Cracking the Code: Understanding Copyright Licensing in Indian Copyright LawJune 11, 2023 By Sonal Bhatt
Did you know you can pass on your copyright to someone? But that doesn’t mean you just hand it over to whomsoever you like. There is a protocol, a process called “Copyright Licensing” under the Indian Copyright Law about which we will see in detail in the blog today.
The Great Indian Copyright Law & Its Copyright Licensing
Indian copyright law is governed by the Copyright Act of 1957, which provides legal protection to creators of original literary, artistic, musical, and dramatic works, as well as cinematograph films and sound recordings. Copyright protection is available for original works that are fixed in a tangible form and exhibit a minimum level of creativity.
A copyright's duration varies with its type. In literary, dramatic, musical, or artistic works, copyright lasts for the author's lifetime plus 60 years while cinematographed films, sound recordings, and photographs have copyright for 60 years.
The copyright owner has the exclusive right to reproduce, publish, communicate to the public, and adapt the work which can be assigned or licensed to others. The assignment involves transferring ownership of the copyright while licensing grants permission to use the work under specified conditions.
So in simple words, copyright licensing is when a copyright owner lets someone use their work, for a fee, without getting in trouble. It provides legal authorization for the licensee to use the work without the risk of infringement claims by the copyright owner. The license can cover work that already exists or future work that hasn't yet been made.
Importance of Copyright Licensing in India
Copyright licensing doesn't mean passing on ownership of the creation; it is just a transfer of interest that the licensee can use to modify the work without the fear of infringement. Thus, it protects the original creation and the creator which makes it important because it fosters creativity, encourages innovation, and promotes the dissemination of knowledge. It is more like a legal way that copyright owners can take to monetize their works while enabling others to legally utilize their copyrighted materials for various purposes.
So, to sum up, copyright licensing is important because:
- it prevents unauthorized copying or infringement by giving copyright owners the exclusive right to control their works' use and distribution.
- allows copyright owners to earn royalties by licensing their works via a licensing agreement.
- It benefits the licensees, such as individuals, businesses, or organizations to use copyrighted materials while avoiding potential infringement claims and legal disputes and ensuring compliance with copyright laws.
- facilitates access to a wide range of creative works such as publishing, translation, performance, adaptation, distribution, or display, based on the specific rights granted in the license agreement.
- fosters collaboration and innovation by allowing creators to share their works with others. Licensees can build upon existing copyrighted materials, create new works, and contribute to the growth of various creative industries.
- it prevents unnecessary disputes from arising as copyright licensing agreements often include provisions for resolving disputes and parties can agree on mechanisms such as arbitration, mediation, or referral to the Copyright Board in case of conflicts arising from the license agreement.
In short, copyright licensing is not just crucial for copyright owners, but also for licensees, and other stakeholders as it helps them all navigate legally and ensure a fair and balanced approach to the use and distribution of creative works.
Types of Licenses in Indian Copyright Licensing Law
In Indian copyright law, copyright licensing is classified into two different types i.e. Voluntary licenses and Compulsory licenses.
Voluntary License -
The voluntary license, as defined in Section 30 of the Indian Copyright Act, allows the copyright owner to grant another person the right to make exclusive or nonexclusive use of a copyrighted work. The license is deemed voluntary because the copyright owner granted it willingly.
Under voluntary licensing, ownership remains with the copyright owner and only specific rights such as reproduction, distribution, adaptation, performance, or display, among others, are transferred to the licensee. It can be given for both an existing work and future work, but the license will only become effective in future work once the work comes into existence.
Voluntary licensing can take various forms, including -
Exclusive License -
which grants exclusive rights only to the licensee, and no other person or entity, including the copyright owner, can use the copyrighted work during the license period.
Non-Exclusive License -
where the copyright owner allows multiple licensees to use the copyrighted work simultaneously and the owner can also continue to use the work and grant licenses to others.
Co-Exclusive License -
that allows multiple licensees to use the copyrighted work but restricts the number of licensees.
Sole License -
that grants exclusive rights to the licensee, but the copyright owner retains the right to use the work as well. However, the copyright owner cannot grant licenses to any other parties.
Implied License -
not explicitly granted through a written agreement but is instead implied by the conduct or circumstances of the parties involved.
Compulsory License -
According to Section 31 of the Indian Copyright Act, a compulsory license is a statutory license that permits the government to grant a license for the use of copyrighted works without seeking the consent of the rights holder.
The Copyright Board in India can grant compulsory licenses for copyrighted "Indian works" in certain situations, including
Refusal to republish or allow republication of the work.
Refusal to allow the performance of the work in public, resulting in its withholding from the public.
Refusal to allow communication of the work to the public by broadcast or, in the case of sound recordings, the work recorded in such record on reasonable terms.
Certain types of works are eligible for compulsory licenses which include artistic works authored by Indian citizens and cinematographic films or sound recordings made or manufactured in India.
The concept of compulsory licensing in copyright law is addressed in various international agreements, such as the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which sets out minimum standards for copyright protection. The specific provisions and procedures for compulsory licensing may vary between countries, as they are determined by national copyright laws.
Key Considerations in a Copyright Licensing Agreement
For a license agreement to be valid, as per Section 19, it must be in written form and should be signed by the copyright owner or any other agent authorized by the owner, and must also contain the following details:
- Identification of the work and rights licensed
- A license's duration and the geographical territories where it can be exercised
- Royalties or other monetary arrangements that the licensee must provide to the copyright owner if the license is granted.
- Specific conditions relating to revisions, extensions, and terminations of licenses.
- Dispute resolution mechanisms mutually agreed upon by the parties, which may involve arbitration, mediation, or referral to the Copyright Board.
Copyright Licensing Procedure in India
Although due to digital advancement, anyone can follow the licensing procedure on their own, it is advisable to seek the help of a professional copyright protection service provider to prevent any kind of errors or complications. The following is the procedure to obtain copyright licensing in India:
- Copyright owners or prospective owners can initiate licensing processes by drafting and submitting a license agreement (crafted by copyright experts) to potential licensees.
- The Copyright Board then settles disputes related to copyright licensing if any and even grants compulsory licenses under specific circumstances.
- In the case of unpublished Indian works where the author is deceased, unknown, or cannot be traced, anyone can apply to the Copyright Board for a license to publish or translate the work. The Board may conduct inquiries and investigations before granting the license, subject to the payment of royalties and other conditions.
Benefits and Challenges of Copyright Licensing
Copyright licensing benefits both - copyright owners and licensees. While copyright owners can generate revenue and royalties from licensing their works, licensees gain legal permission to use copyrighted materials, avoiding potential infringement claims. However, determining fair and reasonable royalty rates and ensuring compliance with license terms, and preventing unauthorized use can be challenging.
Also, the digital environment presents unique challenges in copyright licensing due to issues like online piracy, global reach, and new modes of content distribution. However, it also opens up opportunities for innovative licensing models and wider accessibility. Various digital rights management (DRM) technologies and licensing platforms have emerged to facilitate the licensing, distribution, and protection of digital content in India.
Comparison with Other Intellectual Property Rights
Copyright licensing differs from patent and trademark licensing in terms of the rights granted, the duration of protection, and the subject matter of intellectual property. Copyright licensing may intersect with other intellectual property rights, such as trademarks and designs, especially in cases where copyrighted works incorporate protected elements of these rights.
Copyright licensing is a smart way to make use of copyrighted works without causing a loss to either party - copyright owners and licensees. Thus, understanding it well is of utmost importance to everyone involved in it to benefit better. Even though a lot of information, you might have received by now regarding copyright licensing, we advise you to approach an experienced copyright lawyers firm like us Parker and Parker Co. LLP to eliminate any kind of foul play in the process.