COMPULSORY LICENSING OF COPYRIGHT

Introduction

Copyright protects the expression of an idea. Anyone can create a similar kind of work except the exact copy of the work or material. The Indian Copyright Act, 1957 provides protection to the authors, writers etc., so that they can have the benefit for their hard work and creativity. However, they may arise a case where an owner wants to restrict his work to himself, but on the other hand, if it is disclosed in public, it will benefit the public at large. In these types of instances, compulsory licensing becomes a necessity. Compulsory Licensing has been embedded in Indian Copyright Act, 1957. Section 31 to 31B of the Act covers compulsory license.

Compulsory License

Section 31 of the Act provides for the compulsory license in works withheld from the public. It states that at any time of copyright which has been published or performed in public, a complaint is made to the Appellate where the owner of the work has refused for the republication of the work or refused to allow performance in public of work or has refused to allow communication to the public by a broadcast of such work on in case of sound recording which the complainant considers reasonable.

In these cases, the Appellate Board, after giving the owner of the copyright of work a reasonable opportunity of being heard and after holding an inquiry, if got satisfied with the grounds of refusal are not reasonable, can direct the Registrar of Copyrights to register a complaint a license for the republication of work or performing the work to be broadcasted, subject to the payment of an amount to the owner of copyright as compensation and also as per the terms and conditions prescribed.

Section 31A of the Act states when work is unpublished or published, but the author is dead or remains unknown, any person may apply to the Board for the exploitation of the work. However, Section 31B of the deal with the person working for the benefit of disabled persons can seek a license from the Board.

So compulsory licensing is generally a term used to a statutorily license to do any act which is covering an exclusive right without the prior permission from the owner of the copyright. Compulsory license provisions provide a strong facility for using the protected work or material without anyone’s prior approval. In India, these types of voluntary licenses are generally done for the benefit of the public at large. In case where the owner denies communication of its work or material to the public, even action can be brought against that person. This can be said as an exception to the general rule in the intellectual property laws that the original owner enjoys exclusive rights, and it is upon the power of the owner to grant a license to a person or not.

In the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., Radio Mirchi was playing music, where the rights were held by the Super Cassette Industries. The music company filed a case for a permanent injunction. While the suit was pending, the operators of FM filed an application for a compulsory license under Section 31(1)(b) of the Copyright Act, 1957. The issue in the case arose whether, in such circumstances, granting of the compulsory license is acceptable or not.

The Court in the above case held that a compulsory license could be granted on the grounds of Section 31A of the Copyright Act, only when the access to the work has been absolutely denied to the public. In this case, license had already been granted to All India Radio. Thus, it was not absolutely barred from public access, and it does not come under infringement of copyright.

Need of compulsory licensing

The owner of the work may prescribe the interest of his copyrighted work or material to some other person through the process of licensing. It should be done by the owner or by his authorized agent. Licensing allows the copyright holders to choose rights a licensee can exploit without passing his/her title. Compulsory licensing is important in the copyright domain as it provides access to works that must be available to the public.

Compulsory Licensing also becomes important in the cases of unpublished works where the author dies before the publishing of his/her work, and through a compulsory licensing process, it can be brought into the public domain. Unpublished work includes authors who are anonymous, dead, or cannot be traced and, as a result, can request the work to get a license under their name and publish the work.

International Copyrights Instruments

Berne Convention: Article 9 of the Berne Convention provides for the provisions in relation to compulsory licensing.

The Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works can be used without the prior permission of the owner of the copyright, and without payment of any sort of compensation. These limitations have been confined with the term “free uses” of protected works and are set forth in Articles 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), and 11(3) (ephemeral recordings for broadcasting purposes).

Trips Agreement: Article 13 of the Agreement renovates what has been prescribed in Article 9 of the Berne Convention. It requires members to stick to the limitations or exceptions related to the exclusive rights and in certain special cases which are not in conflict with a normal exploitation of the work, and further does not unreasonably prejudice the legitimate interests of the right holder.

Conclusion

The Indian Copyright Act, 1957, advocates the protection of the authors, writers etc., for their hard work and creativity. However, the work will be available for the other individuals to access but at a price. But also there are times when owners want to restrict their work only to themselves. In such cases, to benefit the public good with the information and ideas, compulsory licensing becomes a necessary option. Compulsory Licensing also becomes important in the cases of unpublished works where the author dies before the publishing of his/her work, and through a compulsory licensing process, it can be brought in the public domain.

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