I am pleased to bring to you our next guest interview with Mr. Raghavender G.R.
Mr. Raghavender is a civil servant from Central Secretariat Service (CSS) 1988 and currently posted as Joint Secretary, Department of Justice, Ministry of Law & Justice, Government of India, New Delhi. Previously, he was the Joint Secretary in Department of Industrial Policy and Promotion, Ministry of Commerce & Industry, Government of India, from August 2015 to January 2017. He has also held additional charge of Director General, National Productivity Council (NPC) from November 2015 to May 2016.
Mr. Raghavender is very passionate about Intellectual Property Rights, especially Copyright and Related Rights. He worked as Registrar of Copyrights of the Indian Copyright Office from 2007 to 2014 and played a key role in the introduction of amendments to the Copyright Act in 2012 and introduction of the Copyright Rules, 2013.
1.Sir, could you tell us a bit about yourself and your journey from being the Registrar of Copyright to the Joint Secretary, Department of Justice, Ministry of Law & Justice?
I worked as Registrar of Copyrights of the Indian Copyright Office for about 6 and 1/2 years and played a key role in the introduction of amendments to the Copyright Act in 2012 and introduction of the Copyright Rules, 2013. I also initiated online registration for copyright along with payment gateway and digitisation of documents in the Copyright Office in 2014. Further, I took the initiative to adopt a special logo and got ISO-9001 certification for this office.
I attended many WIPO SCCR meetings, Regional Comprehensive Economic Partnership (RCEP) Free Trade Agreement (FTA) negotiations and other FTA negotiations with EU, EFTA and Japan as a member of the Indian delegation. I made significant contributions to recently concluded two WIPO Treaties namely, the Beijing Treaty on Audiovisual Performances, 2012 and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, 2013. As a WIPO resource person and expert in the copyright law I have contributed to the revision of the copyright legislations of Nepal, Bhutan and Myanmar. As a WIPO resource person, I also give lectures/talks on Copyrights and Related Rights in various International and National seminars and workshops organised by WIPO, Geneva and also in several Universities and Institutes all over India.
I was Joint Secretary in Department of Industrial Policy and Promotion, Ministry of Commerce & Industry, Government of India, New Delhi from August 2015 to January 2017. I also held additional charge of Director General, National Productivity Council (NPC) from November 2015 to May 2016. At present, I am posted as Joint Secretary in Department of Justice, Ministry of Law & Justice where I am a Mission Director for National Mission for Justice Delivery and legal reforms. I am also dealing with implementation of eCourts Project and Enforcing Contracts parameter under the Ease of Doing Business Ranking of the World Bank.
2. Since you were the Registrar of Copyright at the Indian Copyright Office from 2007-2014 and have first-hand knowledge of the entire controversy which led to the Copyright Amendment Act, 2012, could you share with us your experience in bringing about some of the key amendments to the Copyright Act?
Some authors and music composers had complained to the Copyright Office that the owner members created trouble in the distribution of royalties collected by IPRS by making a condition that author and composers had to give an undertaking stating that they do not own any rights in the songs for which they were receiving royalties. In 1993 there was an agreement between authors and music composers of IPRS and recording companies to share performing right royalties on 50:50 basis following the internal business model. This is very surprising at one hand the music companies by virtue of ownership of rights changed the membership of the IPRS for only owner members and on the other hand, they were seeking a written commitment from authors and composers that they do not have rights in those musical works. Therefore, in the Copyright (Amendment) Act, 2012 an amendment was included to overcome the difficulty created due to the interpretation of application of clause (b) & (c) of Section 17 to the musical works included in the film by the Supreme Court in Indian Performing Rights Society v. Eastern India Motion Picture Association (AIR 1977 SC 1443). The amendment to section 17 gave clarity about the independent rights to authors of literary and musical works in cinematograph films, which were hitherto denied and were wrongfully exploited by the producer and music companies. The amendments introducing new clauses to section 18 and section 19 were introduced to ensure that the authors retain their right to receive royalties and the benefit enjoyed through the copyright societies. In order to remove the malady of domination of owner members in the IPRS, Section 33 of the Act was also amended so that “authors of works” will have equal rights in the collecting societies.
3. Currently there is no clear provision in the Copyright Act or the Rules which provides for the right of the authors to get royalties and as to who is supposed to pay royalties. If one of the key intent behind the Amendment was to provide for royalty rights of authors, why was a separate provision on royalty rights not added in the Act rather than have a confusing language introduced in Section 17, 18, 19 and 33 of the Copyright Act?
Amendments to the section 33 and the various Rules 44 to 67 of the Copyright Rules ensure the right of the authors to get royalties. The provisions under Rule 58 provide various safeguards on distribution of royalties to authors and music composers by the copyright societies.
4. It’s been close to six years since the Copyright Amendment came into effect and we have not yet seen the light of effective implementation; authors and performers have barely received a paltry sum of royalties, provisions on statutory and compulsory licensing cannot be implemented due to IPAB not being in form. Is this attributable to red-tapism? Who according to you is responsible for this?
All the administrative issues in the functioning of IPAB may be sorted out now with the appointment of Chairman, IPAB. As the Copyright Board has been merged with IPAB through the Finance Bill, 2017 passed on March 22, 2017 by Lok Sabha there should not be any delay in statutory licensing for broadcasting and approval of tariff scheme of the copyright societies by the IPAB as per the provisions of the Copyright Act, 1957. Now, IPRS has been revived after its re-registration by the Copyright Office and lyricists and composers have buried their hatchets and started working as a team. This will lead to effective collection and distribution of royalties. ISRA, a singer’s rights society has been doing well in collecting and distribution of royalties to its members since its inception. It has won a number of court cases which reinforced performers rights and licensing by ISRA.
5. Copyright societies have an enormous role to play in bringing about effective implementation of the 2012 Amendment. However, as has been pointed out in some of my earlier posts, there still seem to be some possible non-compliance issues on the part of these societies. Why has it been so difficult for copyright societies in India to function transparently and abide by the law?
I strongly support the introduction of Blockchain Technology by all registered copyright societies in India to function transparently, distribute royalties without any discrimination and abide by the law. This disruptive and cutting-edge technology of ledger system has revolutionalised various sectors and many European copyright societies have already proved that the use of Blockchain technology has introduced a win-win situation for all stakeholders.
6. You have in the past expressed some concerns on the DIPP office memorandum of 2016 which clarified that internet broadcasters are included within the scope of Section 31D of the Copyright Act. What is your take on this?
The definition of the term ‘broadcast’, as per section 2(dd) of the Act, means communication to the public ‘by any means’. But, both section 31D (3) and Rule 29(3) of the Copyright Rules, 2013 restrict the scope of statutory licence to only radio and television broadcasting by eliminating internet broadcasting from the scope. Therefore, allowing statutory licence to internet broadcasting on the basis of the definition of term ‘broadcast’ is not tenable.
7. The Copyright Board order, 2010 was passed at the time when you were the Registrar of Copyright. The order faced strong opposition from the music label industry. According to you was the order intended to be an order in rem applicable to all labels? Is there a need for a revision in the royalty rates considering it has been close to 8 years since the order was passed?
According to me the Copyright Board order, 2010 was not intended to be an order in rem applicable to all labels. It is for IPAB to review the royalty rates of this decision considering the growth of FM radio industry and its market spread.
8. The Supreme Court’s decision in CISAC vs Aditya Pandey has been interpreted by certain lobbies to apply even in the post 2012 Amendment scenario resulting in no separate underlying works licenses being taken and consequently no royalties being paid for the same. What are your thoughts on this?
It is crystal clear from the legislative intention mentioned in the Statement of Objects and Reasons to the Copyright (Amendment) Bill, 2010 that amendments to section 17, 18 and 19 are to clarify the sharing of performing rights by lyricists and music composers with music companies/film producers. The new section 31D introduced under the Copyright (Amendment) Act, 2012 also clarifies the existence of separate underlying works licenses.
9. Is the Copyright Amendment Act, 2012 intended to have retroactive or prospective application?
It was never intended either in the Statement of Objects and Reasons to the amendment Bill or in any provision of the Amendment to have retroactive or prospective application to any right recognised, clarified or newly extended in the Copyright (Amendment) Act, 2012. There was no such legislative intention to do so. However, the works which were created before these amendments are performed now will definitely attract the new provisions.
10. There has been a lot of debate on Mr. Amitabh Bachchan’s recent rant on expiry of the term of copyright. As per reports, the Film and Television Producers Guild of India is also contemplating to ask the Government to revise the term of copyright. What are your views on this issue? Do you feel there is a need for international harmonization in the term of copyright of different countries?
Copyright is a legal right and an exclusive right given to an author or creator as an incentive to create more by legislation. However, there is a limitation to this copyright imposed by the legislation in public interest. The term of copyright is internationally governed and limited by post mortem auctoris principle which allows copyright in literary works which commonly lasts until a certain number of years after the author’s death. The economic rights last till the term of copyright. After the expiry of copyright, the works enter the public domain. The TRIPS Agreement which has included the provisions of the Berne Convention has already introduced harmonisation in the term of copyright. Therefore, internationally there is no concept of perpetual rights under the copyright for economic rights of authors. However, in the Copyright (Amendment) Act, 2012 perpetual rights have been extended to moral rights of authors, especially to the right to integrity on the basis of the French model. This has been done to protect the right to integrity or respect of authors in the internet and digital environment.
11. A lot of discussion seems to be taking place on Artificial Intelligence and need for data privacy laws in India. The Supreme Court in the right to privacy judgement (K.S Puttaswamy & Anr. v Union of India & Ors) also emphasized on the immediate need for a comprehensive data protection framework / law to be enacted, which is technology neutral and which encompasses / deals with prominent issues such as the growing use of AI in India. What steps are being taken by the Ministry in this regard?
Many government departments like MEITY and Dept of Science and Technology have been working in the field of AI research. NiTi Aayog is considering the use of AI in effective governance and Dept of Justice in justice delivery.
12. Any parting thoughts for our readers?
I always request readers to respect copyright and contribute to the economic growth of the creative industry of the country.
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Ministry of Law & Justice
Government of India
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