Most amendments adjust a statute at the edges. The Copyright (Amendment) Act 2012 reached into the economics of Indian creativity and rearranged who gets paid, who may copy, and who may transmit. It gave the lyricist and the composer a right to royalties that no contract can take away. It told every broadcasting organisation that it could play published music without negotiating, provided it gave notice and paid a rate fixed by a tribunal. It told organisations serving readers with disabilities that they could convert any work into an accessible format without asking permission. And it wrote India a set of digital rules, on technological locks and on the information embedded in a file, years before India joined the two WIPO internet treaties those rules were modelled on. The parent statute is treated in the article on the Copyright Act 1957; this article is about the amending Act alone, what it changed and what the changes have done in the years since.

The Copyright Amendment Act 2012, showing the royalty provisos, statutory licences and accessible format exception it inserted into the Copyright Act - Insight Crunch

One provision of the amendment has generated a second story that is, in its way, more instructive than the provision itself. Section 31D, the statutory licence for broadcasting, says in terms that different royalty rates shall be fixed for radio broadcasting and for television broadcasting. In 2016 a department of the Government of India issued an office memorandum saying the section extended to internet broadcasting. A court held the memorandum had no statutory force. A draft rule that would have widened the subordinate text was published and then dropped. An appellate bench confirmed the narrow reading. The parties settled. In August 2024 the department withdrew the memorandum. Eight years, five instruments, no amendment: the words Parliament enacted in 2012 governed at the start of the episode and govern at the end of it. That sequence is the centrepiece of this article, because it demonstrates, in a commercial field where the sums are large, that an executive memorandum is not an amendment and cannot do the work of one.

The amendment also deserves attention for a quieter reason. It is the clearest modern instance of Parliament legislating against the grain of freedom of contract in favour of a class it judged unable to protect itself. Composers and lyricists had for decades signed away, for a single payment, every future earning from songs that went on to be played for generations. The 2012 Act responded not with a guideline or a model contract but with a statutory prohibition: an assignment or waiver of the royalty right, except in favour of legal heirs or a copyright society, is void. Film producers objected that settled arrangements would be unsettled. Parliament enacted the prohibition anyway, and the courts have since been working out how far it reaches. Between the royalty provisos at one end and the memorandum episode at the other, the amendment offers a complete education in how Indian copyright law is made, resisted, interpreted and, on occasion, misdescribed by the very department charged with administering it.

An amending Act of thirty nine sections

The Copyright (Amendment) Act 2012 is Act 27 of 2012. It received the assent of the President on 7 June 2012 and came into force on 21 June 2012, the date appointed by notification under its own commencement clause. It amended the Copyright Act 1957, which is Act 14 of 1957, in thirty nine sections of the amending Act, touching definitions, ownership, assignment, licences, the Copyright Board, copyright societies, performers, exceptions and offences. Some of the changes are single words. The substitution of “royalty and any other consideration payable” for “royalty payable, if any” in section 19(3) is three words long and changes what an assignment deed must record. Others, such as the new sections 31B, 31C, 31D, 33A, 38A, 38B, 65A and 65B, are free-standing provisions that had no counterpart in the Act before.

The amending Act is Act 27 of 2012. It received Presidential assent on 7 June 2012 and came into force on 21 June 2012, the date the Central Government appointed by notification under section 1(2) of the amending Act. Every change described in this article, from the royalty provisos to the statutory licence for broadcasting, dates from 21 June 2012 unless the text says otherwise.

The Bill that became the amendment was introduced in 2010 as the Copyright (Amendment) Bill 2010, and was examined by the Department-related Parliamentary Standing Committee on Human Resource Development, whose Two Hundred and Twenty-seventh Report on the Bill was presented in November 2010. That report matters beyond the passage history, because a court later relied on it to establish what Parliament had consciously decided. The Committee heard the film and music industries, authors’ representatives, broadcasters and disability organisations, working from written submissions and the presentation materials placed before the Committee, and its report recorded the contested choices rather than smoothing them over: the royalty right was debated as a deliberate interference with contract, and the statutory licence was framed around radio and television at a time when streaming services were operating and known to the Committee.

The amendment sits on top of earlier rounds of change. The Copyright Act 1957 was amended in 1983, 1984, 1992, 1994 and 1999 before 2012, and the 1994 round in particular had rebuilt the assignment provisions, inserting into section 19 the default rules under which an assignment that states no period is deemed to run for five years and an assignment that states no territory is presumed to extend within India. Those defaults, inserted by the Copyright (Amendment) Act 1994 and in force from 1995, are part of the machinery the 2012 changes presuppose, and they are described below because the royalty provisos cannot be understood without the assignment scheme they qualify. The 2012 Act remains the most consequential of the rounds: it is the only one that redistributed money by force of law, the only one enacted for the benefit of persons with disabilities, and the only one whose meaning a government department later attempted to enlarge by memorandum.

Four purposes organise the whole of the amending Act, and the brief of changes is unintelligible until they are separated. The first purpose was the protection of authors of underlying works, the literary and musical works that are written and composed before a film or a sound recording exists and are then absorbed into it. The second was access for persons with disabilities, achieved by an exception for accessible formats and a compulsory licence standing behind it. The third was statutory licensing, a broadcasting licence and a cover version licence, each of which substitutes a fixed rate and a notice for a negotiation. The fourth was alignment with the two WIPO internet treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of 1996, achieved through new definitions, performers’ rights of a fuller kind, protection for technological measures and protection for rights management information. Around those four purposes the Act arranged a set of supporting changes: the governance of copyright societies was rewritten, the exceptions in section 52 were rebuilt for a digital environment, the term of copyright in photographs was aligned with other works, authors’ moral rights were strengthened, and the Copyright Board itself was reconstituted in smaller form.

The first purpose: rescuing the authors of underlying works

The grievance the royalty provisions answer is older than the amendment by several decades, and it has a precise legal shape. A film song is not one work but a stack of works. The lyricist writes a literary work. The composer writes a musical work. The producer causes a cinematograph film to be made, in which both are incorporated, and singers and musicians perform them into a sound recording. Under section 17 of the Copyright Act, the author of a work is the first owner of the copyright in it, but the section carries exceptions. For a work made in the course of employment under a contract of service, the employer is first owner. For a photograph, painting, portrait, engraving or cinematograph film made for valuable consideration at the instance of another person, that person is first owner unless the agreement says otherwise. The producer of a film therefore typically emerged as owner of the film, and the standard industry contract took from the lyricist and composer an assignment of the copyright in the underlying works themselves, for a single lump sum, in perpetuity, for all media.

The Supreme Court’s decision in Indian Performing Right Society Ltd v Eastern Indian Motion Pictures Association, delivered in 1977, settled the working consequence of that arrangement for the law as it then stood. The Court held that the producer, as author and first owner of the cinematograph film, could exploit the film, and that the composer of the music incorporated in it could not restrain the producer’s use of the work as part of the film. The underlying works survived as separate copyrights in theory; in practice, the assignment contracts had usually taken them, and the composer’s society could not collect for the uses that mattered most. For the generation of lyricists and composers who supplied the film industry, the result was a single payment at the start of a song’s life and nothing from the decades of exploitation that followed if the song endured.

Parliament’s response in 2012 was constructed in four layers, and each layer closes a route by which the layer before it might have been evaded.

The first layer is a proviso inserted into section 17 itself. Section 7 of the amending Act inserted a proviso at the end of clause (e) of section 17, providing that in the case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) of section 17 shall affect the right of the author in the work referred to in clause (a) of section 13(1). Clauses (b) and (c) are the commissioning and employment exceptions that transfer first ownership away from the author. The proviso declares that those exceptions do not touch the author’s right in the underlying work itself. A producer commissioning a song becomes first owner of what the commissioning exceptions give him, but the lyricist’s and composer’s rights in the literary and musical works are carved out of the transfer by statute.

The second layer is in section 18, the assignment provision, and it is the core of the settlement. Section 8 of the amending Act inserted three further provisos into section 18(1). The first of the three is general: no assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use when the assignment was made, unless the assignment specifically referred to that medium or mode. An author who assigned rights in the era of the cassette did not, without express words, assign rights in streaming; the proviso converts that interpretive argument into a rule. The second proviso addresses the cinematograph film. The author of a literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties, to be shared on an equal basis with the assignee of copyright, for the utilisation of the work in any form other than the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the author or to a copyright society for collection and distribution, and any agreement to the contrary shall be void. The third proviso addresses the sound recording that does not form part of a cinematograph film, and is wider: the author shall not assign or waive the right to receive royalties, to be shared on an equal basis with the assignee, for any utilisation of the work, except to legal heirs or to a collecting society for collection and distribution, and any assignment to the contrary shall be void.

The architecture deserves a pause, because the drafting is unusual. Parliament did not create a new property right and leave its transfer to the market. It created a payment entitlement and disabled the author from parting with it. The author can assign the copyright; the assignee takes the copyright; but the royalty stream for utilisations outside the cinema hall, in the film case, and for all utilisations, in the sound recording case, is reserved to the author by a provision that voids any contract term inconsistent with the reservation. The only permitted destinations for the entitlement are the author’s legal heirs and a copyright society that will collect and distribute it. The model is the unwaivable right familiar from social legislation, transplanted into a commercial statute: the assumption, stated in the parliamentary debates and recorded in the Standing Committee’s examination of the Bill, is that individual authors bargaining with producers and labels will sign away any right that can be signed away, so the right that is meant to protect them must be one they cannot sign away.

The third layer is in section 19, which governs the mode of assignment. Section 9 of the amending Act inserted sub-sections (8), (9) and (10). Sub-section (8) provides that the assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author is a member shall be void; an author who has already committed rights to a society cannot defeat that commitment by a later inconsistent assignment. Sub-section (9) provides that no assignment of copyright in any work to make a cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for the utilisation of the work in any form other than the communication to the public of the work along with the cinematograph film in a cinema hall. Sub-section (10) provides that no assignment of copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author to claim an equal share of royalties and consideration payable for any utilisation of the work in any form. Where the provisos to section 18 prohibit the author from surrendering the entitlement, sub-sections (9) and (10) declare that the act of assignment itself, in the two standard industry transactions, leaves the entitlement untouched.

The fourth layer is in section 33, which governs copyright societies. A further proviso inserted into section 33(1) provides that the business of issuing or granting licences in respect of literary, dramatic, musical and artistic works incorporated in cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under the Act. The individual transaction, in other words, is channelled into the collective machinery: the royalty that cannot be waived is also, in the ordinary case, a royalty that will be collected by a society on the author’s behalf and distributed under the society’s tariff scheme, rather than pursued by an individual lyricist against a label.

The same protective pattern appears in the performers’ provisions, which belong in part to the treaty purpose and are treated more fully below. Section 38A(2) permits a performer who has consented in writing to the incorporation of a performance in a cinematograph film to be taken, in the absence of a contract to the contrary, as not objecting to the producer’s enjoyment of the performer’s right in the film. The proviso then preserves the performer’s position: notwithstanding anything in the sub-section, the performer shall be entitled to royalties in case of making of the performances for commercial use. The performer’s consent to incorporation is not a consent to unpaid commercial exploitation outside that incorporation.

The royalty settlement operates inside the older assignment framework, and two features of that framework explain many of the disputes under it. The first is the default rule in section 19(5) and section 19(6), inserted by the 1994 amendment: if the period of assignment is not stated, it is deemed to be five years from the date of assignment, and if the territorial extent is not specified, it is presumed to extend within India. In Pine Labs Private Limited v Gemalto Terminals India Private Limited, decided in 2011, a Division Bench of the Delhi High Court held that these deeming provisions operate by force of law whatever the parties intended, and that an assignment silent on duration and territory expires after five years and within India, for software and by parity of reasoning for any work. The second feature is the application of the assignment rules to licences: section 30A, as amended in 2012 to refer to section 19 alone, applies the mode provisions to licences with necessary adaptations, so the drafting discipline of section 19 reaches transactions dressed as licences as well. It is against that background, of deeds that frequently omitted duration, territory and sometimes the royalty itself, that the 2012 provisos intervened.

Why can a lyricist not sign away the royalty right even by a willing bargain?

Because Parliament judged that willing bargains were the problem. The provisos to section 18(1) proceed on the recorded premise that authors of underlying works negotiate from weakness and will assign or waive any entitlement that the law allows them to assign or waive. The entitlement is therefore made incapable of assignment or waiver, except to legal heirs or to a copyright society for collection and distribution, and any agreement to the contrary is declared void.

Both sides of the choice were put to Parliament and both deserve statement in their strongest form. The producers’ case, pressed by the film industry during the passage of the Bill, was that the provisos disturb settled commercial arrangements: a producer prices a film on the footing that the rights acquired are acquired outright, a financier lends against that footing, and a rule that reserves an equal share of royalties for utilisations outside the cinema hall, for the whole term of copyright, converts a purchase into a permanent revenue share that the parties cannot contract out of even when both prefer a larger lump sum. Producers also argued administration: a single song may have several authors, a film hundreds of utilisations, and the cost of accounting for equal shares across decades of exploitation falls on the party least able to bear it. The authors’ case, pressed by lyricists and composers of the standing of Javed Akhtar, who campaigned for the amendment as a member of the Rajya Sabha and as a working lyricist, was that unequal bargaining power made assignment of all future royalties the invariable practice, that the lump sum bore no relation to the value a successful song generated over its life, and that a right the author is free to surrender is, in that market, a right the author will surrender. The amendment is Parliament’s adjudication between those cases on the question of principle. The questions it left open are questions of scope, and they are the questions the courts have been answering since.

The royalty right in the courts

The litigation over the royalty settlement has turned on three questions: whether the provisos reach assignments made before 21 June 2012, whether the entitlement survives the licensing of a sound recording by its owner, and what counts as utilisation of the underlying work when the recording that embodies it is exploited.

On the first question, the text of the amending Act contains no express statement of retrospectivity, and the default rule of construction is that amendments operate prospectively. Writing on the question, the copyright lawyer Jagdish Sagar argued that the amendment is strictly prospective in operation, so that the provisos govern assignments made after the amendment came into force. The contrary view, widely held in the industry and recorded in commentary on the amendment, is that the provisos attach to the utilisation of the work, so that a utilisation after 21 June 2012 attracts the royalty entitlement even where the assignment predates the amendment. The Supreme Court’s decision in the Aditya Pandey litigation illustrates the boundary the courts have drawn. In International Confederation of Societies of Authors and Composers v Aditya Pandey, decided in 2016, the Supreme Court dealt with disputes that pre-dated the amendment and held, on the law as it stood before 2012, that the communication of a sound recording to the public did not require a separate licence in respect of the underlying works from their authors where the recording was lawfully made; the Court recorded that the position changed with effect from 21 June 2012 by virtue of the new provisions, including section 19(10). Eastern Indian Motion Pictures Association, the 1977 authority on which the pre-amendment law rested, was likewise a reading of sections 13 and 14 as they stood before the amendment, and its reasoning does not transplant onto the amended text.

On the second and third questions, the most developed appellate treatment is that of a Division Bench of the Calcutta High Court in litigation between Vodafone and the Indian Performing Right Society. Vodafone operated a value added service under which subscribers used caller tunes and ring tones taken from film and non-film songs. It held a string of agreements with Saregama, the owner of the sound recordings, running from a master agreement of March 2014 through renewals to May 2021, and its case was that those agreements discharged its licensing obligations in full, so that no royalties were owed to the society representing the authors of the underlying literary and musical works. The Division Bench framed three questions: whether the 2012 amendments allow the society to claim royalties for the underlying works when a sound recording is commercially exploited, whether the owner of the sound recording has authority to license the underlying works, and whether the user held any licence over the underlying works at all. It answered the first in the affirmative and the second and third in the negative. Reading sections 13(4), 18(1) and 19(10) together, the Court held that the statute after 2012 recognises the continued existence of an independent copyright in the underlying works embedded in a sound recording and a corresponding entitlement of authors to share in royalties whenever the recording is commercially exploited, that assignments contrary to the provisos are void from 21 June 2012, and that the amendments worked, in its phrase, a paradigm shift in the rights of owners of literary and musical works. The Court treated Aditya Pandey as a decision on the pre-amendment regime and declined to extend it.

A Division Bench of the Bombay High Court, in Indian Performing Right Society Ltd v Rajasthan Patrika Pvt Ltd, had earlier reached a consonant position, and had pointed out that a narrower reading given by a single bench of the Delhi High Court in 2021, which confined the author’s entitlement to utilisation of the work in the form in which it stood in the sound recording, had been reached without considering the words “subject to the provisions of this Act” in sections 13 and 14 read with the provisos to sections 17 and 18 and the new sub-sections of section 19. The trajectory of the appellate authority is therefore consistent: the entitlement created in 2012 is a continuing one, it travels with the underlying work into every commercial exploitation of the recording that embodies it, and it is administered through the copyright society of which the authors are members, which receives the royalty and distributes it among authors and owners under its scheme.

The equal share at work: how the royalty moves

The provisos state an entitlement; the machinery that converts the entitlement into money is the copyright society, and the route the money travels explains both the strength and the friction of the settlement. A lyricist or composer who is a member of the society for literary and musical works assigns or authorises that society to administer the right to claim the statutory share. The user of the work, a broadcaster, a streaming service, a venue or a film producer exploiting a work outside the cinema hall, takes a licence from the society at the society’s published tariff. The society collects the licence fee, deducts its administration costs under its distribution rules, and distributes the balance between the two sides of the underlying work: the authors’ side, lyricist and composer, and the owners’ side, ordinarily the publisher or label that took the assignment of the copyright. The equal share of the provisos is reflected in that distribution, under which the authors of a song receive, between them, a share equal to that retained by the owner side, a division that the pre-2012 market, in which the author’s share was whatever the assignment deed left behind, rarely produced.

The cinema hall carve-out is the settlement’s most litigated boundary, and it repays a concrete statement. The proviso for cinematograph films reserves the royalty right for the utilisation of the work in any form other than the communication to the public of the work along with the cinematograph film in a cinema hall. The theatrical exhibition of the film, the use for which the song was commissioned and for which the producer paid, is therefore outside the entitlement: the producer who exhibits the film in cinemas owes no statutory royalty to the lyricist and composer for that exhibition, whatever the deed says. Every other utilisation stands inside the entitlement. The telecast of the film on a television channel is a utilisation of the underlying works otherwise than in a cinema hall. The broadcast of the song on radio, its use in a caller tune or ring tone service, its streaming as part of a recording, its synchronisation into an advertisement or a further film, and its public performance in a venue are utilisations otherwise than in a cinema hall. In each case the author’s claim to the equal share arises by statute, and the party exploiting the recording must clear the underlying works through the authors’ society in addition to whatever licence it holds for the recording itself. It was exactly this structure that the Calcutta High Court applied in the caller tunes litigation: the service’s agreements with the owner of the sound recordings could not answer the authors’ claim, because the owner of a recording has no authority to license the literary and musical works the recording embodies, and the statute had withdrawn that authority from private arrangement in 2012.

The sound recording proviso is wider still, and the difference between the two provisos is deliberate. A song recorded as an independent sound recording, not forming part of any cinematograph film, carries no cinema hall carve-out, because there is no film and no theatrical exhibition to protect: the author’s right to the equal share attaches to any utilisation of the work in any form. The independent music sector, the album and the single, is therefore governed by the unqualified rule, while film music is governed by the rule with the single exception. Producers argued in the passage debates that the film exception should be wider, extending to the exploitation of the film as a whole on television and on demand, since those exploitations are of the film and not of the song in isolation. The enacted text did not accept the argument: it excepts the communication of the work along with the film in a cinema hall and nothing else, and the appellate decisions have applied the exception as written, treating the telecast and the streaming of the film as occasions on which the underlying works are utilised and the authors’ share falls due.

Two practical consequences follow for anyone administering the settlement. The first is that a licence for a sound recording and a licence for the underlying works are separate transactions with separate counterparties, and a user who holds only the first is unlicensed as to the second; the due diligence question for a broadcaster or a platform is not whether it has paid for the recording but whether its arrangements reach the literary and musical works embedded in it. The second is that the deed by which an author assigns copyright has lost much of its former power over the author’s income. The deed still transfers the copyright, still fixes whatever lump sum and contractual royalty the parties agree, and still governs the utilisations the statute leaves to contract; but the statutory share for the reserved utilisations is fixed by the provisos at an equal division, is payable through the collective machinery, and cannot be reduced by a deed that says otherwise, because a deed that says otherwise is void to that extent. That is the sense in which the amendment redistributed income rather than merely regulating contracts: it fixed a term of the bargain at the level of the statute, and left the parties free to bargain about everything except that term.

Commentary on the working of the settlement records two evasive practices that the text invites attention to, and both are recorded here as allegations in the commentary rather than as findings. The first is the device of the advance royalty, under which a payment made at the time of assignment is characterised as an advance against all future royalties, so that the statutory share is said to have been paid before it accrued; commentary on the amendment, including a widely cited SpicyIP analysis published in 2014, argues that the device defeats the legislative intent and should be dissuaded. The second is the back dated agreement, an assignment document bearing a date before 21 June 2012 and therefore, on the prospective reading, outside the provisos. Both devices illustrate the same point as the memorandum episode treated below: the printed text governs, and ingenuity is spent on placing transactions outside the text rather than on disobeying it. The non-advice character of this article should be noted at this point: it states the law as enacted and interpreted, and it is not advice on any particular contract, for which the deed and its dates must be read by a lawyer instructed on them.

The second purpose: access for persons with disabilities

The disability provisions answer a scarcity that campaigners named the book famine: the proportion of published books available in Braille, large print, audio or accessible electronic formats was a small fraction of one per cent of what sighted readers could obtain, and the reason was partly legal. Converting a book into an accessible format is an adaptation and a reproduction, and both are the owner’s exclusive rights. A charity that converted a textbook without permission infringed, however unimpeachable its purpose. Section 52(1)(zb), inserted by the 2012 Act, removes that barrier in terms of striking breadth. It provides that the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by any person, to facilitate persons with disability to access works, including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research, is not infringement; and the same acts done by any organisation working for the benefit of persons with disabilities, in a case where the normal format prevents the enjoyment of such works by such persons, are equally protected. Two provisos discipline the organisational route: copies in accessible format must be made available to persons with disabilities on a non-profit basis, recovering only the cost of production, and the organisation must ensure that the copies are used only by persons with disabilities and take reasonable steps to prevent their entry into ordinary channels of business. An Explanation records that “any organisation” includes an organisation registered under section 12A of the Income-tax Act 1961 and working for the benefit of persons with disability, an organisation recognised under the disability legislation, an organisation receiving government grants for facilitating access, and an educational institution, library or archives recognised by the Government.

Three features of the clause repay attention. The first is that it covers any work and any accessible format: it is not confined to literary works, to Braille, or to blindness. The beneficiary class is persons with disability, a wider class than the blind, visually impaired and print disabled persons of the international instrument described below, and the permitted purposes extend to private and personal use, education and research. The second is that the individual route and the organisational route are differently conditioned. An individual person may convert and share for the stated purposes without the provisos; an organisation must work on a non-profit basis, must confine distribution to persons with disabilities and must take reasonable steps against leakage into ordinary channels. The third is that the clause is an exception and not a licence: no application, fee or notice is required, and no royalty is payable, because the clause declares the acts not to be infringement at all.

Behind the exception stands a compulsory licence for the cases the exception does not reach. Section 31B, inserted alongside sections 31C and 31D, provides that any person working for the benefit of persons with disability on a profit basis or for business may apply to the Copyright Board for a compulsory licence to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) does not apply. The Board is directed to dispose of the application as expeditiously as possible and to endeavour to dispose of it within two months of receipt. It must inquire into the credentials and good faith of the applicant, give the owners of rights a reasonable opportunity of being heard, and, if satisfied that a licence is needed to make the work available to the disabled, direct the Registrar of Copyrights to grant the licence. The licence must specify the means and format of publication, its period, and, where copies are issued, the number of copies and the rate of royalty. The division of labour between the two provisions is deliberate: non-profit conversion is free of permission altogether, and commercial conversion is possible on terms fixed by the tribunal rather than refused by the owner. The accessible format provisions operate within the wider statutory landscape for disability in India, which the article on the Rights of Persons with Disabilities Act 2016 treats as its own subject.

The international frame for these provisions is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, adopted at Marrakesh on 27 June 2013. The chronology is notable: the Indian exception was enacted in June 2012, a full year before the Treaty was adopted, and the Treaty was modelled in part on the Indian provision and on the draft texts India had championed in the negotiations. India signed the Treaty on 30 April 2014 and ratified it on 24 June 2014, the first country to do so, and the Treaty entered into force on 30 September 2016. The Indian clause is broader than the Treaty required, in its beneficiary class and in dispensing with several conditions that the Treaty permits states to impose, and it is the treaty counterpart to the amendment’s fourth purpose: on disability, India legislated ahead of the international instrument; on the internet treaties, as will appear, it legislated in anticipation of them.

The third purpose: statutory licences for cover versions and broadcasting

Statutory licensing is the amendment’s third purpose, and its two instruments are sections 31C and 31D. A statutory licence differs from a compulsory licence of the older kind in that no application to a tribunal is needed in advance: the statute itself grants the licence to anyone who complies with its conditions, and the tribunal’s role is confined to fixing the rate and policing compliance. The user who fails on a condition is not a licensee at all but an infringer, which is why the conditions matter and why the litigation described below was fought over whether a class of users fell within the section at all.

Section 31C creates the statutory licence for cover versions. Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of the work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the section. The conditions accumulate. The new recording must be in the same medium as the last recording, unless that medium is no longer in current commercial use. The maker must give prior notice in the prescribed manner, supply in advance copies of all covers and labels with which the recordings are to be sold, and pay in advance royalties for all copies to be made at the rate fixed by the Copyright Board. The packaging must not mislead or confuse the public as to the identity of the recording: it must not contain the name of, or depict, any performer of an earlier recording of the same work or any cinematograph film in which the earlier recording was incorporated, and it must state on the cover that it is a cover version made under the section. No alteration may be made to the literary or musical work that has not been made previously by or with the owner’s consent, other than alterations technically necessary for the making of the recording. No cover version may be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work were made. Royalty must be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies are made, subject to the Board’s power to fix a lower minimum for works in a particular language or dialect having regard to potential circulation. Registers and books of account must be maintained and opened to the owner’s inspection, and the Board may order a maker to cease on a genuine complaint of non-payment. The cover version licence codified, in statutory form, a practice that the version recording industry had long carried on under private licences of uncertain scope, and its five year embargo is the owner’s compensation: the original recording has an exclusive season before the market in imitations opens.

Section 31D creates the statutory licence for broadcasting, and its text must be set out with care because everything that follows turns on its words. Sub-section (1) provides that any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of the section. Sub-section (2) requires the broadcasting organisation to give prior notice, in the prescribed manner, of its intention to broadcast the work, stating the duration and territorial coverage of the broadcast, and to pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board. Sub-section (3) provides that the rates of royalty for radio broadcasting shall be different from television broadcasting, and that the Copyright Board shall fix separate rates for radio broadcasting and television broadcasting. Sub-section (4) empowers the Board, in fixing the manner and rate, to require payment of an advance to the owners. Sub-section (5) requires the names of the authors and the principal performers to be announced with the broadcast, except where the work is communicated by way of performance. Sub-section (6) forbids fresh alteration of any literary or musical work, beyond what is technically necessary for broadcasting or shortening for the convenience of broadcast, without the consent of the owners of rights. Sub-section (7) imposes record keeping: the broadcasting organisation must maintain records and books of account, render reports and accounts to owners, and allow the owner or his authorised agent to inspect them. Sub-section (8) saves licences issued and agreements entered into before the commencement of the amending Act.

Who fixes the royalty rates under Section 31D, and what has become of that forum?

The text of section 31D as enacted in 2012 assigns the fixing of rates to the Copyright Board. The Board was merged into the Intellectual Property Appellate Board by the Finance Act 2017, and that tribunal was abolished by the Tribunals Reforms Act 2021 with effect from 4 April 2021, so the rate fixing function passed to the Commercial Court, as the amended text of the section records. The Intellectual Property Appellate Board had begun a public consultation on radio royalty rates in September 2020 and was abolished before completing it, so the rates the section presupposes were never comprehensively fixed by the forum Parliament designed for the purpose. The wider forum history of Indian intellectual property tribunals is traced in the article on the Intellectual Property Law in India guide.

The section’s ancestry explains its shape. Before 2012, broadcasters and the music industry fought repeated wars over the rates payable for the broadcast of recordings, and radio in particular operated under licences extracted under litigation pressure. Section 31D was framed to end that pattern for the linear media: a broadcaster that identified its broadcast, notified it and paid the fixed rate could not be refused, and an owner could not hold a repertoire hostage to a negotiation. The price of the design was borne by the owners, whose exclusive right to refuse was displaced, and the compensation for the displacement was the discipline of the section: publication of the work as a precondition, notice, rates fixed by an expert tribunal, announcements of authorship, records open to inspection. The design assumed a world of scheduled broadcasting, in which a station transmits a programme at a time of its choosing and the listener takes what comes. Whether a service that lets each listener summon a chosen song at a chosen moment is broadcasting of that kind is the question the next section narrates.

The 2012 licences were not the Act’s first experiment with compulsion, and the contrast with the older provisions shows what was new in the design. Section 31, which long predates the amendment, empowers the tribunal to grant a compulsory licence where the owner of copyright in a published work has refused to republish it, or to allow its performance in public, or to allow its communication by broadcast, in a manner that withholds the work from the public; the licence follows a complaint, an inquiry and a finding against the owner. Section 31A performs the same office for unpublished works and for works whose author is dead, unknown or untraceable and whose owner cannot be found. Both provisions are reactive: they answer an owner’s refusal or absence, case by case, and the applicant must prove the occasion for intervention. The 2012 Act widened both provisions, substituting “any work” for the earlier confinement to Indian works, and added machinery, including the direction that the tribunal pass its order on an assignment dispute within six months and the deeming of the tribunal as a civil court for the conduct of inquiries, but it left their reactive character intact.

Sections 31B, 31C and 31D are built on the opposite principle. No refusal need be shown, no complaint made and no occasion proved. The licence exists in advance, for the classes of user the sections name, on the conditions the sections state, and the only questions in a dispute are whether the user is within the class and whether the conditions were met. The change of principle is the reason the section 31D litigation took the form it did: because the licence is self-executing, everything turned on the boundary of the class, and nothing turned on the conduct of Tips as an owner, which under the older model would have been the inquiry. It is also the reason the consequences of crossing the boundary are severe. A broadcaster within section 31D who pays the fixed rate is licensed; a service outside the section that broadcasts the same repertoire without the owner’s consent is an infringer of every work it transmits, and the difference between the two positions is a question of statutory construction rather than of commercial fairness. Parliament accepted that sharpness as the price of a licence that needs no negotiation, and the courts, in refusing to soften the boundary, were applying the design rather than defeating it.

Section 31D and the internet: eight years, five instruments, no amendment

The story of section 31D after its enactment is a story about where the meaning of a statute resides. Every actor in the story agreed, at each stage, on what the section said: that a broadcasting organisation could communicate published literary and musical works and sound recordings to the public by way of broadcast, on notice and at rates fixed by the tribunal, with separate rates for radio broadcasting and television broadcasting. The dispute was whether a music streaming service, which transmits recordings to individual subscribers who select them, is a broadcasting organisation within the section, and whether the executive could settle that question by a document of its own. The sequence ran for eight years and consumed five instruments: an office memorandum, a judgment, a draft rule, a set of final rules and a judgment of an appellate bench, followed by a settlement and a rescission. Not one of them amended the section, and the section stands as enacted.

Stage Instrument or event Legal position
June 2012 Section 31D enacted by Act 27 of 2012 Statutory licence available to broadcasting organisations, with rates fixed for radio broadcasting and television broadcasting
5 September 2016 Office Memorandum No. 14-35/2015-CRB/LU (IPR-VII) of the Department of Industrial Policy and Promotion Memorandum states that “any broadcasting organisation” includes internet broadcasting organisations; the statutory text is unchanged
23 April 2019 Bombay High Court, single judge, in Tips Industries Ltd v Wynk Music Ltd Section 31D does not extend to internet broadcasting; the office memorandum lacks statutory force
2019 Draft Copyright (Amendment) Rules published for comment Proposal to substitute “for each mode of broadcast” for “by way of radio broadcast or television broadcast” in Rules 29 to 31
30 March 2021 Copyright (Amendment) Rules 2021 notified The “for each mode of broadcast” substitution is omitted; the Rules continue to speak of radio and television broadcasting
20 October 2022 Division Bench judgment in Wynk Ltd v Tips Industries Ltd, released 29 September 2023 Single judge affirmed; the statutory licence is restricted to traditional non-internet radio and television broadcasting and performances
June 2024 Settlement between Wynk and Tips and disposal of the appeals The commercial dispute ends by agreement; the construction of the section stated by the Division Bench stands
21 August 2024 Rescission of the 2016 office memorandum by the Department for Promotion of Industry and Internal Trade The executive position is withdrawn; section 31D remains in the form enacted in 2012

The episode opens on 5 September 2016, when the Copyright Section of the Department of Industrial Policy and Promotion, in the Ministry of Commerce and Industry, issued Office Memorandum No. 14-35/2015-CRB/LU (IPR-VII) on the scope of section 31D. The memorandum recorded representations from stakeholders and stated the department’s opinion: that the words “any broadcasting organisation” in sub-section (1) of section 31D were not to be restrictively interpreted to be applicable only to radio and television broadcasting organisations, and, in its phrase, “includes internet broadcasting organisations as well”. Streaming services read the memorandum as a licence to operate under the section, that is, to stream published recordings on notice and at tribunal rates without negotiating with the owners of the repertoire. The reading suited the services and appalled the labels, and it rested entirely on the memorandum, because neither the Act nor the Copyright Rules 2013, whose rules 29 to 31 prescribe the machinery of the statutory licence, contained a word about the internet: both instruments speak of radio broadcasting and television broadcasting throughout.

The test case arrived quickly. Wynk Music Ltd, a streaming service associated with the Airtel group, had negotiated with Tips Industries Ltd, which owns a large repertoire of film music, and the parties failed to agree terms in the latter part of 2017. Wynk asserted a statutory licence under section 31D, relying on the office memorandum. Tips sued in January 2018 in the Bombay High Court, contending that Wynk’s service was not broadcasting within the section, that Wynk’s download and purchase features were inconsistent with the label of broadcast, and that notice served under the section could not legitimise the use of its repertoire. The suit was heard by a single judge, S. J. Kathawala J, who decided it by order dated 23 April 2019.

The single judge framed three questions: whether section 31D contemplated internet broadcasting, whether Wynk had in fact been broadcasting, and whether the office memorandum could bear the weight placed on it. On the first, the reasoning was textual and structural. The Copyright Rules 2013, in rules 29 to 31, prescribe the notice, rate and machinery of the statutory licence by reference to radio broadcasting and television broadcasting, and a subordinate instrument that frames the section’s working by those two media is evidence of the section’s intended reach. The separate rates mandated by sub-section (3) for radio and television exhausted, in the Court’s reading, the categories the section serves. The second question was answered by examining what Wynk’s features did: its limited downloads function and its purchase function, under which a user acquired a song and could listen to it offline or accumulate it in a library, amounted in the Court’s analysis to a form of sale or commercial rental of copies, not to communication to the public by way of broadcast, and a statutory licence to broadcast could not authorise them. On the third question the Court was blunt: the office memorandum was not a part of the Act and could not extend the operation of a section of the Act, and a wide interpretation of section 31D on the strength of the memorandum would be inconsistent with the Act and with the Rules. The Court reinforced the textual reading with the Two Hundred and Twenty-seventh Report of the Parliamentary Standing Committee on the Copyright (Amendment) Bill 2010, which showed that the legislature had been conscious of internet broadcasting and had deliberately confined the statutory licence to radio and television: a limitation that a departmental memorandum could not undo.

Both sides of the underlying question deserve to be stated at full strength, because the case for each is substantial and the choice between them is Parliament’s and not a court’s or a department’s. The case for the streaming services runs as follows. The mischief section 31D addresses is repertoire holdout: a broadcaster that must clear every recording individually is exposed to refusals and to rates extracted under the threat of silence, and a statutory licence at tribunal rates is Parliament’s answer. A streaming service is in the same position of dependence and is, in ordinary language, broadcasting to the public by electronic means; to confine the answer to the two delivery technologies of 2012 freezes a remedial provision at the technology of its enactment and invites the holdout the section exists to prevent. The definitions in the Act are technology neutral in places: communication to the public, as substituted by the same amending Act, speaks of making works available to be enjoyed at places and times individually chosen, language that describes streaming precisely. On that view, the office memorandum did not extend the Act; it recognised what the Act already contained.

The case for the owners runs as follows. A statutory licence is a compulsory deprivation of an exclusive right, and provisions that expropriate are construed strictly: the licensee must bring itself squarely within the section. The section and its rules name radio and television and nothing else; the Standing Committee’s report shows the omission of the internet was considered and deliberate, so the narrow reading is not a gap but a decision. The economics differ as well: a linear broadcast communicates a programme to whoever is listening, once, whereas an on demand service delivers a chosen recording to a chosen listener at a chosen time, functioning as a substitute for ownership of the recording, and the download and purchase features of the leading services make the substitution literal. A licence designed for the first activity cannot be stretched over the second by interpretation, still less by memorandum; if the balance is to change, the change must come from the legislature that made the section, with the rates and conditions re-examined for the new activity. That is the argument the courts accepted, and the argument’s final step, about who may change the law, is the subject of the rest of this narrative.

The executive’s next instrument was an attempt to do by rules what the memorandum had tried to do by opinion. Draft Copyright (Amendment) Rules were published in 2019 inviting comments, and among the proposals was the substitution, in rules 29, 30 and 31, of the words “for each mode of broadcast” for the words “by way of radio broadcast or television broadcast”, a substitution which, had it been notified, would have opened the machinery of the statutory licence to other modes of broadcast and given the memorandum’s position a colourable basis in subordinate legislation. The proposal drew opposed comments from the two camps and was not carried into the Copyright (Amendment) Rules 2021 as finally notified: the substitution does not appear in the final Rules, which continue to frame the statutory licence by reference to radio and television broadcasting. The rule making power is in any event a power to carry out the provisions of the Act, and a rule that enlarged the class of statutory licensees beyond the section’s reach would have stood in the same jeopardy as the memorandum; the omission of the proposal from the notified Rules left the position where the single judge had put it.

The legislature’s own machinery spoke next, and it is important to record what it said, because it is sometimes misdescribed as an endorsement of the services’ case. The One Hundred and Sixty-first Report of the Department-related Parliamentary Standing Committee on Commerce, on the review of the intellectual property rights regime in India, presented on 23 July 2021, recommended at paragraph 14.8(ii) that section 31D be amended to incorporate internet or digital broadcasters, in order to ensure a level playing field among stakeholders. A recommendation to amend is an acknowledgment that amendment is needed: the Committee did not say the section already covered internet broadcasting, but that it should be made to cover it. The Government held a stakeholder consultation on the recommendation in September 2021. Section 31D has not been amended.

Wynk carried the single judge’s order in appeal. The appeals, Commercial Appeal Nos. 424 and 425 of 2019, were heard by a Division Bench of the Bombay High Court, G. S. Patel and Gauri Godse JJ, which delivered judgment on 20 October 2022; the judgment was released and uploaded on 29 September 2023, which is why the decision is sometimes dated to either year. The Bench affirmed the single judge in full. Its reasoning proceeded from the character of the statutory licence: the licence under section 31D is meant for traditional, non-internet based radio and television broadcasting organisations and for performances of that character, and the functions of the leading streaming service, in particular the download and purchase functions, constitute offline exploitation of a kind that amounts to commercial rental rather than broadcast communication. The Bench addressed the public interest argument directly: the statutory licence is not a free pass, and there was no public interest dimension in the streaming service’s business model, which was an ordinary commercial offering. The Bench also recorded, in endorsing the single judge’s reliance on it, that the question had been considered by Parliament when the amendment was made.

The litigation then ended in the way commercial litigation often ends. In June 2024 the parties settled, and the appeals were disposed of in terms of the settlement. The settlement resolved the dispute between Tips and Wynk; it did not and could not alter the construction of section 31D that the Division Bench had placed on record, which stands as the appellate statement of the law on the section. On 21 August 2024 the Department for Promotion of Industry and Internal Trade, as the department had by then been renamed, rescinded the office memorandum of 5 September 2016. The instrument that had begun the episode was withdrawn by its own author, eight years after its issue, at the end of a sequence in which a High Court had denied it force, a rule change designed to support it had been abandoned, and a parliamentary committee had recommended that the legislature do by amendment what the memorandum had purported to do by opinion.

The reliance placed on the memorandum during its currency deserves a word, because it distributes the responsibility for the episode correctly. A streaming service that read the memorandum in 2016 was reading a document issued by the department that administers the Copyright Act, in the ordinary form of an office memorandum, stating the department’s view of a section the department had itself piloted through Parliament four years earlier. The service’s error was not credulity; it was a legal error about the hierarchy of instruments, the error of treating an interpretive opinion as though it were a source of law. The consequences of the error were real all the same: a service that streamed a repertoire on the faith of the memorandum, without the owners’ licences, was exposed to infringement liability for every work it transmitted during the period of reliance, and the comfort the memorandum appeared to give dissolved the moment a court examined it. The episode is a standing warning to regulated industries that the view of the administering department, however confidently stated and however convenient, is worth exactly the paper of the file it is recorded on until a legislature or a court adopts it.

The episode is the mirror image of the one examined in the article on the Shreya Singhal judgment. There, a provision of the Information Technology Act had been struck down and continued to be invoked in practice, as though the printed text could outlive the judgment that annulled it. Here, an extension of a provision that no legislature had enacted was asserted by the administering department and acted on by a market, as though the memorandum could do the work of an amending Act. In both episodes the lesson is the same and it is a lesson about the printed statutory text: the text that governs is the text Parliament enacted, no more and no less, and neither executive enthusiasm nor executive inertia can move it. A reader who wishes to know whether a streaming service may invoke section 31D will find the answer in the section, in the Rules that frame it and in the judgments that construe it, and the answer given by all three is that it may not, unless and until Parliament amends the section in the manner the Standing Committee on Commerce has recommended.

The fourth purpose: the internet treaties

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at Geneva on 20 December 1996, were the international system’s answer to the network: they required member states to protect the making available of works and recordings on demand, to give performers rights in their performances, and to provide legal protection for the technological measures by which owners protect digital copies and for the rights management information embedded in them. India was not a party to either treaty when the 2012 Bill was framed. The amending Act was designed, in significant part, to bring the Copyright Act into line with the treaties in advance, so that accession, when it came, would require no further amendment of substance. The strategy is visible in the text: the definitions inserted in 2012 track the treaty vocabulary, and the new sections 65A and 65B reproduce the treaty’s two obligations on technological measures and rights information. India deposited its instruments of accession to both treaties on 25 September 2018, and both entered into force for India on 25 December 2018; the accession to the Performances and Phonograms Treaty carried a declaration under Article 15(3) that India will not apply the treaty’s provision on a single equitable remuneration for broadcasting and communication to the public of phonograms. The 2012 alignment had by then been in force for six and a half years.

The definitional work comes first. Section 2(fa), inserted in 2012, defines commercial rental, in relation to a computer programme, sound recording, visual recording or cinematograph film, as the acquisition of a right to use a copy for a specified period for consideration, and then qualifies the definition by exclusion: it does not include rental, lease or lending of a lawfully acquired copy by a non-profit library or a non-profit educational institution. Section 2(ff), which defines communication to the public, was substituted: it means 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 physical copies of it, whether by simultaneous communication or at places and times chosen individually. The closing words are the treaty’s making available right in Indian dress, and they are the words the streaming services invoked in the section 31D debate, unsuccessfully, because a definition cannot enlarge a licensing section that speaks in narrower terms. Section 2(xa) defines rights management information as the title or other information identifying a work or performance, the name of the author or performer, the name and address of the owner of rights, the terms and conditions of use of the rights, and any number or code representing such information, excluding any device or procedure intended to identify the user. Section 2(xxa) defines visual recording as the recording in any medium by any method of moving images, including its storage in any medium by electronic or any other method. A proviso to section 2(qq) excludes from the definition of performer a person whose performance in a cinematograph film is casual or incidental and who is not acknowledged on screen; the same provision preserves the moral rights of such a person under section 38B(b).

The performers’ provisions are the treaty’s most substantial footprint. Before 2012 the Act gave performers a right of limited scope under the provisions inserted in 1994. Section 38A, substituted in 2012, gives the performer an exclusive right, subject to the other provisions of the Act, to do or authorise the making of a sound recording or visual recording of the performance, the reproduction and storage of it in any medium by electronic or other means, the issue of copies to the public not being copies already in circulation, its communication to the public, its communication by sale or commercial rental of copies, and its broadcast or communication to the public otherwise than by a broadcast of a recording already broadcast. Section 38A(2), as noted above, governs the performer who consents in writing to incorporation of the performance in a cinematograph film: the consent is presumed, in the absence of a contract to the contrary, to displace objection to the producer’s enjoyment of the performer’s right in the film, and the proviso guarantees royalties where the performance is made for commercial use. Section 38B confers the performer’s moral rights: the right to claim to be identified as the performer of the performance, except where omission is dictated by the manner of use, and the right to restrain or claim damages for any distortion, mutilation or other modification of the performance that would be prejudicial to the performer’s reputation, with an Explanation that mere editing or technical modification does not amount to such distortion. Section 39A applies the Act’s general machinery, including sections 18, 19, 30, 30A, 33, 33A, 34, 35, 36, 55, 58, 64, 65, 65A, 65B and 66, to the performer’s right with necessary adaptations and modifications, so the assignment discipline and the new digital offences reach performers’ rights as they reach copyright.

Section 65A protects technological measures. Sub-section (1) provides that any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. Two features distinguish the Indian provision from its treaty model and from the stricter foreign counterparts. The first is the mens rea: the offence requires circumvention with the intention of infringing, so circumvention for a lawful purpose is not within the sub-section at all. The second is the catalogue of exceptions in sub-section (2), which provides that nothing in sub-section (1) shall prevent a person from doing anything referred to in the sub-section for a purpose not expressly prohibited by the Act, subject to a condition that a person facilitating circumvention by another person keep a complete record of that person including his name, address and all relevant particulars necessary to identify him and the purpose for which the facilitation was sought; from engaging in encryption research using a lawfully obtained encrypted copy; from conducting a lawful investigation; from doing anything necessary for the security testing of a computer system or a computer network with the authorisation of its owner or operator; from circumventing technological measures intended for identification or surveillance of a user; and from taking measures necessary in the interest of national security. One clause of the catalogue, clause (e) of sub-section (2), consists in the enacted text of the single word “operator”, a survival from the drafting process that commentators on the section have noted; it carries no meaning of its own and the remaining clauses are unaffected by it.

Section 65B protects rights management information. Any person who knowingly removes or alters any rights management information without authority, or distributes, or imports for distribution, or broadcasts or communicates to the public, without authority, copies of any work or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. A proviso preserves the civil position: where rights management information has been removed or altered without authority, the owner of copyright in the work may also avail of the civil remedies provided under Chapter XII against the person who removed or altered it. The pairing of the two sections is the treaty’s pairing, and the Indian drafting is deliberately asymmetrical: civil remedies under the Act’s ordinary chapters protect the owner against infringement as before, while the criminal provisions are aimed at the act of circumvention with intent to infringe and at the knowing stripping of the information by which digital copies carry their provenance. The requirement of an intention to infringe, which has no counterpart in the stricter anti-circumvention regimes abroad, keeps the Indian offence aligned with the Act’s own exceptions: a circumvention undertaken to make a use that section 52 permits, for research, for accessibility or for security testing, is not an offence, because the intention the section requires is absent, and the exceptions in sub-section (2) put the matter beyond argument for the facilitators and specialists those uses engage.

One deliberate reservation in the treaty settlement deserves record, because it qualifies the broadcasting side of the performers’ and producers’ rights. Article 15 of the WIPO Performances and Phonograms Treaty confers on performers and producers of phonograms a right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or any communication to the public, and permits a contracting party to declare that it will not apply the provision. India made that declaration on accession, recording that the single equitable remuneration under Article 15(1) will not be applied in India. The domestic position therefore continues to rest on the Act’s own scheme: the rights of performers under section 38A, the rights of owners of sound recordings under section 14, and the statutory licence of section 31D with its tribunal fixed rates, rather than on a treaty level remuneration right administered as such. The reservation is consistent with the structure Parliament built in 2012, under which broadcasting remuneration is a matter for the statutory licence and the tariff machinery, and the accession changed India’s international obligations without disturbing that structure.

The administration of clause (zb) is as notable for what it omits as for what it contains. No authority certifies an organisation as one working for the benefit of persons with disabilities before the exception applies, no register of authorised entities of the kind the Marrakesh Treaty contemplates is maintained under the clause, and no record of the copies converted need be filed with any office. The conditions are behavioural rather than bureaucratic: non-profit supply at cost, confinement of the copies to persons with disabilities, and reasonable steps against leakage into ordinary channels of business. An organisation that observes the conditions is protected; an organisation that lets accessible copies enter ordinary commerce steps outside the clause and answers as any other infringer. The Explanation’s catalogue of qualifying organisations, which takes in organisations registered under the Income-tax Act, organisations recognised under the disability legislation, recipients of government grants for facilitating access, and recognised educational institutions, libraries and archives, is inclusive in form, and the individual route stands open beside it for the reader, the teacher and the fellow student who converts a text for a person with a disability to read. The clause was among the first provisions of its kind anywhere, and its placement in the 2012 Act, in the same sections of the amending Act that rebuilt the exceptions, is the reason India could ratify the Marrakesh Treaty two years later without touching the Copyright Act again: the domestic work had been done in advance, and done more generously than the Treaty required.

The royalty settlement presupposes collecting machinery, and the amendment rebuilt that machinery in the same stroke. Before 2012 a copyright society, once registered, held its registration without a term, and the governance of societies was a recurring subject of complaint from the authors they existed to serve: societies were said to be dominated by the owners of rights, publishers and labels, with authors in the minority on the bodies that set tariffs and distribution rules. The amendment addressed the term, the control and the transparency of societies together.

A new sub-section (3A) in section 33 provides that the registration granted to a copyright society shall be for a period of five years and may be renewed from time to time before the end of every five years, and that the renewal shall be subject to the continued collective control of the copyright society being shared with the authors of works as owners of copyright. A society registered under the Act before the commencement of the amending Act was required to register again within one year of that commencement. Registration therefore ceased to be a permanent franchise and became a renewable permission, with the renewal expressly conditioned on shared collective control between authors and other owners. The condition is the governance counterpart of the royalty provisos: the author whose royalty must flow through a society is given a statutory claim to a share in the control of the society that collects it.

Section 35 was amended to the same end. A new sub-section (3) provides that every copyright society shall have a governing body of such number of persons as may be specified, consisting of an equal number of authors of the works and owners of the works administered by the society who shall be elected from amongst the members of the governing body in such manner as may be prescribed, and a new sub-section (4) provides that all members of the society shall enjoy equal membership rights and that no discrimination shall be made between authors of the works and owners of the works in the distribution of royalties. Equality in the governing body and equality in distribution are the two operative commitments, and they are framed as statutory duties rather than as matters for each society’s rules.

Transparency was addressed through a new section 33A. Every copyright society must publish a tariff scheme in the manner prescribed. Any person interested may appeal to the Copyright Board against the tariff scheme, and the Board may, if it is satisfied after holding an inquiry that the tariff is not reasonable in the circumstances of the case, direct the Registrar of Copyrights to remove it from the register and substitute a reasonable scheme, with power to fix and pay an interim tariff by order until the appeal is decided. The tariff scheme is the price list against which statutory and voluntary licensees alike transact, and the appeal mechanism converts the fixing of that price list from an internal act of the society into a supervised act. The Copyright (Amendment) Rules 2021 later supplemented the framework with an annual transparency report, requiring each society to disclose its collections, distributions and governance in a public document, a subordinate addition to a statutory structure the 2012 Act built. Societies were also drawn into the assignment discipline from the other side, since section 19(8), described above, voids an assignment by an author that contradicts the rights the author has already assigned to a society of which the author is a member.

A third set of exceptions, in section 52(1)(b) and (c), addresses the copies that digital networks make without anyone choosing to make them. Clause (b) protects the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public. Clause (c) protects transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds to believe that by such storage an infringing copy is facilitated. A proviso attaches a procedure to clause (c): if the person responsible for the storage receives a written complaint from the copyright owner that the transient or incidental storage is an infringement, that person shall refrain from facilitating such access for twenty one days or until receipt of an order from a competent court, whichever is the earlier; and a further proviso provides that, unless the complainant obtains an interim order restraining access within the twenty one days, the person responsible may continue to facilitate access thereafter.

The design is a notice and counterweight mechanism rather than a general immunity. The intermediary that stores transiently in the course of transmission or linking is protected for the storage itself, because the storage is a technical incident of a lawful function. The protection is conditional: it falls away where the intermediary knows or has reasonable grounds to believe the copy is infringing, and it is interrupted by a written complaint from the owner, which obliges the intermediary to block access for twenty one days while the complainant goes to court. If the complainant does not obtain a court order within that window, the protection revives and access may continue. The balance is struck in favour of continuity of service against unsupported complaints and in favour of the owner who acts promptly on a genuine one. The provision is the copyright statute’s own treatment of intermediary storage, and it operates alongside, and not in substitution for, the general safe harbour that the Information Technology Act 2000 provides to intermediaries, whose conditions and history are treated in that article.

The same round of changes addressed the preservation copies made by libraries. Clause (n) of section 52(1) protects the storage of a work in any medium by electronic means by any non-commercial public library, for preservation, if the library already possesses a non-digital copy of the work: a library may digitise its own holdings to preserve them, and the double condition, non-commercial library and an existing non-digital copy, marks the limit of the permission. Clause (zc) protects the importation of literary or artistic works, such as labels, tags, logos or promotional material, incidental to other goods or products being imported. Clause (o) of section 52(1), in its substituted form, protects the making of not more than three copies of a book, including a pamphlet, sheet of music, map, chart or plan, by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India. Each of these clauses is a small thing; together they show the amendment working at the level of the everyday institutions, libraries and archives, through which older works survive.

Two further provisions complete the supporting architecture. Section 53, which governs the importation of infringing copies, was substituted entire: the owner of copyright in a work, or a duty authorised agent, may give notice in writing to the Commissioner of Customs or an officer authorised in this behalf that infringing copies of the work are expected to arrive in India at a place and within a period specified in the notice, and the copies are then treated as prohibited goods under the Customs Act 1962; the notice remains in force for one year, the importer must be intimated within forty eight hours of detention, and the copies must be released if no court order is received within fourteen days of detention. Section 21(2A), a new sub-section, provides that in the case of a work admitted to copyright registration by the Registrar of Copyrights, a copy of the entries referred to in the Register shall be published on a website maintained by the Central Government, a quiet digitisation of the register itself. The border measure matters to the structure of this article for the same reason as the storage clauses: the amendment is not a single intervention but a settlement across the whole of the Act, and its purposes are visible in small provisions as well as in the two that have been litigated.

The quieter changes: fair dealing, photographs and moral rights

The fair dealing clause was substituted and widened. Section 52(1)(a), as substituted, protects a fair dealing with any work, not being a computer programme, for the purposes of private or personal use, including research; of criticism or review, whether of that work or of any other work; and of the reporting of current events and current affairs, including the reporting of a lecture delivered in public. The substitution replaced a clause confined to literary, dramatic, musical and artistic works with one that covers any work other than a computer programme, and it joined private or personal use to the research purpose that the earlier clause had stated separately. An Explanation attached to clause (a) records that the storing of any work in any electronic medium for the purposes mentioned in the clause, including the incidental storage of a computer programme in connection with the work, shall not constitute infringement of copyright. The fair dealing clause is the general exception on which the specific clauses for libraries, storage and disability build, and its widening to any work is the reason the disability clause could be drafted to the breadth it has.

The term of copyright in photographs was aligned with the term in other works. Before 2012 a photograph had its own provision, section 25, under which copyright in a photograph subsisted for sixty years from the beginning of the calendar year next following the year in which the photograph was published, a term measured from publication rather than from the life of the photographer. The amendment omitted section 25 and deleted the words “other than a photograph” from section 22, so that a photograph is treated as an artistic work whose term is the life of the author and sixty years, the ordinary rule of the Act. The change removed an anomaly under which photographs, increasingly the work of professional authors, expired on a timetable unrelated to their authorship.

Authors’ moral rights were strengthened in two strokes. Section 57 protects the author’s right to claim authorship of the work and the right to restrain, or claim damages in respect of, any distortion, mutilation, modification or other act in relation to the work if such distortion, mutilation, modification or other act would be prejudicial to the author’s honour or reputation. The 2012 Act omitted from sub-section (1)(b) the words “done before the expiration of the term of copyright”, with the consequence that the right of integrity is no longer cut off by the expiry of the economic term; and it substituted in sub-section (2) the words “by the legal representatives of the author” for the earlier limitation, so the moral rights may be exercised by the author’s legal representatives. Moral rights are the residue of the continental doctrine of the author’s personality in a statute built on economic rights, and the removal of the term limit brings the Indian provision closer to that doctrine: the work may fall into the public domain for economic purposes while the author’s name and the work’s integrity remain protected.

The Copyright Board itself was reconstituted. Section 11, as amended, provides that the Copyright Board shall consist of a Chairman and two other members, a substantial reduction from the larger body the section had contemplated, with the Chairman required to be a person who is or has been a Judge of a High Court or who is qualified for appointment as a Judge of a High Court. The amendment also inserted a proviso into section 31(2) recording that where a licence is to be granted in favour of the work of an author who is dead, unknown or cannot be traced, or in favour of the work of an owner who cannot be traced, the Central Government may request the State Government or the Union territory Administration to hold a brief inquiry, and made parallel changes to section 31A for unpublished and orphan works, including a deeming of the Board as a civil court for the purposes of the relevant rule. Sections 31 and 31A themselves were widened from “Indian work” to “any work”, and section 19A was amended to direct the Board to pass an order within six months of the date of receipt of an application concerning the assignment of a work. Each of these is a working change rather than a headline, and each belongs to the same settlement: a statute that was to be used more, by more people, needed its tribunal smaller, faster and wider in reach.

What did the 2012 amendment do to the definition of communication to the public?

It substituted section 2(ff) so that communication to the public means making a work or performance available to be seen, heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than issuing physical copies, whether simultaneously or at places and times chosen individually. The closing words capture on demand delivery, but a definition does not enlarge a licensing section that speaks in narrower terms.

Deeds after 2012: the drafting discipline the amendment imposed

The amendment changed not only what assignments do but what they must say, and the discipline it imposed on the drafting of deeds is the part of the settlement that practitioners meet first. Section 19(1) requires an assignment to be in writing, signed by the assignor or by a duly authorised agent. Section 19(2) requires the deed to identify the work, and to specify the rights assigned and the duration and territorial extent of the assignment. Section 19(3), as amended in 2012, requires the deed to specify the amount of royalty and any other consideration payable to the author of the work, or to the author’s legal heirs, during the currency of the assignment, and provides that the assignment shall be subject to revision, extension or termination on terms mutually agreed upon. The insertion of “any other consideration payable” closed a drafting habit under which deeds recorded a nominal royalty, or none, while the real price travelled in side arrangements the section did not reach; after 2012 the consideration itself, in whatever form, is a required content of the deed.

Around those requirements stand the deeming provisions, and together they convert silence in a deed into outcomes the parties may not have intended. If the period of assignment is not stated, section 19(5) deems it to be five years from the date of assignment. If the territorial extent is not specified, section 19(6) presumes it to extend within India. Section 19(4) adds the discipline of use: where the assignee does not exercise the rights assigned within one year from the date of assignment, the assignment of those rights lapses after that period unless the deed specifies otherwise. A deed that is silent on duration, territory and exercise therefore produces a five year, India only assignment of rights that lapse if unused, whatever the parties supposed they had agreed, and the Delhi High Court’s decision in Pine Labs v Gemalto confirmed that the deeming rules operate by force of law and not as presumptions the parties’ unexpressed intentions can displace. The same discipline reaches licences, because section 30A, as amended in 2012, applies the provisions of section 19 to licences with necessary adaptations and modifications, so a licence document is held to the standards of an assignment deed in the respects the sections share.

The future media proviso of section 18(1) completes the discipline. An assignment made after 21 June 2012 does not extend to a medium or mode of exploitation that did not exist, or was not in commercial use, when the assignment was made, unless the assignment specifically refers to that medium or mode. The practical consequence is that the omnibus clause, the formula assigning rights in all media whether in existence or to be invented, lost its effect for Indian assignments: the deed that wants the future must name the future, mode by mode, and a deed that speaks in general words takes only the media of its own day. Combined with the royalty provisos, the provision reorders the relation between an old catalogue and a new technology. Where a recording made under an assignment of the cassette era is exploited by streaming, two statutory questions arise that no deed of that era could have answered by intention: whether the assignment reached the streaming mode at all, a question the proviso answers in the negative unless the mode was specifically referred to, and whether the author’s equal share is payable on the exploitation, a question sections 19(9) and 19(10) answer independently of the deed. The amendment’s treatment of technology is thus of a piece with its treatment of bargaining power: in both, the statute refuses to let a document signed in one state of the world govern, by silence, a world its signatories had not seen.

Reading the amendment with the parent Act

An amendment trail is best followed on the map of the statute it alters, and the 2012 changes fall into place when they are laid over the chapters of the Copyright Act 1957 in order. Chapter I carries the definitions, and it is there that the treaty settlement is recorded: commercial rental defined, communication to the public substituted, rights management information and visual recording added, and the casual performer excluded from the definition of performer with moral rights preserved. Chapter III, on the term of copyright, receives the quietest change in the Act, the deletion of the words “other than a photograph” from section 22 and the omission of section 25, which aligned the photograph with every other authored work. Chapter IV, on ownership, receives the proviso to section 17 that protects the author of the underlying work against the commissioning and employment exceptions. Chapter V, on assignment, receives the substance of the authors’ settlement: the three provisos to section 18(1), the amendment of section 19(3), the new sub-sections (8) to (10) of section 19, the six month direction in section 19A and the extension of the assignment discipline to licences by section 30A. Chapter VI, on licences, receives the new compulsory and statutory licences, sections 31B, 31C and 31D, standing beside the older sections 31 and 31A that the same amending Act widened. Chapter VII, on copyright societies, receives the five year registration of section 33(3A), the tariff scheme and appeal of section 33A, and the parity provisions of section 35(3) and (4). Chapter VIII receives the performers’ settlement in sections 38A and 38B and the application of the general machinery by section 39A. Chapter IX, on international copyright, and Chapter X, on registration, receive working changes, among them section 21(2A) on the publication of the register. Chapter XI, on infringement, receives the substituted border measure of section 53 and, in section 52, the rebuilt exceptions: fair dealing widened in clause (a), transient storage in clauses (b) and (c), the public library provisions in clauses (n) and (o), the disability exception in clause (zb) and the incidental importation clause (zc). Chapter XII receives the strengthened moral rights of section 57. Chapter XIII receives the digital offences, sections 65A and 65B. The Copyright Board, reconstituted by the amended section 11, stands behind the licensing and society chapters as their common forum.

Laid out in that order, the pattern of the amendment becomes visible in a way that a list of its headlines conceals. The changes are not distributed evenly across the Act, and they are not random. They concentrate at the points where the Act allocates money and permission: who owns, who may assign and on what terms, who may use without asking and at whose price, who collects and under whose control, and what happens to the person who strips the locks and labels from a digital copy. The chapters the amendment left substantially alone are the chapters of machinery and of international obligation, where the settlement of 1957 and its later rounds had produced no grievance that a constituency brought to Parliament. An amendment is a record of organised dissatisfaction, and the 2012 Act records three dissatisfactions with precision: authors who were paid once for works exploited for decades, readers with disabilities who were denied books the technology could have supplied, and owners and broadcasters locked in rate wars that the tribunal had not ended. The treaty alignment, the fourth purpose, records no domestic dissatisfaction at all; it is the state preparing its statute book for obligations it intended to assume, and its presence in the same Act is a reminder that a single amending Bill can carry both a domestic settlement and an international one, provided the drafting keeps the two apart, as the 2012 drafting, moving between the provisos of Chapter V and the offences of Chapter XIII, consistently did.

The unfinished business: a tribunal that vanished and a section awaiting amendment

Two threads of the settlement remain unfinished, and both are institutional rather than textual. The first is the forum. The amendment’s machinery presupposes a specialist tribunal at every joint: the Copyright Board fixes the rates for cover versions under section 31C and for broadcasting under section 31D, hears appeals against tariff schemes under section 33A, grants the disability licence under section 31B, decides assignment disputes under section 19A, and inquires into withheld and orphan works under sections 31 and 31A. The 2012 Act reconstituted that Board in smaller form, a Chairman and two other members, and the design assumed a standing body with the leisure to build rate jurisprudence across the industries it served. The assumption did not survive the decade. The Finance Act 2017 merged the Copyright Board into the Intellectual Property Appellate Board, the tribunal for trade marks and patents, as part of a general consolidation of tribunals. The Intellectual Property Appellate Board opened a public consultation in September 2020 to fix, for the first time, royalty rates for the broadcast of recordings on radio, the very exercise section 31D had contemplated since 2012, and it was abolished, with its pending work, by the Tribunals Reforms Act 2021 with effect from 4 April 2021, before the rates were determined. The functions scattered: the text of section 31D records the Commercial Court in the place the Copyright Board occupied, and the appellate and original work of the vanished tribunals passed to the High Courts and the Commercial Courts. A rate fixing exercise that requires evidence on the economics of an industry, and periodic revision as the industry changes, sits awkwardly in courts organised for disputes, and the rates on which the statutory licence was to run have in consequence never been comprehensively fixed by any forum. The licence operates, where it operates, on the rates and arrangements inherited from the litigation and negotiation of the preceding decades.

The second unfinished thread is the amendment of section 31D itself. The recommendation of the Standing Committee on Commerce of July 2021, that the section be amended to incorporate internet or digital broadcasters, identifies the questions an amending Bill would have to answer, and they are not small. The first is the class: which services are to be statutory licensees, the linear webcaster that transmits a scheduled stream, the interactive service that delivers recordings on demand, or both, given that the Division Bench’s reasoning treats on demand delivery as a different economic act from broadcast. The second is the rate structure: sub-section (3) divides the world into radio and television, and an internet category would need its own rate logic, fixed by a forum that the abolition of the tribunals has left uncertain. The third is the boundary with the rights the amendment itself created elsewhere: a statutory licence for streaming would have to be reconciled with the communication to the public definition the 2012 Act substituted, with the commercial rental right that the download functions engage, and with the royalty entitlements of the authors of underlying works, whose equal share the provisos protect against assignment and which a statutory licence at a low rate could dilute in practice. The consultation the Government held in September 2021 aired those questions without resolving them, and no amending Bill has followed. The section therefore remains a complete and functioning licence for the media of its enactment and a standing invitation to Parliament to say, in enacted words, whether it should be anything more.

An assessment: what the amendment settled and what it left open

Measured against its four purposes, the amendment’s record is uneven in an instructive way. The disability exception has been the least contested and the most complete: it was enacted ahead of the international treaty, it is drawn wider than the treaty required, and it has not needed judicial rescue, because the acts it protects are acts that owners had little commercial reason to resist. The treaty alignment was complete on enactment and was proved complete six years later, when India acceded to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty without further amendment of substance; the definitions, performers’ rights and digital offences the treaties required were already in the Act. The society reforms were structural and have operated through the registration cycle and the tariff appeal machinery, the provisions least visible to the public and the most consequential for how royalties move.

The royalty settlement has been the most contested and, on the appellate record, the most vindicated. The Bombay and Calcutta High Courts have read the provisos as the structural change their drafting suggests: an independent copyright in the underlying work that survives incorporation into a film or a recording, a royalty entitlement that the author cannot be made to surrender, and a licensing market in which the owner of a recording cannot license what it does not own. The questions that remain open are the ones the text leaves open: the treatment of pre-2012 assignments, where commentary divides between a strictly prospective reading and a utilisation based reading, and the devices by which the entitlement may be diluted in practice, the advance royalty and the back dated deed, which will have to be met by courts applying the voidness the provisos declare. The statutory licence for broadcasting has been the failure of the four purposes, not because the licence does not work for radio and television, for which it was built, but because the delivery of music has moved to a medium the section does not reach, and the attempt to reach it without amendment consumed eight years and ended in rescission. The remedy the Standing Committee on Commerce recommended in 2021 remains available to Parliament, and the history of the memorandum is the strongest argument for taking it: a change of that consequence belongs in an amending Act, debated and voted, and not in a departmental file.

The amendment is therefore best read as two lessons joined in one statute. The first is that Parliament can, when it chooses, displace freedom of contract in favour of a weaker class of creators and make the displacement stick, provided the drafting closes the routes of evasion: the 2012 provisos closed them in layers, in ownership, in assignment, in the mode of assignment and in the collecting machinery, and the courts have honoured the design. The second is that nobody else can. A department cannot extend a statute by memorandum, a rule maker cannot enlarge a section beyond its words, and a market that builds on such an extension builds on sand: the eight years of section 31D’s afterlife are the proof. The printed text of the Copyright Act as amended in 2012 is the whole of the settlement, and it remains, in the respects this article has examined, the governing word.

Frequently Asked Questions

The amending Act ran to thirty nine sections and touched nearly every working part of the Copyright Act 1957. It substituted the definitions of commercial rental and communication to the public and inserted definitions of rights management information and visual recording. It protected the author of an underlying work in section 17, rewrote the assignment scheme in sections 18 and 19 with the royalty provisos and sub-sections (8) to (10), inserted statutory and compulsory licences in sections 31B, 31C and 31D, rebuilt the registration and governance of copyright societies in sections 33, 33A and 35, substituted the performers’ provisions in sections 38A and 38B, widened the exceptions in section 52, strengthened moral rights in section 57, substituted the border measure in section 53 and inserted the digital offences in sections 65A and 65B.

Q: What is the non waivable royalty right for authors?

It is the entitlement of the author of a literary or musical work included in a cinematograph film, or in a sound recording not forming part of a film, to receive royalties shared on an equal basis with the assignee of the copyright. The provisos to section 18(1) forbid the author to assign or waive that right, except in favour of legal heirs or a copyright society for collection and distribution, and declare any agreement to the contrary void. Sections 19(9) and 19(10) reinforce the bar by providing that an assignment to make a film or a sound recording shall not affect the author’s right to claim the equal share. In the film case the entitlement covers utilisations other than showing the work along with the film in a cinema hall; in the sound recording case it covers every utilisation.

Q: What did the amendment do for persons with disabilities?

It inserted clause (zb) into section 52(1), which declares that the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by any person to facilitate access by persons with disability, including sharing for private or personal use, educational purpose or research, is not infringement. Organisations working for the benefit of persons with disabilities are protected on conditions: copies must be supplied on a non-profit basis recovering only the cost of production, must be confined to persons with disabilities and must be kept out of ordinary channels of business. Behind the exception, section 31B provides a compulsory licence for persons working for the benefit of the disabled on a profit basis or for business, to be disposed of with an endeavour to decide within two months.

Q: What is the statutory licence for broadcasting?

It is the licence created by section 31D. A broadcasting organisation that wishes to communicate to the public, by way of broadcast or by way of performance, a literary or musical work and a sound recording that have already been published may do so without negotiating with the owners, provided it gives prior notice in the prescribed manner stating the duration and territorial coverage of the broadcast and pays royalties for each work at the rate fixed by the tribunal named in the section. The organisation must announce the names of authors and principal performers, must make no fresh alteration beyond technical necessity or shortening, must keep records and books of account open to the owners’ inspection, and takes the benefit of no fresh licence in respect of agreements saved by sub-section (8).

Q: Does the statutory licence cover internet streaming?

On the construction given by the Bombay High Court, it does not. The single judge held in 2019 that section 31D and rules 29 to 31 of the Copyright Rules 2013 speak of radio broadcasting and television broadcasting, that the 2016 office memorandum asserting the contrary had no statutory force, and that a streaming service’s download and purchase features are not broadcast communication at all. A Division Bench affirmed the decision, holding the licence restricted to traditional non-internet radio and television broadcasting and performances. The Parliamentary Standing Committee on Commerce recommended in 2021 that the section be amended to incorporate internet broadcasters, which is an acknowledgment that amendment, not interpretation, is the route. The department rescinded the memorandum in August 2024, and the section remains unamended.

Q: What protection did the amendment give to technological measures and rights information?

It inserted two criminal provisions. Section 65A makes it an offence, punishable with imprisonment of up to two years and fine, to circumvent an effective technological measure applied to protect rights under the Act with the intention of infringing those rights, subject to exceptions for acts done for purposes the Act does not prohibit, encryption research, lawful investigation, authorised security testing, measures aimed at identifying or surveilling a user, and national security. Section 65B makes it an offence, on the same penalty, knowingly to remove or alter rights management information without authority, or to distribute, import, broadcast or communicate copies knowing that such information has been removed or altered without authority, while preserving the owner’s civil remedies for the removal or alteration.

Q: What safe harbour applies to online storage of works?

Clauses (b) and (c) of section 52(1) protect transient or incidental storage of a work purely in the technical process of electronic transmission or communication to the public, and transient or incidental storage for providing electronic links, access or integration that the right holder has not expressly prohibited, provided the person responsible neither knows nor has reasonable grounds to believe the stored copy is infringing. The protection is conditional and procedural: on a written complaint from the copyright owner, the person responsible must refrain from facilitating access for twenty one days or until a competent court orders otherwise, and if no court order is obtained within the twenty one days, access may continue. The provision sits alongside the general intermediary safe harbour of the Information Technology Act 2000.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted in 1996, required protection for the making available of works and recordings on demand, exclusive rights for performers, and legal protection for technological measures and rights management information. The Indian Act of the time did not contain that machinery. The 2012 amendment wrote it in: the substituted definition of communication to the public, the performers’ rights in sections 38A and 38B, the definition of rights management information and the offences in sections 65A and 65B. India was not then a party to the treaties. It acceded to both on 25 September 2018, and they entered into force for India on 25 December 2018, without any further amendment of substance, because the alignment had been done in advance.

Q: What new rights did performers get under the 2012 amendment?

Section 38A, substituted by the amendment, gives the performer an exclusive right to make sound and visual recordings of the performance, to reproduce and store them, to issue copies to the public, to communicate the performance to the public, to sell or give copies on commercial rental, and to broadcast it. Section 38B adds the performer’s moral rights: to claim identification as the performer, and to restrain or claim damages for distortion, mutilation or modification of the performance prejudicial to reputation, mere editing or technical modification excepted. A performer who consents in writing to incorporation in a cinematograph film is treated as not objecting to the producer’s enjoyment of the film, but the proviso to section 38A(2) preserves the performer’s entitlement to royalties where the performance is made for commercial use.

Q: What is the statutory licence for cover versions under Section 31C?

Section 31C allows any person to make a cover version, being a fresh sound recording of a literary, dramatic or musical work of which recordings have already been made by or with the owner’s consent, without negotiating a licence, on conditions fixed by the section. The recording must be in the same medium as the last recording unless that medium is no longer in current commercial use. No cover version may be made until five calendar years have expired after the end of the year of the first recording. The maker must give prior notice, supply advance copies of covers and labels, and pay royalties in advance at the rate fixed by the tribunal, for a minimum of fifty thousand copies of each work in each calendar year, subject to a lower minimum the tribunal may fix for a language or dialect. Packaging must state that the recording is a cover version and must not mislead the public as to its identity.

Three changes work together. Registration ceased to be permanent: a new section 33(3A) grants registration for five years at a time, renewable, with renewal subject to the continued collective control of the society being shared with authors of works as owners of copyright, and societies registered before 2012 had to register again within one year. Governance was equalised: section 35(3) requires a governing body with equal numbers of authors and owners, and section 35(4) requires equal membership rights and forbids discrimination between authors and owners in the distribution of royalties. Transparency was imposed: the new section 33A obliges every society to publish its tariff scheme and gives any person interested an appeal to the tribunal, which may substitute a reasonable scheme and may fix an interim tariff meanwhile.

Not by general words. The second of the provisos inserted into section 18(1) in 2012 provides that no assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use when the assignment was made, unless the assignment specifically referred to that medium or mode of exploitation. An omnibus clause assigning rights in all media, present and future, therefore does not carry a mode that arrives later; the deed must name the mode to take it. The rule works with the deeming provisions of section 19, under which an assignment silent on its period is deemed to run for five years and an assignment silent on territory is presumed to extend within India, and it means that catalogues assigned in the cassette era did not pass to their assignees the streaming rights of a later decade unless the mode was specifically referred to.

Q: Does the royalty right apply when a film is telecast or streamed rather than shown in a cinema hall?

Yes. The exception in the provisos is narrow and specific: the author’s right to the equal share of royalties is reserved for the utilisation of the work in any form other than the communication to the public of the work along with the cinematograph film in a cinema hall. Theatrical exhibition is the one utilisation outside the entitlement, because it is the use the producer commissioned and paid for. A telecast of the film, the streaming of the film or of its songs, a radio broadcast and a caller tune service are all utilisations otherwise than in a cinema hall, and the entitlement attaches to each of them. The Calcutta High Court’s Division Bench applied exactly that reading in the caller tunes litigation, holding that the society representing authors could claim royalties whenever a sound recording was commercially exploited outside cinema hall exhibition of the film.

The question is contested, and the text of the amending Act gives no express answer, because it contains no statement of retrospectivity. The default rule of construction is that an amendment operates prospectively, and informed commentary on the amendment, including the writing of the copyright lawyer Jagdish Sagar, argues that the provisos govern assignments made after 21 June 2012 and do not disturb deeds executed earlier. The contrary view, widely held in the industry, is that the provisos attach to the utilisation of the work, so that an exploitation after the commencement date attracts the royalty entitlement whatever the date of the deed. The Supreme Court’s decision in the Aditya Pandey litigation dealt with disputes pre-dating the amendment on the law as it then stood and recorded that the position changed with effect from 21 June 2012, without settling the treatment of older deeds exploited after that date.

Q: What did the amendment change in the fair dealing provisions of Section 52?

It substituted clause (a) of section 52(1) and widened it in three ways. The clause, which had been confined to literary, dramatic, musical and artistic works, was extended to a fair dealing with any work not being a computer programme. Private or personal use, including research, was stated as a protected purpose in terms, joining the criticism and review purpose that the clause already carried. The reporting purpose was enlarged to the reporting of current events and current affairs, expressly including the reporting of a lecture delivered in public. An Explanation attached to the clause records that the storing of a work in any electronic medium for the purposes mentioned in the clause, including the incidental storage of a computer programme in connection with the work, does not constitute infringement, a clarification aimed at the copies that computers make in the course of ordinary reading, research and review.

It was abolished. Before 2012, section 25 gave a photograph its own term: sixty years from the beginning of the calendar year next following the year in which the photograph was published, a term measured from publication and independent of the photographer’s life. The amendment deleted the words “other than a photograph” from section 22 and omitted section 25 altogether. A photograph is therefore treated as an artistic work, and its copyright runs for the life of the author and sixty years after the author’s death, the ordinary rule of the Act for literary, dramatic, musical and artistic works. The change removed an anomaly under which the work of a professional photographer expired on a timetable that took no account of authorship, and aligned the photograph with the works it most resembles in the Act’s scheme.

Q: Why did the government withdraw the 2016 office memorandum on internet broadcasting?

Because every institution that examined it had rejected the position it stated. The Bombay High Court’s single judge held in April 2019 that the memorandum was not a part of the Act, could not extend the operation of section 31D, and was inconsistent with the Act and the Copyright Rules 2013. The draft rule that would have widened the Rules to speak of each mode of broadcast was omitted from the Copyright (Amendment) Rules 2021 as notified. A Division Bench affirmed the single judge, holding the statutory licence restricted to traditional non-internet radio and television broadcasting. The Standing Committee on Commerce recommended in 2021 that Parliament amend the section, which presupposed that the memorandum’s reading was not the law. The parties to the litigation settled in June 2024, and on 21 August 2024 the Department for Promotion of Industry and Internal Trade rescinded the memorandum, closing the episode on the terms the courts had stated.

Q: How is the compulsory licence under Section 31B different from the disability exception in Section 52?

They serve different users by different machinery. Clause (zb) of section 52(1) is an exception: it declares that conversion of any work into an accessible format, by any person for private or personal use, education or research, and by organisations working for the benefit of persons with disabilities on a non-profit basis recovering only the cost of production, is not infringement at all, so no permission, application or royalty is involved. Section 31B is a licence: it serves the person who works for the benefit of persons with disability on a profit basis or for business, a user outside the exception, and it requires an application to the tribunal, which inquires into the applicant’s credentials and good faith, hears the owners, and directs the grant of a licence specifying the means and format of publication, its period, the number of copies and the rate of royalty, with an endeavour to dispose of the application within two months.

Its tariff scheme. Section 33A, inserted by the 2012 amendment, provides that every copyright society shall publish its tariff scheme in the manner prescribed. The tariff scheme is the schedule of fees at which the society licenses the works it administers, and publication makes the price of a licence a public fact rather than a matter of private quotation. The section backs the duty with an appeal: any person interested may appeal to the tribunal against the tariff scheme, and the tribunal, if satisfied after inquiry that the tariff is not reasonable in the circumstances, may direct the Registrar of Copyrights to remove it from the register and substitute a reasonable scheme, and may fix and pay an interim tariff by order until the appeal is decided. The Copyright (Amendment) Rules 2021 added an annual transparency report, requiring disclosure of collections, distributions and governance alongside the scheme.

It was merged and then abolished. The 2012 Act had reconstituted the Board as a Chairman and two other members, and the amendment’s machinery assigned it the fixing of royalty rates under sections 31C and 31D, the grant of the disability licence under section 31B, appeals against tariff schemes under section 33A and assignment disputes under section 19A. The Finance Act 2017 merged the Board into the Intellectual Property Appellate Board. That tribunal began a public consultation on radio royalty rates in September 2020 and was abolished by the Tribunals Reforms Act 2021 with effect from 4 April 2021 before determining them. The text of section 31D records the Commercial Court in the place the Board occupied, and the remaining functions passed to the High Courts and Commercial Courts, so the specialist rate fixing forum the amendment designed no longer exists.