PROPERTY DISPUTES

The Central government recently announced that it intends to amend the Copyright Act, recommending a slew of proposals that seek to update and modernise the statute.

Among the proposals is the introduction of provisions penalising the circumvention of digital rights management (DRM) technologies. DRM provisions have existed in copyright statutes around the world for nearly a decade, and have been used to good effect against a range of technologies. However, technologies have advanced and while DRM issues will continue to be relevant in traditional distribution models, one wonders how much of that we will see in India, as we leapfrog into streaming media and 3G enabled media distribution models.

Among the more welcome changes proposed to be introduced are the amendments relating to the rights of the disabled to access information. The proposed amendments are likely to include a clause aimed at allowing the dissemination of copyright material in formats specially designed for the physically challenged. A provision for compulsory licensing of copyright works for the physically challenged is also likely to be introduced.

Amendments have also been proposed to deal with orphan works — a special category of copyright that relates to works, the author of which is dead or unknown or cannot be traced. Orphan works have recently become the subject of considerable debate in the light of the Google Books Settlement in the US and it will be interesting to see how the Indian government proposes to tackle the issue.

A new statutory licensing system has also been proposed to ensure that the public has access to musical works over the FM radio and television networks while ensuring that the owners of copyright over those works are not disadvantaged. This proposal appears to have been spurred by the decision in the PPL v. Millenium Chennai Broadcast case but the details of these proposed amendments would be interesting.

For more than a decade, there has been a demand from the performers that royalty payment must be made mandatory for any commercial exploitation of their work. It appears that the government has finally agreed to accede to this request. The details are still not clear but this will have repercussions on thousands of small time street artists and karaoke artists. It appears that a new moral right of performers has been articulated which will mandate that the re-performance of any work will give credit to the original performer.

It appears that the government is attempting to put a rest to the controversy regarding who owns rights in a cinematograph film and the corresponding sound recording. At present the producer of the film owns all the rights over every element of the film. It appears that the new amendment will allow each person who contributes to the film to retain independent right over their contribution and will be entitled to receive royalty towards such contribution. However, it will be interesting to see how this is actually put in practice.

Since the passage of the amendments to the Information Technology Act, 2000 and in particular the controversial provisions relating to the exceptions available to offences under the Copyright Act, there has been a need to reconcile the two legislations. The newly amended Information Technology Act grants protections to intermediaries such as search engines in respect of information that is not generated or circulated by them. However this protection is subject to the rights of persons under the Copyright Act. It is understood that new amendments to the Copyright Act will clarify the situation but details are yet to be released.

While these proposals have (quite rightly in most cases) generated considerable excitement, it might perhaps be premature to put the champagne on ice. The last time we got a draft Copyright Amendment Bill was in 2005 — and that bill has still to be enacted into law.