Copyright is a form of intellectual property whose importance has increased enormously in the recent times due to rapid technological development in the field of printing, music, communication, entertainment and computer industries. The last amendment to the copyright act was done way back in the year 2012. The Registrar of Copyrights recently invited comments from industry stakeholders on amending the Copyright Act 1957, recognizing that creative “industries are performing and evolving in the light of changes brought about by use of internet, digitalization and an increasingly globalized market for digital content”. This development provides India an opportunity to realign its priorities for creation and distribution of creative content online, under a durable legal framework. A lot of advancements and developments have taken place across all sectors affected by the Copyright Act. There is a need to answer certain issues like category of work, Cognizance of the copyright violation, authorship of cinematographic films, exceptions to infringement, digital rights management, statutory licensing, piracy through computer networks etc. The need for reforms in the Copyright Act, 1957 is as under:

1. Strengthening the digital world and database

India’s content consumption is moving online at a steady pace. About 95 per cent of Indian consumers listen to music via on-demand streaming, according to the Music Consumer Insight Report, 2018 released by the International Federation of the Phonographic Industry. Consumers are also warming up to OTT platforms as a means to access films and television series. The Covid-19 pandemic has made the shift to digital an imperative, and has rekindled numerous debates on copyright on the internet. A FICCI-EY report on Media & Entertainment in 2020 notes that subscription to OTT platforms doubled in 2019. Their contribution to total digital segment revenues increased from 3.3 per cent in 2017 to 13 per cent in the same year. Wide internet penetration, low data prices, and a proliferation of smartphone users are responsible for this shift in consumer behaviour. Looking the contribution to digital segment revenue and shift of consumer behaviour, it is necessary that digital copies of content must be fed with TPMs. When it combined with legal sanctions, TPMs make it possible to control access to and distribution of content to an unprecedented degree. Using TPMs, distributors of digital works may not only preserve existing markets for their works, but they may also create new market. Technological Protection Measures must be defined in the Copyright Act, 1957 and TPMs like encryption, trusted systems, and digital watermarking technology which are being used in today’s digital market to assert the rights of copyright holders must be given a sort of mandatory legal sactions and original digital content must be registered in the digital database so that the same may not be produced with minor changes making them a fresh subject-matter of copyright and justifying applying DRM thereto. The liability of the internet service providers must be fixed somewhere within the Copyright Act, 1957 so that the ISPs while uploading the digital content on their platform must see and match with the original digital database to protect, or rather restrict, the access and use of copyrighted works.

• Balancing twin objectives of copyright

Copyright aims to strike a balance between incentivizing creators to generate more content, and maximising public access to them. To encourage innovation, the Copyright Act provides a voluntary licensing mechanism, which allows the copyright owner to make his/her works available to the public at different prices. At the same time, the Act contains mechanisms that can ensure access to content in case of market failure. For example, compulsory licensing provisions protect against the monopolisation of content by copyright owners. Copyright is also subjected to a limitation period of 60 years for most content in India, so that they become freely accessible after the creator has had the opportunity to monetise it. ‘Fair use’ exceptions protect such works from infringement suits if they are being accessed for private use, research, academic or journalistic purposes, among other things. These examples demonstrate how the copyright regime enables commercial exploitation while balancing public interest. However, the growth of the internet disrupted the balance between incentives and access to new creative content. This is because the digitisation of copyright industries, such as print and audio-visual media, lowered distribution costs, removed entry barriers to the market and diminished returns on creative content. While this is a boon for audiences and consumers, it has also made it difficult for creators and to thrive in an increasingly competitive market. The accessibility of content on the internet necessitates a move towards a modern copyright regime that reinstates the incentive to create new content. The government action to prescribe a mandatory data sharing regime and extend statutory licensing beyond its legislative intent, are examples of state intervention that threatens to dilute copyright protection. These changes ignore the balance between incentives and access under the Copyright Act, by enabling access and use of intellectual property, bypassing the need to negotiate with copyright holders.

• Contours of Digital Rights Management

The digital dilemma with respect to copyright law is torn between the technological advances which make it possible to make perfect copies of movies, music, academic content, software etc. in no time and distribute the same globally through internet, and the control and regulation of content and its distribution over the digital medium. To effect such control, digital copies of content are fed with TPMs. When combined with legal sanctions, TPMs make it possible to control access to and distribution of content to an unprecedented degree. Using TPMs, distributors of digital works may not only preserve existing markets for their works, but they may also create new market. Thus, even the content that has fallen in the public domain and should thus be freely available may be wrapped up in TPMs with minor changes making them a subject-matter of copyright and justifying applying DRM thereto. TPMs like encryption, trusted systems, and digital watermarking technology are being used in today’s digital market to assert the rights of copyright holders. To offer a better and rather strict protection to content and to create a profitable market for authorised production of digital content, technological standards have been integrated into operational software programs. In the copyright Act, 1957, the term “ Technological Protection Measures (TPM)” has not been defined. When legal commands that regulate form are promoted through legal rules, they are characterized by a high level of specificity backed by an authoritative executing mechanism that leaves little room for judicial discretion. The emerging DRM technology, which is being popularized extensively by copyright driven industries, is one such prominent example. For example, Real Audio, an alternative to MP3, relies upon trusted systems technology to distribute digital content in a format that can limit the ability of users to play, copy, or save files. Files saved in RealAudio format can only be played with a RealAudio player, and the player is programmed to determine whether any particular use is authorized or unauthorized. Digital Watermarking and Fingerprinting DRM technology is also doing good. It performs two separate functions. First, it identifies digital versions of copyrighted works, just as International Book Standard Numbers (ISBN) identify hardcopy books.

• Class of work:

Copyright subsists throughout India in the following classes of works:

• • original literary, dramatic, musical and artistic works
  • cinematograph films
  • sound recordings.

These are the broad categories. Under the Copyright Act, 1957 the term “work” includes an artistic work comprising of a painting, a sculpture, a drawing (including a diagram, a map, a chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work (including computer programmes, tables, compilations and computer databases), musical work (including music as well as graphical notations), sound recording and cinematographic film. In order to keep pace with the global requirement of harmonization, there is a need to incorporate new categories of work like multimedia as the original work in a multimedia is protected in the name of different owners/authors in separate category in the Copyright Act, 1957. Multimedia that we routinely engage with is basically a computer based interactive communication processes that include a combination of text, software, graphics, pictures, images, drawings, audio, animation, videos, etc. Multimedia elements are generally found to be embedded in web pages and there are various web browsers that supports multimedia formats. Multimedia applications include WWW, Adobe, Interactive TV, Computer games etc. It is a compilation of pre- existing or commissioned work or other data and uses a variety of artistic and communicative media. Further, creating works using artificial intelligence could have very important implications for copyright law. Traditionally, the ownership of copyright in computer-generated works was not in question because the program was merely a tool that supported the creative process, very much like a pen and paper. Creative works qualify for copyright protection if they are original, with most definitions of originality requiring a human author. There are two ways in which copyright law can deal with works where human interaction is minimal or non-existent. It can either deny copyright protection for works that have been generated by a computer or it can attribute authorship of such works to the creator of the program. There is a need to define computer generated work to include artificial intelligence and computer apps. Further, the director’s right stands nowhere in making the cinematograph films that need to be looked in.

• Office of the Registrar of Copyrights:

There is a provision in the Copyright Act, 1957 under Section 9 and 10 for establishment of Copyright Office and appointment of Registrar of Copyrights and Deputy Registrar of Copyrights. If we see the provisions relating to appointment of registrar of copyrights and deputy registrar of copyrights, it has not been mentioned about the qualification and eligibility criteria for appointment of officers posted in the copyright. Previously, there was an eligibility criterion for appointment of deputy registrar that the concerned person must possess the law degree and practice experience at bar but the same was not for the recruitment of registrar of copyrights. Looking the quasi-judicial nature of the post, mere possessing the educational law degree is not enough for the appointment of registrar of copyright. To my view, there is a need to strengthen the copyright office by way of creating a hierarchy and in-cadre post like Assistant Registrar, Joint Registrar and Additional Registrar and Registrar by mentioning the qualification and eligibility criteria in the Copyright Rules.

• Assignment and Licence:

Indian law provides intellectual property protection in the form of copyright to the creators of original works of authorship such as literary works (including computer programs, compilations and tables including computer databases which may be stated in codes, words, schemes or even in any other form, including a machine-readable medium), musical, dramatic and artistic works, sound recordings and cinematographic films. There are two major modes of transfer of copyright: assignment and licence. As assignment agreement is a contractual agreement that assigns or transfers intellectual property rights from one person or entity to another. It is also a legal record that verifies the transfer of ownership of intellectual property rights. There are two parties in every assignment agreement, one party is the giving party i.e. assignor and the other is the receiving party i.e. the assignee.

It is the right of the owner of the copyrighted work to assign his copyright to any other person. The effect of the assignment is that the assignee becomes entitled to all the rights related to the copyright to the assigned work. Where the assignee of copyright becomes entitled to any right comprised in the copyright, he shall be treated as the owner of the copyright in respect of those rights. The assignor shall also be treated as the owner of the copyright for unassigned rights. If the assignee dies before the work comes into existence then the legal representatives of the assignee shall be entitled to the benefits of the assignment. The owner of copyright work can generate monetary profits not only by taking advantage of it himself but also by co-sharing it with others for mutual benefits. This can be done by way of licensing or assignment of copyright.

A license agreement is a contractual agreement that authorizes or licenses another person or entity to use the rights of a protected IP. A license is nothing but a contract that certifies the shared use of IP rights. There are two parties in a licensing agreement. The party that gives the license is called the licensor and the party who receives it is the licensee. The copyright owner also has the right to license the work to more than one person at the same time, meaning it can be granted on an exclusive or a non-exclusive basis. As a result of which licenses are more economical ways for small businesses to use copyrighted content. The conditions essential for grant of such a License are as follows:

(a) The work must have been performed or published in public.

(b) The author must have refused to allow the performance of the work in public or must have refused to allow the republication of the work and because of which the work is held back from the public;

(c) The author must have denied communication of a work to the public by broadcast on terms which the complainant considers reasonable.

Now-a-days, there are different platforms for exploitation of creative works such as OTT platform, TV and private players platforms. Hence, it is necessary that the primary mode and secondary mode of exploitation under Section 18 must be specifically mentioned for utilization of creative work such as cinematograph films, music and sound recording. Further, provision relating to licence of copyright as mentioned in Section 30 needs to amended. The owner of copyright may give his authorization to one agent but that agent but that agent cannot hold the agency of various owner of copyrights but the agent cannot dictate the fixation of royalty to the public and the term and conditions must be applied as it applies to copyright societies.

• Copyright society and Agency

The Copyright Act, 1957 defines the rights of authors of creative works such as books, plays, music, films and other works of art, and computer software. Such authors are the original owners of copyright in these works and have a ‘bundle of rights’ such as the right to distribute, perform, translate and adapt the work. These rights can also be assigned to others. The Act provides for copyright societies, which issue licenses for copyrighted works and collect royalties on behalf of authors or rights holders. The Bill makes the following changes: It specifies that such societies shall be ‘associations of authors’ and shall be subject to their collective control, rather than to the control of rights holders. The central government, while registering, or cancelling or suspending the registration of such societies, shall act according to the interests of authors themselves, rather than of owners of rights. Authors cannot assign copyright to anyone on terms different from which they are assigned to such societies. Section 30 of the Copyright Act which states that the owner of the copyright or his duly authorized agent can grant any interest in the right by license. Section 33 speaks that no person or association of persons shall, after coming into force of the Copyright (Amendment)Act, 1994 commence or carry-on business of issuing or granting licences in respect of any work in which copyright subsists. It prohibits the business of issuing or granting licenses by a party in its own name when the copyright in the same is held by others. The agent as appointed by the owner of the copyrights cannot hold the rights of various copyright owners by-passing the norms and spirit of the provisions of the copyright society. The interplay and conflict between Section 30 and Section 33 of the Copyright Act, 1957 should be regulated by incorporating and amending these sections.

• Camcording Provisions:

The medium of cinema, the tools and the technology associated with it and even its audience has undergone radical changes over a period of time. There have also been many changes in the field of media and entertainment with the proliferation of TV channels and Cable network throughout the country, advent of new digital technology, apprehension of piracy, particularly release of pirated version of films on internet, causing huge losses to the film industry and Government exchequer. Film industry has been demanding for a long time, that Government should consider Amendments to the law preventing camcording and piracy. Though Ministry of Information & Broadcasting has introduced Section 6AA in Cinematograph Act but the same should be incorporated or reflected in the Copyright Act, 1957 with adequate penal provisions.

• Criminal Penalty:

The Copyright Act, 1957 provides Intellectual Property Right’s Holders with adequate and effective means for the enforcement of their rights. In addition to remedies in the civil area, some of the legislation provides for specific criminal remedies as well. As a major producer of intellectual property, India has a large stake in advancing and ensuring effective enforcement of Intellectual Property Rights. The extensive civil remedies provided for under the Indian statutes and regulations, provide meaningful remedies. The significant punishments available for criminal offences have the potential to act as a deterrent to offenders. Holders of rights have thus been able to rely on progressive legislation, and enlightened judicial interpretations of the statutes related with the intellectual property as a whole. If we see the penal provisions under the Indian Copyright Act, 1957, the Act is silent about the cognizance of the offence. There is a need to mention on the criminal infringement of copyrights that the same is cognizable offence.

Appeal and Review Provisions:

Though it has been mentioned in Section 74 of the Copyright Act, 1957 that the Registrar of Copyrights shall have the powers of the civil court but he cannot review his own decisions. He can only amend or alter the Register of Copyrights by (i) correcting any error in any name, address or particulars; or (ii) correcting any other error which may have arisen therein by accidental slip or omission. Hence, there is a need to incorporate the provisions relating to review powers of the Registrar of Copyrights by stating that if any person aggrieved by any final decision or order of the Registrar of Copyright, he can file a review petition by invoking that provision.