The Year 2010 was a year for great discussion and deliberation for the proposed amendments to the Copyright Act. Though it looked at the beginning of the year that we would have the honour to read the Copyright Act, 2010 it appears that it is just in the chrysalis stage. We hope that it shall transform into an Act this coming year 2011.

We had earlier this year reported on the copyright bill and the proposed changes . Recently, the Parliamentary Standing Committee which has been asked to review the bill, hold discussions with stake holders and comment on the proposed amendments, has come out with a report which was presented before the Rajya Sabha and Lok Sabha on the 23rd of November 2010 suggesting changes to be made to the bill.

Following are some of the key changes suggested by the report:

• Principal Director as joint author: The Committee found that the proposal in the bill, to include the ‘Principal Director’ as a joint author of the film along with the producer, is unfair and should be rejected. The reasons cited by the committee in its report for this were inter alia as follows: “Committee's opinion rests on the premise that there is a system existing presently whereunder producers and directors are free to negotiate on their own terms and conditions. Under these negotiations/contracts, directors are not only paid their negotiated salary/fee but also certain rights in perpetuity relating to the script. Further, as per the existing system, the principal director is not taking any equity risk in the production/performance of a film and it is the producer alone who runs the risk of his investment not being recovered.”
• Definition of the term ‘Communication to the Public’: The committee rejected the reservations of the stake holders to the proposed amendment to include the performances in addition to work in the definition of communication to the public. The proposed amendment is as follows: "making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work or performance regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available."

The proposed amendment in the definition of the term 'communication to the public' has not found favour with the stake holders i.e. the music companies represented by the South India Music Companies Association, the RPG Enterprises Saregama, Indian Music Industry and also the Association of Radio Operators for India. Attention of the committee was drawn to the following factors having an adverse impact on the music industry and radio operators:

• subscription to caller tunes and authorized websites permitting streaming/downloading of copies etc. will be considered “communication to the public” in spite of it being a sale of the copy;

• no rationale in exclusion of only physical copies from the purview of “communication to the public” in an age where commercialization and sale of music is taking place extensively through the medium of internet and transfer of files through computers/blue tooth;

• creation of a transient electronic copy in the course of or for the purpose of “communication to public” under current law is treated as an infringement. While such act by a legitimate TV/Radio station would be lawful, the section will be misused by unauthorized websites treating it as an activity during the course of “communication to the public”.
• free radio broadcast which is a service to the public and is also in the interest of artists as it
• promotes their compositions will be brought under the definition. Therefore, the word 'performance' should be excluded from the provision.
• proposed amendment will be misinterpreted by certain quarters when even issuing “digital”
• copies would amount to 'communication to public'. It would be wrong to consider digital sales such as iTunes as “communication to the public” In reality, it is only a sale, but on a different medium.

The committee was however of the opinion that “………. the reservations of the Stakeholders are unfounded. Issuing physical copies or legitimate digital downloading music or video recording by payment cannot be considered a communication to the public. The Department has justified the proposed amendment for exploitation of digital mediums. As the amendment is in tune with the technological advancement, the Committee accepts the amendment. The Committee is also of the view that the copyright societies can play a proactive role in resolving problems, if any, arising due to the proposed changes in the definition.”

• Definition of the term ‘Infringing copy’: The bill seeks to address the situation of parallel imports. The proposed amendment adds a proviso to the definition of Infringing Copy which is as follows

“Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy”.

The committee stated that it was in favour of such amendment and added that it would be beneficial to student in being able to acquire latest editions of books at low prices.

• Assignment of copyright: The committee has accepted the amendments proposed in section 18. In clause 18 the following proviso was sought to be introduced "Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work." "Provided also that the author of the literary or musical work included in a cinematograph film or sound recording shall not assign the right to receive royalties from the utilization of such work in any form other than as part of the cinematograph film or sound recording except to the legal heirs or to a copyright society for collection and distribution and any agreement to the contrary shall be void".

The committee stated inter alia that “the proposed amendments in section 18 will protect interests of authors in the event of exploitation of their work by restricting assignments in unforeseen new mediums and henceforth author of works in films will have right to receive royalties from the utilization of such work in any other form except to the legal heirs or to a copyright society and any other contract to the contrary shall be void”

• Mode of Assignment: The committee proposed amendments that would ensure better protection of the rights authors of the work particularly authors of songs whose works are included in films or sound recordings. One of the proposals included the author of a song i.e. the composer or lyricist receiving 50% of all royalties from the exploitation of the work as a part of the cinematograph work itself.
• Certain acts not to be infringement of copyright. And Compulsory licence for benefit of disabled: The committee stated “The Committee is of the firm opinion that all physically challenged need to be benefited by the proposed amendments. It would be very discriminating if envisaged benefit remains restricted to only visually impaired, leaving out persons affected by cerebral palsy, dyslexia and low vision. The Committee takes note of fact that even regular Braille users complement Braille with other accessible formats like audio, reading material with large fonts and electronic texts. The Committee also observes that the modern day Braille production is dependent on the material being first converted into mainstream electronic formats such as MS Word because Braille translation software requires inputs in such formats. The Committee hopes that the request of organizations for extending access of works to all accessible formats instead of special formats presently under consideration of the Department will result in a positive outcome. The other request for widening the scope of compulsory licence to allow other entities working for disabled in case it is not possible to withdraw section 31 B also merits a sympathetic consideration by the Department.”

The case that the IP and automotive world followed closely since 2009 still continues….. And it has not reached very far. The highpoint of the case in the year 2010, was that a Division Bench of the Madras High Court decided that TVS may start producing evidence first. A quick recap of the case is in order:

• In 2007 TVS Motor Company Ltd. instituted a suit against Bajaj Auto Ltd. in the Madras High Court. In the suit TVS inter alia, prayed that Bajaj be restrained from making groundless threats of prosecution for alleged infringement of one of Bajaj’s patents and also that the Court declare that TVS’s motorcycle branded ‘Flame’ did not infringe the impugned patent; TVS Simultaneously filed an application for the revocation of Bajaj’s patent before the Indian Patents Appellate Board.
• Bajaj filed a suit against TVS in 2007 and prayed for inter alia, permanent injunction against TVS restraining TVS from infringing the patent of Bajaj by selling, marketing and producing Flame; Bajaj also prayed for accounts of profits, payment of damages and delivery up of infringing material; 3.In February 2008 the single judge granted an injunction against TVS in the case brought against TVS.
• TVS appealed the decision of the Single Judge before the division bench of the Madras High Court.
• The appeal was allowed by the Division Bench of the Madras High Court.
• Bajaj being aggrieved by the decision of the Division Bench of the Madras High Court filed an appeal before the Supreme Court in 2009.
• The Supreme Court in its decision stated that “It is evident that the suit is still pending before the learned Single Judge of the Madras High Court. We are unhappy that the matter has been pending in the High Court at the interlocutory stage for such a long time as the suit was filed in December, 2007 and yet even written statement has not been filed” the court in its succinct order the Hon’ble Supreme court stated “…..experience has shown that in our country, suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. This is a very unsatisfactory state of affairs…” the Court thus directed “….Respondent-defendant to file written statement in the suit, if not already filed, on or before the last date for closing of the Madras High Court for Dussehra holidays. We would request the learned Single Judge who is trying the suit to commence the hearing of the suit on the re-opening of the Madras High Court after Dussehra holidays and then carry it on a day to day basis. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November, 2009”
• The Learned Single Judge of the Madras High Court, framed issues in both the suits as per order dated 24 November 2009.
• The Learned Single Judge took up the preliminary issue as to who should let in evidence first. After hearing both the parties, the learned Single Judge opined that the infringement being the central theme in both the suits and even though the first suit proceeds on the validity of patent, to arrive at a proper decision, defendant (i.e. Bajaj) has to start with letting in of the evidence. Feeling aggrieved by this decision, the Bajaj filed two appeals;
• The Division Bench of the Madras High Court, before whom the appeals lay decided that TVS should first prove their case i.e. that their motorcycle or rather the engine of the motorcycle does not infringe the patent of Bajaj.