The litigation will bring clarity to this copyright conundrum- Abhishek Malhotra, TMT Law
Abhishek Malhotra, founder of TMT Law and representing counsel for EEMA, breaks down the ongoing dispute that claims that copyright societies are engaging in unlawful extraction of license fee.
The Copyright Act was amended in 2012. It was to bring about further clarity in the unhappily drafted legislation and a complete makeover of administration of copyright by redrafting the rules.
The amendment was notified 11 years after the process of looking at a need for amendments started. The Rules took another 9 months to notify in March 2013. The main attraction of the Rules – to make the Copyright Board permanent, has been a non-starter from the word go. There is no Board in place, the Madras High Court has struck down as unconstitutional certain provisions relating to the procedure for selection of the 2 Members of the Board and there is litigation relating to the constitutional validity of the amendments pending in 3 different High Courts.
In this backdrop, the other big ticket amendment, that which was supposed to bring about further transparency in the functioning of the copyright societies, has also been paid only lip service, since both the existing copyright societies dealing with music – the Indian Performing Rights Society Limited (IPRS) and the Phonographic Performance Limited (PPL), have, after applying for re-registration, subsequently withdrawn their applications. IPRS is already facing an inquiry by a one-man commission constituted under the Act and Rules and PPL could follow suit.
Interestingly, however, both these entities continue to claim license fee for use of the repertoire which they claim is “owned” by them by virtue of assignments in their favour.
Challenging this interpretation and seeking clarity in the law as well as action against these entities for their arbitrary claims from event organizers, the Event and Entertainment Management Association (EEMA) filed a writ petition before the Delhi High Court in December 2016.
On a statement made by the counsel appearing for the Union of India that IPRS was being investigated for violations of the Copyright Rules and that the conduct of their business in seeking license fee from users was in violation of Section 33, the Delhi High Court on 23.12.2016, granted an injunction restraining the said entities from claiming any license fee from members of EEMA.
This order was modified on 29.12.2016, with welcome directions to IPRS, PPL and another entity by the name of Novex Communications, to make their works, rights and rates transparent and to prove their rights in case of a claim for license fee from members of EEMA. While this was to be done on or before 31.12.2016, there is some debate whether this order has been complied with in letter and spirit.
The website of IPRS contains agreements from the pre-amendment era, when it was still a copyright society. Whether or not these agreements continue to be valid is questionable and is to be decided by the Delhi High Court.
PPL has put up certain agreements on its website which seem to not be deeds of assignments, but mere permissions to use the contents of its “members”. The litigation is likely to bring about some clarity to this copyright conundrum.
* Views expressed in the article are solely those of the author.
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