This article has been written by Ms. Amrutha Selvam, a final year LLB student at Mahatma Gandhi University, Kerala.
License is permission officially given to another person to do something that the owner does himself. Chapter 6 of the Copyright Act 1957 deals with Licenses. Sections 30 to 32 B of the Act comprise the provisions relating to licensing. As per the UK law, licenses are dealt with in Sections 90 to 95 of the 1988 Act. Copyright is a transferable right, where it can be sold, assigned, bequeathed, given on license, and also transferred to the legal heir or representatives after the death of the person by succession or by will. The copyright owner grants an interest in the copyright by a license, where it can be just confined to only one or two interests or it can be the entire copyright also. License is important as it is the authorization of the act that, without such approval, amounts to infringement of copyright. The copyright term is the author’s lifetime and another 60 years after the author’s death. Usually, the licensing includes only some of the rights rather than the whole rights. A license can be exclusive or non-exclusive. A person who is the author of a book can license the right to reproduce the work in hard-back to one person and paperback to another person, the serialization rights to newspapers or magazines, film rights and dramatization rights to others, and also the translation right in any language to another.
TYPES OF LICENSE
Voluntary License is mentioned in Section 30 of the Indian Copyright Act, which says that the copyright owner of an existing work or of any future work can give any interest in the right through a license by writing signed by the owner or his approved agent. In the case of a person to whom the license of copyright in any future works, shall be granted only after the work comes into existence then only the license will take impact, and if he dies before the existence of the work then his legal representative can be benefited of the license. Also, the mode of the license is similar to an assignment which must include important adaptations and modifications as mentioned in Section 19 (Section 30 A). It must also include the duration of the license, rights that can be licensed, the territorial extent of the license, the quantum of royalty payable, the terms regarding revision and extension, and termination also.
The voluntary license can again be classified into Exclusive, Non-exclusive, Co-exclusive, Sole license, and Implied license.
In the case of Muskett V Hill , it was stated that a license is an authorization of an act that, without such authorization, would be an infringement.
Section 31 of the Act deals with Compulsory licenses, where the copyright board is authorized to deliver compulsory licenses under certain possibilities on appropriate terms and conditions related to the work. India, being a member of the Berne Convention, has incorporated provisions of compulsory license in the Copyright Act, of 1957. There are situations when the copyright owner may withhold the work from publishing or communicating it to the public.
The conditions necessary to grant compulsory licenses are –
- If the work is executed or published in public.
- If the author refused to republish or permit the republication of the work or must have refused to permit the performance of the work in public.
- In case of this refusal, the work will be withheld from the public.
- If the author denied permitting communication to the public of such work by broadcast or sound recording.
If a complaint is given to Copyright Board, the board may direct the Registrar of Copyright to grant a compulsory license to the complaint, so that the work can be republished, performed in public, or the work could be communicated through broadcast, according to the owner’s payment and other terms and conditions, only after giving the copyright owner an opportunity of being heard and after necessary inquiries. Thus Compulsory licenses are granted by the Registrar of Copyrights in cases when the copyright owners are not willing to make it into the public domain. The copyright gives protection to creative people including artists, writers, etc., where they will be benefited from their complex and innovative works.
Owner dead or not found
In cases where the owner of the copyrighted work is dead or cannot be found then anyone can apply for a license and the application can be made to the appellate board. Also, the applicant has to publish what he proposes in one daily newspaper in the English language before the application. If the license is for translating the work of the owner then the publication of that proposal should also be made in the language in which it is to be translated. This copy of the advertisement must be submitted along with the application for a license. If the appellate board is satisfied with the license then he will grant the registrar to grant the license to the applicant when he pays the appropriate fee. The board also determines how much royalty is to be paid to the licensor by the licensee and it is to be deposited by him in the public account of India or according to the terms of the appellate board.
In certain cases when the work is not published by the reason for the death of the owner or the author, then the central government is empowered to make the legal heirs or representatives or executors publish such work in a given time if such publication is of necessity for the purpose of national interest. If they fail to do so then the appellate board can give the license to the applicant who has applied for the license on payment of the decided royalty according to the appellate board.
The benefit of the Disabled
If the application is for the compulsory license of the work which is to be published for the benefit of the disabled then the approval process is to be completed within a period of two months by inquiring if it is made in good faith. The term disabled means when a person is having a physical, mental, intellectual, or sensory impairment or weakness, it causes an injury or a disease that hinders his interaction with others and prevents his equal participation due to that disability, which is mentioned in section 2(s) of Disabilities Act 2016.
Broadcast means communicating the work to the public by wireless diffusion or by wire where the signs and sounds reach the people and they are able to perceive these works by their senses. When any organization provides similar services they are termed as a broadcasting organization and when they want to communicate the work by licenses they are required to give notice beforehand about the work that they want to publish and how long it will be publishing it. The royalty will be decided by the appellate board where the rates of royalties differ from medium to medium. The broadcasters also should not make any unnecessary changes to the work without the permission of the copyright owners. They must keep all the accounts and also allow inspection when needed.
In the case of Tips Industries V Wynk Music, the court held that wink had infringed the work as they let people download that music for a fee by streaming it on their website or application. The section 31 d didn’t include internet streaming in the definition of broadcast but the court held that internet streaming should also be included in the broadcast even though it is not clearly mentioned in the statute and wink had infringed the rights of tip and if it is continued then it will cause irreparable damage and loss to the revenue of tips.
Also, in the case of See Frisby V British Broadcasting Corpn., it was told that a license has the right to make alterations unless restricted by the license agreement expressly or impliedly, which is particularly significant in the case of the publishing of literary, dramatic, or musical work.
Application for License
A license agreement must be in writing and if not then it will be considered invalid. The agreement should clearly specify the licensed work and what are the rights, liabilities, time period for which the license is made, and the area under which the license shall operate. Alterations or any changes can be only made to the agreement if both parties agree and in case the license period is not mentioned then it is to be taken as 5 years and if the territory of operation is not given then it is considered as the entire territory of India. There can be cases when the licensee fails to utilize the license according to the terms mentioned in the agreement then a complaint can be made to the appellate board by the licensor, where an inquiry will be conducted.
Termination of the License
Section 32B of the Copyright Act provides the situations when a license can be terminated or canceled. In the case of production and publication of the translation, if after the license is given the owner of the copyright does not come up with a similar translation at a reasonable price similar to the comparable work then the license terminates by a 3 months notice period. Also, a similar situation is there in the case of the reproduction of the translated work.
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