The rights and wrongs of copyright societies

By Sana Jaffri, Lall Lahiri & Salhotra
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The purpose of copyright is to protect artists by enabling them to reap the rewards of their literary, dramatic, musical or other creations. By providing creators or authors of artistic works with the exclusive right to commercially exploit the work for a fixed period, copyright aims to supply the necessary impetus and incentive for artists to continue making original works.

Sana Jaffri Associate Lall Lahiri & Salhotra
Sana Jaffri
Associate
Lall Lahiri & Salhotra

Managing copyright – especially copyright in commercially exploited literary, dramatic, musical or cinematographic work – is an arduous task. The range of possible uses that may amount to copyright infringement is very broad and difficult to monitor.

Accordingly, copyright societies registered under section 33 of the Copyright Act, 1957, are authorized to aid artists in managing and enforcing copyright. Copyright societies are repositories of certain rights in copyright protected works. They are entrusted by authors with the right and authority to undertake proper management and rightful exploitation of the works, ensuring due returns and stringently enforcing authors’ rights.

Societies’ roles

With their national reach and depth of resources, copyright societies can solve the management, protection and enforcement problems facing individual rights owners. Copyright societies also provide artists with a means of making their works commercially available.

Once a copyright society has established a framework specifying the rules and remuneration for use of copyright material, it becomes relatively simple for copyright owners to present their work to TV or radio broadcasters. This arrangement also simplifies the task of broadcasters, which need only approach the copyright society to arrange access to a work for broadcast.

Copyright societies can also establish partnerships with similar societies in foreign countries, ensuring that that rights of local members are judiciously exploited and preserved overseas.

Copyright societies are authorized to fix the fees to be paid by broadcasters and other parties who wish to make use of a copyright work. Of this amount, a fixed share is paid to the copyright owner, forming part of the royalties. However, a question that often arises is whether the interests of the rights owner surpass the public’s interest in the work. Despite the existence of provisions for compulsory licensing of works, disputes often arise between copyright societies and broadcasters with regard to fees and the availability of works to the public.

Copyright societies and broadcasters have a symbiotic relationship; each would be non-functional and unprofitable without the other. However, the terms of the relationship can still be controversial, with copyright societies demanding higher fees and broadcasters resisting such demands. Radio broadcasters in particular (especially those in smaller towns), having limited sources of advertising revenue, often argue that the cost of paying royalties to copyright societies makes their business unviable.

Some legal battles of the past few years have established the Copyright Board as the ultimate authority in such disputes. It has been awarded the power to fix the rates by which copyright societies can charge user fees to broadcasters. The copyright board has set a differential rate based on broadcasting time slots; for example, “prime time” use of music recordings will attract higher fees than use at other times. However, the question remains open as to whether it is appropriate for a copyright society, in representing the interests of its members, to hold the public interest in artistic works to ransom.

Suing for rights owners

It is also debatable whether copyright societies should be permitted to sue for copyright infringement on behalf of individual rights owners. In Phonographic Performance Ltd vs Hotel Gold Regency & others, Delhi High Court expressed a negative view in this regard. The court stated that, since the law does not specify that copyright societies may sue on behalf of a rights owner (even if the owner agrees to allow the society to sue on his or her behalf), such actions should not be entertained because parties may not agree upon something that the law does not allow.

However, on comparing this position to decisions in other parts of the world, it becomes clear that most countries do allow copyright societies to sue on behalf of the rights owner, where the latter specifically permits the society to do so. With several infringement suits pending, the Indian position remains unclear.

It can be argued that the whole value of copyright society membership is being negated by the exclusion from statute of specific permission for a society to sue on behalf of a rights owner. As already noted, monitoring use of a copyright work and taking strict action against every infringement is beyond the ability of most individual rights owners.

There is no doubt that copyright societies benefit both rights owners and the public at large by providing easier access to copyright works. However, some legislative work remains to be done in balancing copyright protection for artists with the general public’s interest in gaining reasonable access to copyright material.

Shubneet Panjete is an associate at Lall Lahiri & Salhotra.

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