statutory Licence

Statutory Licence’ is an authorization given by law to use a work protected by Copyright in a
specific manner and under certain conditions, against payment of an author’s fee. The Berne
Convention for the Protection of Literary and Artistic Works, 1886 allows national legislations to
introduce statutory licences for broadcasting the work in a way that does not affect the moral
rights of the author. The making of sound recordings in respect of any litrary, dramatic or
musical work would not amount to an infringement of copyright in the said work, if the sound
recordings of that work have been made by or with the licence or consent of the owner of the
right in the work.

Types of statutory Licence

i. Statutory Licence for Cover version

ii. Statutory Licence for Broadcasting

For Cover Version

‘Cover Versions’ for ‘version recordings’ are fresh recordings that are made using a new set of
musicians. It is a sound recording made of an already published song by using another voice or
voices and with different musicians and arrangers version recording is thus neither copying nor
reproduction of the original recordings. Statutory licence to any person desiring to make a cover

81See Sec. 52(1)(zb), of the Copyright Act, 1957. ‘the adaptation, reproduction, issue of copies or
communication to the public of any work in any accessible format, by’-
(l) any person to facilitate persons with disability to access to works including sharing with any person wi1h
disability of such accessible format for private or personal use, educational purpose or research; or
(ii) any organisation working for the benefit of the persons with disabilities in case the normal format prevents the
enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to the persons with disabilities on
a non-profit basis but to recover only the cost of production:
Provided further that the organisation shall ensure that the copies of works in such accessible format are used only
by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.
82 See Rule 17, of the Copyright Rules, 2013. ‘Application for licence’- (1) An application for a licence under
section 31B to publish any work in any format useful for person with disability shall be made in Form V
and shall be accompanied by the fee specified in the Second Schedule.
(2) Every such application shall be made in respect of one work only.

Page | 40
version of a sound recording in respect of any literary, dramatic and musical work, where sound
recordings of that work have been made by or with the licence or consent of the owner of the
right in the work in the same medium as the last recording, unless the medium of the last
recording is no longer in current commercial use. The cover version means a sound recording
made in accordance with the section 31C, of the Copyright Act, 1957 give notice under rule 23,
83
of the Copyright Rules, 2013 to the owner or Registrar of copyright. The intention of the person
making such sound recording is not to copy but to make sound recordings. The musicians and the
84
singers are different. The concerned person only uses the lyrics of the copyright owner.

For Broadcasting

The Copyright (Amendment) Act, 2012 has introduced about statutory licences in India for radio
broadcasts. This system of statutory licensing is included to ensure that public has access to
musical works over musical works over the FM radio networks and at the same time, the owner
of the copyright work is also not subject to any disadvantages. It is hoped that fast growing

83 See Rule 23, of Copyright Rule 2013. ‘Notice for making Cover Version’- (1) Any person intending to
make a cover version, being a sound recording in respect of any literary, dramatic or musical work under
sub-section (1) of section 31C shall give a notice of such intention to the owner of the copyright in such
works and to the Registrar of Copyrights at least fifteen days in advance of making of the cover version and
shall pay to the owner of the copyright in the original literary, dramatic and musical works, along with the
notice, the amount of royalties due in respect of a minimum of fifty thousand copies and if the number is
more, for all the copies of cover version to be made, at the rate determined by the Board in this regard
under rule 27 and provide copies of all covers and labels with which the cover version is to be sold:
Provided that in respect of works in a particular language or dialect for which the Board by general order has fixed a
lower minimum as per proviso to sub-section (4) of section 31C, the applicant shall pay the royalty for the lower
minimum fixed by the Board and if the number is more, for all the copies of the cover version:
Provided further that any person intending to make a cover version shall give a notice under this Chapter only after
the royalty to be paid is determined by the Board under rule 27 and published in the Official Gazette and in the
website of the Copyright Office and the Board.
Explanation: For the purpose of this rule “cover version” means a sound recording made in accordance with Section
31C and this rule.
(2) Such notice shall contain the following information, namely:-
(a) the particulars of the work in respect of which cover version is to be made;
(b) alterations, if any, which are proposed to be made for the adaptation of the work to the cover version and the
evidence of consent of the author of work, if required, for making such alteration;
(c) the name, address and nationality of the owner of the copyright in the work;
(d) particulars of the sound recording made previously of the work;
(e) the total number of copies of the cover version and the calendar year in which it is proposed to be made;
(f) the medium in which the sound recording was last made and the cover version is proposed to be made;
(g) the price at which the cover version is proposed to be sold; and
(h) the details of the advance payment of royalties paid as determined by the Board in this regard under rule 27.
84 Gramophone Co. of India Ltd. v. Mars Recording Pvt. Ltd. (2000) PTC 117 (Kant). in Halsbury’s Law of
India, 20(1), Lexis Nexis, Butterworths, New Delhi, 194 (2004).

Page | 41
industry like broadcasting industry would have hassle-free access to works with the introduction
of this system.

In this chapter I have discussed meaning and types of Copyright Licences in which I included
two types of Licences i.e. voluntary and non-voluntary licences, voluntary licence always done
by the owner and duly authorized agent and in compulsory licence any person can file an
application for granting the non-voluntary licence in the nature of compulsory licence for
published, unpublished work withheld from public, for benefit of disabled person and statutory
licence for cover version and broadcasting.

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 CHAPTER 3

DIFFERENCE BETWEEN COPYRIGHT LICENCE AND COPYRIGHT ASSIGNMENT

This chapter seeks to find out the answer of research question no. 3, to find out the difference
between copyright licence and assignment. To clear the image between these two because some
of the major as well as minor differences create the ambiguity in assignment and licence
provisions given under the Copyright Act, 1957 and Copyright rules 2013. So, now on the bases
of following grounds the differences are given below:

2.3.Mode of Licence and Assignment

The Copyright Licence and the Assignment are the form of contract and it is given under the
85
Indian Contract Act, 1872 that the contract may be done in the form of express or implied. So
86
the mode of voluntary licence and assignment given under Sec. 19 of the Copyright Act .
because provisions of mode of assignment is equally applied to the voluntary licence subject to
87
the section 30A Of the Copyright Act. The copyright licence can be done in the form of

85 See Sec. 9, of the Indian Contract Act, 1872. ‘Promises express and implied’—In so far as the proposal or
acceptance of any promise is made in words, the promise is said to be express.
86 See Sec. 19 of the Copyright Act, 1957. ‘Mode Of Assignment’— (1) No assignment of the copyright in any
work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent."
(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the
duration and territorial extent of such assignment.
(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or
his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or
termination on terms mutually agreed upon by the parties.
(4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section
within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to
have lapsed after the expiry of the said period unless otherwise specified in the assignment.
(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be
applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.]
( 8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a
copyright society in which the author of the work is a member shall be void.
(9) No assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the
work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form
other than for the communication to the public of the work, along with the cinematograph film in a cinema hall. (10)
No assignment of the copyright in any work to make a sound recording which does not form part of any
cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and
consideration payable for any utilization of such work in any form."
87 See Sec. 30A, of the Copyright Act, 1957. ‘Application of sections 19 and 19A’—The provisions of
sections 19 and 19A shall, with any necessary adaptations and modifications, apply in relation to a licence
under section 30 as they apply in relation to assignment of copyright in a work. ’

Page | 43
 88
implied also because according to section 30 it is not mandatory but the assignment must be in
the express form. It uses the word ‘may’ so the signature of owner and prospective owner in
future work is not mandatory in express form of licence. But in the assignment case it must be in
express form and written and duly signed by the owner or by authorized agent. Now, I reffered
Madras HighCourt regarding mode of Assignement, the court observed that:

89
In case Srimagal and Company v. Books (India) Private Limited Appellant-Defendant
contended the validity of the assignment by the author (Pandit Jawaharlal Nehru) to the
Respondent-Plaintiff on the ground that the requirements of the provisions of Section 19 were
not fulfilled. The Court observed that the only requirement is that the assignment should be in
writing signed by the assignor or by his duly authorised agent. If the assignment appears from
any document and it is signed by the assignor or by his authorised agent, the statutory
requirement is fulfilled.

In another case the court said assignment must be in written form:

90
In K.A. Venugopala Setty v. Dr. Suryakantha U. Kamath the Appellant-Defendant (Printer)
contended that there was an oral complete assignment agreement between them and
Respondent-Plaintiff (author).The Court said no and observed as under:
It is clear that assignment of the copyright must be in writing and signed by the assignor or his
duly authorised agent. In addition to this, the assignment must in clear terms state the rights
proposed to be assigned and the size of the work. No other mode of assignment is valid inasmuch
as when the statute specifically provides that assignment of the copyright must be in writing and
signed by the assignor, no other mode of assignment such as oral assignment (sic) is neither
permissible nor it is valid. In fact sub-section (1) of Section 19 of the Act in categorical terms
states that no assignment of the copyright in any work shall be valid unless it is in writing and
signed by the assignor or his duly authorised agent.

88 See Sec. 30, of the Copyright Act, 1957. ‘Licences by owners of copyright’—The owner of the copyright in any
existing work or the prospective owner of the copyright in any future work may grant any interest in the right by
licence in writing signed by him or by his duly authorised agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when
the work comes into existence.
Explanation.—Where a person to whom a licence relating to copyright in any future work is granted under this
section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to
the contrary in the licence, be entitled to the benefit of the licence.
89 AIR 1973 Mad 49.
90
1992(12)PTC 55(Karn).
Page | 44
3.2. Transfer of interest
Assignment is the transfer of the entire interest in an intellectual property whereas in a licence
there is limited transfer of rights limited by the terms of the licence in a whole intellectual
property or an undivided part of such whole interest. The court also interpreted in given case:

91
In Ilaiyaraja v. B. Narsimhasn Defendants contended that the Plaintiff had assigned all rights
and interests in the musical composition created by him in favour of his wife and the Plaintiff’s
wife executed two agreements, viz., sound recording license agreement and sub-publishing
agreement, in favour of the Defendants. The Court observed as under:

The difference between the assignment and license is that insofar as assignment is concerned, the
same transfers all the interests in the work in favour of assignee; whereas the license is only
creating a limited interest, retaining all other rights with the assignee.

3.3.Right to Sue
An assignee has right to sue in his own name. As opposed to this, the general law is that a
licencee has no right to sue in his own name; a licencee has no right to sue a third party for
infringement of the licence. The right to sue has been given to exclusive licencee, but even here
his right is subject to procedural limitations. An assignee may grant licence but a licencee can not
assign the work.

3.4.Title

The licence is distinguished from an assignment because the assignment transfers the monopoly
right as well as intellectual property but in licence does not affect monopoly. An assignment
comprises a transfer of the right to exclude others form making, using, selling etc. but a licence
comprises a waiver of that right.

3.5.Revocation

A failure to pay royalties on part of the licencee may lead to revocation of the licence, while a
failure to pay royalties in case of an assignment cannot lead to revocation of assignment. The
assignor cannot get the property back after it has been assigned.

91
http://judis.nic.in/Judis_Chennai/content.asp. Last visited on 20/03/2018 at 5:50 pm.
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3.6.Voluntary or Non-Voluntary Transfer of work

The assignment is always in the form of voluntary in nature but the licence is subject to
voluntary as well as non-voluntary also. In non-voluntary, the way of licence is either by
compulsory or statutory licence according to the prescribed rules given under Copyright Rules
2013. The provisions related to non-voluntary assignment given nowhere in the statute. So, no
any question arises regarding non-voluntary assignment.

3.7.Signature

92
At the time of assignment the signature of owner and prospective owner is must be required
but in licence not signature is reguired because it is amended in 2012 Act, and this is also not
mandatory for copyright licence that licensing the work in written form it may be oral also.

3.8.Transaction

Whether the particular transaction is an assignment or a licence depends heavily on the terms
used. For instance a clause granted to the licencee the sole and exclusive licence to perform or
present a play in a particular country would be interpreted to mean an assignment if it is made in
93
consideration of a royalty and even though the parties are described as licensor and licencee.

3.9.Proceed in Court

The exclusive licencee may proceed in the absence of the owner of copyright with the leave of
the court and this may be a great advantage where the owner of the copyright is dead or cannot
94
be found . This applies only in cases of a licencee filing a suit and has no application in cases of
95
a suit filed by an assignee .

At last in this case the Bombay High Court elaborated the difference between Assignment and
Licence as under:

92 Sec. 19 of the Copyright Act, 1957.

93 Gramophone Company of India ltd. V. Shanti Films Corp. AIR 1997 Cal. 63. in HALSBURY’S LAW OF
INDIA, INTELLECTUAL PROPERTY, 20(2), Lexis Nexis, Butterworths, New Delhi, 176 (2004).
94 Bodley Head Ltd v. Flegon in HALSBURY’S LAW OF INDIA, INTELLECTUAL PROPERTY, 20(1), Lexis Nexis,
New Delhi, 173 (2004).
95 AGA Medical Corp. v. Faisal Kapadi (2003) 26 PTC 349 (Del).

Page | 46
 96
In Deshmukh and Co. (Publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar the question was
whether the Appellant-Plaintiff have become owner of exclusive right or merely a license to
publish books. The Respondent-Defendant contended that the agreement was not an assignment
of a copyright as the entire agreement was silent about the term ‘copyright.’ The Court held for
the Respondent-Defendant and elaborated the difference between the assignment and license as
under:
In order to decide this issue, it is necessary to understand the basic concept of assignment of
copyright and or grant of license thereof. Copyright is multiple rights consisting of a bundle of
different rights in the same work. It is seldom that the author of a copyright work himself
exploits the work for monetary benefit. Ordinarily, he either assigns the whole or part of his
rights to others to exploit economically for a lumpsum consideration. In alternative, he may
license all or some of his rights to others usually on the basis of a royalty payment. An
assignment may be general i.e. without limitations or an assignment may be subject to
limitations. It may be for the whole terms of the copyright or any part thereof. An assignment
transfers an interest in, and deals with the copyright itself as provided under Section 14 of the
Act, but license does not convey the copyright but only grants a right to do something, which in
the absence of license would be unlawful. An assignment transfers title in the copyright, a license
merely permits certain things to be done by the licensee. The assignee being invested with the
title in the copyright may reassign. The license is personal, and therefore, not transferable or
assignable without the grantors’ consent. Furthermore, the assignee can sue for infringement
without joining the assignor. The licensee cannot sue in his own name for infringement of the
copyright, since copyright belongs to the licensor.

In this Chapter I have discussed about the differences between licence and assignment because
there is lot of confusion regarding transfer of copyright works with the licence or assignment
process. Some of the differences are very minor like difference between exclusive licence and
assignment. Licence can be done by oral or in express form but assignment always will be done
in writing with signature. Most of the judicial decision in which court differentiate between both.

96
2006(32) PTC 358(Bom).
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 CHAPTER 4
JUDICIAL INTERPRETATION OF STATUTORY PROVISIONS RELATING TO
COPYRIGHT LICENCE

This chapter seeks to answer the research question no. 4 & 5 deals with the judicial interpretation
of statutory provisions of Copyright Licence given under the Copyright Act, 1957 and Copyright
Rules, 2013: (Copyright Act, 1957 Hereinafter called the Act)

The provisions regarding Copyright Licence under the Act, in chapter IV from section 30 to 32B,
Section 30 talks about the Voluntary Licence, Section 31 to 31B talk about the Compulsary
Licence and Rules 6 – 22 , Section 31C and 31D talk about the Statutory licence and rules 23-31,
Section 32 says about licence to produce and publish translations and rule 32 to 37, section 32A
talks about to reproduce and publish works for certain purposes and rule 38 to 43, section 32B
talks about the termination of Licences and at last some statutory bodies like Copyright Board
under chapter II in section 11-12 and rules 3, Copyright Societies under Section 33-36A and
rules 44-67 help to regulate the law relating to copyright licence in India. So now these
provisions will be discuused with the judicial interpretation.

4.1. Voluntary Licence

Voluntary licences are the contracts entered into by the free consent of the parties without the
compulsion of law. Section 30, of the Copyright Act, 1957. ‘Licence by owner of Copyright’-The
owner of copyright in any existing work or the prospective owner of copyright in any future
work may grant any interest in the right by licence in writing signed by him or by duly
authorized agent:

Provided that in the case of a licence relating to copyright in any future work, the licence shall
take effect only when the work comes into existence.

Explanation- Where a person to whom a licence relating to copyright in any future work is
granted under this section dies before the work comes into existence, his legal representatives
shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of
the licence.

This section deals with the licence by owners of copyright and should delineate the following
particulars-

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 a) There should be owner of copyright.
b) Licence should be in written form.
c) Work should be in existence.
d) In condition of future work, the licence shall take effect only when work comes into
existence.
e) If licencee dies before the work comes into existence, his legal representative shall, in the
absence of any contrary provision, be entitled to the benefit of the licence.

The points given above if not satisfied so they become the subject matter of issues in
voluntary licence. So now the judicial decisions of voluntary licence will be discussed.

Judicial Interpretation of Voluntary Licence

97 98
In section 30A says that requirement of section 30 is subject to to section 19 in which the
mode of Assignment given and equally applied in the mode of licence also so the controversy
arise here is that section 30 allows the licensor to do oral or in written form of licence but the
provision of section 19 restrict him. In single ownership the Act allows him or his duly
authorized agent to licence but the Act remain silent in the condition of joint owner so the

97 See Sec. 30A, of the Copyright Act, 1957. ‘Application of sections 19’-The provisions of sections 19 shall,
with any necessary adaptations and modifications, apply in relation to a licence under section 30 as they
apply in relation to assignment of copyright in a work.
98 See Sec. 19, of the Copyright Act, 1957. (1) No assignment of the copyright in any work shall be valid
unless it is in writing signed by the assignor or by his duly authorised agent.
(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the
duration and territorial extent of such assignment.
(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or
his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or
termination on terms mutually agreed upon by the parties.
(4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section
within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to
have lapsed after the expiry of the said period unless otherwise specified in the assignment.
(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be
applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
( 8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a
copyright society in which the author of the work is a member shall be void. (9) No assignment of copyright in any
work to make a cinematograph film shall affect the right of the author of the work to claim ao equal share of
royalties and consideration payable in case of utilisation of the work in any form other than for the communication
to the public of the work, along with the cinematograph film in a cinema hall.
(10) No assignment of the copyright in any work to make a sound recording which does not form part of any
cinematograph film shall affect the rigbt of the author of the work to claim an equal share of royalties and
consideration payable for any utilisation of such work in any form.

Page | 49
dispute arise regarding consent of joint owner is required at the time of licence or not, and related
to oral or written licence so now we will see how judiciary is interpreting the disputed law:

99
In case Nav Sahitya Prakash v. Anand Kumar the Respondent-plaintiff contended that the
Appellant-Defendants no. 1 and 2 for publication and sale of the book written by Respondent-
plaintiff’s father. The court held that for the Respondent and observed as under:

A joint owner cannot, without the consent of the other joint owner, grant a licence or interest in
the copyright. If a licence is granted by one joint owner without the consent of other, it does not
bind the former and the other joint owner can sue the licencee for infringement. It is therefore,
not correct to say that a co-owner cannot sue a licencee for infringement of copyright. The right
in the copyright having not been divided each one of them was entitled to the same right as the
other. Therefore the Defendant no. 3, only being a co-owner, had no right without the consent of
others to give a licence. So, Nav Sahitya Praksh is an authority for the proposition that a joint
owner of copyright cannot grant a licence without the consent of other joint owner(s) and a joint
owner who has not consented to grant of licencee may sue the licencee.

100
In Babul Products Private Ltd. V. Zen Products the Appellant-plaintiff submitted that it has an
oral licence to use the copyrights in the word “Babul” as its trading name. The Court rejected the
submission of the Appellant regarding the oral licence and observed that:

The plea of oral licence in copyright is contrary to section 19(2) of the Copyright Act read with
101
section 30A . Section 19(2) clearly provides that any assignment of copyright at any work
shall identify such work and shall specify the rights and the duration and territorial extent of such
assignment. This provision applies with necessary adaptation in relation to a licence under
Section 30. Therefore a licence under Section 30 must identify the work. Such identification
would not be possible by an oral licence.

99 AIR 1981 All 200.

100 AIR 2005(31) PTC135.
101 See Sec. 30A of Copyright Act, 1957. “Application of sections 19”—The provisions of sections 19 shall,
with any necessary adaptations and modifications, apply in relation to a licence under section 30 as they apply in
relation to assignment of copyright in a work.

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 102
In Houghton Mifflin Company v. Rajendra Kumar Arya the Defendant’s argument was based
upon an implied agreement whereby the Defendant’s was permitted to continue to re-print and
offer for re-sale publications. Rejecting this argument, the Court observed as under:

The provision pertaining to licensing applies by reference to section 19 of the Act. it is evident
from the above provisions that in order to set-up a licence successfully, the Defendant in a suit
has to rely upon a written document. In the absence of a written agreement, authorizing
publication or doing of such things would otherwise amount to copyright infringement.
Defendant’s relies upon certain inter se correspondence exchanged with the plaintiff. But then,
such a letter or assurance is hardly enforceable. In these circumstances, such assurance can at
best amount to the possibility of a future offer but certainly not a concluded contract.

4.2. Compulsory Licence

In case of work withheld from public and not available, in this condition any person can go with
the application to grant the Compulsory Licence before Copyright Board and work available in
the Market all the statutory provision regarding compulsory licence with judicial interpretation
discussed below.

Judicial Interpretation of Compulsory Licence

In section 31, Copyright Act deals with the Compulsory Licences in works withheld from public-

(1) If at any time during the term of copyright in any Indian work which has been published
or performed in public, a complaint is made to the Copyright Board that the owner of
copyright in the work-

(a) has refused to re-publish or allow the re-publication of the work or has refused to allow
the performance in public of the work, and by reason of such refusal the work is withheld
from the public; or

(b) has refused to allow communication to the public by [broadcast], of such work or in the
case of a [sound recording] the work recorded in such [sound recording], on terms which
the complainant considers reasonable, [broadcast], of such work or in the case of a [sound
recording] the work recorded in such [sound recording], on terms which the complainant
considers

102 AIR 2006 Del. 2147.

Page | 51
reasonable," the Copyright Board, after giving to the owner of the copyright in the work a
reasonable opportunity of being heard and after holding such inquiry as it may deem necessary,
may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of
Copyrights to grant to the complainant a licence to re-publish the work, perform the work in
public or communicate the work to the public by [broadcast], as the case may be, subject to
payment to the owner of the copyright of such compensation and subject to such other terms and
conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights
shall grant the licence to the complainant in accordance with the directions of Copyright Board,
on payment of such fee as may be prescribed. Explanation- In this sub-section, the expression
“Indian work” includes-

(i) an artistic work, the author of which is a citizen of India; and

(ii) a cinematograph film or a [sound recording] made or manufactured in India. 3[sound

recording] made or manufactured in India."

(2) Where two or more persons have made a complaint under sub-section (1), the licence
shall be granted to the complainant who in the opinion of the Copyright Board would best
serve the interests of the general public.

103
Under Chapter 4 of the Copyright Rules, 2013 process of an application for compulsory
licence in work withheld from public is given. When owner of any work who is refused to

103 See Chapter 4, of the Copyright Rules, 2013. Rule 6. Application for licence.— (1) An application for a
licence under section 31 to re-publish the work or perform the work in public or communicate the work to the public by
broadcast shall be made in Form II and shall be accompanied by the fee specified in the Second Schedule.
(2) Every such application shall be made in respect of one work only.
(3) Every application to re-publish the work or perform the work in public shall be accompanied with adequate
evidence to show that the owner of copyright has refused to re-publish or has allowed the re-publication of the work
or has refused to allow the performance of the work in public, and the reasons for such refusal.
(4) Every application for communication of the work to the public by broadcast shall be accompanied with adequate
evidence along with reasons or grounds to show that the owner of copyright has refused to allow—
(a) the communication of work by broadcast to the public; or
(b) in the case of sound recording, the reasons for the applicant to consider the terms unreasonable
Rule 7. Notice for application.— (1) A copy of application under rule 6 along with the documents relied upon shall
be served on the owner of the copyright by registered post.
(2) The Board shall give an opportunity of being heard to the owner of the copyright and the applicant and also,
wherever practicable, to any person claiming any interest in the copyright of the work, and shall take such evidence
in respect of the application, as it deems fit.
(3) The Board may, if satisfied, direct the Registrar of Copyright to grant licence applied for to the applicant or, if
there are more than one, to such of the applicants as, in the opinion of the Board, would best serve the interest of the
general public.

Page | 52
publish the already published or communicated the work in India. So, any person can file the
application of compulsory Licence before Copyright Board.

Some conditions in which the Compulsory Licence grant by copyright board:

a) Compulsory Licence in works withheld from public.

b) Compulsory Licence in unpublished or published work withheld from public.
c) Compulsory Licence to reproduce and publish unavailable works at reasonable price.
d) Compulsory Licence to produce and publish translations.
e) Compulsory Licence to produce and publish translations of foreign works.
f) Compulsory Licence for translation by a Broadcasting Authority.
g) Compulsory Licence for the benefit of disabled persons.

(4) Every such licence shall be subject to the conditions provided in section 31 including the payment of
compensation or royalties and shall specify—
(a) the period for which the licence has been granted;
(b) the quantum of compensation or the rate at which royalties are to be paid to the owner of the copyright in the
work; and
(c) such other terms and conditions as the Board may deems fit.
(5) The grant of every such licence shall, as soon as possible, be notified in the Official Gazette and on the
website of the Copyright Office and the Board and a copy of the licence shall be sent to the other parties
concerned.
Rule 8. Manner of determining compensation or royalties.— The Board shall determine the quantum of
compensation or royalties payable to the owner of the copyright under section 31. The Board may while determining
quantum of compensation or royalty shall take into consideration—
(i) in case of re-publishing the work or performing the work in public—
(a) the proposed retail price of a copy of the work or rate on which the work is performed in public;
(b) the prevailing standards of royalties with regard to publication of works or performance of the work in public;
and
(c) such other matters as may be considered relevant by the Board.
(ii) in case of communication of any work to the public by broadcast—
(a) time slot in which the broadcast takes place and different rates for different time slot including the repeat
broadcast;
(b) different rates for different classes of works;
(c) the prevailing standards of royalties payable in this regard for such works; and
(d) such other matters as may be considered relevant by the Board.
Rule 9. Extension of the period of licence.— The Board may, on the application of the licensee and after notice to
the owner of copyright, wherever practicable, if it is satisfied that the licensee was for sufficient reasons unable to
re-publish the work or perform the work in public or communication of the work to public by broadcast within the
period specified in the licence, extend such period.
Rule 10. Cancellation of licence.- The Board may, after giving an opportunity of being heard to the licensee, cancel
the licence on any of the following grounds, namely:-
(a) that the licensee has failed to re-publish the work or perform the work in public or communication of the work to
public by broadcast within the time specified in the licence or within the time extended on the application of the
licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact;
and (c ) that the licensee has contravened any of the terms and conditions of the licence.

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 104
In Super Cassette Industries Ltd. v. Entertainment Network (India) Ltd the Respondent
submitted that every complainant made under Section 31 has to be granted license. The Court
said no and held that license can be refused on valid grounds. The Court noted as under:
When the licenses have already been granted to other broadcasters, who have substantial
presence, then perhaps the application for grant of compulsory license will be treated differently,
than in a situation where the artistic work has been totally withheld from the public. The
legislature in its wisdom has used the expression “may” in Section 31(1). According to Section
31 it is not imperative for the Board to grant license to each and every complainant. In our
considered view the license can be granted or denied on valid grounds. Section 31 itself
envisages that the decision to grant or refuse a license should be made after holding such inquiry
as it may deem necessary. While granting compulsory licenses the Board must take into
consideration whether the work has been totally withheld from public or licenses have been
granted to other broadcasters and to what extent public interest is served.
The Court also observed that the Copyright Board must take into consideration the following
parameters while deciding application for compulsory license:
(i) The work in question should have been published or performed in public;
(ii) The owner of the copyright/sound recordings should have refused to republish or allowed
republication or the performance in public of the work by the reasons of which the work
is with the public;
(iii) The owner of the copyright has refused to allow communication by a broadcaster
of such work on terms which the Board must consider reasonable.

105
In Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd the Bombay High
Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable
remuneration was permissible but the Delhi High Court held otherwise. The issue before the
Supreme Court was the interpretation of Section 31 and the Court explained the requirements of
Section 31 as under:
(a) The subject work must be an Indian work whose term of copyright is subsisting;
(b) The Indian work must be one that has been published or performed in public;

104 MANU/DE/0530/2004(DB).
105 2008 (37) PTC 353 (SC).

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(c) The owner of the copyright in the work must have
refused to republish or allow republication of the work or have refused to allow the performance
of the work and by reason of such refusal the work is withheld from the public; or
refused to allow communication to the public by broadcast, of such work or in the case of a
sound recording the work recorded in such sound recording, on terms which the complainant
considers reasonable; and
(d) The Copyright Board is satisfied that the grounds for refusal are not

reasonable. The Court explained the provisions of Section 31(1)(b) as

under:

Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The
right is to approach the Board when it considers that the terms of offer for grant of license are
unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of
determination of his right. When a claim is made in terms of the provisions of a statute, the same
has to be determined. All cases may not involve narrow commercial interest. For the purpose of
interpretation of a statute, the court must take into consideration all situations including the
interest of the person who intends to have a license for replay of the sound recording in respect
whereof another person has a copyright. It, however, would not mean that all and sundry can file
applications. The mechanism to be adopted by the Board for determining the right of a
complainant has been provided under the Act.
106
In Bennett Coleman and Co. Ltd. v. Phonographic Performance Ltd. Plaintiff instituted the
suit claiming that the Defendant was not entitled to withhold permission to play such music and
as such they were entitled to have declaration in terms of Section 60. Respondent contended the
maintainability of the suit under Section 60 of the Act. Rejecting this contention the Court held
that it has no expertise to fix the particular rate of royalty and this is within the domain of the
Copyright Board under Section 31. The Court observed as under:

It is true that both the proceedings under Section 31 as well as under Section 60 emanated from a
single cause of action. It would be difficult for the Court at this stage to opine that two parallel
proceedings were not maintainable at the same time. Neither the Copyright Board is empowered

106
MANU/WB/0093/2004 in Phonographic Performance Ltd. v. HT Media Ltd. MANU/DE/6369/2012.
Page | 55
to give a true purport and meaning of the said agreement between the parties nor this Court is
competent to decide the rate under Section 31.

107
In Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. the Bombay High
Court opined that in terms of Section 31 of the Act, grant of compulsory licence on reasonable
remuneration was permissible but the Delhi High Court held otherwise. The issue before the
Supreme Court was the interpretation of Section 31 and the Court explained the requirements of
Section 31 as under:

(a) The subject work must be an Indian work whose term of copyright is subsisting;

(b) The Indian work must be one that has been published or performed in public;

(c) The owner of the copyright in the work must have

(i) refused to republish or allow republication of the work or have refused to allow the
performance of the work and by reason of such refusal the work is withheld from the
public; or
(ii) refused to allow communication to the public by broadcast, of such work or in the case of
a sound recording the work recorded in such sound recording, on terms which the
complainant considers reasonable; and

(d) The Copyright Board is satisfied that the grounds for refusal are not reasonable.

4.3. Statutory Licence

Statutory licence is different from compulsory licence. In case of the latter “refusal” by
the owner of the copyright owner is the sine quo non for grant. In the case of former “refusal” is
not a condition precedent. Former is limited to cover version of sound records and broadcast. The
latter covers “all works.” Latter is granted by the Copyright Board; the former is not granted by
108
anyone but can be simply acquired as per the provisions of the Act.

Judicial interpretation of Statutory Licence

There are two types of statutory licence:

107
2008 (37) PTC 353.
108
Prof. (Dr.) Ghayur Alam & Abhinav Pradhan, Copyright Contracts, 05, NJIPL, 01 –100 (2016).
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 a) Statutory licence for cover versions.
b) Statutory licence for broadcasting of literary and musical works and sound recording.

109
Section 31C and 31D deal with the Statutory Licence

110
In Star India Pvt. Ltd. v. Piyush Agarwal distinguishing between use of the exact clips of
original audio and/or visual recording and its use only for information, the Court discussed the
concept of version recording (or cover version as it is now called) as under:

The copyright in a sound recording is in addition to the copyright in the underlying musical and
literary works which are themselves also subjects of a copyright. A sound recording includes a
subsequent original sound recording made from the musical and literary work and which is
called a version recording i.e. a sound recording made after a first sound recording is made by
use of the musical work and literary work/lyrics. The principles qua version recording (now
111
called cover version) were contained in Section 52(1)(j) of the unamended Act which has now
been deleted, and the equivalent provision of which is now Section 31C of the present Act.

109 See Sec. 31C, of the Copyrigh Act, 1957. (1). Any person desirous of making a cover version, being a sound
recording in respect of any literal)', dramatic or musical work, where sound recordings of that work have been made by
or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section:
Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the last
recording is no longer in current Commercial use.
(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in
the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound
recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to
be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label
which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or
depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which
such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this
section.
(3) The person making such sound recordings shall not make any alteration in the literal)' or musical work which
has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for
the purpose of making the sound recordings: Provided that such sound recordings shall not be made until the
expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.
(4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each
work during each calendar year in which copies of it are made: Provided that the Copyright Board may, by general
order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential
circulation of such works.
Explanation. -For: the purposes of this section "cover version" means a sound recording made in accordance with
this section.
110 AIR 2012 DEL 5535.
111 Repealed by the Copyright (Amendment) Act 2012. (Act No. 27 of 2012).

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 112
In Mars Recording Private Limited v. Saregama India Limited the question was whether the
Appellant was entitled to make a sound recording notwithstanding the refusal of consent by the
Respondent. The Court said yes. As the Appellant-Plaintiff has issued a notice of intention of
making sound recordings, as contemplated under Section 52(1)(j)(ii) of the Act on June 2006, the
Court noted that the reference to a “statutory licence” was not to be found in the Act prior to its
amendment in 2012. The Court also noted that the variation of the procedure to secure licence to
make a sound recording as is contemplated under Section 52(1)(j)(ii) and the procedure to obtain
“statutory licence for cover versions” under Section 31C as under:

In so far as a compulsory licence is concerned, provision is made as to the manner in which an

application is made to the Copyright Board and dealt with. Section 52(1)(j) on the other hand,
does not require an application to be made for obtaining a licence from the Copyright Board or
for consent from the owner of the Copyright in the work which has been authorized for being
used in making an existing sound recording. This may be viewed from another perspective.
Section 30 which contemplates a voluntary licence was adequate protection for the owner of a
copyright if the prior consent of the owner was always necessary. There was then no necessity to
have enacted Section 52(1)(j). It is also significant that there are no provisions or procedure
prescribed to obtain a compulsory licence to make a new sound recording. If such a licence was
required there was no need to incorporate Section 52.

Following deals with statutory licence for broadcasting of literary and musical works and sound
recording in the light of Section 31D which reads as under:

(1) Any broadcasting organization desirous of communicating to the public by way of a

broadcast or by way of performance of a literary or musical work and sound recording
113
which has already been published may do so subject to the provisions of this section.

112 AIR 2015 KA 151.

113 Chapter VIII of the Rules deals with the statutory licence for Broadcasting of literary and musical works and sound
recording.

Rule 29 deals with the notice to owner for communication to the public of literary and musical works and sound
recording
(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of
performance of a published literary or musical work and sound recording under sub-section (1) of Section 31D shall
give a notice of its intention to the owner of the copyright and to the Registrar of Copyrights before a period of five
days in advance of such communication to the public and shall pay to the owner of the copyright, in the literary or

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musical work or sound recording or nay combination thereof, the amount of royalties due at the rate fixed by the
Board in this regard:
Provided that in case of communication to the public by way of broadcast or by way of performance of a newly
published literary or musical work or sound recording or any combination thereof, which has been published within
the said period of five days of such communication and which do not form part of the scheduled programmes, the
notice shall, be given before such communication to the public:
Provided further that in case of communication to the public by way of broadcast or by way of performance of any
published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances,
the notice shall, be given within twenty-four hours of such communication to the public.
Provided also that any broadcasting organisation shall give a notice under this Chapter only after the royalty to be
paid is determining by the Board under Rule 31 and published in the Official Gazette and in the website of the
Copyright Office and the Board.
(2) Every such notice shall be in respect of works belonging to one owner only.
(3) Separate notices shall be given for communication to public by way of radio broadcasting or television
broadcast or by way of performance of a literary or musical work and sound recording which has already
been published.
(4) The notice under sub-rule (1) shall contain the following particulars, namely:
(a) Name of the channel;
(b) Territorial coverage where communication to public by way of radio broadcast, television broadcast or
performance under sub-rule (3) is to be made;
(c) Details necessary to identity the work which is proposed to be communicated to the public by way of radio
broadcast, television broadcast or performance under sub0rule (3);
(d) Year of publication of such work, if any;
(e) Name, address and nationality of the owner of the copyright in such works;
(f) Names of authors and principal performers of such works;
(g) alterations, if any, which are proposed to be made for the communication to works, reasons thereof, and the
evidence of consent of the owners of rights, if required for making such alteration;
(h) Mode of the proposed communication to public, i.e., radio, television or performance;
(i) Name, if any, of the programme in which the works are to be included;
(j) Details of time slots, duration and period of the programme in which the works are to be included;
(k )Details of the payment of royalties at the rates fixed by the Board; and
(l) Address of the place where the records and books of accounts are to be maintained for inspection by the
owner of rights.
Rule 30 deals with maintaining of records as under:
(1) Records containing the details of the owners in respect of total number of works broadcast, the details of such
works and the time slot, duration and period of the broadcast shall be maintained by the broadcasting organisation at
its principal place of business and shall be open to inspection on prior notice by the owner of rights or his duly
authorised agent or representative in the works during business hours and may obtain copies of relevant extracts
from such records at their cost. The broadcasting organisation shall maintain separate records for radio broadcasting
and television broadcasting.
(2) The broadcasting organisation shall maintain separate books of accounts for communication to public by way of
broadcast containing such details as may be determined by the Board at the time of fixing the rate of royalty and
render to the owners of rights such reports and accounts.
Rule 31 deals with manner of determining royalties. It reads as under:
(1) The board shall immediately after its constitution either suo motu or on receiptof a request from any interested
person, give public notice of its intension to fix royalties for communication to the public of literary or musical work
and sound recording under Section 31D and may invite suggestions for determining the same. Such notice shall be
given separately for radio and television broadcasting.
(2) The notice under sub-rule (1) shall be published by the Board in the Official Gazette and shall be re-published in
two daily news paper having circulation in the major part of the country and shall be posted on the website of the
Copyright Office and the Broad.
(3) Any owner of copyright or any broadcasting organisation or any other interested person may within thirty days
from the date of publication of public notice under sub-rule (1) shall give suggestions with adequate evidence as to
the rate of royalties to be fixed including different rates for different works and different formats.
(4) The Board shall after giving an opportunity being heard to the persons who made relevant suggestions under
sub-rule (3), consider such suggestions, as it deems fit.

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 (2) The broadcasting organization shall give prior notice, in such manner as May he
prescribed, of its intention to broadcast the work stating the duration and territorial
coverage of the broadcast, and shall pay to the owner of rights in each work royalties in
the manner and at the rate fixed by the Copyright Board.

(3) The rates of royalty for radio broadcasting shall he different from television broadcasting
and the Copyright Board shall fix separate rates for radio broadcasting and television
broadcasting.

(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board
may require the broadcasting organization to pay an advance to the owners of rights.

(5) The names of the authors and the principal performers of the work shall, except in case of
the broadcasting organization communicating such work by way of performance, he
announced with the broadcast.

(6) No fresh alteration to any literary or musical work, which is not technically necessary for
the purpose of broadcasting, other than shortening the work for convenience of broadcast,
shall he made without the consent of the owners of rights.

(7) The broadcasting organization shall-

(5) The Board shall within a period of two months from the last date of receipt of suggestions, determine
separate rates of royalty to be paid to the owners of literary or musical work and sound recording for radio
and television broadcasting respectively.
(6) The Board shall determine the royalties payable to the owner of the copyright under sub-section (2) of
Section 31D for radio and television broadcast separately.
(7) The Board while determining the royalty shall take into consideration the following factors, namely:
(a) time slot in which the broadcast takes place and different rates for different time slot including repeat broadcast;
(b) different rates for different class of works;
(c) different rates for different nature of use of work;
(d) the prevailing standards of royalties with regards to such works;
(e) the terms and conditions included in the Grant of Permission Agreement (GOPA) between Ministry of
Information and Broadcasting and the broadcast for Operating Frequency Modulation (FM) Radio
Broadcasting Service; and
(f) such other matters as may be considered relevant by the Board.
(8) The Board while determining the payment under sub-rule (5) shall take into consideration, the following
factors, namely:
(a) works included in the schedule programmes;
(b) works newly published and not included in the scheduled programme;
(c) works communicated to the public on unexpected circumstances; and
(d) use of works in excess of the duration, different time slot or territorial coverage than mentioned in the notice.
(9) The Broad may revise the rates of royalties periodically, at least once in a year keeping in view of
provisions of these rules.

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 (a) Maintain such records and books of account, and render to the owners of rights such
reports and accounts; and

(b) Allow the owner of rights or his duly authorized agent or representative to inspect all
records and books of account relating to such broadcast, in such manner as may he
prescribed.

(8) Nothing in this section shall affect the operation of any licence issued or any agreement
entered into before the commencement of the Copyright (Amendment) Act, 2012.

114
In South Indian Music Companies Association v. Union of India the Petitioner challenged inter
alia, the constitutionality of the provisions of Section 31D as violative of Article 19(1)(g) of the
Constitution of India, as it provides for the royalties to be fixed for radio broadcasting by the
Board directly. The Court rejected the contention of the Petitioner and declared Section 31D as
constitutionally valid. The Court observed as under:

When a challenge is made to Section 31D, being violative of Article 19(1)(g), it has to be
demonstrated with clarity that the restrictions are not reasonable. Such a right is subject to
implied limitations made explicit by Article 19(2) to 19(6) of the Constitution.

Section 31 and 31D provides for a mechanism to deal with the public interest vis-à-vis the
private interest. It has been introduced by way of a public policy. It has got an in-built
mechanism to take care of the interest of the owner. Guidelines have been provided for the
purpose of fixing royalty under Rule 31(7) and (8). The owner would be given reasonable
opportunity of being heard. There has to be satisfaction that the refusal is not reasonable. Section
31D was introduced taking note of Article 11(2) and 13 of Berne Convention and Article 15(2) of
the Rome Convention (for sound recordings) and Article 9(1) of the TRIPS Agreement. It was
meant to support the development and growth of private radio broadcasting. The object is also to
strike at the monopoly to the detriment of the general public. While doing so, the provisions also
take care of the interest of the owner.

114 AIR 2016 Mad. 447. The same issue was raised also in Super Cassettes Industries Ltd. v. Union of India AIR 2015 Del.
2228.

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 4.4. Copyright Board
Section 11, of the Copyright Act, talks about the Composition of Copyright Board and see
115
Rules also

(1) As soon as may be after the commencement of this Act, the Central Government shall
constitute a Board to be called the Copyright Board which shall consist of a Chairman
and not less than two or more than 2[fourteen] other members."

(2) The Chairman and other members of the Copyright Board shall hold office for such
period and on such terms and conditions as may be prescribed.

(3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of a
High Court or is qualified for appointment as a Judge of High Court.

(4) The Registrar of Copyrights shall be the Secretary of the Copyright Board and shall
perform such functions as may be prescribed.

115 See Rule 3, of the Copyright Rules, 2013. ‘Terms and conditions of the office of the Chairman or members of the
Board’- The Chairman and other members of the Board shall be appointed for such period not exceeding five years as
the Central Government may in each case deems fit:
Provided that the Chairman and 1[the other member shall hold office as such after he has attained,—
(a) in the case of Chairman, the age of sixty-five years; and
(b) in the case of any other Member, the age of sixty-two years.
(2) (i) A person shall not be qualified for appointment as Chairman unless he –
(a) is or has been a Judge of a High Court; or
(b) is qualified for appointment as a Judge of a High Court;
(ii) A person shall not be qualified for appointment as member unless he-
(a) is or has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least
three years; or
(b) has, for at least ten years, held a judicial office; or
(c) is or has been a Member of a Tribunal or Civil Service not below the rank of a Joint Secretary to Government of
India with three years’ experience in the field of Copyright; or
(d) has, for at least ten years, been an advocate of a proven specialized experience in Copyright
Law; (iii) The Chairman and other Members shall be appointed by the Central Government; and
(iv) No person shall be appointed as Chairman except after consultation with the Chief Justice of India.
(3) The Chairman and other members of the Board shall, on the expiry of the period of their appointment, be eligible
for re-appointment.
(4) The Chairman or any other member of the Board may resign his office by giving three months’ notice in writing
to the Central Government:
Provided that the Chairman or any other member shall, unless he is permitted by the Central Government to
relinquish his office sooner, continue to hold office until the expiry.
(5) The Chairman or any other member shall not be removed from his office except by an order made by the Central
Government on the ground of proved misbehavior or incapacity after an inquiry made by a Judge of the Supreme
Court in which the Chairman or the other member had been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges.

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 116
and the Copyright Board has all the powers of civil court given under section 12 of the Act.
When the Board exercise its power it faces some challenges, infirmities and works out of
jurisdiction because of plenty of powers vested in the Board like grant compulsory licence, give
remuneration in the form of royalty, etc. some judicial decisions in which Court talks about the
powers and functions of Copyright Board.

Judicial interpretation of the provisions of Copyright Board

117
In case Super Cassettes Industries Ltd. v. Music Broadcast Pvt. Ltd. the question was whether
the Copyright Board under clause (b) of sub-section (1) of Section 31 can pass an interim order
in the pending complaint. The Court said no and observed under:
By conceding a power to grant ad hoc compulsory license during the pendency of the
proceeding, under Section 31, would not only render the final inquiry into the question, a futile
exercise in a case where the owner has reasons other than inadequacy of monetory
compensation. The power under Section 31 to grant a compulsory license meant for avoiding the
withholding of the republication or refuse to allow the performance in pubic of some “work” - is,
essentially, for the benefit of the public. Commercial benefit to “publisher” is incidental. Unless,
it is demonstrated that failure to imply such power to direct immediate republication or

116 See Sec. 12, of the Copyright Act, 1957. ‘Powers and procedure of Copyright Board’-
(1) The Copyright Board shall, subject to any rules that may be under this Act, have power to regulate its own
procedure, including the fixing of places and times of its sittings: Provided that the Copyright Board shall
ordinarily hear any proceeding instituted before it under this Act within the zone in which, at the time of the
institution of the proceeding, the person instituting the proceeding actually and voluntarily resides or carries
on business or personally work for gain. Explanation.-—In this sub-section “zone” means a zone specified
in section 15 of the States Reorganisation Act, 1956 (37 of 1956).
(2) The Copyright Board may exercise and discharge its powers and functions through Benches constituted by
the Chairman of the Copyright Board from amongst its members, each Bench consisting of not less than
three members: 1[Provided that, if the Chairman is of opinion that any matter of importance is required to
be heard by a larger Bench, he may refer the matter to a special Bench consisting of five members.]
(3) If there is a difference of opinion among the members of the Copyright Board or any Bench thereof in
respect of any matter coming before it for decision under this Act, the opinion of the majority shall prevail:
2[Provided that where there is no such majority, the opinion of the Chairman shall prevail.]
(4) 3[The Chairman] may authorise any of its members to exercise any of the powers conferred on it by section
74 and any order made or act done in exercise of those powers by the member so authorised shall be
deemed to be the order or act, as the case may be, of the Board.
(5) No member of the Copyright Board shall take part in any proceedings before the Board in respect of any
matter in which he has a personal interest.
(6) No act done or proceeding taken by the Copyright Board under this Act shall be questioned on the ground
merely of the existence of any vacancy in, or defect in the constitution of, the Board.
(7) The Copyright Board shall be deemed to be a Civil Court for the purposes of 4[sections 345 and 346 of the
Code of Criminal Procedure, 1973 (2 of 1974)] and all proceedings before the Board shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of
1860).
117
AIR 2012 SC 2144.
Page | 63
performance of a work in public would be detrimental to public interest, the power to grant ad
hoc compulsory license, cannot be implied.
118
In case In Music Choice India Private Limited v. Phonographic Performance Limited the
Appellant-Plaintiff contended that it has a vested or statutory right for a compulsory license and
the Trial Court had jurisdiction to try the suit in the nature of compulsory license. The Court said
no and explained the jurisdiction of the Copyright Board as under:

The contentions that the Defendant has been dictating terms or it cannot be allowed to dictate the
terms and therefore, the law must step in to the rescue of the Plaintiff cannot be a ground to
entertain the suit and the only remedy available to the Plaintiff as per the scheme of the Act is to
prosecute its application pending before the Board for a compulsory license. It cannot file a suit
for any interim arrangements pending in such an application and the Civil Court will have no
jurisdiction to entertain such applications. Seeking such a remedy is to bypass regulatory
provisions as well as the penal provisions as are set out in Chapter XI and XIII of the Act and the
Civil Court cannot have such a jurisdiction to grant something which would frustrate the
provisions of a statute. The observations made by the Apex Court in the case of Entertainment
Network (India) Limited cannot be read as to create a vested right in favour of the Plaintiff or
similarly placed the Applicant/Complainant to claim an interim compulsory license by filing a
suit before the Civil Court. What is not provided by a Statute which is a complete code of itself,
cannot be read in the judgment of the Supreme Court. The jurisdiction of the Civil Court cannot
be allowed to be invoked to short circuit the statutory process of licensing and therefore, the
Court would lack in its jurisdiction to entertain the suit.

4.5. Collective Licensing

Collective licensing is a business practice used for licensing and management of copyright works
by specialized organizations acting in the interest and on behalf of the owners of copyright.
Copyright Societies are also known as Collecting Societies for they collect licence fee from the
licencees. Copyright Societies are formed primarily for better and efficient exploitation and
administration of the copyright. An individual copyright owner may not have the capacity or the
bargaining power to fully reap the benefits of copyright. The individuals enter into a contract

118
2010 (44) PTC 171(Bom).
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with the Copyright Societies and the Copyright Societies enter into contracts with others for
granting permission of use of copyrighted material. These Societies fix tariff rate and frame their
119
own regulations. Chapter VII of the Act deals with the Copyright Societies.

Copyright Societies most commonly take care of the following activities:

 Public performance (music, songs, etc. played or performed in discotheques, restaurants,

tournaments and other public places);
 Broadcasting/telecasting (live and recorded performances on radio and television);
 Webcasting (live and recorded performances on internet);
 Mechanical reproduction rights in musical works (the reproduction of works in
phonograms such as CDs, DVDs, cassettes, etc.);
 Performing rights in dramatic works (theater plays);
 Right of reprographic reproduction of literary and musical works (photocopying).

Now in some cases the court discussed about the jurisdiction and working of Copyright Societies
related to licensing and royalty.

Judicial interpretation of provisions of collective Licensing

120
In Eastern India Motion Pictures Association v. Indian Performing Right Society Ltd. the
question before the Court was whether under the provisions of the Act, the Respondent acquired
any right of granting a licence for exhibition of a cinematograph film or not. The Court said yes
121
and noted that Section 33, of the Copyright Act . Which lays down, inter alia, that every

119 Prof. (Dr.) Ghayur Alam & Abhinav Pradhan, Copyright Contracts, 05, NJIPl, 01 – 100 (2016).
120 AIR 1974 Cal. 257(DB)
121 See Sec. 33 of the Copyright Act, 1957. (1) No person or association of persons shall, after coming into force
of the Copyright (Amendment) Act, 1994 commence or, carry on the business of issuing or granting licences in respect
of any work in which copyright subsists on respect or in respect of any other rights conferred by this Act except under
or in accordance with the registration granted under sub-section (3):
Provided that owner of copyright shall, in his individual capacity, continue to have the right to grant licences in
respect of his own works consistent with his obligations as a member of the registered copyright society:
Provided further that the business of issuing or granting licence in respect of literary, dramatic, musical and artistic
works incorporated in a cinematograph films or sound recordings shall he carried out only through a copyright
society duly registered under this Act
Provided also that the performing rights society functioning in accordance with the provisions of section 33 on the
date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a
copyright society for the purposes of this Chapter and every such society shall get itself registered within a period of
one year from the date of commencement of the Copyright (Amendment) Act, 1994.

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performing rights society shall, within the prescribed time and in the prescribed manner, prepare,
publish and file with the Registrar of Copyrights, statements of all fees, charges or royalties
which it proposes to collect for the grant of licences for performance in public of works in
respect of which it has authority to grant such licences. The Respondent, therefore, has the right
to charge fees for grant of licences.

122
In Leopold Cafe & Stores v. Novex Communications Pvt. Ltd. the question before the Court
was whether the Defendant, an agent of the copyright owners, was entitled to grant licences on
behalf of owners of copyright. The Court said yes and observed as under:

There is also the seemingly nice distinction between “issuing” and “granting” a licence. Both
words must be read together with their conjunctive. “Issuing” speaks possibly to the physical act
of generating a licence. “Granting” is the legal effect of that issuance. What Section 33 forbids is
an engagement in the “business of issuing and granting” licences in works in which copyright
subsist. This cannot mean that a copyright owner cannot appoint an agent to grant any interest on

(2) Any association of persons who fulfils such conditions as may be prescribed may apply for permission to
do the business specified in sub-section (1) to the Registrar of Copyrights who shall submit the application
to the Central Government.121
(3) The Central Government may, having regard to the interests of the authors and other owners of rights under
this Act, the interest and convenience of the public and in particular of the groups of persons who are most
likely to seek licences in respect of the relevant rights and the ability and professional competence of the
applicants, register such association of persons as a copyright society subject to such conditions as may be
prescribed121:
Provided that the Central Government shall not ordinarily register more than one copyright society to do business in
respect of the same class of works.
(3A) The registration granted to a copyright society under sub-section (3) shall be for a period of five years and may
he renewed from time to time before the end of every five years on a request in the prescribed form and the Central
Government may renew the registration after considering the report of Registrar of Copyrights on the working of the
copyright society under section 36121:
Provided that the renewal of the registration of a copyright society shall he subject to the continued collective
control of the copyright society being shared with the authors of works in their capacity as owners of copyright or of
the right to receive royalty:
Provided further that every copyright society already registered before the coming into force of the copyright
(Amendment) Act, 2012 shall get itself registered under this Chapter within a period of one year from the date of
commencement of the Copyright (Amendment) Act, 2012.
(4) The Central Government may, if it is satisfied that a copyright society is being managed in a manner
detrimental to the interests of the authors and other owners of right concerned, cancel the registration of
such society after such inquiry as may be prescribed.121
(5) If the Central Government is of the opinion that in the interest of the authors and other owners of right
concerned or for non-compliance of sections 33A, sub-section (3) of section 35 and section 36 or any
change carried out in the instrument by which the copyright society is established or incorporated and
registered by the Central Government without prior notice to it is necessary so to do, it may, by order,
suspend the registration of such society pending inquiry for such period not exceeding one year as may be
specified in such order under sub-section (4) and that Government shall appoint an administrator to
discharge the functions of the copyright society.
122
MANU/MH/1015/2014.
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behalf of the copyright owner. That is something that Section 30 in terms permits. The express
permission in Section 30 cannot be occluded by an extension of the express prohibition in
Section 33. All that the two sections, read together, require is that the factum of agency must be
disclosed so that the licencee knows that it has a valid licence from the copyright owner; i.e., that
it is made known by the agent that it is acting on behalf of the holder of copyright in the works in
question, even though the licencee may throughout deal only with the agent and never directly
with its principal. The minute the principal is undisclosed and the licence is issued and granted in
the agent's own name, the prohibition in Section 33 comes into play.

In this chapter I discussed about the judicial interpretation of statutory provisions of Copyright
Act and the Rules there under. So some of the provisions related to licence creates the ambiguity
and conflict between them, so in most of the cases judiciary interpreted well and provide justice
to the parties.

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 CONCLUSIONS AND SUGGESTIONS

“The ability to express an idea is as important as the idea itself.”

- Bernard M. Baruch

The aim of this work has been to analyse the ‘Law Relating to Copyright Licence in India’. So, I
went through all the provisions of Copyright Licence given under Copyright Act, 1957 and
Copyright Rules, 2013. I did my work in the light of research questions.To find out the research
questions, so I divided my study in four chapters. Chapter I deals with the conceptual analyses of
Copyright Licence, chapter II deals with the meaning and types of copyright licence, chapter III
deals with the difference between copyright licence and copyright assignment and chapter IV
deals with the judicial interpretation of the statutory provisions of copyright licence under Act
and Rules there under.

In chapter 2, I have discussed meaning and types of Copyright Licences in which I included two
types of Licences i.e. voluntary and non-voluntary licences, voluntary licence always done by the
owner and duly authorized agent and in compulsory licence, any person can file an application
for granting the non-voluntary licence in the nature of compulsory licence for published or
unpublished work withheld from public and for benefit of disabled person and statutory licence
for cover version and broadcasting.

In chapter 3, I have discussed about the differences between licence and assignment because
there is lot of confusion regarding transfer of copyright works with the licence or assignment
process. Some of the differences are very minor like difference between exclusive licence and
assignment. Licence can be done by oral or in express form but assignment always will be done
in writing with signature. Most of the judicial decision in which court differentiate between both.

In chapter 4, I discussed about the judicial interpretation of statutory provisions of Copyright Act
and the Rules there under. So some of the provisions related to licence creates the ambiguity and
conflicts, so in most of the cases judiciary interpreted well and provide justice to the parties,
most of the cases found related to mode of licence, rights transferred in licence, licence by joint
owner, granting royalty and powers and functions of Copyright Board.

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Based on the findings of this study, the following suggestions were offered:

This study was carried out in the provisions of copyright licence under Copyright Act, 1957 and
most of the difficulties arose in the working of licensing process. So, the Copyright Act could not
achieve its object to bring harmony between producer of intellectual work and consumer in the
society even after the number of amendments done in the Act.

123 124
If we see the Section 30 and 19 of the Act the mode of licence and assignment respectively
given there under, mode of assignment is clear but in case of licence setion 30A creates the problem
it says provisions of section 19 equally applied on section 30 so the licence should be in written form
but section 30 itself says requirement of signature not must and the word ‘may’ creates the discretion
on parties to make licence in either written or oral form. So, now I suggest to modification under
section 30 of the statute so the situation will clear and cases related to mode

123 See Sec. 30, of the Copyright Act, 1957. ‘Licences by owners of copyright’-The owner of the copyright in any
existing work or the prospective owner of the copyright in any future work may grant any interest in the right by
licence in writing by him or by his duly authorised agent:
Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when
the work comes into existence.
Explanation- Where a person to whom a licence relating to copyright in any future work is granted under this section
dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the
contrary in the licence, be entitled to the benefit of the licence.
124 See Sec. 19, of the Copyright Act, 1957. (1) No assignment of the copyright in any work shall be valid unless
it is in writing signed by the assignor or by his duly authorised agent.
(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the
duration and territorial extent of such assignment.
(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or
his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or
termination on terms mutually agreed upon by the parties.
(4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section
within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to
have lapsed after the expiry of the said period unless otherwise specified in the assignment.
(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be
applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
( 8) The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a
copyright society in which the author of the work is a member shall be void. (9) No assignment of copyright in any
work to make a cinematograph film shall affect the right of the author of the work to claim ao equal share of
royalties and consideration payable in case of utilisation of the work in any form other than for the communication
to the public of the work, along with the cinematograph film in a cinema hall.
(10) No assignment of the copyright in any work to make a sound recording which does not form part of any
cinematograph film shall affect the rigbt of the author of the work to claim an equal share of royalties and
consideration payable for any utilisation of such work in any form.

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of licence reduce. Because number of cases are pending before Courts regarding mode of
licence.

125
In the case of joint ownership the statute remain silent after such amendments and there is no
any provision of licence or assignment by joint owner given under Act. So it also should be
added in the Copyright Act, 1957.

At last the Copyright Act, 1957 subject to further Amendments in the provisions of jurisdiction
and working of Copyright Board. In some of the cases Board gave the decision by exercising
extra judicial power and plenty of powers vested in the Board by statute like power of civil court,
grant compulsory licence, appeal against the order of registrar also lies before Copyright Board,
most of the appeal against order of Copyright Board regarding jurisdiction lies before High Court
and at last power to determine royalty also in each case vested in Board. So by having all these
powers Board may work arbitrary in nature also.

Copyright Licence system grants knowledge producers various exclusive rights over their work
to protect it from unauthorized use and to allow the copyright owner to reap economic rewards
(royalty) from commercial market. Therefore the Act should decide the royalty rate of each
licensed work in the nature of literary, artistic, dramatic musical, sound recording, and
Cinematographic.
The production and distribution of literary and artistic work so that they may provide individuals
and communities with opportunities to learn, grow and development. The essential condition for
sustainable development of society and cultural is property rights in literary and artistic works.
So the Act should build bridges among authors, publishers, users in the Copyright Licensing
system so that sustainable progress can be achieved through the use and production of literary
and artistic work.
To encourage authentic expression of authorship that will provide society with literary and
artistic materials to be used to advance communities and culture the law must protect the
property rights of authors to ensure that they have recourse to the law for the protection of their

125 In Nav Sahitya Prakash v. Anand Kumar. (AIR1981 All 200) ‘A joint owner cannot, without the consent of
the other joint owner, grant a license or interest in the copyright. If a license is granted by one joint owner without the
consent of the other, it does not bind the former and the other joint owner can sue the licensee for infringement.’

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creative work as it is made freely available to society and conversely to provide society with a
transparent method of identifying the author of a work to determine the reliability and value of
the work.
Copyright Act should be ensured the progress of the individuals and their communities through
the development of cognitive and critical thinking skills. Literary property therefore is a unique
legal mechanism that can be used to provide stronger connections between authors and their
readers.

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