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Compulsory Licensing Under Copyright Law

Compulsory licensing under copyright law is necessary for using copyrighted work without the owner's permission. The government gives a right to a third party to produce a patented work to stop the owner from undue advantage after the patent period, which is 20 years from application. This paper provides information on compulsory licensing in the Indian context.

Meaning Of Compulsory Licensing:

A compulsory license is legislative permission to do an act covered by an exclusive right without the previous authorization of the right owner. Compulsory licensing permits using protected (for example, copyrighted content) material without the owner's approval.

A compulsory license limits a patent holder's rights by allowing other parties to manufacture, use, and sell patented items without the patent holder's permission.

The fundamental goal of the compulsory license is to ensure that copyrighted material is available. The Indian Copyright Act protects the works of authors, painters, and others so that they can profit from the fruits of their labor and ingenuity. However, this comes at a cost: the work should be accessible and fair use for other people.

Sometimes copyright holders refuse to part up their work. In such a circumstance, compulsory licensing becomes necessary to protect the public's access to copyrighted material and the free flow of ideas and information without infringing on the rights of the copyright owner.

History Of Compulsory Licensing:

The Berne convention plays a vital role in the history of compulsory licensing under copyright law only in the countries which are signatories to the Berne convention. India became a signatory to the Berne convention on 28th April 1928 and adopted compulsory licensing under specific articles as follows:
  1. Article 9 of Berne convention:

    This article states that the authors of literary and artistic works have an exclusive right to reproduce. It also says that such results must be reproduced only when it does not conflict with normal work exploitation.
  2. Article 11 of Berne convention:

    This article states that the conditions indicated in article 9 shall be applied in countries only when it is prescribed.
Articles 9 and 11 of the Berne convention lead to the formation of section 31 of the copyright act, 1957.

Scope Of Compulsory Licensing:

Sections 31 to 31B of the Indian Copyright Act concern obligatory licenses.

In India, there are currently five categories of required licenses. These are the sorts of licenses accessible, which include works withheld from the public for no apparent reason, orphan works, differently abled works, translation licenses, and licenses for the reproduction and sale of works not available in India.

The scope of compulsory licensing under copyright law was based on many landmark cases.

In a famous case[1], compulsory licensing must be granted under section 31[2] only when public access is completely denied. It was also made clear that the license was only provided when the work was used fairly. It was also held that the grant of the license must fulfill each and every condition mentioned in section 31.

In another case, the court held that[3], only final orders must be passed with respect to the compulsory licensing other than interim orders.

International Copyright Instruments:

  • Berne Convention:

    The Convention enables some restrictions and exceptions to economic rights, that is, instances in which protected works can be used without the prior authorization of the copyright owner and without payment of any kind of remuneration. These restrictions have been restricted to the phrase "free uses" of protected works and are outlined in Articles 9 (reproduction in certain particular instances), 10 (quotations and use of works as illustrations for educational purposes), and 11. (ephemeral recordings for broadcasting purposes).
  • TRIPS Agreement:

    Article 13 of the Agreement updates the provisions of Article 9 of the Berne Convention. It requires members to adhere to the limits or exceptions connected to exclusive rights and in some unique instances that are not in contradiction with the regular exploitation of the work, and it also does not unfairly impair the right holder's legitimate interests.

Types Of Licensing Under Copyright Act, 1957:

There are 6 types of licensing as per the 2012 amendment act. They are as follows:
  1. Compulsory licensing in works withheld from the public
  2. Compulsory licensing for benefit of disabled person
  3. Statutory license for cover versions
  4. License to produce and publish translations
  5. Statutory license for broadcasting of literary and Musical works and sound recordings
  6. License to reproduce and publish works for limited purposes

Compulsory licensing in works withheld from the public:

  1. Licensing in the event that the author rejects to publish:
    In certain circumstances, the owner of the work has refused to republish it or has refused to consent to its republication after its initial publishing. Section 31 permits a complaint to be brought before a copyright Board, the jurisdiction of which has now been transferred to the Intellectual Property Rights Appellate Board, where such denial has resulted in work not being shown to the public. Similarly, if the author of the work has denied transmission of the work by broadcast or sound recording on terms that the complainant believes are unreasonable, a complaint can be made with the board.
  2. Licensing in the case of a deceased, unknown, or untraceable author:
    Under Section 31A of the Copyright Act of 1957, any person may petition to the board for the exploitation of a work that is unpublished or published but the creator is deceased, unknown, or cannot be located.

    Following sufficient notification and other requirements, the Board, if satisfied, directs the competent authorities to award a licence. When work is unpublished or published but the author cannot be traced, communication cannot be established, or communication is not traceable, Appropriate Government may be in the public interest. The government then instructs and permits the author or his legal successors to publish the work in the public interest.

Compulsory licensing for benefit of disabled person:
Section 31B of the Copyright Act, 1957 states that any individual working for the benefit of a handicapped person can apply to the copyright board for a license. Notably, this license can be obtained for profit or business purposes. After hearing the owner of the work, the Board may award a license for the handicapped person's benefit.

In the event of unpublished works by unknown or deceased writers, anybody may apply to the Copyright Board for permission to showcase, convey, or publish such works or translations to the public. However, before submitting any application, the applicant must follow the legal requirements of posting his idea in a major newspaper with the most readers in that area.

Statutory license for cover versions:

Any individual intending to create a cover version of a sound recording may apply to the Board for broadcasting in the same medium in which the original version was recorded under Section 31C of the Copyright Act. This application may be filed after 5 years have passed from the first publication.

License to produce and publish translations:
Section 32 of the Copyright Act states that anybody may request for a license to publish a translation of a literary or theatrical work. Such a license may be limited to seven years for Indian work, three years for overseas work, and one year when the translated language is not widely used or is not widely used in a developed country. After hearing from the owner, the Board may issue such consent for royalty payment.

Statutory license for broadcasting of literary and Musical works and sound recordings:
If a literary, scientific, or creative work is not accessible or no copies are sold within six months, and the work is not reaching the public at a reasonable price when compared to works of comparable kind, anybody can obtain a license from the Copyright Board. Certain prerequisites, such as obtaining a voluntary permission from the owner of the work, are time-consuming before obtaining this licence.

License to reproduce and publish works for limited purposes:
If editions of such literary, scientific, or creative works are not available in India, the Copyright Board may grant licenses to distribute them. In the event of such petitions and requests, the Copyright Board may grant the license after determining the fee to be paid to the copyright holder.

Compulsory licensing of copyrighted works is significant for a variety of reasons, including providing access to works that have been unfairly kept from the public domain. It is open to the public and can be utilized for a variety of academic and societal purposes.

A Compulsory License's Terms And Conditions Are:
  1. The Patentee's Investment In The Innovation;
  2. The Applicant's Capacity To Use The Patentee's Invention;
  3. The Selling Price Of The Patented Items (At Reasonable Pricing); And
  4. The Length Of The License

Furthermore, the Controller may grant compulsory permits on his or her own initiative under Section 92, in response to a notification issued by the Central Government, if there is a "national emergency" or "great urgency," or in circumstances of "public non-commercial usage."

The preceding case studies and clauses clearly highlight the significance of compulsory licensing in today's reality. Certain compulsory licensing measures extremely effectively safeguard the public's right to access a particular piece of work. As a result, the notion of forced licensing is an intriguing component of copyright law that is carefully addressed by the copyright board in order to preserve the interests of the general public. However, the work will be available for other people to access, but for a cost. However, there are situations when owners desire to limit their work to only themselves.

In such instances, compulsory licensing becomes an essential alternative in order to benefit the public good with the knowledge and ideas. Compulsory Licensing is especially significant in the situation of unpublished works where the creator dies before the work is released and it can be placed into the public domain through a compulsory licensing process.

  • Intellectual property rights by V.K.Ahuja
  • Copyright act, 1972
  1. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.
  2. Section 31 of the copyright act, 1957.
  3. Reliance Broadcast Network Limited v. Super Cassettes Industries Limited.

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