What is Compulsory Licensing under Copyright Law?

Introduction

Copyright is a form of intellectual property that protects the original works of creators in the fields of literature, drama, music, art, and software, as well as sound recordings and cinematographic works. The Copyright Act of 1957 in India, specifically Section 13[1], ensures creators’ rights by safeguarding their work for their lifetime and preserving their originality of expression. This allows creators to publish and distribute their work in a secure environment while maintaining their intellectual property rights.

Copyright revolves around three fundamental elements: originality, creativity, and fixation.

• Originality emphasizes that the work must be new and not replicated, arising from a novel idea that contributes positively to society.
• Creativity highlights the “modicum of creativity” required to make the work unique, even if the level of creativity is minimal.
• Fixation establishes that the work must exist in a tangible form, either verbal or theoretical, to be legally recognized.

A landmark case illustrating these principles is Feist Publications Inc. v. Rural Telephone Service Co.[2] Here, the U.S. Supreme Court held that for a compilation of facts to be copyrightable, it must exhibit originality in selection or arrangement, not just effort or investment under the “Sweat of the Brow” doctrine.

What is Compulsory Licensing in Copyright?

Compulsory licensing refers to a statutory provision that allows the use of copyrighted material without the prior consent of the copyright owner. This license is granted when copyrighted works are being withheld from the public, thereby restricting their availability. In such cases, compulsory licensing ensures access to the copyrighted material while compensating the copyright holder through royalties or other terms.

In India, the provisions for compulsory licensing are governed by Sections 31 to 31B of the Copyright Act, 1957[3]. These provisions are crucial for striking a balance between protecting the rights of copyright owners and ensuring public access to creative works.

Key Provisions for Compulsory Licensing

1. Section 31[4]: This section empowers the Copyright Board to grant a compulsory license when the copyright owner denies permission to republish or perform a work, or to broadcast or communicate it to the public. After an inquiry and an opportunity for the copyright owner to present their case, the Board may authorize the Registrar of Copyrights to issue a compulsory license. This license allows the complainant to republish, broadcast, or communicate the work.
2. Section 31A[5]: This section addresses situations where a work is withheld from the public. It applies to both unpublished and published works when the author or owner is deceased, untraceable, or unknown. In such cases, any person can apply to the Appellate Board for a license to publish or communicate the work, including translations, to the public.
3. Section 31B[6]: This provision ensures accessibility for disabled individuals. Organizations working for the benefit of disabled persons can apply for a compulsory license to reproduce or distribute copyrighted works in accessible formats. The purpose is to enable the disabled community to access valuable content while respecting the rights of copyright owners.
4. Section 31D[7]: Introduced through the Copyright Amendment Act, 2012, this provision allows broadcasting organizations to obtain a statutory license for the communication of literary, musical, or sound recording works to the public. Broadcasters are required to provide prior notice and pay royalties, ensuring that copyrighted works are accessible while compensating the creators.

Significance of Compulsory Licensing in India

Compulsory licensing plays a vital role in ensuring that copyrighted works are not withheld from public access, especially in scenarios where:

• The copyright owner is unavailable or uncooperative.
• The work is essential for academic, educational, or societal purposes.
• There is a need to make works accessible to disabled individuals.

By providing a legal framework for licensing, the Indian Copyright Act ensures that works can be used for public benefit while maintaining fair compensation for copyright holders. This promotes innovation, creativity, and societal progress.

Case Law Analysis

1. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd[8]

The dispute arose when Radio Mirchi, a broadcasting service, played music owned by Super Cassette Industries without obtaining prior authorization. While the case for a permanent injunction was still pending, FM operators applied for a compulsory license under Section 31(1)(b) of the Copyright Act[9]. The key issue before the court was whether granting a compulsory license in such circumstances was justified. The court emphasized the necessity of balancing the copyright holders’ exclusive rights with public access to creative works and found merit in issuing a compulsory license under the statutory framework, thereby promoting wider dissemination of copyrighted works.

2. Music Broadcast Pvt. Ltd. & Ors. vs. Phonographic Performance Ltd.[10]

The dispute in this case highlights the long-standing conflict between radio stations and music companies over royalty payments. The disagreement arose when Phonographic Performance Ltd. (PPL) declined to grant licenses to radio stations at the proposed royalty rates. In response, nine FM radio stations filed applications under Section 31(b) of the Copyright Act, 1957[11], seeking compulsory licenses from the Copyright Board to broadcast music produced by PPL. After hearing arguments from both parties, the Board issued a significant ruling, requiring each FM radio station to pay 2% of their net advertisement revenue as royalties. These payments were to be distributed proportionately among all music providers. This landmark judgment not only set a definitive royalty rate for radio stations and music companies but also created a framework for resolving similar disputes in the future. By determining a fair and reasonable royalty system, the decision ensured transparency and balance in the licensing process, benefiting both broadcasters and copyright owners.

Compulsory Licensing and Public Interest

Compulsory licensing aligns with the broader goals of copyright law by promoting public access to creative works while safeguarding the rights of creators. It serves several important functions:

• Ensuring access to essential works for educational, academic, and cultural purposes.
• Encouraging the dissemination of knowledge and innovation.
• Supporting inclusivity by making works available in accessible formats for disabled individuals.
• Balancing the monopoly rights of copyright holders with societal needs.

Challenges and Safeguards

While compulsory licensing is a powerful tool, it must be exercised judiciously to prevent misuse or overreach. Key considerations include:

• Ensuring fair compensation for copyright owners through royalties.
• Limiting the scope of licenses to specific purposes or time frames.
• Conducting thorough inquiries before granting licenses to avoid unjustified infringement on copyright holders’ rights.

Conclusion

Compulsory licensing under copyright law is an essential mechanism for balancing the rights of creators with public interest. By enabling access to withheld works and fostering societal benefits, it upholds the spirit of copyright law. In India, the statutory provisions under Sections 31 to 31D ensure that copyright regimes adapt to changing circumstances and societal needs. Through proper regulation and implementation, compulsory licensing can continue to promote innovation, accessibility, and the equitable use of creative content.

[1] The Copyright Act, 1957, s. 13.

[2] 499 U.S. 340 (1991).

[3] The Copyright Act, 1957, ss. 31, 31B.

[4] Id. at 31.

[5] Id. at 31A.

[6] Id. at 31B.

[7] Id. at 31D.

[8] C.A. No.5114/05.

[9] The Copyright Act, 1957, s. 31(1)(b).

[10] (2003) 26 PTC 70.

[11] Supra at 6.

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