Broadcaster’s Rights

What is a broadcast?

“Broadcast” means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire.

What are the rights of a broadcasting organization?

The rights of a broadcasting organization with ref. to a broadcast are :

a) right to re-broadcast the broadcast;

b) right to cause the broadcast to be heard or seen by the public on payment of any charges;

c) right to make any sound recording or visual recording of the broadcast;

d) right to make any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence;

e) right to sell or give on commercial rental to the public, or offer for such sale or offer for such rental, any sound recording or visual recording of the broadcast.

What is the term of protection of broadcaster’s rights?

The term of protection for broadcaster’s rights is 25 years.

Copyright subsisting in the contents of the broadcast :

A programme broadcast usually includes literary, dramatic or musical works or records in which independent copyright may subsist. In such cases the broadcasting organisation should obtain the consent or licence of the copyright owners in the work in question because copyright in such works includes the right to communicate the work to the public.

Television : This term does not appear in the Act. But the definition of broadcast is sufficiently wide to include a television broadcast also. Television is well understood word now and requires no definition.

Musical work : The owner of copyright in a musical work has the exclusive right to perform it in public, but anyone may perform the work in private.

Tape recording of broadcast : If a person makes a sound recording of a programme broadcast over the radio, he will not be infringing the broadcasting right if the recording is used by him for private use or if the recording is done by a society for the purpose of teaching or research.

Performer’s Right

“Performance” in relation to performer’s right means any visual or acoustic presentation made live by one or more performers

“Performer” includes an actor, singer, musician dancer, acrobat juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;     

(acrobat : skillful at exercises of intellectual or artistic; juggler : one who manipulates especially in order to achieve a desired end. conjurer : a person who does clever tricks that appear to be magic; snake charmer : an entertainer who appears to make snakes move by playing music.)

What are the rights of a performer?

A performer has the following rights in his/her performance :

a) Right to make a sound recording or visual recording of the performance;

b) Right to reproduce the sound recording or visual recording of the performance; and issuance of copies of it to the public

c) Communication of it to the public.

d) right to sell or give on commercial rental to the public, or offer for such sale or offer for such rental;

e) Right to broadcast the performance;

f) Right to communicate the performance to the public otherwise than by broadcast.

What is the term of protection of performer’s rights?

Performer’s rights subsist for 25 years.

What are the rights of a performer in a cinematograph film?

Once a performer has consented for incorporation of his performance in a cinematograph film, he shall have no more performer’s rights to that performance in that film.

Assignments, Transmission and Relinquishment of Copyright.

Assignment :

The author of a copyright work may himself exploit the work for monetary benefit or he may assign whole or part of his rights to others to exploit economically for a lump sum consideration. In the alternative he may licence some or all of his rights to others usually on the basis of a royalty payment.

A copyright licence is different from copyright assignment, as in licensing the licensee gets certain rights subject to the conditions mentioned in the licence agreement but the ownership is not vested in him. Whereas in assignment, the assignee becomes the owner of the interests assigned to him.

An assignment is in essence a transfer of ownership even if it is partial. An author of a work who has assigned some specified rights in his copyright can be restrained by the assignee from exercising those rights.

As per the section 18 of the Copyright Act,

(1)The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.

Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.

(3) In this section, the expression, “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

** No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.

** If the period of the assignment is not stated, it shall be deemed to be five years from the date of assignment.

** If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

** No specific format for assignment deed.

Transmission (transfer/devolution) (section 20) :

Copyright is a kind of personal movable property. It can therefore be transferred, by a testamentary (related to will) disposition (disposal) or by the operation of law as in the case of similar properties. When the owner of the copyright dies, the copyright will pass to his personal representatives if he dies intestate.

If the manuscript (work submitted for publication).of a literary, dramatic or musical work, or an artistic work has been bequeathed (give by will) to a beneficiary, the bequest will carry with it the copyright also.

Relinquishment of Copyright (section 21) (Relinquishment : give up) :

The author of a work may relinquish all or any of the rights comprised in the copyright in the work, by giving notice to the Registrar of Copyright in the prescribed form or by way of public notice.

The Registrar will cause the notice to be published in the Official Gazette. The Registrar within 14 days from publication of notice in the official Gazette, shall post the notice on the official website of the copyright office so as to remain in the public domain for a period of not less than three years.

The relinquishment of the rights will not affect any rights subsisting in favour of any person on the date of notice e.g. the rights of an assignee or licensee.

Licences

The owner of the copyrights of any work may grant a license under the Copyright law to authorize a third party to use and distribute the copyrighted work.

Licenses by owners of copyright (Section 30) –

The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent.

Provided that in the case of a license relating to copyright in any future work, the license shall take effect only when the work comes into existence.

Explanation – When a person to whom a license relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the license , be entitled to benefit of the license.

There is no prescribed form for a licence deed. But it should be in writing by the owner. A licence deed in relation to a work should contain the following particulars.

1. Identification of the work,

2. Duration of licence,

3. The rights licenced ,

4. Territorial extent of licence,

5. The quantum of royalty and any other consideration, &

6. The terms regarding revision, extension and termination.

If the rights licensed are not specified it will be presumed that the licensor has licensed all his rights under the Act.

If the licensee does not exercise the rights licensed to him within one year from the date of licence, the licence in respect of such rights will be deemed to have lapsed after the expiry of one year unless otherwise specified in the licence deed.

A copyright license may be exclusive or nonexclusive.

The term Exclusive License is defined in section 2(j) of the Copyright Act to mean and include a license which confers on the licensee and the persons authorized by him, to the exclusion of all other persons, any right comprised in the copyright of a work.

Although assignments and licenses are both contracts involved with the transfer of rights for exploitation of a copyrighted work, both have their own distinct features.

A license is nothing but an authorization from the copyright owner to exercise certain acts, without which the acts are considered as infringement. Therefore, no transfer of ownership happens in cases of licenses.

On the contrary, an assignment involves the transfer of ownership of the copyright. In addition to this, the assignee being the owner of the copyright, is entitled to sue third parties against infringement of copyrights. The licensee, including the exclusive licensee, can exercise this right only if the same is specifically included in the terms of the agreement.

Licence by joint owner

A joint owner cannot without the consent of all the other co-owners grant a licence of any interest in the copyright. If such a licence is granted the other joint owners can sue the licensee and the joint owner who had granted the licence for infringement of copyright

Consideration (something in return) : A licence granted without consideration may be revoked at any time, but when given for consideration is irrevocable and conveys an interest in the copyright.

Implied Licences :

Licences can be implied from the circumstances. Where an architect has been engaged to prepare plans and was paid for the work, the landowner has an implied right to build in accordance with the plan.

If a person sends a letter to a newspaper or magazine on a matter of public interest, licence to publish is implied. Submission of an article to a magazine subject to payment of royalty, implies licence to publish.

There are some circumstances, also known as compulsory licenses, where it’s not required to get a copyright owner’s permission as long as the user pays certain fees and follows rules the law sets.

The Copyright Board is empowered to grant compulsory licences under certain circumstances on suitable terms and conditions in respect of any work. Many countries have provided in their copyright legislation for compulsory licences. Section 31 of The Copyright Act, 1957

(Section 31) Compulsory licence in works withheld from public :—

(1) If at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work—

       (a) has refused to re-publish or allow the re-publication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public; or

        (b) has refused to allow communication to the public by broadcast, of such work or in the case of a sound recording the work recorded in such sound recording, on terms which the complainant considers reasonable, broadcast, of such work or in the case of a sound recording the work recorded in such sound recording, on terms which the complainant considers reasonable,

” the Copyright Board, after giving to the owner of the copyright in the work, a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to re-publish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; …..and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of Copyright Board, on payment of such fee as may be prescribed. Explanation.—In this sub-section, the expression “Indian work” includes—

(i) an artistic work, the author of which is a citizen of India; and

(ii) a cinematograph film or a sound recording made or manufactured in India. sound recording made or manufactured in India.”

(2) Where two or more persons have made a complaint under sub-section (1), the licence shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interests of the general public.

There are also provisions in The Copyright Act, 1957 relating to Compulsory licence in unpublished or published works, Compulsory licences for benefit of disabled, Licences to produce and publish translations.