Compulsory licensing in Copyright

compulsory licensing in copyright

What is a Compulsory License?

Compulsory licenses are permissions from the government that allows someone else to use the copyright of the owner without his consent. In this article, we will look at compulsory licensing in Copyright and under what conditions a compulsory license is granted in India.

As a developing country, India has incorporated provisions of the Berne Convention in the Copyright Act, 1957 for the grant of compulsory licenses. Under the Act, compulsory licenses are granted under limited circumstances:

Works withheld from the public

During the term of copyright, if any work has been published or performed in public and a complaint is made to the Appellate Board that the copyright owner has refused to republish or allow the republication of the work or allow the communication of the work to the public by broadcast or sound recording then such refusal is considered as withholding the work from the public.

The Appellate Board on receiving the complaint, enquires into the matter and gives the copyright owner a reasonable opportunity of being heard and if it comes to the conclusion that the grounds of refusal are not reasonable then it directs the Registrar of Copyrights to grant a compulsory license to the complainant to republish the work, perform the work in public or communicate the work to the public by broadcast or sound recordings. The compulsory license is awarded subject to the payment of requisite fees to the copyright owner and other such terms and conditions which the Appellate Board may impose on the complainant.

Compulsory License in published or unpublished works

In the case of any published or unpublished, published or communicated to the public and such work is then withheld from the public in India because the author is dead or cannot be traced or the copyright owner in such work cannot be found. In such circumstances, any person may apply to the Appellate Board for a license to public or communicate such work to the public.

The application process

  • The applicant has to publish his proposal in one issue of a daily English newspaper having circulation in the major part of the country before making the application. In cases where the application is for the translation of published work, then the proposal should be published in one issue of a daily newspaper in that language.
  • The application should be in the prescribed form with the requisite fees and should include a copy of the advertisement.
  • The Appellate Board after considering the application will direct the Registrar of Copyrights to provide the compulsory license to the applicant subject to the payment of royalty and other terms and conditions which the Board may decide.
  • On the grant of license, the Registrar may demand the applicant to deposit the amount in the public account of India or any other account to enable the copyright owner or his heir, executor or legal representative to claim the royalty.
  • If the author is dead and the Central Government is of the opinion that the publication of such work is in national interest then it may require the heirs, executors or legal representatives to publish such work within the specified period.
  • Where such work is not published within the specified period, the Appellate Board on an application from any person will permit the publication of the work subject to the payment of royalty or other terms and conditions in the prescribed manner.

Compulsory License for benefit of disabled

Any person who is working for persons with disabilities on a profit basis or as a business, may apply to the Appellate Board in the prescribed form with fees for a compulsory license to publish any work in which copyright subsists for the benefit of the disabled persons. The Appellate Board in such cases shall endeavour to dispose of such applications within 2 months from the date of receipt of the application. If the Board is satisfied that the application has been made in good faith then after giving the copyright owners an opportunity to be heard it will direct the Registrar of Copyrights to grant the applicant such a license to publish the work.

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