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Compulsory Licensing in Copyright

A license is the transfer of an interest in a copyright. In a license, the rights granted are limited. A grant of a license to a person authorizes the licensee to use the copyrighted work without any claim of infringement or unauthorized use being brought by the owner of the copyright against the licensee.

A license is distinct from an assignment as the licensee gets certain rights of subject to the conditions specified in the license agreement, but the ownership of those rights entrusts solely in the owner of the copyright. On the other page, in case of an assignment, the assignee becomes the owner of the interest assigned to him. The original owner of the copyright transfers all the rights to the assignee and retains none.
A license is of two types, it can be either voluntarily or compulsorily.

Voluntary Licensing

Voluntary licensing is defined under section 30 of the Indian Copyrights Act (ICA). According to Section 30 of ICA:
The owner of the copyright in any existing work or the potential owner of the copyright in any future work may grant an interest in the right by license in writing signed by him or by one of his duly authorized agent.

Hence, the copyright owner of any existing work or the prospective owner of any future work can grant any interest in the right by way of a license. Whereas, it has to be kept in mind that in case of future works, the license will come into force only when the work comes into existence.

Compulsory Licensing

A compulsory license is an expression generally applied to a statutory license to do an act covered by an exclusive right without the prior authorization of the right owner. Compulsory licensing also allows for the use of protected material (in this case, copyrighted material) without the prior permission of the rightful owner.

Section 31 of the Indian Copyright Act, 1957 (ICA, 1957) provides for the compulsory licensing of the copyright in case of works that are kept hold of from the public.

In case the copyright rightful owner has refused to:
  1. Republish or allow for the republication of the work or has refused to allow for the performance of the work in public due to which the work is kept hold of from the public;
  2. Pass the communication of the work to the public by way of a broadcast of such work;
  3. In the case of sound recording the work recorded in such sound recording on terms which the complainant considers reasonable to the original work

The Copyright Board can, after providing a rational opportunity for the owner of the copyright to be heard and after conducting an enquiry and if satisfied, can direct the Registrar of Copyrights to grant a compulsory license to the complainant to republish the original work and broadcast the work or communicate it to the public as the case may be taken. Upon such direction or order, the Registrar of Copyrights is entitled to grant the license to the complainant.

Further, a compulsory license can also be granted in case of unpublished Indian works. Section 31A of Indian Copyrights Act, provides for the same. In case of an unpublished work wherein the author is dead or unknown or cannot be traced anywhere, any person may apply to the Copyright Board seeking a license to publish such work.

Why Is Compulsory Licensing Important In Copyright?

The primary objective/motive of the compulsory licensing is to ensure the availability of copyrighted material. The Indian Copyright Act, grants protection to the original works of writers, artists, producers etc. so that they can get benefit from the results of their hard work and creativity put in the work. However, this comes at a price, that is; the work should be available for access and fair use for other individuals who need it.

There are times when copyright owners find it difficult or refuse to part from their work. In such a case, in order to ensure the availability and accessibility of copyrighted materials to the public and free flow of ideas and information without infringing the rights of the copyright owner, compulsory licensing becomes a necessity of the hour. Section 31 of the Indian Copyright Act, enables a complaint to be filed before the Copyright Board, which jurisdictions is now vested with the Intellectual Property Appellate Board, when such refusal has resulted in the work being withheld from the public.

Important case relating to Compulsory Licensing in India

An important case depicting compulsory licensing is Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. In this case, Radio Mirchi was playing music, and Super Cassette Industries had the rights of it. The music company filed for a permanent injunction. While the suit was pending, the FM operators applied to the Copyright Board for the grant of a compulsory license under Section 31(1)(b) of the Indian Copyright Act. The question that arose here was whether in such a particular situation, granting of a compulsory license was viable or not.

The broadcasters, that is, Radio Mirchi, argued that since a license had already been granted to AIR and Radio City, there were no grounds on which a license to Radio Mirchi should be denied. The Court held that since a scompulsory license can be granted on grounds stated in Section 31A of the Indian Copyright Act, i.e., only when access to the work has been denied to the public. In this case, the license had already been granted to AIR and Radio City. Therefore, it was not barred or protected to the public access. Thus, the argument of Radio Mirchi holds no water, and they were liable for infringement of copyright of the same.

Copyright is the platform granted in exchange or as a give and take for disclosure of work. Disclosure of various works enriches and gives the society accessibility and availability of the works by various authors, artists, writers, producers etc. and keeps the march of mankind intact. This article briefly discusses what happens when the owner of a work after its publication has refused to re-publish the work or allowed re-publication of the work and the remedy for the same.

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